Appendix — Boy Scouts of America v. Dale
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Supreme Cour, U.c
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IN THE Oreict GF THE CLER
Supreme Court of the United States
Boy ScouTs OF AMERICA and MONMOUTH COUNCIL,
Boy SCOUTS OF AMERICA,
Petitioners,
Vv.
JAMES DALE,
Respondent.
On Petition for a Writ of Certiorari to the
Supreme Court of New Jersey
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
GEORGE A. DAVIDSON
Counsel of Record
CARLA A. KERR
HUGHES HUBBARD &
REED LLP
One Battery Park Plaza
New York, New York 10004
(212) 837-6000
DAvip K. PARK
MICHAEL W. McCONNELL
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Salt Lake City, Utah 84109
SANFORD D. BROWN
CERRATO, DAWES, COLLINS,
SAKER, BROWN & WILDER
509 Stillwells Corner Road
Freehold, New Jersey 07728
National Legal Counsel
Boy Scouts of America
1325 Walnut Hill Lane
Irving, Texas 75015
Attorneys for Petitioners
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TABLE OF CONTENTS
APPENDIX A: Page
Opinion of the Supreme Court of New Jersey........ la
APPENDIX B:
Opinion of the Superior Court of New Jersey, Ap-
I a 102a
APPENDIX C:
Opinion of the Superior Court of New Jersey,
I 155a
APPENDIX D:
N.J. Stat. Ann. §§ 10:5-4, 10:5-5(1), and 10:5-
REESE ACE oO 255a
le
APPENDIX A
SUPREME COURT OF NEW JERSEY
September Term 1997
A-195/196
JAMES DALE,
Plaintiff-Respondent
and Cross-Appellant,
v.
Boy ScouTs OF AMERICA and
MONMOUTH CouNCcIL, Boy ScouTS OF AMERICA,
Defendants-A ppellants
and Cross-Respondents.
Argued January 5, 1999—-Decided August 4, 1999
On Certification to the Superior Court, Appellate Division
The opinion of the Court was delivered by PORITZ,
C.J.
In 1991, the New Jersey Legislature amended the Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,
to include protections based on “affectional or sexual
orientation.” This case requires us to decide whether that
2a
law prohibits Boy Scouts of America (BSA) from expell-
ing a member solely because he is an avowed homosexual.
Defendants BSA and Monmouth Council (collectively
Boy Scouts) seek review of a decision of the Appellate
Division holding that: (1) Boy Scouts is a place of public
accommodation as defined by the LAD; (2) Boy Scouts’
expulsion of plaintiff James Dale, as assistant scoutmaster,
based solely on the club’s policy of excluding avowed
homosexuals from membership is prohibited by the LAD;
and (3) the LAD prohibition does not violate Boy Scouts’
First Amendment rights. Plaintiff, James Dale, seeks cer-
tification on his common law claim, dismissed by the Ap-
pellate Division. We granted both parties’ petitions, ———
NJ. —— (1999), and now affirm.
I
FACTS
A. Boy Scouts of America
1. Organizational Structure and Programs *
BSA, a federally chartered corporation, 36 U.S.C.A.
§ 30901, operates four scout membership programs: Cub
Scouts (for boys eight to eleven-and-a-half), Boy Scouts
(for boys and young men eleven to seventeen), Varsity
Scouts (for young men fourteen to seventeen), and Ex-
plorers (for young men and women fourteen to twenty).
In addition to these well-known membership programs,
BSA publishes Boys’ Life, Exploring and Scouting maga-
1 Although not always specifically designated in the text, our
description of Boy Scouts is derived primarily from the BSA
Charter, Bylaws, and Rules and Regulations; the Boy Scout Hand-
book (10th ed. 1990); and the Scoutmaster Handbook (1990).
These publications, taken together, provide a comprehensive view
of the organization’s structure, programs and missions.
‘3a
zines, and offers an in-school scouting curriculum called
Learning for Life that is taught in many schools through-
out the country.
BSA membership is an American tradition. Since the
program’s inception in 1910 through the beginning of
this decade, over eighty-seven million youths and adults
have joined BSA. As of December 1992, over four mil-
lion youths and over one million adults were active BSA
members. BSA’s success in attracting members is at least
partly attributable to its long-standing commitment to a
diverse and “representative” membership, as well as its
aggressive recruitment through national television, radio,
and magazine campaigns. BSA also organizes local mem-
bership drives, including “School Nights” conducted in
cooperation with schools across the nation and held at
school facilities.
This vast network of members is managed through a
complex of national, regional and local organizations.
The National Council is the highest BSA governing body.
Its primary functions include “develop[ing] programs,
set[ting] and maintain{ing] quality standards in training,
leadership selection, uniform{s), registration records, lit-
erature development, and advancement requirements; and
publish{ing] Boy’s Life and Scouting magazines.” BSA
membership programs are also governed by regional com-
mittees that are further divided into area committees.
Within each area, BSA accepts applications for the cre-
ation of local councils. Defendant, Monmouth Council,
is one of sixteen local councils in New Jersey, and one of
over four hundred local councils nationwide.
Each local council is made up of districts that are
governed by district committees. BSA grants unit charters
to individual sponsors in the districts consisting of “or-
ganizations and groups of citizens” that establish and
“maintain units... and. . . issue certificates of member-
4a
ship . . . to the officers and members thereof.” Unit
charters allow the “organization to use the Scouting pro-
gram under its own leadership to serve the youth and
families for which it has concern, to help it accomplish
its own objectives.” Individual units are based on age
groupings and designated as Cub Scout Packs, Boy Scout
Troops, Varsity Scout Teams, and Explorer Posts. In
1991, Monmouth Council chartered approximately 215
units comprised of nearly 8500 youth members and over
2700 adult members.
When deciding whether to grant an individual unit
charter, BSA investigates “the general objectives, purpose,
character, intent, and programs of the prospective char-
tered organization or community group and its compati-
bility with the aims and purposes of the Boy Scouts of
America.” In respect of established groups, BSA also
considers the group’s “history, length of service, and gen-
eral reputation.” Generally, BSA prefers granting unit
charters to sponsors that are “existing organizations,” i.e.,
established religious, civic, or educational groups. In New
Jersey, for example, public schools and school-affiliated
groups sponsor close to 500 scouting units, comprising ap-
proximately one-fifth of the chartering organizations in the
State. Other governmental entities, such as law enforce-
ment agencies, fire departments, city governments, and
the military, sponsor approximately 250 scouting units
in New Jersey. Sponsor approvals “obligate the organiza-
tion to provide adequate facilities, supervision, and leader-
ship for at least one year{,] and to make an effort to pro-
vide youth members with the opportunity for a quality
program experience as set forth in the official literature of
the Boy Scouts of America.”
A unit charter is renewed annually, “upon application,
provided a review of past activities, personnel, and plans
for the future shows a satisfactory effort to carry out the
ES - RE ee ——
Sa
scouting program, as set forth in the official handbooks,
and [demonstrates compliance] with the Rules and Regula-
tions of the Boy Scouts of America.”? Each chartered
unit is supervised by a “unit committee, consisting of three
or more qualified adults, 21 years of age or over, selected
by the organization with which the unit is connected, or in
the case of a community unit{,] of those who make ap-
plication for the unit charter, one of whom [is] designated
as chairman.” In Monmouth Council, the units are run
by approximately 3000 volunteer leaders and four paid
scouting professionals. Of the 3000 volunteers, some 340
are assistant scoutmasters
Acording to BSA’s federal charter, BSA seeks “to
promote, through organization, and cooperation with other
agencies, the ability of boys to do things for themselves
and others, to train them in Scoutcraft, and to teach
them patriotism, courage, self-reliance, and kindred vir-
tues.” BSA’s Mission Statement also describes BSA’s pur-
pose: “It is the mission of the Boy Scouts of America to
serve others by helping to instill values in young people
and, in other ways, to prepare them to make ethical
choices over their lifetime in achieving their full potential.”
The Scout Oath and Scout Law set forth the guiding prin-
ciples of BSA:
Scout Oath
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
2 Although a relatively small percentage of New Jersey unit
charters are not renewed each year, we are unaware of applicants
— been rejected because of their expressed views on any
subject.
6a
Scout Law
A Scout is TRUSTWORTHY. A Scout tells the
truth. He keeps his promises. Honesty is a part of
his code of conduct. People can always depend on
him.
A Scout is LOYAL. A Scout is true to his family,
friends, Scout leaders, school, nation, and world
community.
A Scout is HELPFUL. A Scout is concerned about
other people. He willingly volunteers to help others
without expecting payment or reward.
A Scout is FRIENDLY. A Scout is a friend to
all. He is a brother to other Scouts. He seeks to un-
derstand others. He respects those with ideas and
customs that are different from his own.
A Scout is COURTEOUS. A Scout is polite to
everyone regardless of age or position. He knows
that good manners make it easier for people to get
along together.
A Scout is KIND. A Scout understands there is
strength in being gentle. He treats others as he wants
to be treated. He does not harm or kill anything
without reason.
A Scout is OBEDIENT. A Scout follows the rules
of his family, school, and troop. He obeys the laws
of his community and country. If he thinks these
rules and laws are unfair, he tries to have them
changed in an orderly manner rather than disobey
them.
A Scout is CHEERFUL. A Scout looks for the
bright side of life. He cheerfully does tasks that come
his way. He tries to make others happy.
7a
A Scout is THRIFTY. A Scout works to pay his
way and to help others. He saves for the future. He
protects and conserves natural resources. He care-
fully uses time and property.
A Scout is BRAVE. A Scout can face danger even
if he is afraid. He has the courage to stand for
what he thinks is right even if others laugh at him
or threaten him.
A Scout is CLEAN. A Scout keeps his body and
mind fit and clean. He goes around with those who
believe in living by these same ideals. He helps keep
his home and community clean.
A Scout is REVERENT. A Scout is reverent toward
God. He is faithful in his religious duties. He re-
spects the beliefs of others.
In its briefs below and to this Court, Boy Scouts claims
that the language “morally straight” and “clean” in the
Oath and Law, respectively, constitutes a rejection of
homosexuality. The Boy Scout Handbook, supra, at 551,
defines “morally straight” as follows:
To be a person of strong character, guide your life
with honesty, purity, and justice. Respect and de-
fend the rights of all people. Your relationships with
others should be honest and open. Be clean in your
speech and actions, and faithful in your religious be-
liefs. The values you follow as a Scout will help you
become virtuous and self-reliant.
The Boy Scout Handbook also defines “clean”:
A Scout is CLEAN. A Scout keeps his body and
mind fit and clean. He chooses the company of
those who live by these same ideals. He helps keep
his home and community clean.
8a
You never need to be ashamed of dirt that will
There’s another kind of dirt that won’t come off
by washing. It is the kind that shows up in foul
language and harmful thoughts.
Swear words, profanity, and dirty stories are weapons
that ridicule other people and hurt their feelings.
The same is true of racial slurs and jokes making fun
of ethnic groups or people with physical or mental
limitations. A Scout knows there is no kindness or
honor in such mean-spirited behavior. He avoids
it in his own words and deeds. He defends those who
are the targets of insults.
{/d. at 561.)
Although one of BSA’s stated purposes is to encour-
age members’ ethical development, BSA does not endorse
any specific set of moral beliefs. Instead, “moral fit-
ness” is deemed an individual choice:
Morality . . . concerns the “principles of right and
wrong” in our behavior, and “what is sanctioned by
our conscience or ethical judgment.” .. .
In any consideration of moral fitness, a key word
has to be “courage.” A boy’s courage to do what
his head and his heart tell him is right. And the
courage to refuse to do what his heart and his head
say is wrong.
{Scoutmaster Handbook, supra, at 71 (emphasis added)
(additional internal quotations omitted).]
BSA also does not espouse any one religion, explaining in
the Scoutmaster Handbook that “[t]here is a close as-
sociation between the Boy Scouts of America and virtually
all religious bodies and denominations in the United
9a
States.” Jd. at 227. Consistent with its nonsectarian na-
ture, BSA Bylaws require “respect [for] the convictions of
others in matters of custom and religion.” Boy Scouts “en-
courages no particular affiliation, [and does not] assume[]
{the] functions of religious bodies,” ibid.; indeed, in a
training manual entitled Scoutmaster Fundamentals pre-
pared “for Scoutmasters, Assistant Scoutmasters, Troop
Committee members, and parents,” BSA categorically
States: “Religious instruction is the responsibility of the
home and church.”
A large and diverse group of religions that subscribe to
many different and sometimes contradictory beliefs spon-
sor BSA units throughout the United States. Some of
those sponsors have participated in this case as amici
curiae, taking a variety of positions in respect of homo-
sexuality, i.e., that homosexuality is “immoral”; that “dis-
crimination based upon sexual orientation” is to be
“strongly condemn{ed].” BSA, however, encourages its
leaders to refrain from talking about sexual topics. Al-
though the Boy Scout Handbook, supra, at 528, contains
a subchapter entitled “Sexual Responsibility” which states
that “[fJor the followers of most religions, sex should
take place only between married couples,” sexual topics
are not formally discussed during Boy Scout activities.
Rather, BSA “believes that boys should learn about sex
and family life from their parents, consistent with their
spiritual beliefs.”
2. Boy Scout Troops
In 1992, of the five million members of BSA, approx-
imately one million youths and 420,000 adults were in-
volved in the Boy Scout division. Those members be-
longed to over 44,000 Boy Scout troops throughout the
country.
10a
According to the Boy Scout Handbook, id. at 2, a boy
may become a Boy Scout if he “has completed the fifth
grade, or . . . has earned the Arrow of Light Award, or
{is at least] 11 years of age but not yet 18” and “{clom-
plete[s] the Boy Scout joining requirements.” The Boy
Scout joining requirements call for the applicant to:
Submit a completed Boy Scout application and health
history signed by [a] parent or guardian.
Repeat the Pledge of Allegiance.
Demonstrate the Scout salute, sign, and handclasp.
Show how to tie the square knot.
Understand and agree to live by the Scout Oath,
the Scout Law, the Scout motto, the Scout slogan,
and the Outdoor Code.
Describe the Scout badge.
With {a] parent or guardian, complete the exercises
in the pamphlet How to Protect Your Children from
Child Abuse and Drug Abuse.
Participate in a Scoutmaster conference.
{/d. at 4.]
Adult applicants are also subject to joining require-
ments. They must be recommended by the troop repre-
sentative and approved by the local council, and they must
subscribe to the Declaration of Religious Principle,* the
3 BSA’s Declaration of Religious Principle states:
The Boy Scouts of America maintains that no member can
grow into the best kind of citizen without recognizing an
obligation to God. . .. No matter what the religious faith of
the members may be, this fundamental need of good citizen-
ship should be kept before them. The Boy Scouts of America,
therefore, recognizes the religious element in the training of
the member, but it is absolutely nonsectarian in its attitude
lla
Scout Oath and the Scout Law. Once an adult member
is approved, that person is also qualified to be a leader.
Boy Scouts explains that the terms “adult membership
and adult leadership. . . . are interchangeable . . . since
adults . . . have no other reason to join apart from leader-
ship in service to boys.”
B. James Dale
James Dale first became a BSA member in 1978 when,
at the age of eight, he joined Monmouth Council’s Cub
Scout Pack 142. He remained a Cub Scout until 1981,
when he became a member of Boy Scout Troop 220, also
in Monmouth Council. He joined Monmouth Council’s
Boy Scout Troop 128 in 1983, and Troop 73 in 1985.
Until his eighteenth birthday in 1988, he remained a youth
member of Troop 73.
Dale was an exemplary scout. Over the ten years of his
membership, he earned more than twenty-five merit
badges. In 1983, he was admitted into Boy Scouts’ Order
of the Arrow, the organization’s honor camping society,
and achieved the status of Virgil Honor. The pinnacle of
Dale’s career as a youth member came in 1988, when
BSA awarded him an Eagle Scout Badge, an honor
achieved by only the top three percent of all scouts.
Dale’s participation in Boy Scout leadership began
at an early age. Throughout his years as a member,
Dale was an assistant patrol leader, patrol leader, and
bugler, and from 1985 to 1988, Dale served as a Junior
Assistant Scoutmaster for Troop 73. He was also invited
to speak at organized Boy Scout functions, such as the
Joshua Huddy Distinguished Citizenship Award Dinner,
toward that religious training. Its policy is that the home and
the organization or group with which the member is connected
shall give definite attention to religious life.
12a
and attended national events, including the National Boy
Scout Jamboree. On March 21, 1989, Dale sought adult
membership in Boy Scouts. Monmouth Council and BSA
accepted and approved his application for the position of
Assistant Scoutmaster of Troop 73 where he served for
approximately sixteen months.
At about the same time that Dale applied for adult
membership, he left home to attend Rutgers University.
While at college, Dale first acknowledged to himself, and
to his family and friends, that he was gay. Shortly there-
after, he became involved with, and eventually became the
co-president of the Rutgers University Lesbian/Gay Al-
liance. Then, in July 1990, Dale attended a seminar that
addressed the psychological and health needs of lesbian
and gay teenagers. The Star-Ledger interviewed Dale and
published an article on July 8, 1990 that discussed the
seminar. The article included Dale’s photograph and a
caption identifying him as “co-president of the Rutgers
University Lesbian/Gay Alliance.” Kinga Borondy, Semi-
nar Addresses Needs of Homosexual Teens, Star-Ledger
(Newark), July 8, 1990, § 2, at 11.
Later that month, Dale received a letter from Mon-
mouth Council Executive James W. Kay, revoking his BSA
membership. The letter asked Dale to “sever any rela-
tions [he] may have with the Boy Scouts of America,”
and granted Dale sixty days to request a review of his
termination from the Monmouth Council Regional Re-
view Committee.
