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Boy
Scouts of America v. Dale
530
U.S. 640 (2000)
Commentary
by Scott Browning, Esq.
Rothgerber
Johnson & Lyons Religious Institutions Group
Copyright,
September 2001
In
Boy Scouts of America v. Dale, the United States
Supreme Court invoked the First Amendment Freedom of Speech
Clause to hold that values-inculcating organizations have
an right of expressive association which ensures that they
may enlist and engage like-minded individuals in their service
even when doing so would otherwise violate a civil rights
act. This case has great significance for religious institutions
which often require their ministers, employees, and volunteers
to profess and model the beliefs and values of the institution.
This is so, as explained below, even though Dale
was not founded upon the Religion Clauses of the First Amendment
and even though the Boy Scouts, while professing religious
values, is not commonly considered a church or a religious
institution.
The
right of expressive association, including the association
for religious purposes, is a constitutionally protected
right. The Supreme Court of the United States expanded this
protection in Dale, concluding that the government
may not force a group to accept a person with different
beliefs and values. Although Dale involved the Boy
Scouts and not a specifically religious organization, the
Court's expansive reasoning and its specific reference to
the First Amendment right to associate for religious purposes,
makes the decision directly applicable to religious organizations.
James
Dale, a former Eagle Scout, volunteered as an adult to serve
as an Assistant Scout Master of a Boy Scout troop. About
the same time that he became a scout leader, Dale attended
college and became an advocate for homosexual rights. Soon
after a publication identified Dale as co-president of the
Gay Alliance, and the Boy Scouts revoked Dale's Boy Scout
membership. Dale filed suit asserting that New Jersey's
public accommodations statute prohibited the Boy Scouts
from discriminating based upon Dale's sexual orientation.
The Boy Scouts defended their decision by invoking the Speech
Clause and their freedom to associate without government
interference. The Supreme Court of the United States agreed
and effectively concluded that, notwithstanding contrary
civil rights statutes, values-inculcating organizations
may insist that their agents profess and model the organizations'
values. Contrary to much published commentary, this decision
ought not be understood as a loss for the homosexual rights
movement because those organizations, just as the Boy Scouts,
depend upon engaging like minded individuals to advance
their particular beliefs and values.
The
foundation of the Court's decision is the constitutional
right of association. The Court observed:
Implicit
in the right to engage in activities protected by the
First Amendment is a corresponding right to associate
with others in pursuit of a wide variety of political,
social, economic, educational, religious, and cultural
ends.
Dale
at 530 U.S. 47. Thus, the Court founded its decision on
the bedrock constitutional principle of a group's right
to associate without state interference.
The
Court noted, as it has in the past, that the right of association
is not absolute and set forth a framework to determine when
a group may limit its membership. This framework is the
mechanism that should allow religious organizations to determine
their membership free from state interference. Further,
it may afford constitutional protection of certain religiously-based
decisions. Accordingly, the framework bears careful review.
First,
in order to determine whether a group has a constitutionally
protected right to associate, the Court will determine if
the group engages in "expressive association." Constitutional
protection is not limited to advocacy groups, but at a minimum
a group must engage in some sort of expression. Such expression
need not be public and could be purely private expression.
In Dale, the Court reviewed the Boy Scouts' mission
statement and goals and noted that the organization seeks
to inculcate its youth members with specific values. Given
this mission, the Court reasoned "it seems indisputable
that an association that seeks to transmit such a system
of values is engaged in expressive activity." This analysis
is important for religious organizations because such organizations
almost always seek to teach specific values and, thus, should
easily meet the Supreme Court's first test. In other words,
religious organizations are inherently engaged in "expressive
association."
The
next step to determine if a group is entitled to constitutional
protection for its associational activities is whether the
forced inclusion of a member would significantly affect
the group's ability to advocate its public or private view
points. In prior decisions by the Supreme Court, this hurdle
has prohibited groups from obtaining constitutional protection
for their activities. For instance, the Court has previously
held that the Jaycees and Rotary Club must admit women because
female membership would not affect male members' ability
to carry out the organizations' various purposes. The Dale
decision seems to significantly lower this hurdle.
