holding that the Dale court "meant something of legal significance by coupling ‘avowed homosexual' with — or distinguishing it from — 'gay activist’ " and, before holding that the Boy Scouts could not be required to grant the complainants membership, finding that they were at least as "activist” as Dale
How later courts described this case
- holding that the Dale court "meant something of legal significance by coupling ‘avowed homosexual' with — or distinguishing it from — 'gay activist’ " and, before holding that the Boy Scouts could not be required to grant the complainants membership, finding that they were at least as "activist” as Dale
- resolving the case on First Amendment grounds after assuming “without deciding that the Human Rights Act was intended to reach a membership organization such as the Boy Scouts as a ‘place of public accommodation’”
- assuming without deciding that a membership organization qualified as a “place of public accommodation” under the DCHRA, because the question was a “complex one” even after Bloomfield
- assuming, without deciding, that "tester” had standing to challenge the Boy Scouts' rejection of his membership application
Written by the judges who cited it.
The opinion
REID, Associate Judge,
concurring.
I join Judge Farrell’s opinion because I agree that “[this] case cannot be distin *1204 guished from Dale on First Amendment grounds.” I write separately to emphasize two aspects of the Supreme Court’s opinion in Dale.
First, the Dale majority characterizes the Boy Scouts of America (“BSA”) as “a private not-for-profit organization engaged in instilling its system of values in young people.” Dale, supra, 580 U.S. at 643, 120 S.Ct. 2446 . Undoubtedly parents of boy scouts entrust scoutmasters to play a role in the education and socialization of their sons, and in turn expect their sons to inculcate the value system articulated by the BSA. This view of the BSA’s role reflects a predominantly expressive organization, and does not take into consideration the range of BSA’s commercial activities which might be evident in another context or case, to such an extent that the BSA would be perceived as a predominately commercial organization. See Roberts v. United States Jaycees, 468 U.S. 609 , 104 S.Ct. 3244 , 82 L.Ed.2d 462 (1984) (O’Con-nor, J., concurring); see also Neal Troum, Expressive Association and the Right to Exclude: Reading Between the Lines in Boy Scouts of America v. Dale, 35 CREIGHTON L. REV. 641 (2002).
Second, the Dale majority declared that the court “must ... give deference to an Association’s view of what would impair its expression.” Nonetheless, Chief Justice Rehnquist, speaking for the majority, added the following caveat: “That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.” Dale, supra, 530 U.S. at 653 , 120 S.Ct. 2446 . Although we do not address the District of Columbia Human Rights Act issue presented in this case, I believe that this court should keep the Dale majority’s caveat in mind since it may become pertinent in a future case presenting a different context.