The First Amendment right to free speech includes a right to associate for expressive purposes. Groups that come together to express a message cannot be compelled to include people whose presence would compromise that message. This right to expressive association can conflict with antidiscrimination laws. The task of courts in such cases is to determine whether the association has an expressive purpose, and whether forced inclusion of a particular member would undermine that purpose. Boy Scouts of America v. Dale presented both questions.
James Dale became a Cub Scout at the age of eight and a Boy Scout at eleven, eventually attaining the prestigious rank of Eagle Scout. In 1989, he applied for adult membership and became an assistant scoutmaster. Around the same time, after entering college, Dale first acknowledged to himself and others that he was gay.
In 1990, having apparently learned Dale’s sexual orientation from a newspaper article, the Scouts revoked his membership on the grounds that the Boy Scouts ‘‘specifically forbid membership to homosexuals.’’ In 1992, Dale filed a complaint in New Jersey state court, claiming that his expulsion violated a New Jersey statute forbidding discrimination on the basis of sexual orientation (among other traits) in any place of public accommodation. The Scouts argued that the application of this law violated their federal constitutional right to expressive association.
In the state courts, Dale ultimately prevailed. The New Jersey Supreme Court agreed that the Scouts expressed a belief in moral values and used its activities ‘‘to encourage the moral development of its members,’’ but found itself unpersuaded that the Scouts expressed a message condemning homosexuality. Thus, it concluded, requiring the Scouts to accept Dale did not affect the Scouts’ ‘‘ability to carry out their various purposes.’’
The Supreme Court reversed. It announced that courts in expressive association cases ‘‘must give deference to an association’s assertions regarding the nature of its expression’’ and also to its ‘‘view of what would impair its expression.’’ Applying the appropriate deference, the Court found that the Scouts did ‘‘teach that homosexual conduct is not morally straight’’ and that accepting Dale as a member would force the Scouts to send the message ‘‘that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.’’
The Court went on to consider whether New Jersey’s interest in opposing discrimination was weighty enough to justify such an infringement on the Scouts’ right to expressive association, but for practical purposes, found that the infringement was enough. The Court has never allowed an antidiscrimination law to overcome the right to expressive association if its application would seriously burden the right. Dale is thus doctrinally consistent both with cases that strike the down the application of antidiscrimination laws, such as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, and with those that allow it, such as Roberts v. United States Jaycees and Runyon v. McCrary. Dale’s significance lies in its announced deference to the association’s assertions, which may be a departure from Roberts and Runyon.
KERMIT ROOSEVELT, III
References and Further Reading
Cases and Statutes Cited
See also Antidiscrimination Laws; Freedom of Association; Gay and Lesbian Rights; Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995); Roberts v. United States Jaycees, 468 U.S. 609 (1984)