Dale v. Boy Scouts

On June 28, 2000, the Supreme Court issued a resounding victory for individual rights with far reaching implications for later assaults on the First Amendment. When the Boy Scouts of America dismissed Scoutmaster James Dale because his views on homosexuality conflicted with Scout’s teachings on sexual ethics, Dale filed suit in New Jersey Court. The New Jersey Supreme Court held that the Boy Scouts had violated state public accommodation laws and could not discriminate against Dale. Under this reasoning, the Scouts were not free to choose Scoutmasters who would agree to uphold Scout virtues. The Scouts appealed the case to the Supreme Court. CIR filed an amicus brief on behalf of the Scouts, and the Supreme Court upheld the Boy Scout’s rights to choose leaders who would uphold their values and beliefs.This case foreshadowed later conflicts between the legalization of gay marriage and religious freedom, and the Court unambiguously held that the state may not punish those with unpopular opinions.

James Dale joined the Boy Scouts when he was eight years old. Ten years later, he had achieved the rank of Eagle Scout, one of the Scout’s highest honors. After graduating high-school, Dale applied for adult membership with the Scouts and was easily accepted as a Scoutmaster. Shortly after this, however, Dale left for Rutgers University. While at college, he acknowledged for the first time to himself and others that he was gay. He began involvement with the university’s lesbian and gay alliance, and eventually became the organization’s co-president.  A newspaper interviewed Dale because of his work there and his other activism at a Gay and Lesbian advocacy event. The newspaper published the interview and Dale’s photograph in attendance at the event.

Later that month, the Boy Scouts sent a letter Dale informing him that his adult membership had been revoked. When Dale inquired as to why, they responded by reminding him that homosexual conduct was antithetical to the stated virtues the Boy Scouts hoped to instill in young children. As a contemporary statement from the Boy Scout’s executive committee explained, “We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed.”

Dale responded by filing a complaint in New Jersey court. Dale alleged that the Boy Scouts had violated New Jersey law because they dismissed him solely because of his sexual orientation. The New Jersey Superior Court dismissed the case in favor of the Boy Scouts. The judge held that the Boy Scouts were not a place of public accommodation. Rather, they were a private association protected by the First Amendment. Dale appealed his case to the New Jersey Supreme Court.

In an opinion that grossly misunderstood the First Amendment, the New Jersey Supreme Court sided with Dale and held that the Boy Scouts were a place of public accommodation. Because the Court found the Boy Scouts were a place pf public accommodation rather than a private association, it held that they may not exclude people from membership unless they had a “clear, particular, and consistent” teaching on the issue. In the eyes of the New Jersey Court, the Boy Scouts did not have a clear teaching on homosexuality, even though the Boy Scouts consistently said they did. In this way, the New Jersey Court assumed the role of explaining the Boy Scout’s moral code to the Boy Scouts of America.

The court’s reasoning was so offensive to the principles of the First Amendment that CIR decided to intervene. In an op-ed for the Washington Post, CIR president Terry Pell explained, “Had they proclaimed loudly and often that homosexuality was immoral, they would, according to the court, been protected by the First Amendment. But because the Scouts were decidedly more low-key in their treatment of homosexuality, the court concluded that they didn’t really have a view worthy of First Amendment protections… Unfortunately, the New Jersey court was deaf to the idea that First Amendment expression doesn’t have to be loud and obnoxious to be protected.”

When the Scouts appealed the New Jersey ruling to the Supreme Court, CIR filed anamicus brief in their defense. CIR’s brief argued that the protection of individual liberty “demands vigilance against creeping encroachment of government power through broad redefinition of the ‘public’ realm.” The Boy Scouts, as a private association that was organized to instill values in children, deserves broad First Amendment protection in how it chooses to carry out its mission.

The New Jersey court erred by deciding that it had the power to interpret what the Scout’s code actually meant and how the Scouts should best go about teaching it. If we applied the same reasoning to a church, it becomes immediately apparent how faulty this logic is. It is not for the courts to stifle unpopular opinions. As CIR’s brief explained, “Where a regime passes laws to entrench the present majority’s viewpoint and to hinder the possible rise of competing viewpoints, the governors are merely seeking to pass power down to their intellectual, rather than their physical, heirs. Both forms of hereditary power are antithetical to the constitution. And a government imposed of self-perpetuating orthodoxy is by far the worse of the two.”

The Supreme Court issued their ruling on June 28, 2000. Writing for the majority, Chief Justice Rehnquist noted that the First Amendment “is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.” Because the rights of free expression and association are so critical to a free society, the court found that New Jersey could not interfere with the Scout’s decisions regarding qualifications for Scoutmasters. As the Chief Justice explained, “Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express.”

The case remains a landmark victory for the First Amendment and individual rights. The Supreme Court’s decisions to legalize gay marriage in 2015 gave rise to numerous legal conflicts between free speech and state measures designed to enforce the politically correct view. Dale was an important victory that foreshadowed this conflict and bolstered the First Amendment.

CIR continues to work to defend individual’s rights to unpopular speech and will continue to work at ensuring the precedent established in Dale is preserved.