Dale wrote to Kay on August 8, 1990, and requested
the basis for the Monmouth Council’s decision. In a letter
dated August 10, 1990, Kay notified Dale that the
“grounds for {his} membership revocation” were “the
standards for leadership established by the Boy Scouts of
America, which specifically forbid membership to homo-
13a
sexuals.”* On September 30, 1990, Dale wrote a letter
to the Northeast Regional Director, Rudy Flythe, asking
for a review of his membership decision and a copy of
BSA’s leadership standards. Dale also requested permis-
sion to attend the review, a right to which he was entitled
under the Monmouth Council Review Procedures. The
Regional Review Committee acknowledged receipt of
Dale’s request, but neglected to provide him with a copy
of the BSA standards for leadership or a review date.
In another letter dated October 16, 1990, Dale once
again asked for a copy of the leadership standards and
notice of the review date. On November 27, 1990, Charles
Ball, the Assistant Regional Director of the Northeast
Region, notified Dale that the “Northeast Region, [BSA]
Review Committee supports the decision of the Monmouth
Council . . . to deny your registration with [BSA],” and
granted Dale thirty days to seek review by the National
Council Review Committee. Three weeks later, through
counsel, Dale wrote to the Chief Scout Executive of BSA
and requested a rehearing and an opportunity to attend
the review. BSA’s counsel informed Dale on December
21, 1990, that he had been denied the right to attend be-
cause: “[BSA] does not admit avowed homosexuals to
membership in the organization so no useful purpose would
apparently be served by having Mr. Dale present at the
regional review meeting.” BSA did agree, however, to
have the National Council review Dale’s membership revo-
4 Dale subsequently learned that in 1978 BSA had prepared a
position paper stating that “an individual who openly declares him-
self to be a homosexual [may not] be a volunteer scout leader [or]
... & registered unit member[.]” The position paper “was never
distributed.” Statements were also written in 1991 and 1993 ex-
pressing similar positions. These statements were written after
the onset of litigation in other states charging the organization
with discrimination against members on the basis of sexual orienta-
tion.
l4a
cation. Because Dale believed that a National Council
review “would be futile,” he initiated these legal pro-
ceedings
II
PROCEDURAL HISTORY
On July 29, 1992, Dale filed a six-count complaint
against BSA and Monmouth Council in the Superior Court
of New Jersey. Dale alleged that Boy Scouts had violated
the New Jersey Law Against Discrimination and common
law by revoking his membership based solely on his sex-
ual orientation. He sought declaratory, injunctive, com-
-pensatory and punitive monetary relief, as well as costs
and attorney fees.
A. Chancery Division
Dale moved for partial summary judgment in September
1993, demanding immediate reinstatement based on his
claim that defendants had violated the LAD and New
Jersey’s public policy. Defendants, in response, cross-
moved for summary judgment on all counts. The court
denied Dale’s motion and granted Boy Scouts’ cross-motion.
Dale v. Boy Scouts of Am., No. MON-C-330-92 (Ch.
Div. Nov. 3, 1995). After concluding that Dale was “a
sexually active homosexual,” the court found that Boy
Scouts had always had a policy of excluding “active homo-
sexual[s].” Jd. at 6, 38. The court opined that homo-
sexual acts are immoral and attributed to Boy Scouts a
longstanding antipathy toward such behavior. /d. at 39-
40. In the judge’s view, “[i]t [was] unthinkable . . . that
the BSA could or would tolerate active homosexuality if
discovered in any of its members.” /d. at 40.
As to the applicability of the LAD, the court held that
Boy Scouts was not a place of public accommodation, or
15a
alternatively, that Boy Scouts was exempt under the “dis-
tinctly private” exception found at N.J.S.A. 10:5-51. Id.
at 55. The court rejected Dale’s common law claim, find-
ing that the State’s policy “is that established by the
NJLAD .. . {and] not some prior common law policy.”
Id. at 45. Because the court believed that Boy Scouts’
moral position in respect of active homosexuality was
clear, it found that Boy Scouts’ First Amendment freedom
of expressive association “prevent{ed] government from
forcing [the organization] to accept Dale as an adult
leader-member.” /d. at 71.
B. Appellate Division
The Appellate Division affirmed the dismissal of Dale’s
common law claim, but otherwise reversed and remanded
for further proceedings. Dale v. Boy Scouts of Am., 308
NJ. Super. 516, 523 (App. Div. 1998). In a separate
opinion, Judge Landau concurred with the majority’s hold-
ing that Boy Scouts should restore Dale’s membership,
but dissented from the majority “to the extent it would
compel the Boy Scouts to accept ... Dale. . . [in] any
Scout leadership position.” Jd. at 564.
The majority held that Boy Scouts, a “place of public
accommodation,” had violated the LAD by denying Dale
the “privilege” of serving as a volunteer assistant scout-
master based solely on his sexual orientation. Boy Scouts
was a “public accommodation” because it “invite{d] ‘the
public at large,’” was “dependent upon the broad-based
participation of members of the general public,” “en-
gage[d] in advertising and public promotion,” shared
“many attributes in common with” the places and activ-
ities enumerated in the LAD, and had “historic{ally]
partner[ed] with various public entities and public serv-
ice organizations.” Jd. at 536, 539. “For the [same] rea-
sons,” the court “summarily” rejected Boy Scouts’ argu-
16a
ment that it was exempt from the LAD under the “dis-
tinctly private” exception. Jd. at 540. The court dismissed
Dale’s common law claim, finding Dale had “not demon-
strate[d] that a common law cause of action would vin-
dicate any additional interests.” Jd. at 543. Consequently,
the common law claim was held merely “duplicative of
the LAD claim.” /d. at 541.
On Boy Scouts’ federal constitutional claims, the Appel-
late Division ruled that Boy Scouts was not protected by
either the right to freedom of intimate association or to
expressive association “inferred from other rights and
protections guaranteed by the constitution” and found in
the First Amendment. /d. at 544-45. The court quickly
disposed by Boy Scouts’ freedom of intimate association
- argument, observing that the organization “consists of
nearly 5,000,000 members[,] . . . is open to all boys{,]
. . engages in aggressive advertising and undertakes a
variety of special interest activities in schools and other
public forums.” /d. at 546. Based on those characteristics,
the court held that Boy Scouts “lacks the distinctive qual-
ities that might afford constitutional protections under
this component of the First Amendment.” /bid.
In respect of Boy Scouts’ freedom of expressive as-
sociation claim, the majority “conclude{d] that enforce-
ment of the LAD by granting plaintiff access to the ac-
commodations afforded by scouting will not affect in ‘any
significant way’ BSA’s ability to express [its] views and to
carry out {its] activities.” Jd. at 550. Noting “the tension
between the freedom to associate for the purpose of ex-
pressing fundamental views and the compelling state in-
terest in eradicating discriminaton,” the court found that
the “organization or club asserting the freedom has a
substantial burden of demonstrating a strong relationship
between its expressive activities and its discriminatory
17a
practice.” Id. at 548. Although the court accepted the
argument that the First Amendment protects Boy Scouts’
goals and activities, it determined that the relationship
between Boy Scouts’ stated goals and Boy Scouts’ exclu-
sionary practice was not significant enough to overcome
the compelling state interest in eradicating invidious dis-
crimination. /d. at 549-50.
In its analysis, the Appellate Division focused on Boy
Scouts’ “ ‘expressive purpose,’ [which] is not to condemn
homosexuality,” but to “instill values in young people.”
Id. at 549, 550. The court found that “enforcement of the
LAD by granting plaintiff access to the accommodations
afforded by scouting will not affect in ‘any significant
way’ [Boy Scouts’] ability to express these views and to
carry out these activities.” Jd. at 550. The court ob
served that the LAD “does not aim at the suppression of
speech,” and “[nJothing . . . suggests that a male, simply
because he is gay, will somehow undermine [Boy Scouts’]
fundamental beliefs and teachings.” Jd. at 550, 552. Boy
Scouts’ 1991 and 1993 position statements were rejected
as representations of the “collective ‘expression’” of Boy
Scouts because these papers were issued at “a time when
{Boy Scouts’] anti-gay policy was subject to judicial chal-
lenge in California”; “such policy [had] not been incor-
porated into [Boy Scouts’) bylaws, rules, regulations and
handbooks”; the position expressed “hardly squares with
the view shared by a substantial percentage of church
groups who sponsor local boy scout troops”; and Boy
Scouts “has not attempted to exclude” religious institu-
tions and heterosexual scouts who “have condemned [Boy
Scouts’] anti-gay policy.” Id. at 554-55, 556.
The Appellate Division distinguished Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557, 115 S.Ct. 2338, 132 L. Ed. 2d 487
(1995), a case that held parade organizers have “the
18a
autonomy to choose the content of [their] own message,”
id. at 573, 115 S. Ct. at 2347, 132 L.. Ed. 2d at 503.
The court pointed out that, unlike Hurley, Dale does
not involve “pure forms of speech” or a “plaintiff [who]
is .. . asserting a right . . . to alter the content of [Boy
Scouts’) viewpoint.” Dale, supra, 308 N.J. Super. at 559,
560. The court refused to accept Boy Scouts’ allegation
that Dale’s “public declaration that he is gay in and of
itself constitutes ‘expressive activity’ sufficient to forfeit his
entitlement to membership in the BSA.” /d. at 560. “In
[the court’s] view, there is a patent inconsistency in the
notion that a gay scout leader who keeps his ‘secret’ hid-
den may remain in scouting and one who adheres to the
scout laws by being honest and courageous enough to de-
clare his homosexuality publicly must be expelled.” J/bid.
Judge Landau concurred with the majority’s determin-
ation that Dale’s adult membership could not be termin-
ated, but dissented on whether Dale could be removed
from his leadership position in the troop. Although Judge
Landau refused to look behind Boy Scouts’ claim that its
“fundamental” message would be altered if an avowed
homosexual served as an assistant scoutmaster, id. at 563,
in his view Boy Scouts’ message was ultimately irrelevant.
According to Judge Landau, “Boy Scouts[’] . . . right
of unfettered advocacy” is violated when Dale is rein-
stated as a leader “whether or not the Boy Scouts’ stand
on homosexuality is fundamental to that organization’s
creation.” Id. at 564.
Ill
STATE LAW CLAIMS
A. The LAD
We first consider whether Boy Scouts is subject to the
LAD, which ~_ that “[aJll persons shall have the
opportunity . . . to obtain all the accommodations, ad-
19a
vantages, facilities, and privileges of any place of public
accommodation, . . . without discrimination because of
. affectional or sexual orientation.” N.J.S.A. 10:5-4.
Boy Scouts must therefore abide by the LAD if Boy
Scouts is a place of public accommodation and does not
meet any of the LAD exceptions. See, e.g., N.J.S.A.
10:5-51 (exempting “distinctly private” entities, religious
educational facilities, and parents or individuals acting
“in loco parentis” in respect of “the education and up-
bringing of a child”).
1. Place of Public Accommodation
“{T}he overarching goal of the {LAD] is nothing less
than the eradication ‘of the cancer of discrimination.’ ”
Fuchilla v. Layman, 109 N.J. 319, 334 (quoting Jack-
son v. Concord Co., 54 N.J. 113, 124 (1969)), cert.
denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51
(1988). “{DJiscrimination threatens not only the rights
and proper privileges of the inhabitants of [New Jersey, ]
but menaces the institutions and foundation of a free
democratic State.” N.J.S.A. 10:5-3. In furtherance of its
purpose to root out discrimination, the Legislature has
directed that the LAD “shall be liberally construed.” Ibid.
We have adhered to that legislative mandate by historically
and consistently interpreting the LAD “ ‘with that high
degree of liberality which comports with the preeminent
social significance of its purposes and objects.’” Ander-
sen v. Exxon Co., 89 N.J. 483, 495 (1982) (quoting
Passaic Daily News v. Blair, 63 N.J. 474, 484 (1973)).
A clear understanding of the phrase “place of public
accommodation” is critical. That is because “place of
public accommodation” is, in large measure, determinative
of the LAD’s scope. Certainly, if the statute is broadly
applicable, the antidiscriminatory impact of its provisions
is greater. The Legislature’s finding that the effects of
20a
discrimination are pernicious, and its directive to liberally
construe the LAD, has informed our cases interpreting
the reach of “place of public accommodation.”
a. Place
In 1965, the Court held that places of public accom-
modation were not limited to those enumerated in the
Statute. Fraser v. Robin Dee Day Camp, 44 N.J. 480,
486 (1965) (then N.J.S.A. 18:25-5(1)). At that time,
the statutory definition used the word “include” to preface
a list of specific “places” of public accommodation. See
id. at 485. We reasoned that the Legislature’s choice of
the word “include” indicated that the “places” expressly
mentioned were “merely illustrative of the accommodations
the Legislature intended to be within the scope of the
statute. Other accommodations, similar in nature to those
enumerated, were also intended to be covered.” I/d. at
486. Less than a year later, the Legislature amended the
LAD to expressly state that “‘a place of public accommo-
dation’ shall include; but not be limited to” the various
examples identified, L. 1966, c. 17 (emphasis added).
thereby reaffirming our broad construction of the statu-
tory language.5
5 N.J.S.A. 10:5-51 now reads:
“A place of public accommodation” shall include, but not be
limited to: any tavern, roadhouse, hotel, motel, trailer camp,
summer camp, day camp, or resort camp, whether for enter-
tainment of transient guests or accommodation of those seek-
ing health, recreation or rest; any producer, manufacturer,
wholesaler, distributor, retail shop, store, establishment, or
concession dealing with goods or services of any kind; any
restaurant, eating house, or place where food is sold for con-
sumption on the premises; any place maintained for the sale
of ice cream, ice and fruit preparations or their derivatives,
soda water or confections, or where any beverages of any
kind are retailed for consumption on the premises; any garage,
any public conveyance operated on land or water, or in the air,
2la
Later, the word “place” became a further source of
legal dispute. In National Organization of Women v.
Little League Baseball, Inc., 67 N.J. 320 (1974), we
affirmed the decision of the Appellate Division holding
that: “[t]he statutory noun ‘place’... is a term of con-
venience, not of limitation {,] . . . employed to reflect
the fact that public accommodations are commonly pro-
vided at fixed ‘places.’” 127 N.J. Super. 522, 531 (App.
Div. 1974). The defendant in Little League was a char-
tered baseball league that excluded girls between the ages
of eight and twelve years from participation in its pro-
grams. The league contended that it did not come “within
the meaning of the statute, primarily because it [was] a
membership organization which does not operate from any
fixed parcel of real estate in New Jersey of which it had
any stations and terminals thereof; any bathhouse, boardwalk,
or seashore accommodation; any auditorium, meeting place, or
hall; any theatre, motion-picture house, music hall, roof garden,
skating rink, swimming pool, amusement and recreation park,
fair, bowling alley, gymnasium, shooting gallery, billiard and
pool parlor, or other place of amusement; any comfort station ;
any dispensary, clinic or hospital; any public library; any
kindergarten, primary and secondary school, trade or business
school, high school, academy, college and university, or any
educational institution under the supervision of the State
Board of Education, or the Commissioner of Education of the
State of New Jersey. Nothing herein contained shall be con-
strued to include or to apply to any institution, bona fide club,
or place of accommodation, which is in its nature distinctly
private; nor shall anything herein contained apply to any edu-
cational facility operated or maintained by a bona fide religious
or sectarian institution, and the right of a natural parent or
one in loco parentis to direct the education and upbringing of
a child under his control is hereby affirmed; nor shall anything
herein contained be construed to bar any private secondary or
post secondary school from using im good faith criteria other
than race, creed, color, national origin, ancestry or affectional
or sexual orientation in the admission of students.
22a
exclusive possession by ownership or lease.” Id. at 530.
The court rejected that narrow view of “place”:
The “place” of public accommodation in the case of
Little League is obviously the ball field at which try-
outs are arranged, instructions given, practices held
and games played. The statutory “accommodations,
advantages, facilitics and privileges” at the place of
public accommodation is the entire agglomeration of
the arrangements which Little League and its local
chartered leagues make and the facilities they pro-
vide for the playing of baseball by the children.
[/d. at 531 (citations omitted) .]
In New Jersey, “place” has been more than a fixed loca-
tion since 1974.
As Boy Scouts correctly observes, other jurisdictions
interpreting their antidiscrimination laws have found
“place” to be a limiting factor encompassing only a fixed
location. See, e.g., Welsh v. Boy Scouts of Am., 993 F.2d
1267, 1269 (7th Cir.) (holding that Boy Scouts is not
“place of public accommodation” under Title II of Civil
Rights Act of 1964 because “Congress when enacting
§ 2000a(b) never intended to include membership or-
ganizations that do not maintain a close connection to a
structural facility within the meaning of ‘place of public
accommodation’”), cert. denied, 510 U.S. 1012, 114
S. Ct. 602, 126 L. Ed. 2d 567 (1993); United States
Jaycees v. Richardet, 666 P.2d 1008, 1011 (Alaska
1983) (stating that “the word ‘place’ . . . would not
encompass a service organization lacking a fixed geo-
graphical situs”); United States Jaycees v. Bloomfield, 434
A.2d 1379, 1381 (D.C. 1981) (disagreeing with lower
court’s conclusion that “it is not necessary that there be
a building . . . in order to categorize an existing entity as
23a
a place of public accommodation”); United States Jaycees
v. lowa Civil Rights Comm’n, 427 N.W.2d 450, 454
(Iowa 1988) (stating that “United States Jaycees is not a
‘place’ within our definition of ‘public accommodation’ ”);
United States Jaycees v. Massachusetts Comm’n Against
Discrimination, 463 N.E.2d 1151, 1156 (Mass. 1984)
(finding that Massachusetts antidiscrimination law “does
not apply to [a] membership organization, since such an
organization does not fall within the commonly accepted
definition of ‘place’”).
