Boy Scouts on High Court Agenda; Supreme Court Will Review New Jersey Supreme Court Decision in Dale

Placing a high profile gay rights case on its agenda for the first time since Romer v. Evans, the U.S. Supreme Court announced on January 14 that it will review the federal constitutional issues decided by the New Jersey Supreme Court in Dale v. Boy Scouts of America, 734 A.2d 1196, 160 N.J. 562 (Aug. 4, 1999). The case will be argued this spring and probably decided by the end of the Court’s term late in June or early in July. Lambda Legal Defense & Education Fund represents respondent James Dale. In this case, the state court ruled that the Boy Scouts of America had violated New Jersey’s law banning sexual orientation discrimination in places of public accommodation by expelling James Dale from his assistant scoutmaster position after learning through a newspaper article that he was a leader of the lesbian and gay students organization at Rutgers University. As part of its ruling, the New Jersey court rejected the Boy Scouts’ argument that they were privileged under the U.S. Constitution to maintain a policy against letting lesbians or gay men be members or leaders in their organization. The New Jersey court’s ruling that the Scouts are a place of public accommodation and that their policy violates the state law is, of course, immune from U.S. Supreme Court review, as the New Jersey Supreme Court is the definitive exponent of the meaning of New Jersey state law. Thus, the U.S. Supreme Court’s consideration of this case will focus solely on the federal constitutional privilege claimed by the Scouts. Although this claimed privilege was variously characterized during different stages of the litigation, the New Jersey court dealt with it under the rubrics of freedom of intimate and expressive association. The Scouts argued that as each individual troop consists of a small number of individuals who spend time together in a relatively intimate setting, the right of intimate association protected the organization’s decision about whom to exclude from positions of membership or leadership on the troop level. They also argued that the right of expressive association was at stake; that as a private organization, the Scouts have a right to define their mission and expressive purpose and to exclude from membership and leadership positions those whose beliefs and values are inconsistent with the organization’s mission. In her opinion for the New Jersey Supreme Court, Chief Justice Deborah Poritz rejected both of these constitutional claims. As to the intimate association claim, which is rooted in dicta from the late Justice William Brennan’s plurality opinion in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), Poritz noted that the Supreme Court had rejected intimate association claims in situations involving private clubs that had as few as 15 or 20 members, not much different from a Boy Scout troop in size, and that the concept of intimate association really applied more properly to family units and people living together. It seems likely that the Scouts will attempt to dispute this ruling before the U.S. Supreme Court by emphasizing Scout activities such as camping in the wilderness during which members of a troop may share the same tent and engage in various contact sports. On the expressive association claim, the Scouts hung their collective hats on the Supreme Court’s unanimous ruling in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), in which the Court found that the state of Massachusetts had violated the right of expressive association of a private group that runs Boston’s annual St. Patrick’s Day Parade by requiring the group to let the Irish-American Gay, Lesbian & Bisexual Group of Boston participate in the parade. Justice David Souter’s opinion for the Court in Hurley held that a parade is a quintessential expressive activity, engaged in to communicate the parade organizer’s message to those who would view or hear about the parade, and that as such the organizer had a constitutional right to determine what the message would be and to exclude groups whose participation would dilute or contradict that message. In Dale, the Scouts argue that they have defined their mission and message to embody a heterosexual norm and a view of homosexuality as immoral, and thus that they are privileged by the right of expressive association to exclude lesbians and gay men from their organization. Focusing particularly on Dale as an assistant Scout master, the Scouts argued that keeping him in that leadership position as an openly gay man would provide a role model for the boys in his troop that is contradictory with the mission and goals of the Boy Scouts. In advancing this argument, the Scouts pointed to the traditional Scout oath, which requires Scouts to be “morally straight” and lead a “clean” life. In the view of the BSA, being gay is not “clean” and “morally straight.” Rejecting this argument, Chief Justice Poritz found no evidence that when these provisions of the oath were adopted, their framers had any message about homosexuality in mind. Reviewing the trial record, which contained all the basic documents of Scouting, Poritz found that there was nowhere any official expression about homosexuality that would be contradicted by allowing Dale to be a member and a leader, and that opposition to homosexuality was not part of the mission and core values of the organization. The New Jersey Supreme Court’s decision was unanimous, unlike the Massachusetts Supreme Judicial Court’s decision in Hurley that was reversed by the U.S. Supreme Court, uniting a court whose members have been appointed by both Republican and Democratic governors. (Indeed, Chief Justice Poritz, author of the court’s opinion, was appointed by Republican Governor Christine Whitman.) Nonetheless, predicting what the U.S. Supreme Court will do with this case is difficult. One question not really well developed in Hurley but crucial to Dale is whether it is appropriate for a court, enforcing a civil rights law against a membership organization, to contradict the organization’s own view of its mission, as that view is articulated in carrying out the challenged policy. Of course, this very point was at issue in Roberts v. U.S. Jaycees, where the respondent organization argued that maintaining an exclusively male membership was an essential part of its identity and mission of developing the community and leadership skills of young businessmen; in that case, the Court found that there was no particular political or social point of view embraced by the Jaycees that would be undermined or contradicted by admitting women as member. While there are crucial distinctions between the factual contexts of Dale and Hurley, the core issues are similar enough to make the unanimous Hurley ruling, by a Court whose membership has not changed since then, appear rather daunting in the Dale case. Also, it is not quite so easy to dismiss the intimate association claim, when one considers the rather closer personal association that a Boy Scout troop’s members will have than is the case in a Jaycee, Rotary or Kiwanis chapter. Evan Wolfson, the senior staff attorney at Lambda who has represented James Dale in the litigation and successfully argued his case in the New Jersey Supreme Court, will undoubtedly face several hostile members of the Court in arguing this case, and has his task cut out for him. A.S.L. Lesbian/Gay Law Notes February 2000 19