Decision Boy Scouts of America v. Dale

chief justice william rehnquist

chief justice william rehnquist s majority opinion relied upon roberts v. united states jaycees, 468 u.s. 609, 622 (1984), in supreme court said: consequently, have long understood implicit in right engage in activities protected first amendment corresponding right associate others in pursuit of wide variety of political, social, economic, educational, religious, , cultural ends. right, roberts decision continues, crucial in preventing majority imposing views on groups rather express other, perhaps unpopular, ideas. government actions may unconstitutionally burden freedom may take many forms, 1 of intrusion internal structure or affairs of association regulation forces group accept members not desire . forcing group accept members may impair ability of group express views, , views, intends express. thus, freedom of association ... plainly presupposes freedom not associate.

however, determine whether group protected first amendment s expressive associational right, must first determined whether group engages in expressive association . after reviewing scout oath , scout law court decided general mission of boy scouts clear—it instill values in young people . boy scouts seek instill these values having adult leaders spend time youth members, instructing , engaging them in activities camping, fishing, etc. during time spent youth members, scoutmasters , assistant scoutmasters inculcate them boy scouts values—both expressly , example. association seeks transmit such system of values engages in expressive activity.

first, associations not have associate purpose of disseminating message in order entitled protections of first amendment. association must merely engage in expressive activity impaired in order entitled protection.
second, if boy scouts discourages scout leaders disseminating views on sexual issues, first amendment protects boy scouts method of expression. if boy scouts wishes scout leaders avoid questions of sexuality , teach example, fact not negate sincerity of belief discussed above.
regarding whether boy scouts whole had expressive policy against homosexuality, court gave deference organization s own assertions of nature of expressions, impair them. boy scouts asserts teach[es] homosexual conduct not morally straight , , not want promote homosexual conduct legitimate form of behavior . while policy may not represent views of boy scouts, first amendment not require every member of group agree on every issue in order group s policy expressive association . court deemed sufficient boy scouts had taken official position respect same-sex relationships. presence of openly gay activist in assistant scoutmaster s uniform sends distinctly different message presence of heterosexual assistant scoutmaster on record disagreeing boy scouts policy. boy scouts has first amendment right choose send 1 message not other. fact organization not trumpet views housetops, or tolerates dissent within ranks, not mean views receive no first amendment protection.

the decision concluded:

we not, must not be, guided our views of whether boy scouts teachings respect homosexual conduct right or wrong; public or judicial disapproval of tenet of organization s expression not justify state s effort compel organization accept members such acceptance derogate organization s expressive message. while law free promote sorts of conduct in place of harmful behavior, not free interfere speech no better reason promoting approved message or discouraging disfavored one, enlightened either purpose may strike government.

dissenting opinion

justice john paul stevens

justice stevens wrote dissent in justices souter, ginsburg, , breyer joined. observed every state law prohibiting discrimination designed replace prejudice principle. justice brandeis had observed in dissent new state ice company v. liebman (1932) 1 of happy incidents of federal system single courageous state may, if citizens choose, serve laboratory; , try novel social , economic experiments without risk rest of country . in stevens opinion, court s decision interfered new jersey s experiment.

stevens first point boy scouts ban on gay members did not follow founding principles. boy scouts sought instill values in young people, prepare them make ethical choices on lifetime in achieving full potential . scout oath , scout law, set forth scouts central tenets, assist in goal. 1 of these tenets scout morally straight . scout clean . these terms defined in scout handbook, stevens said, plain light of day neither 1 of these principles— morally straight , clean —says slightest thing homosexuality. indeed, neither term in boy scouts law , oath expresses position whatsoever on sexual matters.

what guidance boy scouts gave adult leaders have direct contact scouts urged leaders avoid discussing sexual matters. scouts... directed receive sex education @ home or in school, not organization. scoutmasters, in turn, told direct curious adolescents family, religious leaders, doctors, or other professionals. boy scouts had gone far devise specific guidelines scoutmasters:

stevens ended dissent noting serious , ancient prejudices facing homosexuals aggravated creation of constitutional shield .