We observe that not all jurisdictions have interpreted
“place” so narrowly. The New York Court of Appeals
has held that a “place of public accommodation need not
be a fixed location, it is the place where petitioners do
what they do,” including “the place where petitioners’
meetings and activities occur.” United States Power Squad-
rons v. State Human Rights Appeal Bd., 452 N.E.2d
1199, 1204 (N.Y. 1983). The Supreme Court of Minne-
sota has also approved a flexible construction of the
term “place.” In United States Jaycees v. McClure, 305
N.W.2d 764, 773 (Minn. 1981), the Minnesota court
agreed with the Little League premise that a “ ‘place of
public accommodation’ . . . is less a matter of whether the
organization operates on a permanent site, and more a
matter of whether the organization engages in activities
in places to which an unselected public is given an open
invitation.”
Despite numerous additions and modifications to the
LAD in the twenty-four years since Little League was
decided, the New Jersey Legislature has not enacted a
limiting definition of place. See Massachusetts Mutual
Life Ins. Co. v. Manzo, 122 N.J. 104, 116 (1991) (stat-
ing that “[t]he Legislature’s failure to modify a judicial
determination, while not dispositive, is some evidence of
24a
legislative support for the judicial construction of a statute
. ... [especially when] the Legislature has amended [the]
statute several times without altering the judicial construc-
tion”). We decline now to construe “place” so as to in-
clude only membership associations that are connected to
a particular geographic location or facility. As the Appel-
late Division has so aptly pointed out, “[to] have the
LAD’s reach turn on the definition of ‘place’ is irrational
because ‘places do not discriminate; people who own and
operate places do.’” Dale, supra, 308 N.J. Super. at 533
(quoting Welsh, supra, 993 F.2d at 1282 (Cummings, J.,
dissenting) ). A membership association, like Boy Scouts,
may be a “place” of public accommodation even if the
accommodation is provided at “a moving situs.” Little
League, supra, 127 N.J. Super. at 531. In this case it is
readily apparent that the various locations where Boy
Scout troops meet fulfill the LAD “place” requirement.
b. Public Accommodation
Our case law identifies various factors that are helpful
in determining whether Boy Scouts is a “public accommo-
dation.” We ask, generally, whether the entity before us
engages in broad public solicitation, whether it maintains
close relationships with the government or other public
accommodations, or whether it is similar to enumerated
or other previously recognized public accommodations.
Broad public solicitation has consistently been a prin-
cipal characteristic of public accommodations. Our courts
have repeatedly held that when an entity invites the public
to join, attend, or participate in some way, that entity is
a public accommodation within the meaning of the LAD.
See, e.g., Clover Hill Swimming Club, Inc. v. Goldsboro,
47 N.J. 25, 33 (1966) (stating that “[a]n establishment
which by advertising or otherwise extends an invitation
25a
to the public generally is a place of public accommoda-
tion”); Sellers v. Philip’s Barber Shop, 46 N.J. 340, 345
(1966) (stating that “[a]n establishment which caters to
the public or by advertising or other forms of invitation
induces patronage generally is a place of public accommo-
dation”); Fraser, supra, 44 N.J. at 488 (stating that
“[iJn light of the nature of the facilities and activities
offered to the general public by respondent’s day camp,
we hold that it is a public accommodation”); Little
League, supra, 127 N.J. Super. at 531 (stating that
“Little League is a public accommodation because the
invitation is open to children in the community at large”);
Evans v. Ross, 57 N.J. Super. 223, 231 (App. Div.)
(stating that LAD requires “an establishment which caters
to the public, and by advertising or other forms of invita-
tion induces patronage generally, [not to] refuse to deal
with members of the public who have accepted the invita-
tion”), certif. denied, 31 N.J. 292 (1959); see also Ki-
wanis Int'l v. Ridgewood Kiwanis Club, 806 F.2d 468,
475 (3d Cir. 1986) (stating that LAD applies whenever
“the organization or club . . . invite[s] an unrestricted
and unselected public to join as members”); Brounstein v.
American Cat Fanciers Ass’n, 839 F. Supp. 1100, 1107
(D.N.J. 1993) (stating that “‘primary [public accom-
modation] consideration’” under LAD is “ ‘whether the
invitation to gather is open to the public at large’”)
(quoting Kiwanis Int'l, supra, 806 F.2d at 474).
BSA engages in broad public solicitation through
various media. In 1989, for example, BSA spent more
than $1 million on a national television advertising cam-
paign. A New York Times article describes one of Boy
Scouts’ “hip” television ads, quoting a BSA spokesman as
Stating, “scouting [is] a product and we've got to get
the product into the hands of as many consumers as we
26a
can.” ® Kim Foltz, TV Ad’s Hip Pitch: It's ‘Cool’ to be a
Boy Scout, N.Y. Times, Oct. 30, 1989. BSA has also
advertised in widely distributed magazines, such as Sports
Afield and Redbook. Local Boy Scout councils engage in
substantial public solicitation. BSA frequently supplies the
councils with recruiting materials, such as television and
radio public service announcements, advertisements, and
other promotional products. Monmouth Council, in par-
ticular, has expressly invited the public by conducting re-
cruiting drives and by providing local troops with BSA-
produced posters and promotions aimed at attracting new
members.
Boy Scout troops also take part in perhaps the most
powerful invitation of all, albeit an implied one: the
symbolic invitation extended by a Boy Scout each time
he wears his uniform in public. See Sellers, supra, 46
N.J. at 345 (finding that barber shop’s pole extended
implied invitation to public). A boy in a uniform may
well be Boy Scouts’ strongest recruiting tool. By encour-
aging scouts to wear their uniforms to school, and when
participating in “School Nights” and public demonstra-
tions, Boy Scouts invites the curiosity and awareness of
others in the community. Boy Scouts admits that it en-
courages these displays in the hope of attracting new
members.
On the facts before us, it cannot be controverted that
Boy Scouts reaches out to the public in a myriad of ways
designed to increase and sustain a broad membership base.
Whether by advertising or active recruitment, or through
6 Boy Scouts expresses concern that this article is not properly
part of the record before us. Although the quoted statement has
not been authenticated, we find it descriptive of material in the
record respecting BSA’s public solicitation and membership recruit-
ment efforts.
27a
the symbolism of a Boy Scout uniform, the intent is to
send the invitation to as many members of the general
public as possible. Once Boy Scouts has extended this
invitation, the LAD requires that all members of the
public must “have equal rights . . . and not be subjected
to the embarrassment and humiliation of being invited [,]
. only to find [the] doors barred to them.” Evans,
supra, 57 N.J. Super. at 231.
Boy Scouts is a “public accommodation,” not simply
because of its solicitation activities, but also because it
maintains close relationships with federal and state gov-
ernmental bodies and with other recognized public ac-
commodations. Our cases have held that certain organi-
zations that benefit from relationships with the govern-
ment and other public accommodations are themselves
places of public accommodation within the meaning of
the LAD. In Little League, for example, the court con-
cluded that Little League was “public in the added sense
that local governmental bodies characteristically make
the playing areas available to the local leagues, ordinarily
without charge.” 127 N.J. Super. at 531, aff'd, 67 N.J.
320 (1974). More recently, in Frank v. Ivy Club, 120
N.J. 73, 79, 110 (1990), a female student sought mem-
bership in the all-male eating clubs at Princeton Univer-
sity. Although they did not publicly solicit new members,
we held that the clubs’ close relationship to the Univer-
sity, a place of public accommodation, rendered them
subject to the LAD. 7d. at 110.
It is clear that Boy Scouts benefits from a close rela-
tionship with the federal government. Indeed, BSA was
chartered by Congress in 1916, 36 U.S.C.A. § 30901,
and has been the recipient of equipment, supplies, and
services from the federal government, also by act of Con-
gress, 10 U.S.C.A. § 2544. Thus, the Secretary of De-
28a
fense, 10 U.S.C.A. § 2544(a), and other departments of
the federal government, 10 U.S.C.A. § 2544(h), have
been authorized to
lend to the Boy Scouts of America, for the use and
accommodation of Scouts, Scouters, and officials who
attend any national or world Boy Scout Jamboree,
such cots, blankets, commissary equipment, flags,
refrigerators, and other equipment and without reim-
bursement, furnish services and expendable medical
supplies, as may be necessary or useful to the extent
that items are in stock and items or services are
available.
{10 U.S.C.A. § 2544(a).]
Since its inception, BSA has maintained a special as-
sociation with each successive President of the United
States. According to a BSA public relations fact sheet:
One of the causes contributing to the success of the
Boy Scouts of America has been the thoughful,
wholehearted way in which each President of the
United States since William Howard Taft in 1910
has taken an active part in the work of the move-
ment. Each served as Honorary President during his
term in office.
Another fact sheet states that seventy-eight percent of the
members of the 100th Congress participated in scouting.
Boy Scouts also maintains a close relationship with the
military. According to a BSA pamphlet entitled Organi-
zations That Use Scouting, “military personnel serve
Scouting in many capacities.” “At many [Army, Navy,
Air Force, and National Coast Guard] installations, facil-
ities are available for Scouting shows, meetings, training
activities,” and other “similar Scouting events.” Mon-
29a
mouth Council, in particular, has used the New Jersey
military installation known as Fort Monmouth.
Likewise, state and local governments have contributed
to Boy Scouts’ success.? In New Jersey, the Legislature
has authorized the Division of Fish, Game and Wildlife
in the Department of Environmental Protection to “stock
with fish any body of water in this state that is under the
control of and for the use of . . . Boy Scouts,” N.J.S.A.
23:2-3, and has exempted Boy Scouts from having to pay
motor vehicle registration fees, N.J.S.A. 39:3-27. Local
governmental agencies, such as fire departments and law
enforcement agencies, serve Boy Scouts by sponsoring
scouting units. Nationally, over 50,000 youth members
belong to units sponsored by fire departments, whereas
in New Jersey alone over 130 units are sponsored by
fire departments and over 100 units are sponsored by law
enforcement agencies.
Perhaps Boy Scouts’ connection to public schools and
school-affiliated groups constitutes its single most bene-
ficial governmental relationship. Organizations That Use
Scouting advises that “the education field holds our great-
est potential.” Boy Scouts currently recruits many of its
members through its presence in and use of school facili-
ties. A large percentage of scouting units nationally, as
well as in New Jersey, are chartered by public schools
and affiliated organizations.
Moreover, public schools and community colleges often
host scouting meetings, activities, and recruiting events
such as “School Nights.” “School Night for Scouting [is
a] recruiting plan operated by many councils in connec-
tion with the schools.” Under this plan, an open scout
7 New Jersey governmental entities are, of course, bound by the
LAD. Their sponsorship of, or conferring of special benefits on,
an organization that practices discrimination would be prohibited.
30a
meeting is held at a school in order to encourage students
to join scouting. Public schools not only aid Boy Scouts
by allowing the organization to use their facilities after
school, but also during the school day. According to Boy
Scouts, “[mJore and more of our schools are becoming
available for other than formal education. . . . In-school
Scouting, where the pack, troop, team, or post meets dur-
ing the school day, is recognized in many areas.” In
1992, close to 700,000 students throughout the nation
were taught the Boy Scouts’ Learning for Life curriculum
during the school day.
Given Boy Scouts’ public solicitation activities, and
considering its close relationship with governmental en-
tities, it is not surprising that Boy Scouts resembles many
of the recognized and enumerated places of public ac-
commodation. Similarity to the places of public accom-
modation listed in the LAD has been a benchmark for
determining whether the unlisted entity should be in-
cluded. Cf. Board of Chosen Freeholders v. New Jersey,
N.J. . (slip op. at 16) (1999) (stating
that “{uJnder the ejusdem generis principle of statutory
construction, when specific words follow more general
words in a statutory enumeration, we can consider what
additional items might also be included by asking whether
those items are similar to those enumerated”). In Fraser
v. Robin Dee Day Camp, for example, this Court held
that a “day camp is the type of accommodation which
the Legislature intended to reach” because a “day camp
offers accommodations which have many attributes in
common with swimming pcols, recreation and amusement
parks, motion picture houses, theatres, music halls, gym-
nasiums, kindergarten and primary schools, all of which
are specifically enumerated” in the LAD. 44 N.J. at 487.
The Appellate Division in Little League identified Little
League’s “ ‘educational or recreational nature’” as a basis
3la
for the court’s conclusion that Little League was similar to
the types of public accomodations listed in the statute.
127 N.J. Super. at 531 (quoting Fraser, supra, 44 NJ.
at 487). Similarly, Boy Scouts’ educational and recrea-
tional nature, like the day camp in Fraser or the baseball
teams in Little League, further supports our conclusion
that Boy Scouts is a “place of public accommodation”
under the LAD. See, e.g, Advancement Guidelines 4
(1992 ed.) (stating that “[e]ducation and fun are func-
tions of the scouting movement”).
2. LAD Exceptions
Boy Scouts claims that even if it is a place of public
accommodation, it is nonetheless exempt from the LAD
under three express exceptions: (1) the “distinctly pri-
vate” exception; (2) the religious educational facility ex-
ception; and (3) the in loco parentis exception. N.J.S.A.
10:5-51. Because we determine that these exceptions do
not apply to Boy Scouts, we hold that Boy Scouts is sub-
ject to the LAD.
“While this Court has been scrupulous in its insistence
that the [LAD] be applied to the full extent of its facial
coverage, it has never found such coverage to exist in the
face of an unambiguous exclusion.” Peper v. Princeton
Univ. Bd. of Trustees, 77 N.J. 55, 68 (1978) (citations
omitted). Nonetheless, despite our adherence to statutory
exceptions expressly and unambiguously set forth by the
Legislature, we are mindful that “{e]xemptions from
remedial statutes should generally be narrowly construed.”
Poff v. Caro, 228 N.J. Super. 370, 379 (Law Div. 1987)
(citing Service Armament Co. v. Hyland, 70 N.J. 550,
559 (1976) ).
We begin with the “distinctly private” exception. The
LAD provides that “(nJothing herein contained shall be
32a
construed to include or to apply to any institution, bona
fide club, or place of accommodation, which is in its
nature distinctly private.” N.J.S.A. 10:5-51. Boy Scouts’
status as a bona fide club has not been questioned. Our
focus is, therefore, on the meaning of “distinctly private.”
We agree with the New York Court of Appeals that this
language, found in both the New York Human Rights
Law, N.Y. Exec. Law § 292, and in the LAD, is intended
as a narrowly drawn statutory exclusion. Power Squad-
rons, supra, 452 N.E.2d at 1204 (stating that this excep-
tion “does not refer simply to private clubs or establish-
ments closed to the public but uses more restrictive lan-
guage excluding from the statute’s provisions only clubs
which are “distinctly private’”). Boy Scouts bears the
burden of proving that it fits within this narrow exception.
Cf. Spragg v. Shore Care & Shore Mem’! Hosp., 293
N.J. Super. 33, 51 (App. Div. 1996) (holding burden of
proof on defendant-employer to prove bona fide occupa-
tional qualification exception to LAD).
In deciding whether Boy Scouts is a place of public
accommodation, we considered the organization’s public
solicitation activities. Solicitation of a broad member-
ship base is closely related to the issue of selectivity in
membership, which may explain why various courts have
considered both factors in their analyses of both “place of
public accommodation” and the “distinctly private” excep-
tion. See, e.g., Kiwanis, supra, 806 F.2d at 476 (stating
that “distinctly private” exception “represents the other
side of the ‘public accommodation’ coin . . . . because of
the emphasis placed on ‘selectivity’ as the standard for
determining ‘public accommodation,’ as well as for deter-
mining if a club is ‘distinctly private’”). We have re-
viewed the multiple ways in which Boy Scouts reaches out
to the public and. therefore, will consider the selectivity
issue as the principal determinant of “distinctly private”
33a
status. See Power Squadrons, supra, 452 N.E.2d at 1204
(stating that “the essence of a private club is selectivity in
its membership”).
Thirty-three years ago, in Clover Hill Swimming Club,
Inc. v. Goldsboro, we said that “not every establishment
using the ‘club’ label can be considered ‘distinctly pri-
vate.’ Self-serving declarations by . . . an accommodation
are not determinative of its character.” 47 N.J. at 34.
Although the swimming club had represented to the public
that “all applications [for membership] would be subject
to approval by club officials,” it appeared that Clover
Hill was only selective when black families applied. /bid.
The Court refused to accept bogus representations con-
cerning the “private” nature of the club when it was quite
clear that membership was generally open and had to
do with a family’s interest in recreation and not much
else. Ibid. Little League, citing Clover Hill, primarily
relied on the baseball league’s “open [invitation] to chil-
dren in the community at large, with no restriction (other
than sex) whatever” as a basis for the court’s finding that
the league was a “public accommodation.” 127 NJ.
Super. at 531. The lack of any membership selectivity—
except for the prohibition against the admission of girls
—weighed in the public accommodation calculus; it also
bears upon the “distinctly private” exception.
Kiwanis International v. Ridgewood Kiwanis Club is
the only case to hold a club exempt under the “distinctly
private” exception. 806 F.2d at 477. The Third Circuit,
relying on Little League, applied a selectivity analysis to
determine whether Kiwanis Ridgewood was a public ac-
commodation and, therefore, not “distinctly private.” Id.
at 476-77. The court found that the local club was selec-
tive based on its membership practices, which were
described as follows:
34a
The Ridgewood club is small, comprised of only
twenty-eight members. Ten individuals have been
members for over twenty years. Indeed, Kiwanis
Ridgewood has admitted no more than twenty mem-
bers over the course of the pa ecade. Each new
member had to be sponsored by a current member,
and formally voted in by the Ridgewood Board of
Directors. The sponsorship of the existing member
acted as a primary screening mechanism in the
maintenance of the quality of membership. In addi-
tion to national membership requirements, Kiwanis
Ridgewood established several local membership re-
quirements, which included, among others, the can-
didate’s willingness to pray at meetings and to recite
the pledge of allegiance.
