Amicus Curiae Brief — Boy Scouts of America v. Dale

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SUPREME COURT, U.S.

IN THE

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

BRIEF OF AMICUS CURIAE,

THE INDIVIDUAL RIGHTS FOUNDATION,

IN SUPPORT OF PETITIONERS

PAUL A. HOFFMAN

Counsel of Record

DRACUP & PATTERSON

505 N. Tustin Avenue, Suite 282

Santa Ana, California 92705

(714) 542-3500

PATRICK MANSHARDT

One Bunker Hill Building

601 W. 5th Street, 8th Floor

Los Angeles, California 90071

Attorneys for Amicus Curiae

The Individual Rights

Foundation

WILSON-EPes Printinc Co., Inc. - (202) 789-0096 - WASHINGTON, D.C. 20001

ant

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............ 1

STATEMENT OF THE CASE ............... 2

The Record Below .................. 2

Ruling of Appellate Courts Below 4

SUMMARY OF ARGUMENT. .000020200.0o..ccceccceeececeeee 5

ARGUMENT ....................-... 6

I. STATE-MANDATED ACCEPTANCE OF

SELF-IDENTIFYING HOMOSEXUALS AS

ROLE MODELS OF BOY SCOUTS’ VALUES

IMPERMISSIBLY REQUIRES BOY SCOUTS

TO ACCEPT SPEECH WHICH IS CON-

TRARY TO THE VALUES THEY WISH TO

GUPEIS WEIPE nvsensevesnsensnstonnstintieanasinmeusiabisnaiamnninaitinneiian 6

II. BOY SCOUTS’ UNIQUE EMPHASIS ON

TEACHING BY EXAMPLE AND BY ROLE

MODELING IS ITSELF A FORM OF SPEECH

OR EXPRESSIVE CONDUCT PROTECTED

BY THE FIRST AMENDMENT ........................ 10

III. THE FACT THAT BOY SCOUTS’ MEMBERS’

OR SPONSORS’ VIEWS MAY NOT BE

UNANIMOUS DOES NOT DIMINISH BOY

SCOUTS’ RIGHT TO EXCLUDE CONTRARY

ROLE MODELS BECAUSE THE RIGHT OF

SPEAKER’S AUTONOMY IS NOT LIMITED

TO CONSISTENT, DISTINCT OR ARTICU-

LATE MESSAGES .................... oe 17

CONCLUSION ......... 19

TABLE OF AUTHORITIES

CASES: Page

Dale v. Boy Scouts of America and Monmouth

Council, Boy Scouts of America, 160 N.J. 562,

FL Sf ee 4, 6, 9-10, 17

High Tech Gays v. Defense Ind. Sec. Clearance

Office, 895 F.2d 563 (9th Cir. 1990) ~............... 7

Hurley v. Irish-American Gay, Lesbian & Bi-

sexual Group of Boston, 515 U.S. 557 (1995) ....passim

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

SSR an 14

Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781 (1988) ..................... 14

Spence v. Washington, 418 U.S. 405 (1974) ......... 11

Texas v. Johnson, 491 U.S. 397 (1989) .................... 5, 11-15

United States v. O’Brien, 391 U.S. 367 (1968)...... 14

STATUTES:

New Jersey Law Against Discrimination, N.J.S.A.

a, ai tance srraneartetemacnas 4

OTHER AUTHORITIES:

David Cole & William N. Eskridge, From Hand-

Holding to Sodomy: First Amendment Protec-

tion of Homosexual (Expressive) Conduct, 29

Harv. C.R.-C.L. L.Rev. 319 (1993) 7

Comment, Expression By Association: Towards

Defining An Expressive Association Defense In

Unruh-Based Sexual Orientation Discrimination

Actions, 33 Santa Clara L. Rev. 467 (1998)........ 7-8

Jose Gomez, The Public Expression of Lesbian/Gay

Personhood As Protected Speech, 1 Law & Ineq.

J. 121 (1983) . 7

Nan D. Hunter, et al., The Rights of Lesbians and

Gay Men: The Basic ACLU Guide to a Gay

Person’s Rights (3d ed. 1992) .............cccceccceeeccenee 7

William B. Rubenstein, Since When Is the Four-

teenth Amendment Our Route To Equality?

