Special Topics In Law

Cyle Parker

Special Topics in Law

Boy Scouts v. Dale

T-TH

Case Analysis

INTRODUCTION

In Boy Scouts of America v. Dale, [1] the United States Supreme Court reversed the New Jersey Supreme Court's application of its state's public accommodations statute and held that a requiring the reinstatement of an openly gay scoutmaster to the Boy Scouts of America would violate the organization's First Amendment freedom to engage in expressive association. [2] The Court based this holding on evidence provided by the Boy Scouts that the terms "clean" and "morally straight," as used in the Scout Oath, mean "not homosexual." [3] Thus, the Court concluded that disapproving of homosexual activity is a specific, expressive message of the Boy Scouts and that such expressive message would be undermined by forcing the inclusion of a gay member into the organization. [4]

The evidence on which the Court based this decision was scant. Although the Boy Scouts introduced certain documents to support its assertion of an antigay message, the source and extent of circulation of those documents were questionable, allowing for a reasonable conclusion that the documents did not truly represent any expressive message of the Boy Scouts. On the contrary, there was evidence that the Boy Scouts, in fact, take no position on homosexuality and that the group's intention in excluding homosexuals was actually to discriminate based on nothing more than the individual's status, something prohibited by New Jersey's public accommodations statute. The Court was able to reach its decision because, rather than being required to look only at objective evidence, courts have broad discretion in determining what the expressive purpose, if any, of an organization is. [5] Such discretion allows courts to infuse their own biases and prejudices, either for or against the organization's asserted expressive message, into their decisions, as arguably the Court did in Dale. To prevent this from happening, courts should adopt a clear statement rule: an organization that wishes to assert an expressive purpose that would require discrimination of a class protected by state law should be required to present a clear statement, found in the organization's written brochures, bylaws, official documents or other publications, of the organization's discriminatory message.

Part I of this paper provides a brief history of public accommodations laws. Part II describes the freedom of association as a constitutional limitation on the application of public accommodations laws. Part III focuses on three Supreme Court cases that are instrumental in understanding the freedom of association and how to determine when a state's attempt to enforce equality through its public accommodations statute outweighs that freedom. Given this backdrop, Part IV provides a more detailed analysis of the Dale decision. Part V concludes that in order for an organization to discriminate against any class of people specified in a state's public accommodations law, that organization should have an expressive purpose, which would be undermined by the inclusion of a member of that class, that is expressed in a clear statement within the organization's brochures, bylaws, oath, or other objective evidence for courts to review.

I. PUBLIC ACCOMMODATIONS LAWS

The concept behind public accommodations statutes derives from the common law duty of innkeepers and common carriers not to discriminate in offering such services. [6] In 1883, the first federal effort at using a public accommodations statute to end discrimination in privately owned institutions that hold themselves out to the public was struck down by the Supreme Court as unconstitutional. [7] Congress was more successful eighty-one years later with Title II of the Civil Rights Act of 1964. [8] Title II prohibits discrimination on the basis of race, color, religion, or national origin in places of public accommodation, [9] with "places of public accommodations" defined as "establishments affecting interstate commerce or supported in their activities by State action." [10]

State statutes, however, have more often been invoked and historically have been more effective in eliminating discrimination. [11] Generally, state public accommodations laws are broader in the protected classes covered; most prohibit discrimination on the basis of race, color, religion, sex and national origin, [12] while a minority of state public accommodations laws additionally prohibit discrimination on the basis of sexual orientation. [13] State public accommodations laws also can be broader with respect to the organizations that are covered by the statutes, depending on legislative intent and judicial interpretation. [14] While some states take a narrow view of what qualifies as a place of public accommodations, limiting the statutes' coverage to institutions with actual fixed locations, [15] some states take an expansive approach, reaching any organization that holds itself out to the public and gives general public access, regardless of the existence of an actual "place." [16] Still other states have limited what types of private organizations are covered by the public accommodations laws by limiting the prohibition on discrimination to business establishments. [17]

II. FIRST AMENDMENT LIMITATIONS ON PUBLIC ACCOMMODATIONS LAWS

Although states' efforts at eliminating discrimination through the passage of public accommodations laws is laudatory, it is not absolute and unqualified. Application of public accommodations laws is checked with constitutional limitations, particularly the constitutional freedom of association found in the First Amendment. [18] The Supreme Court has articulated two types of association protected by the First Amendment: intimate association and expressive association. [19]

A. Freedom of Intimate Association

The significance of the freedom of intimate association is recognized particularly in small, familial settings. This freedom stems from the important role that close relationships play in shaping each individual's identity. [20] Thus, the government is prevented from engaging in action that would purport to regulate how family members or members of small, selective organizations relate to one another. Although familial associations are probably the best example of an