Although Kiwanis International has encouraged large-
scale membership solicitation in the past, the sug-
gested “membership roundup” mailings were sent
only to those prospects already known by current
members. These individuals would be invited to a
Kiwanis meeting to determine their compatibility with
the organization’s goals and members. The scope of
these membership drives was limited. Not only did
every solicited individual have to be known by an
existing member, but every applicant out of that
group of solicited individuals would have to be spon-
sored by an existing member.
{/d. at 475.]
Unlike Kiwanis Ridgewood, which used “sponsorship
{by an] existing member . . . as a primary screening
mechanism in the maintenance of . . . quality member-
ship,” Boy Scouts does not require new members “to be
sponsored by a current member.” Ibid. Nor does Boy
Scouts limit its recruiting, or invitations to the public,
35a
to individuals who are “known by an existing member.”
To the contrary, Boy Scout publications indicate that the
organization seeks a broad membership base. In a book-
let, entitled A Representative Membership,’ Boy Scouts
States that its “national objective, as well as for regions,
areas, councils, and districts is to see that all eligible
youth have the opportunity to affiliate with the Boy
Scouts of America.” Id. at 1 (emphasis added). The
booklet is emphatically inclusive:
We have high hopes for our nation’s future. These
hopes cannot flower if any part of our citizenry feels
deprived of the opportunity to help shape the future.
How can you persuade other Scouters to accept a
commitment to a representative membership? Con-
sider these facts:
1. Our federal charter sets forth our obligation
to serve boys. Neither the charter nor the bylaws
of the Boy Scouts of America permits the exclusion
of any boy. The National Council and Executive
Board have always taken the position that Scouting
should be available for all boys who meet the en-
trance age requirements.
4. Another aim of Scouting is the development
of leadership. Leadership in America is needed in all
sections of the country and in all economic, cultural,
and ethnic groups.
5. To meet these responsibilities we have made
a commitment that our membership shall be repre-
8 Boy Scouts also questions whether this hooklet is properly be-
fore us. See supra at ——- n.— (slip op. at 35 n.6). The booklet
on its face states that it is a BSA publication prepared for national,
council, district, and local board/committee members, and Boy
Scouts has not indicated otherwise.
' 36a
sentative of all the population in every community,
district, and council.
{Id. at 2 (emphasis added).]
Boy Scouts’ large membership further undercuts its
claim to selective membership. Nationally, over four mil-
lion boys and one million adults were Boy Scout members
in 1992.° Since its inception, over 87 million people have
joined Boy Scouts. In 1991, Monmouth Council alone had
over 8400 youths and over 2700 adult members. . The
New York Court of Appeals, construing “distinctly pri-
vate” in United States Power Squadrons v. State Human
Rights Appeal Board, has suggested that an organization’s
failure to limit its maximum membership, in and of itself,
demonstrates that the club is not private: “Organizations
which routinely accept applicants and place no subjective
limits on the number of persons eligible for membership
are not private clubs.” 452 N.E.2d at 1204. We note
only that the size of the Boy Scout organization certainly
implies an open membership policy.
Boy Scouts argues, however, that it is “distinctly pri-
vate” because its Scout Oath and Scout Law constitute
genuine selectivity criteria. In support of its position, Boy
Scouts relies in Welsh v. Boy Scouts of America, wherein
the Seventh Circuit stated:
9 Boy Scouts argues that this Court should follow Kiwanis, supra,
806 F.2d at 476 n.14, and limit review of Boy Scouts’ membership
selection practices to the local, rather than the national level. We
decline to follow Kiwanis in this case. Boy Scouts’ local units,
unlike Kiwanis Ridgewood, are not authorized to establish addi-
tional “local membership requirements,” id. at 475, nor are they
empowered generally to change BSA’s policies. We find that the
various levels of scouting are interrelated such that a review of the
nation] organization’s membership selection practices—as opposed
to the local unit—is most appropriate.
37a
Although the Scouts intentionally admit a large
number of boys from diverse backgrounds, admis-
sion to membership is not without exercise of sound
discretion and judgmert. This is evident from the
Constitution and By-law: <3 well as the Boy Scouts’
Oath and Scout L-w.
. . » We hold therefore that the Scouts organiza-
tion not only is selective, but that its very Constitu-
tion, By-laws and doctrine dictate that it remain
selective.
[993 F.2d at 1276-77.]
. We acknowledge that Boy Scouts’ membership applica-
tion requires members to comply with the Scout Oath
and Law. We do not find, however, that the Oath and
Law operate as genuine selectivity criteria. To the con-
trary, the record discloses few instances in which the Oath
and Law have been used to exclude a prospective mem-
ber; in practice, they present no real impediment to join-
ing Boy Scouts. Joining requirements are insufficient to
establish selectivity where they do not function as true
limits on the admission of members. See Power Squad-
rons, supra, 452 N.E.2d at 1204 (requiring examination
for basic boating course was not “selective” where club
“place{d] no subjective limits on the number of persons
eligible for membership”). Here, there is no evidence that
Boy Scouts does anything but accept at face value a scout’s
affirmation of the Oath and Law. See Roberts v. United
States Jaycees, 468 US. 609, 621, 104 S. Ct. 3244, 3251,
82 L. Ed. 2d 462, 473 (1984) (finding group unselec-
tive where “new members are routinely recruited and
admitted with no inquiry into their backgrounds”).
Most important, it is clear that Boy Scouts does not
limit its mémbership to individuals who belong to a par-
38a
ticular religion or subscribe to a specific set of moral
beliefs. Boy Scouts asserts that “[t]here is a close asso-
ciation between the Boy Scouts of America and virtually
all religious bodies and denominations in the United
States,” and that each member’s concept of “moral fit-
ness” should be determined by his “courage to do what
his head and heart tell him is right.” See supra at
(slip op. at 11-12). Moreover, Boy Scouts encourages
its members to “respect and defend the rights of others
whose beliefs may differ.” Scoutmaster Handbook, supra,
at 561. By its own teachings then, Boy Scouts is inclu-
sive, not selective, in its membership practices.
Boy Scouts also argues that it is “distinctly private”
because it is selective in its adult membership. In addi-
tion to the Scout Oath and Law requirements, adult mem-
bers are bound by the Declaration of Religious Principle,
and are subject to evaluation according to informal cri-
teria designed to select only individuals capable of ac-
cepting responsibility for the moral education and care of
other people’s children in accordance with scouting values.
Several of the Troop 73 leaders who were involved in
Dale’s adult membership approval have said that they
would not have approved Dale’s application had they
known that Dale was an “avowed” homosexual, thus lend-
ing support to BSA’s position.
The Appellate Division’s analysis of Boy Scouts’ adult
membership selectivity dispels the notion that an open
membership organization can claim the “distinctly pri-
vate” exception because it is selective as to a small subset
of the larger group:
We reject the suggestion that the BSA organiza-
tion as a whole is not a place of public accommoda-
tion because more stringent membership criteria are
applied to a single component of the organization,
39a
its adult members. Such a result is clearly inconsist-
ent with the remedial purposes of the LAD. Accept-
ance of the argument would mean that public clubs
in Clover Hill and Fraser, are not places of public
accommodation because their member-counselors or
lifeguards are subject to more stringent, enhanced
training criteria. An extension of defendants’ argu-
ment would be that the BSA is not a place of public
accommodation because of the demanding standards
that must be met to become an Eagle Scout.
[Dale, supra, 308 N.J. at 538 (citations omitted).]
See also Brounstein, supra, 839 F. Supp. at 1107-08
(stating that “(t]he fact that an organization is selective
with respect to the privileges and benefits it accords to
members does not exempt that organization from the
proscriptions of the LAD if it is otherwise a ‘public place
of accommodation’ ”).
Boy Scouts accepts boys who come from diverse cultures
2nd who belong to different religions. It teaches tolerance
and understanding of differences in others. It presents
itself to its members and to the public generally as a non-
sectarian organization “available to all boys who meet the
entrance age requirements”. Its Charter and its Bylaws do
not permit the exclusion of any boy. Boy Scouts is not
“distinctly private” because it is not selective in its mem-
bership. |
Boy Scouts claims, however, that it is exempt from the
LAD because it is an “educational facility operated or
maintained by a bona fide religious or sectarian institu-
tion.” N.J.S.A. 10:5-51. This claim deserves little dis-
cussion. Boy Scouts repeatedly states that it is nonsec-
tarian. Its Bylaws declare that no member shall be re-
quired “to take part in or observe a religious ceremony
40a
distinctly unique” to a church or other religious organiza-
tion. Boy Scouts emphasizes that religious instruction is
better reserved for “the home and the organization or
group with which the member is connected.” Further, the
Scoutmaster Handbook instructs its leaders that scouting
“is identified with no particular faith, encourages no par-
ticular affiliation, nor assumes functions of religious
bodies.” We cannot say that Boy Scouts is a “bona fide
religious or sectarian institution” in the face of the or-
ganization’s clear pronouncements on this subject.?°
Finally, Boy Scouts argues that requiring it to admit
Dale frustrates “the right of a natural parent or one in
loco parentis to direct the education and upbringing of
a child under his control.” /¥.J.$.A. 10:5-51. The right
of a parent to provide for the custody, care. and nurturing
of a child is well-established. Ginsberg v. New York, 390
U.S. 629, 639, 88 S. Ct. 1274, 1280, 20 L. Ed. 2d 195,
203 (1968). In limited cases, that right is also extended
to persons, like a stepparent, whose intent it is “to as-
sume the parental relationship.” A.S. v. B.S., 139 NJ.
Super. 366, 369 (Ch. Div. 1969). Boy Scouts does not
qualify as “one in loco parentis.”
Our prior decisions indicate that the status of in loco
parentis is reserved for individuals who function as a
parent. See, e.g., Miller v. Miller. 97 N.J. 154. 162
(1984) (recognizing stennparent may have in loco parentis
relationship); In re M.S.. 72 N.J. 238, 243-44 (1977)
(finding juvenile shelter for delinanents stands in loco
parentis). Characteristics of that relationshin include “the
10 That Boy Scouts’ oath exnresses a helief in God does not make
it a religious institution. Nor does Bov Scouts’ commitment to
“Telducation ond fun,” see sunre nt —— (slin an, ot 49) (emnhasis
added), qualify it as an “educational facilitv’ under N.J S.A.
10 :5-61.
4la
responsibility to maintain, rear and educate the child,”
Miller, supra, 97 N.J. at 162, as well as the duties of
“supervision, care and rehabilitation,” In re M.S., supra,
72 NJ. at 242; see also A.S., supra, 139 N.J. Super. at
369 (defining role as “one who means to put himself in
the situation of the lawful father with reference to the
father’s office and duty of making provision for the child”).
Boy Scouts does not assume those responsibilities or those
duties. It does not maintain or rear children. A Boy
Scout leader may function as a supervisor of children for
limited periods of time; he does not have “the responsibility
to maintain, rear and educate” children such that he
stands‘in the place of a parent.
We hold that Boy Scouts is a “place of public accom-
modation” and is not exempt from the LAD under any
of the statute’s exceptions.
3. Have Boy Scouts Violated the LAD?
N.J.S.A. 10:5-4 states that “[a]ll persons shall have the
opportunity to obtain . . . all the accommodations, ad-
vantages, facilities, and privileges of any place of public
accommodation.” Because we hold that an assistant scout-
master position is a “privilege” and an “advantage” of
Boy Scout membership, and because Boy Scouts has “re-
voked” Dale’s registration based on his “avowed” homo-
sexuality, a prohibited form of discrimination under the
statute, we conclude that Boy Scouts has violated the LAD.
In Dale’s revocation letter, Boy Scouts expressly stated
that “BSA membership registration is a privilege.” Boy
Scouts has also taken the position that “adult membership”
and “adult leadership” are “interchangeable” in the scout-
ing world. See supra at (slip op. at 15). Boy ~
Scouts’ statements raise the question whether the organi-
zation has waived its right to challenge Dale’s claim that
42a
he has been denied a “privilege” within the meaning of the
LAD.
We find, nonetheless, the Boy Scout membership is both
a “privilege” and “advantage.” The organization provides
its members with numerous benefits, including opportun-
ities to participate in group activities and to develop a
variety of skills, e.g., camping, cooking, first aid, lifesav-
ing. Boy Scout leaders are given the “advantage” of nu-
merous training courses that teach valuable lessons in
leadership and management. Scouting indirectly benefits
its members through the “advantage” of a large influ-
ential network, including Air Force Academy, Annapolis
and West Point graduates, Rhodes Scholars, astronauts,
United States Presidents and Congressmen, as well as busi-
nessmen and community leaders. Indeed, Boy Scouts ad-
vertises the. “privileges” and “advantages” of being a mem-
ber in order to attract new members." See id. at ——
(slip op. at 35). It is undeniable that Dale lost those
“privileges” and “advantages” when he was expelled. It
necessarily follows that Boy Scouts violated the LAD
when it expelled him.
11In Ouinniniae Counci! Boy Scouts of America v. Commission
on Human Riahts ond Onnortunities, 204 A.2d 352 (Conn. 1987).
the Connecticut Supreme Court held that Boy Seouts had not denied
a woman an “accommodation,” which it interpreted to mean “‘ac-
cess to goods and services,” when it denied her the opportunity to
serve as a scoutmaster. Jd. at 360. The Connecticut public accom-
modation statute interpreted by the Connecticut Supreme Court is
distinguishable from our New Jersey statute. The T.AD is not
concerned solely with the denial of an “accommodation” or “goods
and services,” but rather prohibits places of public accommodation
from refusing to provide “accommodations, advantages, facilities
for] privileges.” N.J.S.A. 10:5-4. While volunteer scoutmaster
positions may not be “goods [or] services,” they are a “privilege”
and an “advantage.”
43a
B. The Common Lew
Dale asserts that Boy Scouts is also prohibited from
discriminating against him by the common law. The Legis-
lature did not intend to abrogate all common law causes
of action with the enactment of the LAD. See N.J.S.A.
10:5-27 (“Nothing herein contained shall bar, exclude or
otherwise affect any right or action, civil or criminal, which
may exist independently of any right to redress against or
specific relief from any unlawful employment practice or
unlawful discrimination.”); see also N.J.S.A. 10:5-3 (“The
Legislature intends that such damages be available to all
persons protected by this-act and that this act shall be
liberally construed in combination with other protections
available under the laws of this State.”) (emphasis added).
In Shaner v. Horizon Bancorp., we recognized that “a
plaintiff in appropriate circumstances could pursue an in-
dependent action . . . to vindicate particular interests in
addition to or aside from those sought to be protected by
a LAD action.” 116 N.J. 433, 454 (1989).
In many cases, however, a common law claim is merely
duplicative of a LAD claim and “it might be unnecessary
to recognize or create . . . [an] action to vindicate sub-
stantially the same rights and provide sirailar relief.”
Ibid.; accord Erickson v. Marsh & McLennan Co., 117
N.J. 539, 562 (1990). We find that Dale’s common law
claim, if pursued, would not protect an interest “in addi-
tion to or aside from those” protected by his statutory
aed evar od om 116 NJ. at 454. Accordingly,
we that "s common law claim i icati
er deg is duplicative of
44a
IV
THE FIRST AMENDMENT
Our holding that New Jersey’s Law Against Discrimina-
tion applies to Boy Scouts requires that we reach Boy
Scouts’ claim that its First Amendment rights are thereby
violated. See U.S. Const. amend. I. Boy Scouts asserts
the rights of its members “to enter into and maintain .. .
intimate or private relationships. . . . [and] to associate for
the purpose of engaging in protected speech.” Board of
Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537, 544,
107 S. Cr. 1940, 1945, 95 L. Ed. 2d 474, 483-84 (1987).
The United States Supreme Court has referred to the
constitutionally protected freedom of association in two
distinct contexts. “In one line of decisions, the Court has
concluded that choices to enter into and maintain certain
intimate human relationships must be secured against un-
due intrusion by the State because of the role of such
relaticnships in safeguarding the individual freedom that
is central to our constitutional scheme.” Roberts, supra,
468 U.S. at 617-18, 104 S. Ct. at 3249, 82 L. Ed. 2d at
471. Those cases are typically referred to as “intimate as-
sociation” cases. “In another set of decisions, the Court
has recognized a right to associate for the purpose of
engaging in those activities protected by the First Amend-
ment—speech, assembly, petition for the redress of griev-
ances, and the exercise of religion.” Jd. at 618, 104 S.
Ct. at 3249, 82 L. Ed. 2d at 471. Those cases have been
described as “expressive association” cases.
Boy Scouts’ First Amendment claim requires that we
examine the analytical framework within which the
United States Supreme Court has discussed this complex
of associational rights.
45a
A. Freedom of Intimate Association
“[B]ecause the Bill of Rights is designed to secure in-
dividual liberty, it must afford the formation and preser-
vation of certain kinds of highly personal relationships a
substantial measure of sanctuary from unjustified inter-
ference by the State.” /d. at 618, 104 S. Cr. at 3250, 82
L. Ed. 2d at 471. The freedom to maintain personal re-
lationships or to engage in intimate associations is thus
“a fundamental element of liberty protected by the Bill
of Rights.” Rotary Club, supra, 481 U.S. at 545, 107
S. Ct. at 1945, 95 L. Ed. 2d at 484. Although the Su-
preme Court has never set the “precise boundaries” of
this freedom, “[t}he intimate relationships to which [it]
has accorded constitutional protection include marriage,
the begetting and bearing of children, child rearing and
education, and cohabitation with relatives.” Jd. at 545,
107 S. Ct. at 1945-46, 95 L. Ed. 2d at 484 (citations
omitted). The freedom of intimate association, however,
is not restricted to family relationships; rather, the Court
has “emphasized that the First Amendment protects those
relationships . . . that presuppose ‘deep attachments and
commitments to the necessarily few other individuals with
whom one shares not only a special community of
thoughts, experiences and beliefs but also distinctly per-
sonal aspects of one’s life.”” Jd. at 545, 107 S. Cr. at
1946, 95 L. Ed. 2d at 484 (quoting Roberts, supra, 468
U.S. at 619-20, 104 S. Ct. at 3250, 82 L. Ed. 2d at 472).