In
deciding whether the inclusion of a homosexual would affect
the Boy Scouts' message, the Court focused on a Boy Scouts'
view of homosexuality. The Court gave deference to the group's
assertions regarding the nature of its expression and the
group's view of what would impair that expression. In large
measure because the Boy Scouts believed a homosexual presence
in the organization would send an incorrect message to its
members, the Court supported the organization's decision.
In other words, the Court accepted at face value the organization's
position that Dale's very presence, could send the wrong
message and warranted the organization's decision not to
include him.
Dale
argued that a third step needed to be addressed by the Court;
specifically, whether the Boy Scouts has as one of its purposes
disseminating a specific message about homosexuality. The
Court reviewed evidence that Dale was not attempting to
use the Boy Scouts as a mechanism to advocate homosexual
rights and that there was no reason to believe he would
use the Boy Scouts to advocate his view points about sexuality.
The Court also reviewed evidence that the Boy Scouts' view
of homosexuality is not unified. This argument persuaded
four of the nine justices to dissent. According to Dale,
because the Boy Scouts are not advocates on sexual issues
and do not have a unified position about homosexuals it
should not receive constitutional protection to exclude
members based upon an issue that is not a centerpiece of
the organization. The majority refused to accept this additional
test. The Court noted that so long as an organization takes
an official policy regarding the issue, protecting the expression
of that policy, even if the policy is collateral to the
organization's purpose, is sufficient to entitle the organization
to First Amendment protection. The Court added that even
though the Boy Scouts do not revoke the membership of heterosexual
scout leaders who openly disagree with the Boy Scouts' policy
again admitting homosexuals, that also does not negate the
First Amendment protection: "the presence of an avowed homosexual
and gay rights activist in an assistant scout master's uniform
sends a distinctly different message from the presence of
a heterosexual Assistant Scout Master who is on record as
disagreeing with the Boy Scout's policy." The Supreme Court
explained "the First Amendment simply does not require that
every member of a group agree on every issue in order for
the group's policy to be expressive association." The Supreme
Court further noted that the fact that an organization "
does not trumpet its views from the housetops, or that its
tolerates dissents within its ranks, does not mean that
is views receive no First Amendment protection."
The
strong four judge dissent based upon analysis of the group's
beliefs is worthy of review because it appears to indicate
that had this case arisen in the context of a religious
organization, it may have been unanimous in favor of the
religious organization. The dissent focused on Boy Scouts'
documented directive to its leaders not to become involved
in sexual education. The dissent concluded just as Dale
had contended, that the Boy Scouts do not have a common
moral stance on homosexuality. The dissent further concluded
that because "the BSA never took any clear and unequivocal
position on homosexuality," it is not entitled to First
Amendment protection:
We
have never held, however, that a group could throw together
any mixture of contradictory positions and then invoke
the right to associate to defend anyone of those views.
At a minimum, a group seeking to prevail over an anti-discrimination
law must adhere to clear and unequivocal view.
Unlike
the equivocal evidence that persuaded the dissent in Dale,
most religious organizations have clearer guidelines on
moral issues. Thus, in the religious context, where the
organization is able to present a "clear and unequivocal
view" it appears that even the dissenters in Dale
may be willing to constitutionally protect the right of
association. This conclusion is made clear by the separate
dissenting opinion of Justice Souter who emphasized that
the Boy Scout's First Amendment claim should fail because
"it did not make sexual orientation subject of any unequivocal
advocacy, using the channels it customarily employs to say
its message." Like the other dissenting justices, Justice
Souter appears to be willing to join the majority if the
group's message is communicated clearly using the means
of communication typically used by the organization.
In
summary, Dale teaches that if a religious organization
espouses an expressive message using the regular method
it utilizes to send information to its members and then
excludes a member for contradicting this message, the religious
organization should be protected by the right of expressive
association arising from the First Amendment Free Speech
Clause. For example, a religious organization may have an
unequivocal message regarding sexual activity outsides the
bonds of marriage. If that organization consistently expresses
such messages through its regular channels of communication,
it should be protected from a state anti-discrimination
law that contrary the organization's moral position. According
to the majority in Dale, such protection would exist
even if members of the church or if even some members of
the church did not agree and even if the specific message
was not the focus of the religious organization. Most importantly,
the majority of the Court would not look behind the church's
professed beliefs, but would defer to the organization's
description of its moral values and mechanisms for communicating
those moral values. This broad expansion of the freedom
of association should provide substantial First Amendment
protection to all religious organizations.
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