Boy Scouts of America v. Dale
The Supreme Court ruled that the Boy Scouts of America could exclude James Dale, an openly gay former Eagle Scout, from serving as an assistant scoutmaster, despite a New Jersey law banning sexual-orientation discrimination in public accommodations.
The 5-4 decision held that forcing the Boy Scouts to accept Dale would violate the group's First Amendment right of expressive association, because his presence would interfere with the message the organization wished to send about homosexuality.
“The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints.”
The majority's core standard for when forcing a member into a group violates its expressive association rights.
How it got here: A New Jersey trial court sided with the Boy Scouts, but the state's appellate court and Supreme Court ruled for Dale under the public accommodations law, prompting the Boy Scouts to seek review.
The Case in Depth
What happened
James Dale joined Scouting at age eight, became an Eagle Scout, and was later approved as an assistant scoutmaster. After a newspaper identified him as co-president of a college gay and lesbian student group, the Boy Scouts revoked his adult membership, saying it did not allow homosexuals as leaders. Dale sued under New Jersey's public accommodations law, which bars discrimination based on sexual orientation.
The question before the Court
Could New Jersey force the Boy Scouts to reinstate an openly gay former Eagle Scout as an assistant scoutmaster under its anti-discrimination law?
The Court's answer
Yes — the Court ruled that New Jersey could not force the Boy Scouts to reinstate James Dale as an assistant scoutmaster. It held that the Boy Scouts is an expressive association that seeks to instill values in young people, and that the organization sincerely believes homosexual conduct is inconsistent with those values.
Because Dale was an openly gay rights activist, his presence in a leadership role would have forced the Boy Scouts to send a message it did not want to send — that it accepts homosexual conduct as legitimate. The Court found that New Jersey's interest in preventing discrimination did not outweigh this serious intrusion on the group's First Amendment right to choose what to express, so applying the public accommodations law here was unconstitutional.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling gave private membership groups significant leeway to exclude people whose presence would conflict with the group's expressed values, even when a state law otherwise bars such discrimination. It shaped years of litigation over how far civil rights laws can reach into private organizations' membership choices.
What changes now
The New Jersey Supreme Court's judgment requiring Dale's reinstatement was reversed, and the case was sent back for further proceedings consistent with the Court's ruling that the First Amendment barred enforcing the public accommodations law against the Boy Scouts in this context. Because the Court decided the case on federal constitutional grounds, no further merits proceedings were expected to revive Dale's claim under New Jersey law.
What this does not decide
The Court did not rule on all forms of discrimination by private organizations or hold that any group can escape antidiscrimination laws by merely asserting a belief. It also did not address the Boy Scouts' separate claim about excluding girls, or resolve whether other membership groups with less clearly stated views could claim the same protection.
Concurrences and dissents
Dissent — Justice Stevens
“It is an odd form of independent review that consists of deferring entirely to whatever a litigant claims.”Stevens's objection that the majority simply accepted the Boy Scouts' own claims about its beliefs.
Justice Stevens argued the Boy Scouts had never adopted a clear, consistently taught position condemning homosexuality, pointing to silence in its handbooks, its self-described tolerance and diversity, and the fact that its exclusionary policy statements were largely undisclosed or issued after Dale's expulsion. He contended the majority improperly deferred to the organization's litigation-driven assertions instead of independently examining the record, and that New Jersey's law imposed no serious burden on any genuine shared belief.
Dissent — Justice Souter
Justice Souter joined Stevens's dissent but wrote separately to stress that the case should turn narrowly on the Boy Scouts' failure to unequivocally and consistently advocate a position on sexual orientation, not on judicial views about whether the group's stance was progressive or outdated. He emphasized that a group's popularity or social standing is irrelevant to whether it has made out a genuine expressive association claim.
How the Court got there
The legal reasoning, step by step
- The Court applied its expressive-association doctrine, which protects a group's right to associate for shared expressive purposes and includes 'a freedom not to associate' with people whose forced inclusion would interfere with that expression.
- It asked whether the Boy Scouts is an expressive association at all, concluding that an organization instilling a system of values in young people through activities and example engages in expressive activity protected by the First Amendment.
- The Court then deferred to the Boy Scouts' own assertion that it teaches homosexual conduct is inconsistent with being 'morally straight' and 'clean,' reasoning that courts should not second-guess a group's sincerity or the internal consistency of its stated values.
- Applying Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, the Court reasoned that Dale's presence as an openly gay rights activist in a leadership uniform would force the organization to send an unwanted message accepting homosexual conduct, similar to compelling a parade to include a marching contingent with a message it rejected.
- Weighing the Boy Scouts' associational interest against New Jersey's interest in eliminating discrimination, the Court concluded that the state's interest did not justify the severe intrusion on the organization's expressive rights, so applying the public accommodations law here was unconstitutional.
Doctrinal impact
Cases affected by this decision
Reaffirms Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (515 U.S. 557)
The Court relied on Hurley's parade case to support finding that including Dale would force an unwanted message on the Boy Scouts.
Distinguishes Roberts v. United States Jaycees (468 U.S. 609)
The Court distinguished this case, where forcing admission of women did not burden the group's expression, from Dale's situation.
Distinguishes Board of Directors of Rotary Int'l v. Rotary Club of Duarte (481 U.S. 537)
The Court distinguished this ruling admitting women to Rotary Clubs from the Boy Scouts' claimed burden here.