Two seminal cases have considered the claims of na-
tional membership organizations that the intimate associ-
ation rights of their members had been abridged by the
application of state laws similar to the LAD. In Roberts
v. United States Jaycees, the Jaycees brought an action
contending that application of Minnesota's public accom-
modations law requiring the organization to admit women
46a
as regular members violated the male members’ intimate
association rights. Under the Jaycees’ Bylaws, men be-
tween the ages of eighteen and thirty-five were eligible for
regular membership, whereas only “associate membership”
was available to women. Roberts, supra, 468 U.S. at 613,
104 S. Cr. at 3248, 82 L. Ed. 2d at 468. Unlike regular
members, associate members could not vote, hold office, or
“participate in certain leadership training and awards pro-
grams.” Jbid. Nonethcless, as associate members, women
“attend[ed] various meetings, participate{d] in selected
projects, and engage[d] in many of the organization's so-
cial functions.” /d. at 621, 104 S. Ct. at 3251, 82 L. Ed.
2d at 473.
Based on those facts, the Supreme Court concluded
that “the Jaycees chapters lack[ed] the distinctive charac-
teristics that might afford constitutional protection to the
decision of its members to exclude women.” /d. at 621,
104 S. Cr. at 3251, 82 L. Ed. 2d at 474. Specifically, the
Court emphasized that “the local chapters of the Jaycees
are neither small nor selective,” and that “much of the
activity central to the formation and maintenance of the
association involves the participation of strangers to that
relationship.” /Jbid. At the time of trial, the local chap-
ters involved in the suit had approximately 400 members,
id. at 621, 104 S. Ct. at 3251, 82 L. Ed. 2d at 473, and
the organization had 295,000 members nationwide, id. at
613, 104 S. Ct. at 3246, 82 L. Ed. 2d at 468. Further-
more, “[a}part from age and sex, neither the national
organization nor the local chapters employ[ed] any cri-
teria for judging applicants for membership.” /bid.
In Board of Directors of Rotary International v. Rotary
Club of Duarte, the Court again considered a First
Amendment challenge to a state antidiscrimination statute
requiring a national membership organization to admit
47a
women. There, the charter of a local chapter of Rotary
International was revoked by the national organization
because it admitted women members. Rotary Club, supra,
481 U.S. at 541, 107 S. Ct. at 1943, 95 L. Ed. 2d at
482. Under the Rotary constitution, women were ex-
cluded from membership, although “women [were] per-
mitted to attend meetings, give speeches, and receive
awards.” Jd. at 541, 107 S. Cr. at 1943, 95 L. Ed. 2d at
481. The local chapter and two of its female members
brought an action challenging the national organization's
exclusionary policy under the California civil rights stat-
ute. Id. at 541, 107 S. Ct. at 1943, 95 L. Ed. 2d at 482.
Rotary International argued that requiring it to admit
women would infringe on its right of intimate association.
Once again the Court concluded that “the relationship
among (the organization's} members is not the kind of
intimate or private relation that warrants constitutional
protection.” Jd. at 546, 107 S. Ct. at 1946, 95 L. Ed. 2d
at 484-85. The Court noted that local chapters ranged
in size from “fewer than 20 [members] to more than
900,” and that the national organization did not sct an
“upper limit on the membership of any local Rotary
Club.” Jd. at 546, 107 S. Ct. at 1946, 95 L. Ed. 2d at
485. The Court also emphasized Rotary International's
inclusive membership policy, pointing to the organization's
own declaration that “[t]he purpose of Rotary ‘is to pro-
duce an inclusive, not exclusive, membership.” Jbid. In
order to fulfill this purpose, “{tJhe clubs . . . [were] in-
structed to ‘keep a flow of prospects coming’ to make up
for . . . attrition and gradually to enlarge membership.”
Ibid. Most important, Rotary International's membership
policy was designed to “‘enabl[e] the club to be a true
cross section of the business and professional life of the
community.” Ibid. On these facts, the Court concluded
that “[sJuch an inclusive ‘fellowship for service based on
48a
diversity of interest,’ . . . does not suggest the kind of
private or personal relationship to which we have accorded
protection under the First Amendment.” /d. at 546-47,
107 S. Ct. at 1946, 95 L. Ed. 2d at 485.
Those cases teach us to consider, among other things,
“size, purpose, selectivity, and whether others are excluded
from critical aspects of the relationship,” when we ex-
amine membership organizations to determine whether a
protectable intimate association right is present. Jd. at
546, 107 S. Ct. at 1946, 95 L. Ed. 2d at 485; see also
Roberts, supra, 468 U.S. at 620, 104 S. Ct. at 3251, 82
L. Ed. 2d at 473 ( stating that “factors . . . relevant [to
an intimate association analysis] include size, purpose,
policies, selectivity, congeniality, and other characteristics
that in a particular case may be pertinent”). As applied
to Boy Scouts, we find that its large size, nonselectivity,
inclusive rather than exclusive purpose, and practice of
inviting or allowing nonmembers to attend meetings,
establish that the organization is not “sufficiently personal
OF private to warrant constitutional protection” under the
freedom of intimate association.
As a preliminary matter, contrary to Boy Scouts’ as-
sertion, whether we evaluate the Boy Scout organization
at the national or local troop level, the result would be
the same. See supra at —— (slip op. at 48 n.9). Either
way, Boy Scouts cannot claim the right of intimate asso-
ciation for its members. Because Boy Scouts’ argument is
necessarily stronger at the smaller troop level, we will
consider the intimate association factors as applied to
local troops.
Boy Scouts informs us that a typical Boy Scout troop
consists of between fifteen and thirty boys and several
adult leaders. In Rotary Club, the Supreme Court spe-
cifically held that a local club with as few as twenty mem-
49a
bers did not qualify as “the kind of intimate or private re-
lation that warrants constitutional protection.” 481 U.S.
at 546, 107 S. Cr. at 1946, 95 L. Ed. 2d at 484-85.
Moreover, Boy Scout troops are unselective in their mem-
bership. See supra at —— (slip op. at 49-53). Any boy
between the ages of eleven and seventeen can join; indeed,
Boy Scouts has quite clearly said that “any boy” is wel-
come. See id. at (slip op. at 52). Boy Scouts also
has not set an upper limit on the number of boys who can
join, but instead, actively seeks to interest as many boys
as possible through advertising and other outreach
methods. See id. at —— (slip op. at 35-36). Even
if Boy Scouts is more selective in choosing its leaders,
leaders do not substitute for the boys’ parents, see id. at
(slip op. at 55); nor do they have private or intimate
relationships with troop members. Relationships within the
troop are simply not the “kind of . . . personal relation-
ship[s] to which [the Supreme Court has] accorded pro-
tection under the First Amendment.” Rotary Club, supra,
481 U.S. at 547, 107 S. Ct. at 1946, 95 L. Ed. 2d at
485.
Boy Scouts’ inclusive purpose deserves further discus-
sion in this context. Like the Rotary Clubs analyzed by
the Supreme Court, the purpose of Boy Scouts “is to pro-
duce inclusive, not exclusive membership.” Jd. at 546,
107 S. Ct. at 1946, 95 L. Ed. 2d at 485. Boy Scouts has
made a commitment to ensure that its membership is
“representative of all of the population.” See supra at
(slip op. at 48). “Such an inclusive fellowship . . . based
on diversity of interest, however beneficial to the members”
is also not indicative of a protectable form of intimate as-
sociation. Rotary Club, supra, 481 U.S. at 546-47, 107
S. Ct. at 1946, 95 L. Ed. 2d at 485.
Boy Scouts’ practice of inviting or allowing nonmembers
to attend certain troop meetings further persuades us that
50a
Boy Scouts cannot claim the right of intimate association.
In Rotary Club, the Supreme Court observed that “[mJany
of the Rotary Clubs’ central activities [were] carried on
in the presence of strangers. . . . {and that] clubs [were]
encouraged to seck coverage of their meetings and activi-
ties in local newspapers.” Jd. at 547, 107 S. Ct. at 1946-
47, 95 L. Ed. 2d at 485. In the Court's view, this negated
Rotary International’s claim that the California Civil
Rights Act “interfere[d] unduly with the members’ free-
dom of private association.” /d. at 547, 107 S. Ct. at
1947, 95 L. Ed. 2d at 485. Likewise, Boy Scouts’ prac-
tice of inviting nonmembers to “School Nights” and other
similar activities undermines its intimate association claim.
See supra at (slip op. at 5).
We conclude that Boy Scouts has not demonstrated a
protectable intimate association right under the First
Amendment.
B. Freedom of Expressive Association
“An individual’s freedom to speak, to worship, and to
petition the government for the redress of grievances
could not be vigorously protected from interference by
the State unless a correlative freedom to engage in group
effort toward those ends were not also guaranteed.”
Roberts, supra, 468 U.S. at 622, 104 S. Ct. at 3252, 82
L. Ed. 2d at 474. Thus, “the right to engage in activities
protected by the First Amendment [carries with it] a cor-
responding right to associate with others in pursuit of a
wide variety of political, social, economic, educational, re-
ligious, and cultural ends.” /bid. The freedom to come
together in furtherance of a “collective” purpose provides
protection for minority views, thereby fostering “political
and cultural diversity.” bid.
When the government attempts “to interfere with the
internal organization or affairs of the group,” id. at 623,
Sla
104 S. Ct. at 3252, 82 L. Ed. 2d at 474, the members’
freedom of expressive association may be curtailed. In
this regard, the Supreme Court has said that “[tJhere can
be no clearer example of an intrusion into the internal
structure or affairs of an association than a regulation that
forces the group to accept members it does not desire.”
Id. at 623, 104 S. Ct. at 3252, 82 L. Ed. 2d at 474-75.
This does not mean, however, “that in every setting in
which individuals exercise some discrimination in choosing
associates, their selective process of inclusion and exclu-
sion is protected by the Constitution.” New York State
Club Ass'n v. City of New York, 487 U.S. 1, 13, 108
S. Ct. 2225, 2234, 101 L. Ed. 2d 1, 16 (1988). Rather,
the Court has found that a group member infringes upon
an organization’s freedom of expressive association only
if he or she “affect[s] ‘in any significant way’ the {other
members’] ability . . . to . . . advocate public or private
viewpoints.” Ibid.; see also Rotary Club, supra, 481 U.S.
at 548, 107 S.Ct. at 1947, 95 L. Ed. 2d at 486 (holding
that “the evidence fails to demonstrate that admitting
women to Rotary Clubs will affect in any significant way
the existing members’ ability to carry out their | various
purposes”); Roberts, supra, 468 U.S. at 626-27, 104 S.
Ct. at 3254, 82 L. Ed. 2d at 477 (ruling that “the Jaycees
has failed to demonstrate that the Act imposes any seri-
out burdens on the male members’ freedom of expressive
association” because “[t]here is . . . no basis in the record
for concluding that admission of women . . . will impede
the organization’s ability to engage in these protected ac-
tivities or to disseminate its preferred views” ).
Moreover, “{t]he right to associate for expressive pur-
poses.is not . . . absolute.” Roberts, supra, 468 U.S. at
623, 104 S. Ct. at 3252, 82 L. Ed. 2d at 475. The Su-
preme Court has held that “[{iJnfringements on that right
may be justified by regulations adopted to serve compel-
52a
ling state interests, unrelated to the suppression of ideas,
that cannot be achieved through means significantly less
restrictive of associational freedom.” Jbid. State laws
against discrimination may take precedence over the right
of expressive association because “acts of invidious dis-
crimination in the distribution of publicly available goods,
services, and other advantages cause unique evils that gov-
ernment has a compelling interest to prevent—wholly
apart from the point of view such conduct may transmit.”
Id. at 628, 104 S. Ct. at 3255, 82 L. Ed. 2d at 478.
The right of expressive association must, therefore, be
weighed against this compelling interest in each case.
We find that the LAD does not violate Boy Scouts’
freedom of expressive association because the statute does
not have a significant impact on Boy Scout members’
ability to associate with one another in pursuit of shared
views. The organization’s ability to disseminate its mes-
sage is not significantly affected by Dale’s inclusion be-
cause: Boy Scouts members do not associate for the pur-
pose of disseminating the belief that homosexuality is
immoral; Boy Scouts discourages its leaders from dis-
seminating any views on sexual issues; and Boy Scouts
include sponsors and members who subscribe to different
views in respect of homosexuality.
Boy Scouts claims that its members’ views regarding
homosexuality are evident from its Scout Law and Oath,
which embody general moral principles. The Scout Law
requires Boy Scout members to be “trustworthy, loyal,
helpful, friendly, courteous, kind, obedient, cheerful,
thrifty, brave, clean, and reverent,” whereas the Oath re-
quires each scout to promise: “I will do my best to do my
duty to God and my country and to obey the Scout Law;
to help other people at all times; to keep myself physically
strong, mentally awake, and morally straight.” Boy Scouts
asserts that it teaches those moral principles to its mem-
bers through scouting activities. BSA Bylaws require
53a
that “in all activities, emphasis [is to] be placed upon
practice in daily life of the principles of the Scout Oath.”
Boy Scouts aims to foster “strength, confidence, and good
judgment” by providing boys with “a world full of exciting
adventures” and the opportunity “to go places and do
things.” Boy Scout Handbook, supra, at vii. In the words
of the Chief Scout Executive:
As a Scout, you'll hike and camp, learn how to live
in the out-of-doors, and discover many ways to care
for the land. You can cook your meals over a camp
stove and identify all kinds of plants and animals
that are part of our environment. No matter what
happens, you'll know how to take care of yourself.
You'll develop strength, confidence, and good judg-
ment. And you can find out how it feels to be a
leader.
[/bid.]
We agree that Boy Scouts expresses a belief in moral
values and uses its activities to encourage the moral de-
velopment of its members. Cf. Roberts, supra, 468 U.S.
at 636, 104 S. Ct. at 3259-60, 82 L. Ed. 2d at 483-84,
(O'Connor, J., concurring in part and concurring in
judgment) (stating “protected expression may also take
the form of quiet persuasion, inculcation of traditional
values, instruction of the young, and community serv-
ice. .. . [and e}jven the training of outdoor survival skills
or participation in community service might become ex-
pressive when the activity is intended to develop good
morals, reverence, patriotism, and a desire for self-im-
provement”). ‘We are not persuaded, however, that a
“shared goal{]” of Boy Scout members is to associate in
order to preserve the view that homosexuality is immoral.
See id. at 622, 104 S. Ct. at 3252, 82 L. Ed. 2d at 474
(recognizing that freedom of expressive association pro-
54a
tects an association's “collective effort on behalf of shared
goals”).
Boy Scouts argues that the words “morally straight” and
“clean” in the Scout Oath and Law explicitly or implicitly
stand for the proposition that homosexuality is immoral.”
In support of its position, Boy Scouts relies on the Boy
Scout Handbook definition of “morally straight” and
“clean”
Morally Straight
To be a person of strong character, guide your life
with honesty, purity, and justice. Respect and de-
fend the rights of all people. Your relationships with
others should be honest and open. Be clean in your
speech and actions, and faithful in your religious be-
liefs. The values you follow as a Scout will help
you become virtuous and self-reliant.
Clean
A Scout is CLEAN. A Scout keeps his body and
mind fit and clean. He chooses the company of those
who live by these same ideals. He helps keep his
home and community clean.
You never need to be ashamed of dirt that will
wash off... .
12 Boy Scouts also points to a 1978 position paper in support of
its argument that it associates for the expressive purpose of advo-
cating the immorality of homosexuality. See supra at — (slip op.
at 17 n.4). We observe that the position paper was not disseminated
to Boy Scout members, and decline, therefore, to view it as repre-
sentative of the members’ shared views.
In addition, Boy Scouts refers to four other position papers, all
written after Dale’s expulsion. The self-serving nature of these
papers is apparent.
55a
There’s another kind of dirt that won't come off
by washing. It is the kind that shows up in foul
language and harmful thoughts.
Swear words, profanity and dirty stories are
weapons that ridicule other people and hurt their
feelings. The same is true of racial slurs and jokes
making fun of ethnic groups or people with physical
or mental limitations. A Scout knows there is no
kindness or honor in such mean-spirited behavior.
He avoids it in his own words and deeds. He defends
those who are the targets of insults.
The words “morally straight” and “clean” do not, on-
their face, express anything about sexuality, much less
that homosexuality, in particular, is immoral. We doubt
that young boys would ascribe any meaning to these
terms other than a commitment to be good.
Boy Scouts also argues that the immorality of homo-
sexuality can be implied from the moral principles ex-
pressed by the Scout Oath and Law. Yet, Boy Scouts
teaches that “moral fitness” is an individual choice and
defers the ultimate definition to its members:
Morality . . . concerns the “principles of right and
wrong” in our behavior, and “what is sanctioned by
our conscience or ethical judgment.” .. .
In any consideration of moral fitness, a key word
has to be “courage.” A boy's courage to do what
his head and his heart tell him is right. - And the
courage to refuse to do what his heart and his head
say is wrong.
[Scoutmaster Handbook, supra, at 71 (emphasis added).]