Some Reflections on the Construction of the

‘Hate-Speech’ Debate from a Lesbian/Gay Per-

spective, in Speaking of Race, Speaking of Sex:

Hate Speech, Civil Rights, And Civil Liberties

(1994) 7

iff

TABLE OF AUTHORITIES—Continued

The Guide to Gifts and Bequests, 1995-1997: A

Directory of Philanthropically Supported Insti-

EE SS RL

Evan Wolfson & Robert S. Mower, When the

Police Are In Our Bedrooms, Shouldn’t The

Courts Go In After Them?: An Update On The

Fight Against “Sodomy” Laws, 21 Fordham

Urb.L.J. 997 (1994)

Page

Supreme Court of the United States

No. 99-699

Boy SCOUTS OF AMERICA and MONMOUTH COUNCIL, .

Boy SCOUTS OF AMERICA,

Petitioners,

JAMES DALE,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of New Jersey

BRIEF OF AMICUS CURIAE,

THE INDIVIDUAL RIGHTS FOUNDATION,

JIN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

Petitioners Boy Scouts of America and Monmouth

Council, Boy Scouts of America (“Petitioners” or “Boy

Scouts”) and Respondent James Dale (“Respondent” or

“Dale”) have each consented to the filing of this amicus

curiae brief * by the Individual Rights Foundation (“IRF*).

The IRF was founded in 1993 and is dedicated to

educating the public about the importance of the First

1 Counsel of record, Paul A. Hoffman, authored this amicus curiae

brief in its entirety. No person or entity, outside of amicus curiae,

The Individual Rights Foundation, its members or its counsel of

record, has made a monetary contribution to the preparation or

submission of the present amicus curiae brief. The written con-

sents of Petitioners and Respondent have been filed with the Clerk

of the Court.

Amendment’s free speech and associational guarartees.

To further its educational goals, the IRF conducts semi-

nars and other public events, publishes newsletters, and

files amicus curiae briefs in appellate cases involving

First Amendment speech and associational rights issues.

The IRF seeks to resist attempts from anywhere along the

political spectrum to limit public expression because such

attempts pose a serious threat both to cultural diversity

and to our free form of government.

STATEMENT OF THE CASE

This amicus adopts the Statement of the Case set forth

in the Petition for a Writ of Certiorari (“Petition”) by

Boy Scouts.2 Nonetheless, the IRF wishes to highlight

a few points in the record below.

The Record Below

It is important at the outset to focus on what is not

contained in the record below. There is no evidence that

Boy Scouts bar anyone based on mere status, unannounced

and unbroadcasted, as homosexuals. The record below

reveals that Boy Scouts are not interested in the private

sexual status of any of their adult leaders, but only in

their public expressions regarding sexuality, which may

affect their ability to effectively teach or role model Scout-

ing’s beliefs regarding traditional morality. This is shown

by Dale’s own admission that he is “aware of other homo-

sexuals active in Scouting against whom no adverse

action has been taken because they have not ‘gone public’

with their sexual orientation.” (160a.) This is consistent

with Boy Scouts’ position that “Boy Scouting makes no

2 Numbers preceded by “A.” refer to pages in the record before

the New Jersey Supreme Court; numbers preceded by “P.” refer to

the Petition for a Writ of Certiorari; numbers followed by “a” refer

to pages in the bound Appendix submitted with the Petition.

effort to investigate the sexual orientation of members or

leaders.” (P.4 n.2) Nor is there any evidence in the

record below that Boy Scouts ever asked Dale or any

other applicant about his or her private sexual life.

What the record below does show is that Boy Scouts’

membership policies are concerned with public expression.

Boy Scouts’ policy excludes only “avowed homosexuals.”

(A.1957.) Boy Scouts were interested in Dale’s public

statements and conduct only because of the obvious

impact such behavior would have on his ability to serve

as a role model for Scouting’s preferred values. (207a;

223a.)

Citing an extensive review of material, the Superior

Court of New Jersey, Chancery Division (“Chancery Divi-

sion”), expressly found that “from its inception Scouting

has excluded from membership and adult leadership any

person who openly declares himself a homosexual and

that such policy has continued unchanged, to the pres-

ent.... It is the firm position of BSA that [homosexual]

conduct is not ‘morally straight’ under the Scout Oath

nor is it ‘clean’ under the Scout Law.” (192a) (emphasis

added).

