Dale was a Boy Scout leader.
But only until the Boy Scouts found out that he was gay. They revoked his
position.
The Boy Scouts argued that
they instilled 'values' in young boys, and homosexuality was inconsistent
with those values.
Dale sued under a New Jersey
law that prohibited discrimination on the basis of sexual orientation in
places of public accommodation.
The Trial Court found for the
Boy Scouts. Dale appealed.
The Trial Court found that
homosexuality, from a Biblical and historical perspective, was both
morally wrong and criminal.
The Court found that the Boy
Scouts were a private association, and so were not covered by the public
accommodation law.
The New Jersey Supreme Court
reversed. The Boy Scouts appealed.
The New Jersey Supreme Court
found that the Boy Scouts were public enough to be covered by the law.
The Court found that Dale's
inclusion did not compel the Boy Scouts to embrace any particular
message.
The Court found that there
was a compelling government interest
in eliminating the destructive consequences of discrimination from
society, and that the New Jersey law was narrowly tailored.
The US Supreme Court reversed.
The US Supreme Court found
that a private organization is allowed to exclude people from membership
through their 1st Amendment right to free association, even if they are acting
in a discriminatory manner.
The Court found that the
forced inclusion of an unwanted person in a group infringes the group's free
expression if the presence of that
person affects in a significant way the group's ability to advocate
public or private viewpoints.
"The State interests
embodied in New Jersey's public accommodations law do not justify such a
severe intrusion on the Boy Scout's rights to freedom of expressive
association."
The Court came to this
conclusion despite the fact that one could argue that the Boy Scouts are
not primarily an organization
dedicated to promoting heterosexuality.
How 'severe' does an
intrusion have to be to be invalidated? Is the Boy Scouts'
anti-homosexuality viewpoint central enough to the organization's
purpose to really warrant an exception to the public accommodation?
It's not like the Ku Klux
Klan arguing that they shouldn't be forced to accept minorities.
In a dissent it was argued
that the 1st Amendment
gives groups the right to express their opinions, but that doesn't mean
that they can have discriminatory membership policies.
"It is exceptionally
clear that the Boy Scouts have, at most, simply adopted an exclusionary
membership policy and has no shared goal of disapproving of
homosexuality."
Compare to Roberts v.
United States Jaycees (468 U.S. 609
(1984)), which said that the Jaycees could not keep women
out of their pro-business club.
The difference is that the
Boy Scouts advocated against homosexuality, and so the Court felt they
should be forced to accept someone who didn't share their beliefs. But
in Roberts, the Jaycees didn't
advocate against women businessmen, so having women members didn't go
against their fundamental principles.