The Boy Scout Handbook, supra at 551, also acknowl-
edges that a member’s concept of inorality is intertwined
with his “religious beliefs.” The record in this case reveals
56a
that Boy Scouts’ religious sponsors differ in their views
about homosexuality.4* Compare Brief of Amici Curiae
National Catholic Committee on Scouting et al. at 1 (de-
claring that Boy Scouts’ admission of practicing homo-
sexuals would affect some church sponsors’ ability “to
advance core moral values, arising from sincere well
established religious beliefs”) with Brief of Amici Curiae
The Diocesan Council of the Episcopal Diocese of New-
ark, et al. at 1 (stating that “the teachings of the Epis-
copal Church . . . affirm[] the rights of lesbians and gay
men to the equal protection of the laws and to live free
from discrimination based upon affectional or sexual
orientation”). On the record before us, it appears that
no single view on this subject functions as a unifying
associational goal of the organization.
We hold, therefore, that Dale’s membership does not
violate Boy Scouts’ right to expressive association because
his inclusion would not “affect in any significant way
[Boy Scouts] existing members’ ability to carry out their
various purposes.” Rotary Club, supra, 481 U.S. at 548,
107 S. Ct. at 1947, 95 L. Ed. 2d at 486.
That Boy Scout members do not associate to share the
view that homosexuality is immoral suggests that Dale’s
expulsion constituted discrimination based solely on his
status as an openly gay man. The United States Supreme
Court has not hesitated to uphold the enforcement of a
state’s antidiscrimination statute against an expressive
association claim based on assumptions in respect of status
that are not a part of the group members’ shared expres-
sive purpose. See Robert, supra, 468 U.S. at 628, 104
S. Ct. at 3255, 82 L. Ed. 2d at 478 (“[Wle decline to
indulge in the sexual stereotyping that underlies appellee’s
13 We note in passing that Boy Scouts has renewed the charters
of sponsors whose positions differ from that alleged by Boy Scouts.
57a
contention that, by allowing women to vote, application
of the Minnesota Act will change the content or impact
of the organization's speech.”); see also New York State
Club Ass'n, supra, 487 U.S. at 13, 108 S. Ct. at 2234,
101 L. Ed. 2d at 16 (upholding antidiscrimination law
that “merely prevents an association from using . . . speci-
fied characteristics as shorthand measures in place of what
the city considers to be more legitimate criteria for deter-
mining membership”).
Boy Scouts submits that it expelled Dale because he
“was pictured and written-up in the Star-Ledger as Co-
President of the Rutgers University and Gay Alliance.”
See supra at — (slip op. at 17). In the article, Dale
states that he is gay. He does not identify himself as a
Boy Scout leader or member, nor does he express an
opinion about any of Boy Scouts’ policies, or suggest
that Boy Scouts should allow him openly to advocate
acceptance of homosexuality..* Indeed, Dale has stated
that he accepts and endorses Boy Scouts’ moral principles.
In Dale’s words:
Scouting appealed to me for many reasons.
. . . Ladmired the purposes for which BSA stands—
teaching young people outdoor and camping skills,
developing their leadership abilities and sense of
community responsibility, and providing them with
the tools to make moral choices over the course of
their lives.
14 Boy Scouts argues that Dale's recent public statements about
the policy of excluding avowed homosexuals indicate that he has a
“moral viewpoint in opposition to that of Boy Scouts and [has]
expressed that viewpoint to all who will listen.” We have no evi-
dence, however, that when Dale refers to this “policy,” he is talking
about anything other than the decision to expel him because of his
status as co-president of the Rutgers University Lesbian/Gay Al-
liance.
58a
As a Scout, I promised to live by the Scout Oath.
. . . I believed that the Scout Oath stood for my
commitment to live an honorable life, to set high
standards for myself, and to do my best to serve
others. In my more than twelve years as a member
of BSA, I strove never to do anything inconsistent
with the values embodied in the Scout Oath... .
. . . I understood the Scout Oath to represent the
high ideals Scouting encouraged each of its members
to achieve. In all my years in Scouting, I always
tried to live in accordance with the Scout Law and to
adhere to the values embodied in it.
As I grew . . . older, my commitment to Scouting
deepened. Scouting . . . taught me how to deal with
the ethical choices I encountered as a teenager.
Nonetheless, despite Dale’s commitment, he was expelled
from Boy Scouts shortly after the article was published.
The original termination letter Dale received indicates
that Dale was expelled because of his status and not
because his membership conflicted with Boy Scouts’ mes-
sage. In it, Boy Scouts told Dale he was being terminated
because of his sexual orientation: “The grounds for this
membership revocation are the standards for leadership
established by Boy Scouts of America, which specifically
forbid membership to homosexuals.” In subsequent letters,
Boy Scouts attempted to connect Dale’s termination with
his “avowed” homosexuality and Boy Scouts’ “policy [to]
excludfe] adults whose views of the morality of homo-
sexual conduct differ from the views held by Boy Scouts
of America.” Those subsequent letters suggest that Boy
Scouts perceived Dale’s membership as interfering with
its views on “the morality of homosexual conduct”; they
do not alter Boy Scouts’ original statement. The original
59a
termination letter expresses Boy Scouts’ real concern:
Dale’s status as a homosexual.
Perhaps more revealing is the contradiction between
Boy Scouts’ current litigation posture on homosexual
members and the organization’s general philosophy on
open membership. Boy Scouts has been firmly committed
to a diverse and “representative” membership. It recog-
nizes that the skills it teaches its members are needed
“in all economic, cultural, and ethnic groups.” A Repre-
sentative Membership, supra, at 2. Its objective is to see
to it “that all eligible youth have the opportunity to affili-
ate with the Boy Scouts of America.” Jd. at 1. As we
observed earlier, consistent with this position, Boy Scouts
does not seek to limit membership to individuals of a
particular religious faith or moral persuasion. See supra
at — (slip op. at 11, 12, 50). The result of this “all-
inclusive” membership policy is the admission of four
million boys and over one million adults. See id. at —
(slip op. at 48).
When contrasted with its “all-inclusive” policy, Boy
Scouts’ litigation stance on homosexuality appears anti-
thetical to the organization’s goals and philosophy. The
exclusion of members solely on the basis of their sexual
orientation is inconsistent with Boy Scouts’ commitment
to a diverse and “representative” membership. Moreover,
this exclusionary practice contradicts Boy Scouts’ over-
arching objective to reach “all eligible youth.” We are
satisfied that Boy Scouts’ expulsion of Dale is based on
little more than prejudice and not on a unified Boy Scout
position; in other words, Dale’s expulsion is not justified
by the need to preserve the organization’s expressive rights.
The invocation of stereotypes to justify discrimination
is all too familiar. Indeed, the story of discrimination is
the story of stereotypes that limit the potential of men,
~ 60a
women, and children who belong to excluded groups.
By way of example, we observe that certain claimed
propensities of character were once invoked to advocate
the subjugation of women. United States v. Virginia re-
cites the prevailing view of women at the time of the
writing of the Constitution: ““Were our State a pure
democracy . . . there would yet be excluded from [our]
deliberations . . . women, who, to prevent depravation
of morals and ambiguity of issue, should not mix promis-
cuously in the public meetings of men.’” 518 U.S. 515,
531 n.5, 116 S. Cr. 2264, 2275 n.S, 135 L. Ed. 2d 735,
750 n.5 (1996) (quoting Letter from Thomas Jefferson
to Samucl Kercheval (Sept. 5, 1816)). Less than a
century later, the exclusion of women from the Illinois
State Bar was thought to be justified because
[t]he natural and proper timidity and delicacy which
belongs to the female sex evidently unfits it for
many of the occupations of civil life. The constitu-
tion of the family organization, which is founded in
the divine ordinance, as-well as in the nature of
things, indicates the domestic sphere as that which
properly belongs to the domain and function of
womanhood. The harmony, not to say identity, of
interests and views which belong to the family insti-
tution, is repugnant to the idea of a woman adopting
a distinct and independent career from that of her
husband.
[Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141, 21
L. Ed. 442, 446 (1873) (Bradley, J., concurring).]
See also J.E.B. v. Alahama, 511 U.S. 127, 132, 114
§. Cr. 1419, 1423, 128 L. Ed. 2d 89, 99 (1994) (noting
that women were traditionally kept from iury duty because
they “were thought to be too fragile and virginal to with-
stand the polluted courtroom atmosphere”).
6la
The sad truth is that excluded groups and individuals
have been prevented from full participation in the social,
economic, and political life of our country.5 The human
price of this bigotry has been enormous. At a most fun-
damental level, adherence to the principle of equality
demands that our legal system protect the victims of in-
vidious discrimination.
New Jersey has long been a leader in this effort. See,
e.g., Peper, supra, 77 N.J. at 80 (stating that “New Jersey
has always been in the vanguard in the fight to eradicate
the cancer of unlawful discrimination of all types from
our society”), In 1945, the New Jersey Legislature codified
its commitment to equality by enacting the LAD, “some
twenty years before the effective date of Title VII.” /bid.;
see 42 U.S.C.A. §§ 2000a-2000h-6. The Legislature found
that “because of discrimination, people suffer personal
hardships, and the State suffers a grievous harm.” N.J.S.A. -
10:5-3. In specific, the Legislature determined that vic-
tims of discrimination suffer
economic loss; time loss; physical and emotional
stress; and in some cases severe emofional trauma,
illness, homelessness or other irreparable harm re-
sulting from the strain of employment controversies;
relocation, search and moving difficulties; anxiety
caused by lack of information, uncertainty, and re-
sultant planning difficulty; career, education, family
and social disruption; and adjustment problems.
[I bid.]
15 The LAD prohibits discrimination on the basis of “race, creed,
color, national origin, ancestry, age, marital status, affectional or
sexual orientation, familial status, or sex... .” NJ.S.A. 10:5-4.
The scope of the statute is reflective of the breadth of the under-
lying problems we face as a society.
62a
It is unquestionably a compelling interest of this State
to eliminate the destructive consequences of discrimination
from our society.
In 1991, the Legislature amended the LAD, L. 1991,
c. 519, § 2, to add “affectional or sexual orientation” to
the list of protected classes. This amendment extends New
Jersey's historical commitment to the eradication of dis-
crimination to that group of individuals who face dis-
crimination because of sexual orientation. As the Appel-
late Division stated:
By amendment to N.J.S.A. 10:5-4 in 1991 (L. 1991,
c. 519, § 2), the Legislature expanded the categories
of persons protected to include discrimination based
on “affectional or sexual orientation.” This was an
implicit recognition that discrimination based on
“archaic” and “stereotypical notions” about homo-
sexuals that bears no relationship to reality cannot
be countenanced. Roberts, supra, 468 U.S. at 625,
104 S. Ct. at 3253, 82 L. Ed. 2d at 476. It is also
a recognition that the “stigmatizing injury” and denial
of equal opportunitics that accompanies it is felt no-
less strongly by this protected group than others who
suffer personal hardship because of discriminatory
practice. Ibid.
[Dale, supra, 308 N.J. Super. at 549.]
With the amendment of the LAD, the Legislature
declared that discrimination in places of public accommo-
dation on the basis of “affectional or sexual orientation
.. . [is] a matter of concern to the government of the
State, and that such discrimination threatens not only the
rights and proper privileges of the inhabitants of the State
but menaces the institutions and foundation of a free
democratic State.” N.J.S.A. 10:5-3. Our courts have
63a
recognized the arbitrariness of discriminating against indi-
viduals solely because of their sexual orientation. See,
e.g., One Eleven Wines & Liquors, Inc. v. Division of
Alcoholic Beverage Control, 50 N.J. 329, 340-41 (1967)
(rejecting argument that permitting “apparent homo-
sexuals” to congregate at bar threatens public welfare);
Poff, supra, 228 N.J. Super. at 381 (stating that “re-
fus[al] to extend . . . [LAD’s] protection to homosexuals
because they may be more susceptible to a dread disease
would mark a return to a past of judging individuals on
the basis of ignorance and prejudice”); In re J.S. & C..,
129 N.J. Super. 486, 489 (Ch. Div. 1974) (stating that
“[fJ]undamental rights of parents may not be denied, lim-
ited or restricted on the basis of sexual orientation, per
se”), af'd, 142 N.J. Super. 499 (App. Div. 1976).
A purpose of the LAD is to eliminate sexual orientation
discrimination. The statute effectuates this purpose with-
out regard to an organization's viewpoint, “the focal point
of its prohibition being rather on the act of discriminat-
ing against individuals in the provision of publicly avail-
able goods, privileges, and services.” Hurley, supra, 515
U.S. at 572, 115 S. Ct. at 2347, 132 L. Ed. 2d at 503
(recognizing that such laws “are well within the State’s
usual power to enact when a legislature has reason to
believe that a given group is the target of discrimination”);
see also Rotary Club, supra, 481 U.S. at 549, 107 S. Ct.
at 1948, 95 L. Ed. 2d at 487 (upholding Minnesota
public accommodations law that made “no distinctions on
the basis of the organization’s viewpoint”). Like other
similar statutes, the LAD serves a compelling state interest
and “abridges no more speech or associational freedom
than is necessary to accomplish that purpose.” Roberts,
supra, 468 U.S. at 629, 104 S. Cr. at 3255, 82 L. Ed. 2d
at 478. Thus, even if Dale’s membership “ ‘work[s] some
64a
slight infringement on . . . [Boy Scouts’) members’ right
of expressive association,” we find that the “infringement
is justified because it serves . . . [New Jersey’s] com-
pelling interest in eliminating discrimination” based on
sexual orientation. Rotary Club, supra, 481 U.S. at 549,
107 S. Ct. at 1948, 95 L. Ed. 2d at 486.
Boy Scouts is an American institution committed to
bringing a diverse group of young boys and men together
—wealthy and underprivileged, urban and rural, from
different cultures and from different religions—to play
and to learn. Boy Scouts’ activities are designed to build
character and instill moral principles. Nothing before us,
however, suggests that one of Boy Scouts’ purposes is to
promote the view that homosexuality is immoral. Accord-
ingly, application of the LAD does not infringe upon Boy
Scouts’ right of expressive association.
C. Freedom of Speech
Boy Scouts relies on Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston in support of its
alleged First Amendment right to exclude Dale. In Hur-
ley, GLIB, an organization comprised of gay, lesbian, and
bisexual descendants of Irish immigrants, applied for per-
mission to march in the St. Patrick’s Day-Evacuation Day
Parade. 515 U.S. at 561, 115 S. Ct. at 2341, 1.2 L. Ed.
2d at 496. GLIB was formed for the sole purpose of
marching in the parade, “to express pride in [the mem-
bers’] Irish heritage as openly gay, lesbian, and bisexual
individuals, to demonstrate that there are such men and
women among those so descended, and to express... .
solidarity with like individuals who sought to march in
New York’s St. Patrick’s Day Parade.” Ibid. The pri-
vate parade organizers, the South Boston Allied War
Veterans Council, refused to allow GLIB to march, and
65a
the group brought suit alleging that the Council’s actions
violated the state’s public accommodations law. Ibid.
The Hurley Court held that inclusion of the group in
the parade would violate the Council's First Amendment
rights. The Court observed that the state public accom-
modations statute had “been applied in a peculiar way,”
because “[i]ts enforcement [did] not address any dispute
about the participation of openly gay, lesbian, or bisexual
individuals in various units admitted to the parade... .
[but rather] the admission of GLIB as its own parade
unit carrying its own banner.” Jd. at 572, 115 S. Ct. at
2347, 132 L. Ed. 2d at 503. The Court explained that
forcing the Council to include GLIB would “essentially
requir[e] [the members] to alter the expressive content of
their parade,” id. at 572-73, 115 S. Ct. at 2347, 132
L. Ed. 2d at 503, because “in the context of an expres-
sive parade, as with a protest march, the parade’s overall
message is distilled from the individual presentations along
the way, and each unit’s expression is perceived by spec-
tators as part of the whole,” id. at 577, 115 S. Ct. at
2349, 132 L. Ed. 2d at 506. Application of the statute
in that context was held to “violate[] the fundamental
rule of protection under the First Amendment, that a
speaker has the autonomy to choose the content of his
own message.” Id. at 573, 115 S. Ct. at 2347, 132 L. Ed.
2d at 503. Indeed, application of the statute “had the
efiect of declaring the sponsors’ speech itself to be the
public accommodation.” [bid.
We find the facts of Hurley distinguishable. Dale’s
Status as a scout leader is not equivalent to a group
marching in a parade. Dale does not come to Boy Scout
meetings “carrying a banner.” Dale has never used his
leadership position or membership to promote homosex-
uality, or any message inconsistent with Boy Scouts’ poli-
66a
cies. Cf. Curran v. Mount Diablo Council of the Boy
Scouts of Am., 952 P.2d 218, 253 (Cal. 1998) (Kennard,
J., concurring) (proclaiming that Boys Scouts would have
valid First Amendment defense if California’s antidis-
‘crimination law applied because Curran seught “mem-
bership in order to promote . . . [his] views“). Addition-
ally, there is no indication that Dale intends to actively
“teach” anything whatsoever about homosexuality as a
scout leader, or that he will do other than Boy Scouts
instructs him to do—-refer boys to their parents on mat-
ters of religion and sex.
Nor is Boy Scout leadership a form of “pure speech”
akin to a parade. As the Hurley Court explained, “the
word ‘parade’ [is used] to indicate marchers who are mak-
ing some sort of collective point, not just to each other
but to bystanders along the way.” 515 U.S. at 568, 115
S. Ct. at 2345, 132 L. Ed. 2d at 500. Unlike a marcher
in a parade, Dale does not participate in Boy Scouts “to
make a point” about sexuality, but rather because of his
respect for and belief in the organization. And unlike a
parade, where the “speech itself . . . [is] the public ac-
commodation,” id. at 573, 115 S. Ct. at 2347, 132 L. Ed.