There is no evidence in the record that anyone in Boy

Scouts knew of Dale’s homosexuality, or would likely

ever have known, but for Dale’s extraordinary efforts to

publicly broadcast his views as a homosexual advocate

to a reporter for The Newark Star-Ledger, who identified

Dale as Co-President of the Rutgers University Lesbian/

Gay Alliance. (A.1946.) Boy Scouts became aware of

Dale’s homosexuality solely as a result of his voluntary

newspaper interview. (A.3576.) Thus, had Dale not

taken efforts to publicize his views as a homosexual, his

membership in Boy Scouts would not have been revoked.

Based thereon, the Chancery Division ruled that Boy

Scouts could revoke his membership.

Ruling of Appellate Courts Below

The Superior Court of New Jersey, Appellate Division,

reversed in a split decision (Landau, J., dissenting), con-

cluding, among other things, that: (1) Boy Scouts of

America is a place of public accommodation within the

meaning of the New Jersey Law Against Discrimination

(“LAD”) (124a); (2) enforcement of the LAD is unre-

lated to the suppression of ideas because it will not signi-

ficantly affect Boy Scouts’ ability to carry out expressive

purposes (136a); and (3) Boy Scouts failed to show that

the policy of excluding avowed homosexuals was a col-

lective viewpoint that brought members together. (143a-

144a.)

The New Jersey Supreme Court (“NJSC”) affirmed, by

ruling, among other things, as follows:

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 message is not significantly affected

by Dale’s inclusion because: Boy Scouts members

do not associate for the purpose of disseminating the

belief that homosexuality is immoral; Boy Scouts

discourages its leaders from disseminating any views

on sexual issues; and Boys Scouts include sponsors

and members who subscribe to different views in

respect of homosexuality.

Dale v. Boy Scouts of America, 160 N.J. 562, 612, 734

A.2d 1196 (1999) (emphasis added).

SUMMARY OF ARGUMENT

Your amicus respectfully submits that several constitu-

tional errors by the NJSC demand this Court’s review in

order to avoid serious erosion of the freedoms of speech

and expressive association:

(1) The NJSC’s decision below erroneously concluded

that discrimination based on self-identifying speech is the

same as discrimination based on status. However, under

this Court’s First Amendment jurisprudence, the fact that

homosexual “coming out” speech is “self-identifying

speech” does not grant the State of New Jersey a greater

right to regulate the content of private speech or diminish

the right of expressive associations to exclude those whose

self-identifying speech is contrary to their expressive

purposes.

(2) Scout leader role modeling constitutes symbolic

speech and expressive conduct under Texas v. Johnson,

491 U.S. 397 (1989) because the record below shows

that Boy Scouting intends to and does effectively convey

specific messages and values (i.e., the principles embodied

in the Boy Scout Oath and Law) by means of role model-

ing. Boy Scouts’ role modeling is founded on the belief

that a Scout leader’s example is more effective than the

spoken word in transmitting moral values to young Scouts.

Therefore, requiring the appointment of someone whose

public example runs counter to the organization’s values

alters both the form and content of Boy Scouts’ intended

speech and constitutes state suppression of free expression.

(3) The NJSC mistakenly held that only those mes-

sages in which an expresz:ve association shares a “single

view” which functions as “a unifying associational goal of

the organization” can justify exclusion of those represent-

ing contrary viewpoints. Limiting the right of expressive

association to ouly those few viewpoints that bring the

entire membership together would not only eviscerate this

Court’s opinion in Hurley v. Irish-American Gay, Lesbian

& Bisexual Group of Boston, Inc., 515 U.S. 557 (1995),

but would all but destroy the right of expressive associa-

tion for large associations, including political parties,

which cannot meet this test.

