Boy Scouts of America v. Dale
Whether the recent New Jersey Supreme Court's decision finding that the Boy Scouts of America organization is subject to the New Jersey Law Against Discrimination and violated the law in expelling an assistant scoutmaster because he stated publicly that he is gay, infringed the Boy Scouts' First Amendment right to freedom of association
James Dale, an assistant scoutmaster who was expelled after he publicly declared he was homosexual, brought action under New Jersey's Law Against Discrimination against the Boy Scouts of America seeking reinstatement and damages. The Superior Court granted summary judgment for Boy Scouts of America. Dale appealed, and on appeal the New Jersey Supreme Court held that: (1) the Boy Scouts of America was a place of public accommodation subject to New Jersey's Law Against Discrimination, (2) the Boy Scouts violated the law in expelling James Dale as an assistant scoutmaster because he stated publicly that he is gay, (3) the Boy Scouts organization was not sufficiently personal or private to warrant constitutional protection under freedom of intimate association, and (4) enforcement of the law did not violate the Boy Scouts' freedom of expressive association or freedom of speech. The Boy Scouts of America sought review by the U.S. Supreme Court, which was granted on Jan. 13, 2000. At issue is the Boy Scouts' claim that the New Jersey decision infringes upon its First Amendment right to freedom of association. According to the Boy Scouts, scouting is intended to promote the mental, spiritual, and moral health of scouts. The Boy Scouts' position (rejected by the New Jersey courts) is that it should be free under the First Amendment to decide with whom it will associate.
APA's amicus brief addresses the lack of scientific foundation to support the Boy Scouts' position that openly gay people are unsuited to participate in scouting — a position based on stereotypical assumptions regarding the mental health, morality and character of gays, lesbians and bisexuals.
The Supreme Court, in a 5-4 decision, ruled that applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association. The judgment was reversed, and the cause was remanded for further proceedings. Justices Stevens, Breyer, Souter and Ginsberg dissented with Stevens writing a very long and carefully reasoned dissent citing APA brief.