2d at 503, permitting Dale to remain in a leadership
position in no way prevents Boy Scouts from “invok[ing]
its right as a private speaker to shape its expression by
speaking on one subject while remaining silent on an-
other,” id. at 574, 115 S. Ct. at 2348, 132 L. Ed. 2d at
504. We reject the notion that Dale’s presence in the
organization is symbolic of Boy Scouts’ endorsement of
homosexuality. On these facts, we do not find forced
speech. See id. at 573, 115 S. Ct. at 2347, 132 L. Ed. 2d
at 503 (declaring that right to free speech includes right
to “decide ‘what not to say’”) (quoting Pacific Gas &
Electric Co. v. Public Utilities Comm’n, 475 U.S. 1, 16,
106 S. Ct. 903, 912, 89 L. Ed. 2d 1, 12 (1986)).
67a
In short, the reinstatement of Dale does not compel
Boy Scouts to express any message. To recognize Boy
Scouts’ First Amendment claim would be tantamount to
tolerating the expulsion of an individual solely because
of his status as a homosexual—an act of discrimiration
unprotected by the First Amendment freedom of speech.
Vv
CONCLUSION
Today, we hold that Boy Scouts is a “place of public
accommodation” and is, therefore, subject to the provi-
sions of the LAD. As a “place of public accommoda-
tion” it cannot deny any person “accommodations, advan-
tages, facilities, and privileges . . . because of .. . sex-
ual orientation.” N.J.S.A. 10:5-4. For the reasons set
forth in this opinion, application of the LAD does not
infringe on Boy Scouts’ First Amendment rights.
The judgment of the Appellate Division is affirmed.
We remand to the Chancery Division for further pro-
ceedings consistent with this opinion.
JUSTICES POLLOCK, O'HERN, GARIBALDI,
STEIN, and COLEMAN join in CHIEF JUSTICE
PORITZ’s opinion. JUSTICE HANDLER has filed a
separate concurring opinion.
68a
HANDLER, J., concurring.
I join the Court in holding that the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,
prohibits the Boy Scouts of America (BSA) and the Mon-
mouth Council of the Boy Scouts of America (collectively,
Boy Scouts), as places of public accommodation, from
expelling a member based solely on his sexual orienta-
tion. I fully endorse the Court's reasoning in reaching
that result. I further emphasize, in the context of this
case, the significance of the role of “genuine membership
selectivity” as a material factor in the characterization of
a place of accommodation as “public.”
This case also pits an individual's right to be protected
under the LAD from discrimination based on his sexual
orientation against the First Amendment expressional
rights of a public accommodation. In resolving that con-
flict, we must consider the significance of the connection
between the individual’s speech and his identity when
both relate to his sexual orientation.
I
On July 19, 1990, soon after learning that highly dec-
orated Eagle Scout James Dale was gay, Boy Scouts
revoked Dale’s membership privileges and requested that
he sever all relations with the organization. After Dale
inquired about the basis for his explusion, he was first
informed that Boy Scouts “forbid{[s] membership to homo-
sexuals,” and later that “[BSA] does not admit avowed
homosexuals to membership in the organization,” Ante
at (slip op. at 17, 18). Dale thereafter commenced
this lawsuit, charging Boy Scouts with violations of the
LAD. Dale specifically contended that Boy Scouts, as a
place of public accommodation, illegally expelled him
based on his “affectional or sexual orientation,” contrary
to N.J.S.A. 10:5-4.
Ova
A.
_The critical question in deciding whether Bo
violated the LAD by terminating Dale's pone Bg
the Court recognizes, is whether Boy Scouts may be
deemed a “place of public accommodation.” Ante at
(slip op. at 27). The Court observes that the term
place in the LAD is not limited to a single geographic
Situs and, therefore, a fixed location is not a prerequisite
to satisfying its definition. Jd. at (slip op. at.32).
A place” encompasses any location or facility at which
an organization undertakes its activities. Boy Scouts, the
Court determines, as an organization that performs its
functions at numerous locales, is clearly a “place” under
the LAD. /d. at — ( slip op. at 33). We also conclude
that Boy Scouts is an “accommodation” for purposes of
the LAD, especially given its uniquely educational and
recreational nature. /d. at — (slip op. at 41-42). Fur-
ther, Boy Scouts is sufficiently “public” to be covered by
the LAD. Id. at — (slip op. at 36-37). If an organiza-
— nn expressly or impliedly engages in broad pub-
ic solicitation, it is considered “public” for purpose
the LAD. Id. at — (slip op. at 33-35). * evi i
Scouts extends general membership invitations through
such media as national broadcast and print advertising
public service announcements, recruiting drives and ma-
terials, as well as through the unique symbol of the scout
uniform, Boy Scouts qualifies as “public.” Jd. at — ( slip
op. at 35-36). In addition, Boy Scouts’ close relation-
ship with other established public accommodations lends
it a “public” character. Jd. at — (slip op. at 37-41). I
fully agree that these characteristics are sufficient to jus-
tify the Court's conclusion that Boy Scouts meets the
LAD’s definition of “place of public accommodation.”
70a
B.
A closely related organizational characteristic, “genuine
selectivity,” also bears on the “place of public accommo-
dation” analysis. The absence of any genuine criteria for
membership selectivity reinforces the “public” nature of
an organization.
Membership selectivity, as the Court stresses, is a crit-
ically important factor in determining whether an organi-
zation is “distinctly private” pursuant to N.J.S.A. 10:5-51,
and therefore exempt from the LAD’s proscriptions ap-
plicable to an entity that is otherwise a “place of public
accommodation.” See ante at — (slip op. at 44) (noting
that “selectivity issue [is] the principal determinant of
‘distinctly private’ status”). Membership selectivity is
equally relevant to whether an organization may be ini-
tially considered to be a “place of public accommoda-
tion.” See id. at — (slip op. at 45) (recognizing that
absence of membership selectivity “weigh{s] in the public
accommodation calculus”). ‘The reason for this conflu-
ence is that the “distinctly private” exception is the “other
side of the ‘public accommodation’ coin.” Kiwanis Int'l
v. Ridgewood Kiwanis Club, 806 F.2d 468, 476 (3d Cir.
1986), reh’g denied, 811 F.2d 247 (1987). Realistically,
and in most contexts, one characteristic cannot exist with-
out negating the other:
(I]f an organization “is not a ‘place of public accom-
modation’ because of its selective membership prac-
tices, it must be private as that term is used in the
statute.” In contrast, if an organization qualifies as
a “place of public accommodation” . . . the “private
club exception . . . does not apply.
[Brounstein v. American Cat Fanciers Ass'n, 839 F. Supp.
1100, 1106 (D.N.J. 1993) (citation omitted).]
7la
Thus, the selectivity that we require to meet the LAD’s
“distinctly private” exception also bears on the initial
determination of whether a place of accommodation
should be characterized as “public.” As the Third Circuit
Court of Appeals has observed, “unselectivity, unrestrict-
edness, and open invitation” are critical determinants of
whether an organization is a “place of public accommoda-
tion.” Kiwanis, supra, 806 F.2d at 476.1 Of these three,
selectivity has been described as the “touchstone of the
determination of whether a membership organization is a
‘place of public accommodation’.” Brounstein, supra, 839
F. Supp. at 1106.
The focus of that investigation—as the Court requires
in the context of our “distinctly private” exception analy-
sis, ante at — (slip op. at 49-50)—must be selectivity in
practice, i.e., “genuine selectivity.” “The genuine selec-
tivity of the membership process is the most important
factor in ascertaining private club status.” United States
v. Lansdowne Swim Club, 713 F. Supp. 785, 797 (E.D.
Pa. 1989), aff'd, 894 F.2d 83 (3d Cir. 1990); accord
United States v. Trustees of the Fraternal Order of Eagles,
472 F. Supp. 1174, 1175-76 (E.D. Wisc. 1979) (observ-
ing that “most important factor” in determining whether
club is private and thus not public accommodation sub-
1The Kiwanis court correctly identified the relevance of “un-
selectivity, unrestrictedness and open invitation” to the identifica-
tion of a “place of public accommodation.” It overstated those
factors. however, as comprising the “test” for satisfying that defi-
nition. Kiwanis, supra, 806 F.2d at 476. If an organization pos-
sesses those characteristics, it will certainly qualify as a “place
of public accommodation.” Nevertheless, the absence or mere nar-
tial satisfaction of one or more of those factors does not preclude
a finding that an organization is a “place of public accommodation.”
See infra at —— (slip op. at 12-14); Kiwanis, supra, 811 F.2d 247
(Gibbons, J., dissenting from sur denial of rehearing) (criticizing
Kiwanis for suggesting that all associations that are not com-
pletely open, unselective and unrestrictive are not “public”).
72a
ject to Civil Rights Act, is “process which the club ac-
tually uses in selecting its members”). The United States
Supreme Court has recogniz.1 genuine selectivity as an
integral characteristic of a rrivate club. See Tillman v.
Wheaton-Haven Recreation Assn, 410 U.S. 431, 438, 93
S. Ct. 1090, 1094, 35 L. Ed. 2d 403, 409-10 (1973).
The absence of genuine selectivity in membership deci-
sions constitutes persuasive evidence of the public nature
of an organization.
1.
A number of features reflect a club’s genuine selectivity
in membership practices:
[T]he substantiality of the membership fee; the
numerical limit on club membership (apart from the
capacity of the facilties); the membership’s control
over the selection of new members; the formality of
the club’s admission procedures; the standards or cri-
teria for admission; and whether and how many []
applicants have been denied membership relative to
the total number of [] applicants.
[Lansdowne Swim Club, supra, 713 F. Supp. at 797
(citations omitted) .]
The hallmark of genuine selectivity is that the organiza-
tion actually uses its stated selection criteria to limit its
membership in accordance with those criteria.
The Court’s holding that a showing of genuine selec-
tivity is required to satisfy the “distinctly private” excep-
tion in the LAD, ante at — (slip op. at 49-50) (reject-
ing application of “distinctly private” exception to Boy
Scouts because “wle] do not find [] that the Oath and
Law operate as genuine selectivity criteria”), is consistent
with our existing LAD jurisprudence. In Clover Hill
Swimming Club v. Goldsboro, 47 N.J. 25 (1966), both
Wa
a sign at a swimming club’s entrance and the club’s pro-
motional literature referred to itself as a “private” facility.
Id. at 34. The literature further stated that “all appli-
cations would be subject to approval by club officials.”
Ibid. The Court held that such “{sJelf-serving declara-
tions by the owner of an accommodation are not deter-
minative of its character.” Ibid. The relevant inquiry was
whether in practice the club had exercised any actual dis-
cretion in its selection of new members.
Other courts have likewise recognized that selectivity
in practice is integral to the determination of whether an
organization is private and thus exempt from antidiscrim-
ination laws. For example, in Lansdowne Swim Club,
supra, the Third Circuit relied on principles of genuine
selectivity in assessing whether a swimming club, charged
with racial discrimination, qualified as a private club,
thus exempting it from Title II of the Civil Rights Act
of 1964. 894 F.2d at 85-86. The court pointed out that
although the club required an interview for membership,
it was “not probing, having the sole purposes of describing
the club and its membership procedures and verifying the
names and ages of children in the applicant’s family,”
and that the club undertook virtually no other investiga-
tion of an applicant’s background. /d. at 86 n.4. The
court reasoned that “formal membership requirements
‘have little meaning when in fact the club does not follow
a selective membership policy.” Jd. at 86 (quoting
Wright v. Salisbury Club, Ltd., 632 F.2d 309, 312 (4th
Cir. 1980) (citing Tillman, supra, 410 U.S. at 438-39,
93 S. Ct. at 1094-95, 35 L. Ed. 2d at 409-10)). The
court further noted that evidence of only a few instances
of applicant rejections by the club was probative of a lack
of genuine selectivity. /bid.
T4a
In Fraternal Order of Eagles, supra, the defendant
claimed private club status based on an elaborate set of
requirements codified in its statutes:
Those statutes . . . include[d] the following require-
ments: (1) “{e]very applicant for membership in
any Local Aerie shall be recommended by two mem-
bers of the Order”; (2) “[nJo person shall be eligible
to be elected to membership in any Local Aerie unless
such person is a male, is of good moral character,
~ and believes in the existence of a Supreme Being,
...”; (3) “{no] application for membership shall be
considered if the applicant shall not reside within the
jurisdiction of the Aerie to which such application
is submitted”; (4) “{e]ach person desiring to become
a member of an Aerie must properly fill out and
sign an application . . .;” (5) “[aJll applications for
membership . . . shall be referred to the Investigating
Committee”; and (6) “[a]fter the report of the In-
vestigating Committee is submitted, the application
shall be voted upon, and, if elected, the Aerie may
proceed with the initiation of the applicant.”
[472 F. Supp. at 1176.]
Despite those formal published criteria, the court re-
jected private status because the club’s formal admissions
policy “{stood] in stark contrast to the admission process
that . . . the Eagles Club actually uses,” and showed lit-
tle selectivity. Ibid. (noting further that club in one year
turned down only three of over 1000 applicants and had
7000 to 8000 members at any one time).
A number of other cases, in considering the public
versus private nature of an organization, have demanded
that selectivity be actually employed in practice in accord-
ance with formal admissions criteria. See Nesmith v.
?Sa
Young Men's Christian Ass'n, 397 F.2d 96, 101 (4th
Cir. 1968) (noting that despite “some of the trappings
of a private club,” including membership application, reg-
ularly recorded list of members, substantial dues, and
membership cards to gain access to club facilities, “{e]x-
amination [] must go beyond these mere superficialities,”
and concluding that club is public establishment because
almost every applicant is accepted to membership);
Rogers v. International Ass'n of Lions Clubs, 636 F.
Supp. 1476, 1479-80 (E.D. Mich. 1986) (characterizing
club as public despite formal admissions criteria—includ-
ing requirements that new member have “good moral
character and good reputation in his community,” be
sponsored by current members, complete application
forms, pass background investigation, and secure Board
approval—concluding that “[whhile it is true that this ap-
plication procedure has the appearance of being elaborate,
formal, and structured, in reality, it is not selective and
almost all men who apply are admitted to membership”):
New York v. Ocean Club, Inc., 602 F. Supp. 489, 494-
96 ( E.D.N.Y. 1984) (concluding that uninformative ap-
plication form, absence of background investigation of
applicant, interview that merely informed applicant about
club and its facilities without probing into applicant's
background and character, and fact that no member was
ever rejected, all demonstrated club was not genuinely
Pye notwithstanding formal admission criteria in
club constitution and bylaws requiring sponsorship
Board approval); Brown v. Loudon Golf and a
Club, Inc., 573 F. Supp. 399, 402-03 (E.D. Wa. 1983)
( holding that admission fee, membership ceiling, and re-
quirements that two members sign, and Board approve,
apolication were insufficient, without more. to show that
procedures operated in practice to make club’s member-
ship practices selective ).
76a
2.
If an accommodation engages in little or no selectivity
in choosing its members, this constitutes strong evidence
that it is “public,” and thus subject to the proscriptions
of the LAD. Accord Concord Rod and Gun Club, Inc.
v. Massachusetts Comm'n Against Discrimination, 524
N.E.2d 1364, 1367 (Mass. 1988) (noting that “deter-
minative factor” in characterizing organization—already
stipulated by parties as being “place” and “accommoda-
tion”—as “public,” and thus subject to state antidiscrim-
ination law, is “total absence of genuine selectivity in
membership” ).
The mere fact that there is some genuine selectivity in
acceptance of members is not incompatible with “public”
status. That principle is supported by the understanding
and practice of the Division on Civil Rights (Division),
the administrative agency that is empowered under the
LAD to enforce its antidiscrimination provisions. See
Nelson v. Board of Educ., 148 N.J. 358, 364 (1997)
(“The interpretation of a statute by the administrative
agency charged with its enforcement is entitled to great
weight.”).
The Division has held that some genuine selectivity
may be rendered inconsequential when balanced with
other overwhelmingly unselective membership criteria.
See Hinden v. United States Power Squadrons, No. PO2S-
105 (Div. on Civil Rights Dec. 21, 1973), aff'd, No.
A-3104-73 (App. Div. July 18, 1975), certif. denied, 69
N.J. 382 (1975), cert. denied, 426 U.S. 943, 96 S. Ct.
3160, 49 L. Ed. 2d 1180 (1976). In Hinden, the Divi-
sion held that the Power Squadrons, a national boating
organization that had local chapters in New Jersey, was
a public accommodation operating in violation of the
LAD because it refused admission to women. The Power
77a
Squadrons exhibited some genuine selectivity in the selec-
tion of new members, requiring the successful completion
of a basic piloting course as a prerequisite for admission.
The Division, however, recognized that the piloting course
was itself a public accommodation because it was open
to all members of the public free of charge, and regard-
less of sex or any other limitation. Hinden, supra, No.
PO2S-105, slip op. at 2 (incorporating Sylvia B. Pressler,
hearing examiner (now Presiding Judge, Appellate Divi-
sion), Findings of Fact and Conclusions of Law 14 (June
1, 1973)). “Moreover, and almost without exception,
every man who passe{d] the basic piloting examination
[was] invited to membership,” while every woman who
passed was excluded, Ibid. The Division concluded that
despite the fact that the piloting test was used in the ~
missions process and was a genuine criterion in that a
passing grade was required, on balance the Power Squad-
rons s “membership invitation [was] basically as publicly
oriented as [was] the public piloting course itself.” /bid.
Additionally, other factors, traditionally reli i
the determination of whether a place penn
is “public,” may outweigh the presence of genuine selec-
tivity in ultimately finding that an organization is subject
to the LAD. See ante at — (slip op. at 33) (noting that
broad public solicitation, maintenance of close relation-
ships with government or other public accommodations
or similarity to enumerated or previously recognized pub-
lic accommodations are factors that are helpful in deter-
mining whether organization is “public accommodation”);
Frank v. Ivy Club, 120 N.J. 73, 104 (1990) (holding
that eating club with very selective membership criteria
was public accommodation because of its “symbiotic re-
—” with university, which was itself subject to
78a
In sum, membership selectivity is relevant but may not
be determinative of whether an organization meets the
LAD’s definition of “place of public accommodation.”