ARGUMENT

I. STATE-MANDATED ACCEPTANCE OF SELF-

IDENTIFYING HOMOSEXUALS AS ROLE MODELS

OF BOY SCOUTS’ VALUES IMPERMISSIBLY

REQUIRES BOY SCOUTS TO ACCEPT SPEECH

WHICH IS CONTRARY TO THE VALUES THEY

WISH TO CONVEY

The NJSC’s opinion attempts to distinguish the facts

presented in this case from this Court’s ruling in Hurley

v. Irish-American Gay, Lesbian & Bisexual Group of

Boston, Inc., 515 U.S. 557 (1995), by stating that “Dale’s

Status as a scout leader is not equivalent to a group

marching in a parade” and that Boy Scout leadership is

not a “form of ‘pure speech’ akin to a parade.” Dale,

supra, 160 N.J. at 623. However, the applicability of

the speech principles announced in Hurley cannot be so

easily dismissed. As shown below, this Court should

3The NJSC’s opinion tries to distinguish Hurley because “Dale

does not come to Boy Scout meetings ‘carrying a banner.’” Dale,

supra, 160 N.J. at 623. The NJSC’s cramped reading of Hurley

leads to a strange anomaly: Only if Boy Scouts obtain a permit and

march in a parade may they lawfully exclude leaders, like Dale, who

may want to wear a sign ‘n such a parade stating “I am a gay

Scoutmaster,” but Boy Scouts may not lawfully exclude those same

individuals at any other Scouting event, such as a Scout-O-Rama,

a Boy Scout Jamboree, or a Scout meeting, who may stand and

announce that “I am a gay Scoutmaster.” This example illustrates

how the speech principles announced in Hurley are broad and can-

not be limited to just one narrow category of speech (i.e., parades).

grant the Petition in this case because serious issues

regarding the applicability of Hurley are clearly raised.

Since homosexuality is generally a latent characteristic,

unlike race and gender,* homosexuals who wish to openly

proclaim their homosexuality must, by definition, send a

message to others. Such a message constitutes speech and

is inherently expressive. See, e.g., Nan D. Hunter, et al.,

The Rights of Lesbians and Gay Men: The Basic ACLU

Guide to a Gay Person's Rights 9 (3d ed. 1992) (“coming

out speech ought to be recognized by the courts as politi-

cal expression”) (emphasis added); David Cole & Wil-

liam N. Eskridge, From Hand-Holding to Sodomy: First

Amendment Protection of Homosexual (Expressive) Con-

duct, 29 Harv. C.R.-C.L. L.Rev. 319, 325 (1993) (“An

admission of sexual identity is expressive in the strictest

sense of the word.”) (emphasis added); Jose Gomez,

The Public Expression of Lesbian/Gay Personhood As

Protected Speech, 1 Law & Ineq. J. 121 (1983).> One

of the messages of such speech is that the homosexual

lifestyle is acceptable. Comment, Expression By Associa-

4 “Homosexuality is . . . behavioral and hence is fundamentally

different from traits such as race, gender, or alienage....” High

Tech Gays v. Defense Ind. Sec. Clearance Office, 895 F.2d 563, 573

(CA9 1990). See also William B. Rubenstein, Since When Is the

Fourteenth Amendment Our Route to Equality? Some Reflections

on the Construction of the ‘Hate-Speech’ Debate from a Lesbian/

Gay Perspective, in Speaking of Race, Speaking of Sex: Hate

Szeech, Civil Rights, And Civil Liberties 283 (1994) (“sexual orien-

tation is not, like race or gender, visually identifiable: individuals

must take on a lesbian/gay identity through some speech or speech

act known as ‘coming out’”’).

5 One of Dale’s attorneys, Evan Wolfson, admits that there are

“inherently political dimensions to being openly gay or lesbian.”

(Evan Wolfson & Robert S. Mower, When the Police Are In Our

Bedrooms, Shouldn’t The Courts Go In After Them?: An Update

On The Fight Against “Sodomy” Laws, 21 Fordham Urb. L.J. 997,

1025 n.100 (1994) (emphasis added).)

tion: Towards Defining An Expressive Association De-

fense In Unruh-Based Sexual Orientation Discrimination

Actions, 33 Santa Clara L. Rev. 467, 510 (1993) (“it

seems that an individual’s decision to publicly express

his or her sexuality is a personal affirmation that such

conduct is legitimate or acceptable”) (emphasis added).

The issue of whether a direct burden would be placed

on Boy Scouts’ First Amendment rights by forcing them

to accept Dale’s speech, not just his status, is most clearly

raised in Hurley. The parade organizers in Hurley repre-

sented that they reflected “traditional religious and social

values” and wished to exclude “groups with sexual

themes.” Hurley, 515 U.S. at 562. Although participa-

tion by the Irish-American Gay, Lesbian & Bisexual

Group of Boston (“GLIB”) was also expressive in char-

acter, id. at 570, the only public message manifested at

the parade by GLIB was its own self-identifying speech,

when it “marched behind a shamrock-strewn banner with

the simple inscription ‘Irish American Gay, Lesbian and

Bisexual Group of Boston.’” Jd. Based on these facts,

this Court concluded that GLIB had sought to “communi-

cate its ideas as part of the existing parade.” Jd. This

alone was enough to find an implied message that con-

flicted with the wishes of the parade organizers. The

same conflict is inherent in the present case.

