page_title: Boy Scouts of America v. Dale
section_title: Majority opinion
hierarchical_section_title: Boy Scouts of America v. Dale / Decision / Majority opinion
context_page_description: Boy Scouts of America et al. v. Dale, 530 U.S. 640, was a landmark decision of the US Supreme Court, decided on June 28, 2000, that held that the constitutional right to freedom of association allowed the Boy Scouts of America to exclude a homosexual person from membership in spite of a state law requiring equal treatment of homosexuals in public accommodations. More generally, the court ruled that a private organization such as the BSA may exclude a person from membership when "the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints". In a five to four decision, the Supreme Court ruled that opposition to homosexuality is part of BSA's "expressive message" and that allowing homosexuals as adult leaders would interfere with that message.
  The ruling reversed a decision of the New Jersey Supreme Court that had determined that New Jersey's public accommodations law required the BSA to readmit assistant Scoutmaster James Dale, who had come out and whom the BSA had expelled from the organization for that reason.
context_section_description: Chief Justice William Rehnquist's majority opinion relied upon Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984), in which the Supreme Court said: "Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." This right, the Roberts decision continues, is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. Government actions that may unconstitutionally burden this freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire". 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. Thus, "freedom of association ... plainly presupposes a freedom not to associate."
  However, to determine whether a group is protected by the First Amendment's expressive associational right, it must first be determined whether the group engages in "expressive association." After reviewing the Scout Oath and Scout Law the court decided that the general mission of the Boy Scouts is clear—it is "to instill values in young people". The Boy Scouts seek to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping, fishing, etc. During the time spent with the youth members, the Scoutmasters and assistant Scoutmasters inculcate them with the Boy Scouts' values—both expressly and by example. An association that seeks to transmit such a system of values engages in expressive activity.
  First, associations do not have to associate for the "purpose" of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection.
  Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, the First Amendment protects the Boy Scouts' method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of sexuality and teach only by example, this fact does not negate the sincerity of its belief discussed above.
  Regarding whether the Boy Scouts as a whole had an expressive policy against homosexuality, the Court gave deference to the organization's own assertions of the nature of its expressions, as well as what would impair them. The Boy Scouts asserts that it "teach[es] that homosexual conduct is not morally straight", and that it does "not want to promote homosexual conduct as a legitimate form of behavior". While the policy may not represent the views of all Boy Scouts, the First Amendment "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 Court deemed it sufficient that the Boy Scouts had taken an official position with respect to same-sex relationships. The presence of an openly gay activist in an assistant Scoutmaster's uniform sends a distinctly different message from the presence of a heterosexual assistant Scoutmaster who is on record as disagreeing with Boy Scouts policy. The Boy Scouts has a First Amendment right to choose to send one message but not the other. The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.
  The decision concluded:
  We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptan
caption: Chief Justice William Rehnquist
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