Such membership selectivity, genuinely applied in prac-
tice, may show that a place of accommodation that is
otherwise “public” satisfies the LAD’s “distinctly private”
exception. Conversely, the absence of genuine selectivity
is always persuasive proof that an organization qualifies
as “public.”
3.
The reality is that Boy Scouts rarely, if ever, denies
membership based on any selection criteria other than
age or gender. See ante at — (slip op. at 46-51). Ac-
cording to A Representative Membership, a Boy Scouts
publication prepared in 1975 for BSA Executive Board
members; national and local council presidents, members
and staff; district committee members; and commissioners:
Neither the charter nor the bylaws of the Boy Scouts
of America permits the exclusion of any boy. The
National Council and Executive Board have always
taken the position that Scouting should be made
available for all boys who meet entrance age require-
ments.
[Id. at 2 (emphasis added).]
As a result of Boy Scouts’ unselective membership criteria,
the organization has more than five million youth and
adult members in the United States, and over 100,000 in
New Jersey.
Boy Scouts’ lack of genuine selectivity is further under-
scored by the testimony of James William Kay, the highest
ranking emplovee in Monmouth Council and the official
who first made the decision to terminate Dale. Kay stated
in deposition that he was not aware of any previous rejec-
tion by BSA’s National Council of an adult application
7948
for membership in Monmouth Council. Kay was like-
wise unaware of any membership rejection in the previous
council with which he was affiliated for eight and one-half
years. Moreover, the fact that Boy Scouts does not re-
quire new members to be sponsored by a current member
is further evidence that Boy Scouts does not engage in a
genuine selection process. See Kiwanis, supra, 806 F.2d
at 475.
The Appellate Division properly viewed Boy Scouts’
“undisputed invitation for membership in its literature to
‘all boys,’” as rendering its stated “ ‘selectivity’ criteria
inconsequential.” 308 N.J. Super. 516, 538.2 The absence
2 Courts and jurists of other jurisdictions have reached a sim-
ilar conclusion. For example, in Curran v. Mount Diablo Council
of the Boy Scouts of America, 952 P.2d 218, 236 (Cal. 1998), al-
though the California Supreme Court held that the Boy Scouts
is not the functional equivalent of “a classic ‘public accommodation
or amusement’” under California’s common law, the court noted
that “Boy Scouts is generally nonselective in its admission policies.”
See also Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1283 (7th
Cir.) (Cummings, J., dissenting) (observing that “[m]embership
[in Boy Scouts) is not selective”; “{o]ther than the mention of God
in the oath, which must exclude an extremely small—though in-
determinate—number of children, the only substantive requirement
for membership is age, which is not so much a matter of selec-
tivity as a basic common denominator”), cert. denied, 510 U.S. 1012,
114 S. Ct. 602, 126 L. Ed. 2d 567 (1993); Schwenk v. Boy Scouts of
Am., 551 P.2d 465, 473 (Or. 1976) (O’Connell, J., dissenting) (“[{I]t
is commonly known that membership in the Boy Scouts of America
is open to any boy within the specified age group without any
other limitation whatsoever.”) ; Merino v. San Diego County Coun-
cil of the Boy Scouts of Am., No. 659236, slip op. at 9 (Cal. App.
Dep’t Super. Ct. July 7, 1994) (finding that “membership criteria
for both juvenile and adult members [of Scouting] are non-selec-
tive”). But see Welsh, supra, 993 F.2d at 1276 (“Although the
Scouts intentionally admit a large number of boys from diverse
backgrounds, admission to membership is not without the exercise
of sound discretion and judgment. This is evident from the Con-
coma and By-laws as well as the Boy Scouts Oath and Scout
w.”).
80a
of any evidence of genuine selectivity on the part of Boy
Scouts compels the conclusion that Boy Scouts is public.
II
Boy Scouts maintains that even if it is deemed a “place
of public accommodation” that is subject to the LAD, its
decision to expel Dale based on his expression of his
sexual orientation is protected under the First Amendment.
The Court rejects that defense because Boy Scouts has
failed to demonstrate a sufficiently protectable expressive
interest in respect of homosexuality. Ante at — (slip op.
at 69-70).
The crux of the First Amendment analysis lies in an
identification of the expressive interests of the organiza-
tion and a determination of whether those interests are
undermined or frustrated by the membership of the ex-
cluded person. Central to that inquiry is the question of
whether membership was denied based on the person's
identity or status per se, or alternatively, on the person's
expressed views. We recognize today that Boy Scouts en-
gaged in status-based discrimination when it terminated
Dale. Id. at — (slip op. at 75, 77-78, 89). I fully concur
in that reasoning and result. The Court's holding is espe-
cially significant because of the distinctive interdepend-
ence of expression and identity for lesbians and gay men,
and the effect of that merger of speech and status on an
organization’s First Amendment freedom of expressive
association.
A.
A hallmark of the case law defining the contours of the
right of expressive association is an identifiable demar-
cation between a person’s status and expression. See
Board of Directors of Rotary Int'l v. Rotary Club, 481
8Ia
U.S. 537, 548, 107 S. Ct. 1940, 1947, 95 L. Ed. 2d
474, 486 (1987) (noting that because clubs “do not take
positions on ‘public questions,’ including political or na-
tional issues,” the inclusion of women, as such, as mem-
bers will not “affect in any significant way the existing
members’ ability to carry out their various purposes”) ;
see also New York State Club Ass’n v. City of New York,
487 U.S. 1, 13, 108 S. Ct. 2225, 2234, 101 L. Ed. 2d 1,
16 (1988) (“If a club seeks to exclude individuals who
do not share the views that the club’s members wish to
promote, the Law erects no obstacle to this end. Instead,
the Law merely prevents an association from using race,
sex, and the other specified characteristics as shorthand
measures in place of . . . legitimate criteria for deter-
mining membership.”); Roberts v. United States Jaycees,
468 U.S. 609, 627, 104 S. Ct. 3244, 3254, 82 L. Ed. 2d
462, 477 (1984) (holding that law prohibiting sex dis-
crimination was not violative of all-male organization’s
freedom of expressive association in part because it “im-
poses no restrictions on the organization’s ability to ex-
clude individuals with ideologies or philosophies different
from those of its existing members”).
The rationale for drawing a distinction between status
and expression, as explained in Roberts, supra, is that
“unsupported generalizations” and stereotypes based on
a person’s identity are not permissible means of ascertain-
ing the particular views of that person:
In claiming that women might have a different atti-
tude about such issues as the federal budget, school
prayer, voting rights, and foreign relations, or that
the organization’s public positions would have a dif-
ferent effect if the group were not “a purely young
men’s association,” the Jaycees relies solely on un-
supported generalizations about the relative interests
82a
and perspectives of men and women. . . [Wle have
repeatedly condemned legal decisionmaking that re-
lies uncritically on such assumptions. . . . [Wle
decline to indulge in the sexual stereotyping that
underlies appellee’s contention that, by allowing
women to vote, application of the Minnesota Act will
change the content or impact of the organization’s
speech.
[468 U.S. at 627-28, 104 S. Ct. at 3255, 82 L. Ed. 2d
at 478.]
In contrast to exclusion based on status-based stereotypes,
when the denial of membership is premised on actual
expression, the organization can legitimately claim a basis
for its assessment that the excluded person would “change
the content or impact of the organization’s speech.” Id.
at 628, 104 S. Ct. at 3255, 82 L. Ed. 2d at 478.
Organizations may rely on their First Amendment
right to exclude potential members solely on the basis of
status in certain narrowly prescribed circumstances. As
the United States Supreme Court has explained:
It is conceivable, of course, that an association might
be able to show that it is organized for specific ex-
pressive purposes and that it will not be able to advo-
cate its desired viewpoints nearly as effectively if it
cannot confine its membership to those who share
the same sex, for example, or the same religion.
[New York State Club Ass’n, supra, 487 U.S. at 13, 108
S. Ct. at 2234, 101 L. Ed. 2d at 16.]
Thus, for example, when an organization has a unifying
purpose that motivates its members to join together as an
association or group, i.e., a core purpose, and the inclu-
sion of a particular person would be inconsistent or in-
83a
compatible with that purpose, the expressive association
rights of the organization would support the exclusion
See Invisible Empire of the Knights of the Ku Klux Klan
v. Town of Thurmont, 700 F. Supp. 281, 289 (D. Md
1988) (upholding exclusion of African American par-
ticipants in political march because “group’s primary pur-
pose is to advocate one main concept—that blacks and
whites should not mix. Allowing blacks to march with
the KKK would change the primary message which the
KKK advocates.”). A “specific expressive purpose” is fre-
quently, although not necessarily, the core or primary
purpose of an organization. Such a central purpose, if
compromised, would most evidently inhibit an associa-
tion's ability to effectively advocate its viewpoints. The
critical point is that a “specific expressive purpose” must
be clear, particular, and consistent.
These considerations bear relevantly on the right of
expressive association. The line between status-based and
speech-based exclusion has been decisive to expressive
association jurisprudence, even when that distinction was
not readily apparent. In Hurley v. Irish-American Gay
Lesbian and Bisexua! Group, 515 U.S. 557, 115 S. Ct.
2338, 132 L. Ed. 2d 487 (1995), the Supreme Court
held that GLIB, an organization of Irish lesbians and gay
men, was properly excluded from marching in Boston’s
St. Patrick’s Day parade under a banner conveying a
message of Irish and lesbian and gay pride. The Supreme
Court noted that it was this expression, and not the homo-
sexual identity of the marchers themselves, that formed
th he pane sale”
—- parade organizers’ basis for the exclusion
[Petitioners do not object to] the participation of
openly gay, lesbian, or bisexual individuals in vari-
ous units admitted to the parade. Petitioners dis-
claim any intent to exclude homosexuals as such,
84a
and no individual member of GLIB claims to have
been excluded from parading as a member of any
group that the Council has approved to march. In-
stead, the disagreement goes to the admission of
GLIB as its own parade unit carrying its own
banner.
{Id. at 572, 115 S. Ct. at 2347, 132 L. Ed. 2d at 503.]
The Supreme Court observed that “the record {] cor-
roborates the expressive nature of GLIB’s participation.”
Id. at 570, 115 S. Ct. at 2346, 132 L. Ed. 2d at 502.
Specifically, the Supreme Court determined that “GLIB
was formed for the very purpose of marching in [the
parade] . . . in order to celebrate its members’ identity
as openly gay, lesbian, and bisexual descendants of the
Irish immigrants, to show that there are such individuals
in the community, and to support the like men and women
who sought to march in the New York parade.” J/bid.,
115 S. Ct. at 2346, 132 L. Ed. 2d at 501.
The Supreme Court also determined that the parade
itself is a “form of expression, not just motion.” I/d. at
568, 115 S. Ct. at 2345, 132 L. Ed. 2d at 500. For that
reason, the Supreme Court noted that “GLIB under-
standably seeks to communicate its ideas as part of the
existing parade, rather than staging one of its own,” id.
at 570, 115 S. Cr. at 2346, 132 L. Ed. 2d at 501, and
that by engaging in that form of expressional activity,
GLIB’s inclusion was incompatible with or compromised
the expressional activities of the parade itself.
Fundamental to the analysis of the Supreme Court,
then, was its extrapolation from the record of a basis for
concluding that GLIB had sought to engage in expression
that was conspicuously and unmistakenly separate from
simply serving to identify its members. The Supreme
Court’s description of that expression as distinct from
status was central to its Hurley holding.
l,
This case does not squarely fall within the paradigm
suggested by those authorities defining the contours of
the expressive association right because the speech here
is so closely intertwined with the identity of the speaker.
Thus, as the Court recognizes, while Boy Scouts frames
its expulsion of Dale as grounded on an objection to his
expression of his homosexuality, that exclusion is tanta-
mount to one based on Dale’s status as a homosexual.
Ante at — (slip op. at 89); cf. Able v. United States,
880 F. Supp. 968, 973 (E.D.N.Y. 1995) (noting in chal-
lenge to constitutionality of military's “don’t ask, don’t
tell” policy that plaintiffs, in stating that they are homo-
sexuals, “have done no more than acknowledge who they
are, that is, their status,” and that such speech “implicates
the First Amendment value of promoting individual dig-
nity and integrity”), vacated, 88 F.3d 1280 (2d Cir.
1996) (vacating primarily on ground of judicial defer-
ence to military) .*
The Court’s recognition of the speciousness of drawing a
distinction between discrimination grounded in expression
versus status in this context, ante at (slip op. at 89),
was previously recognized by Justice Brennan who ob-
served that sometimes “ ‘speech’ {] is better evaluated as
no more than a natural consequence o/ {a person’s] sexual
orientation.” Rowland v. Mad River Local Sch. Dist.,
3 The District Court in Able further rejected as unconstitutional
“a policy that purportedly directs discharge based on ‘conduct’ ”
while “defining ‘conduct’ to include statements revealing one’s
homosexua) status” because such policy transmogrifies “a mere
acknowledgment of status” into “an admission of misconduct.”
880 F’. Supp. at 975.
470 U.S. 1009, 1017 n.11, 105 S. Ct., 1373, 1379 n.11,
84 L. Ed. 2d 392, 397 n.11 (1985) (Brennan, J., dissent-
ing from denial of cert.). In Rowland, the jury found that
the petitioner, a schoolteacher, had been dismissed from
her job “for no other reason” than “because she was a
homosexual who revealed her sexual preference.” Jd. at
1009, 105 S. Ct. at 1373, 84 L. Ed. 2d at 392 (citation
omitted). Justice Brennan likened the petitioner’s expres-
sion of her sexual identity to fellow employees to the
generally held knowledge of co-workers about “whom their
fellow employees are dating or to whom they are married.”
Ibid. In such instances, wrote Justice Brennan, “it is
realistically impossible to separate {] spoken statements
from [] status.” /bid.
The confluence of status and expression when both re-
late to the speaker’s sexual orientation is “self-identifying
speech.” Such expression as ‘the statement ‘I am gay’
is illocutionary— like the statements ‘J’accuse,’ ‘I thee
wed,” or ‘I bet you,’ it not only describes, but performs,
the action named.” Kenji Yoshino, Assimilationist Bias
in Equal Protection: The Visibility Presumption and the
Case of “Don’t Ask, Don’t Tell,” 108 Yale L.J. 485, 550
(1998) (footnote omitted). Self-identifying speech
“makes the connection between speech and status,” and is
illustrated by the ACT UP slogan, “I am out, therefore
I am.” Ibid. (footnotes omitted). Some scholars main-
tain that the ability to self-identify is critical to being a
lesbian or gay man. See Brian C. Murchison, Speech and
the Self-Realization Value, 33 Harv. C.R.-C.L. L. Rev.
443, 468 (1998) (“Self-realization [] is what speech (in-
cluding expressive activity) makes possible.”); Nan D.
Hunter, Identity, Speech, and Equality, 79 Va. L. Rev.
1695, 1718 (1993) (“Self-identifying speech does not
87a
merely reflect or communicate one’s identity; it is a major
factor in constructing identity.”).
For purposes of antidiscriminaton laws, the relevance
of self-identifying speech is not so much in realizing iden-
tity, as in its singular role in revealing identity. The im-
portance of self-identifying speech inheres in its legal ef-
_ fect—that is, in the functional capacity of such speech to
disclose or clarify the status of a person when that status
is entitled to protection against discrimination. A person
covered by the LAD has the right to enjoy his or her pro-
tected status without suffering discrimination because of
who he or she is. If the very means of making those char
acteristics known—-self-identification—can legitimately jus-
tify discrimination against that person, then the antidis-
crimination protections of the LAD are illusory.
The interdependence of identity and speech is particu-
larly evident where a distinguishing characteristic of iden-
tity is not readily apparent, as in the case of sexual orien-
tation. In that regard, there is a clear parallel between
status based on sexual orientation and that based on re-
ligion. See David A.J. Richards. Sexual Preference as a
Suspect (Religious) Classification: An Alternative Per-
spective on the Unconstitutionality of Anti-Lesbian/Gay
Initiatives, 5S Ohio St. L.J. 491 (1994). Unlike charact-
istics that are obvious upon casual observation, religion
and sexual orientation are unknowable unless the person
self-identifies.
Courts have recognized that expression and identity
can be interdependent in the context of religion. See
Islamic Center v. City of Starkville, 840 F.2d 293, 300
(Sth Cir. 1988) (noting that expression of religious be-
liefs “communicates to outsiders the identity of the group
and [a person’s} own identity as a member of it, a form
88a
of self-expression”). Accordingly, the United States Su-
preme Court has held that in order to adequately insulate
religion from state interference, government may not “im-
pose special disabilities on the basis of religious views or
religious status.” Employment Div., Dep’t of Human Re-
sources v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595,
1599, 108 L. Ed. 2d 876, 884 (1990).
The significance of the connection between identity and
expression in respect of sexual orientation has been sim-
ilarly recognized by New Jersey’s Legislature in enacting
protections for sexual minorities in the LAD. See ante at
(slip op. at 82-84). When amending the LAD in
1991 to prohibit discrimination based on “affectional or
sexual orientation,” the Legislature defined the scope of
protection to encompass both concepts:
“Affectional or sexual orientation” means male or
female heterosexuality, homosexuality or bisexuality
by inclination, practice, identity or expression, having
a history thereof or being perceived, presumed or
identified by others as having such an orientation.
[N.J.S.A. 10:5-5(hh) (emphasis added ).]
In so doing, the Legislature affirmed the significant role
of self-identifying speech for lesbians and gay men, much
in the same way that the Supreme Court has acknowledged
tha
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