Openly gay persons who apply to be Scoutmasters

when they know that Boy Scouts take a position against

alternative sexual lifestyles® are, in essence, requesting

that Boy Scouts accept their political message or speech,

not just their sexual orientation status. When public

6 For example, it is hardly disputable that Boy Scouts have the

right to reject other messages or speakers who seek to use Scouting

as a vehicle to “legitimize” other sexual lifestyles, such as prostitu-

tion, polygamy, adultery or unmarried heterosexual cohabitation.

accommodation statutes, however well intentioned, are

used to require acceptance, the state is clearly compelling

acceptance of private political speech, directly contrary to

this Court’s holding in Hurley. As stated by Judge

Landau in his dissent below in the Superior Court, Appel-

late Division: “This principle is not changed merely

because the altered message is implicitly, but no less

strongly, conveyed by example rather than by verbal

articulation or by signs.” (153a.) Accordingly, the pres-

ent Petition plainly raises the issue of whether the rule

of “speaker’s autonomy” established by this Court in

Hurley is being threatened by misapplication of state

public accommodation laws.

Moreover, the constitutional conflict raised by the Peti-

tion is not laid to rest by the counter-argument that, since

homosexuals are known almost exclusively by their self-

identifying speech, or because homosexual status cannot

be separated from homosexual speech, therefore, a homo-

sexual person cannot be excluded based on his or her

“coming out” speech. See, e.g., Dale, supra, 160 N.J. at

641 (concurring opinion of Justice Handler).? This argu-

ment only begs the very question at issue in this case:

whether self-identifying speech is interfering with Boy

Scouts’ rights of speech and expressive association.

Speech is speech, whether it is self-identifying speech or

some other type of speech. Accordingly, if homosexual

status really cannot be separated from homosexual self-

identifying speech, then forcing expressive associations

opposed to the homosexual lifestyle to accept openly

7 This counter-argument clearly fails if carried to its logical con-

clusion. For example, most Catholics also cannot be identified other

than by their self-identifying speech. However, this fact does not

give them a right to join a Protestant or Jewish fraternal organiza-

tion.

homosexual persons is also, a priori, forcing them to

accept such persons’ speech. Unless this Court is willing

to carve out a new exception to First Amendment juris-

prudence for self-identifying speech, it seems self-evident

that homosexuals do not have a special right above other

Americans to compel private expressive associations to

accept their speech.

By the same token, if homosexual status truly cannot

be separated from homosexual speech, then an expressive

association’s rejection of an openly homosexual person is

not necessarily based on a rejection of such person’s

status. It may be legitimately based on rejection of the

message of such person’s “coming out” speech. Accord-

ingly, one of the basic assumptions on which rests much

of the reasoning of the NJSC’s ruling, that Boy Scouts

revoked Dale’s membership “solely because of his status

as a homosexual” (160 N.J. at 624), is very doubtful.

Therefore, the Petition squarely raises the serious con-

stitutional issue of whether Boy Scouts’ rejection of openly

homosexual persons like Dale is not necessarily an act of

prohibited discrimination based on status but is logically

related to exclusion of adverse ideological speech which

would inherently subvert the expressive association.

Il. BOY SCOUTS’ UNIQUE EMPHASIS ON TEACHING

BY EXAMPLE AND BY ROLE MODELING IS IT-

SELF A FORM OF SPEECH OR EXPRESSIVE

CONDUCT PROTECTED BY THE FIRST AMEND-

MENT

In addition to raising the issue of whether Boy Scouts

should be required to accept someone else’s speech, the

Petition raises a second but equally important issue:

whether the NJSC’s ruling alters or limits Boy Scouts’ own

affirmative speech communicated through the medium of

role modeling.

In Hurley, supra, this Court stated that “the Constitu-

tion looks beyond written or spoken words as mediums

of expression.” 515 U.S. at 569. For example, parading

is expressive because it is not simply movement from one

place to another but is a form of “making some sort of

collective point, not just to each other but to bystand

along the way.” Id. at 568. sa

Because expressive conduct, and not just words, convey

a message which constitutes speech, the First Amendment

protects expressive associations which limit the content

of their speech by their choice of role models. Common

examples of such expressive activity include appointment

of church ministers and youth counselors, who often

teach more by their example than by their preaching.

In Texas v. Johnson, 491 U.S. 397, 403-405 (1989),

this Court reiterated its two-part test for determining

whether a state regulation, as applied to conduct alleged

to be expressive, violates the First Amendment: (1)

whether the conduct itself is expressive, as shown by an

intent to convey a particularized message which is likely

to be understood by those viewing it, and (2) if so,

whether the state’s interest in regulating such conduct is

“related to the suppression of free expression.”

With respect to the first prong of Texas v. Johnson, the

record below reveals a strong case for finding expressive

conduct because there can be little doubt that Boy Scout-

ing intends to convey a particularized message (i.e., the

principles embodied in the Boy Scout Oath and Law)

through its choice of role models and that “ ‘the likelihood

was great that the message would be understood by those

who viewed it.’” Id. at 404 (citing Spence v. Washing-

ton, 418 U.S. 405, 410-411 (1974)). The communica-

tive intent of Boy Scouts is clearly stated in their Mission

Statement: “It is the mission of Boy Scouts. . . to instill

values in young people .. . . The values we strive to

instill are based on those found in the Scout Oath and

Law.” (A.2238) (emphasis added).

Boy Scouts control the messages and values instilled in

young Scouts, in part, by excluding individuals who would

express views or model behavior contrary to Scouting’s

views. The Chancery Division below expressly found that

“Scoutmasters are teachers and role models of ‘what a

man should be like’ in all aspects of male adulthood.”

(207a) (emphasis added). It further found that “[t]o

be an adult leader of Scouting one must agree to be bound

not only by the Scout Oath or Promise but also by the

Declaration of Religious Principles.” (206a.) Such a

leader “must possess the moral, educational, and emo-

tional qualities deemed necessary by BSA for leadership

before he will be commissioned.” (222a.) The Chan-

cery Division concluded that requiring Dale to be ad-

mitted as a Scout leader “would be devastating to the

essential nature of scouting” partly because a role model’s

example is “critical” to Scouting’s mission of conveying

the values of the Scout Oath and Law. (223a.) These

facts clearly show that there is an intent by Boy Scouts

to communicate a specific message through role modeling.

The record below also shows a great likelihood that

those viewing the conduct would understand the message.

Boy Scout literature is replete with statements that boys

best understand the message of Scouting through role

modeling. The Official Scoutmaster Handbook, which

Dale had when he registered as a Scout leader, stated:

In his quest for manhood, every boy needs contact

with men he can copy. Living, breathing men pro-

vide models of what manhood is like. Boys copy

whatever models are available to them... . You are

providing a good example of what a man should be

like. What you do and what you are may be worth

a thousand lectures and sermons.

(A.3200) (emphasis added). The Handbook further

stated: “What you are speaks louder than what you say.”

(A.3201) (emphasis added). The Scoutmaster Handbook

also advises Scout leaders: “When you're on a Scout

camp out, remember that boys will look up to you as a

role model—someone they want to respect and copy.”

(A.2685) (emphasis added). “Boys learn from the

example set by their adult leaders.” (A.2652) (emphasis

added).

Recognizing the power of example on young Scouts,

Dale himself admitted that it was his responsibility “to set

an example of living by the Scout oath and law... .”

(A.3333.) He also admitted that, in order to effectively

instill Scouting values in youth, it is important for a

Scout leader “never to do or say anything inconsistent

with the values embodied in the Scout Oath or the Scout

Law.” (A.1914) (emphasis added).

Evidence in the record indicated the drastic effect that

admission of known or avowed homosexuals would have

on the communicative aspects of role modeling and on

young Scouts’ understanding of what it means to be

morally straight and clean. (A.3226-A.3232.) Professor

Slavings described the various mechanisms by which adult

leaders’ role modeling contributes to value transmission

and showed how each method would be weakened and

disrupted if someone like Dale were placed in the position

of adult leader. (/d.) These facts show that young Scouts

understand the messages of role models.

Since the record below shows that Boy Scouts’ role

modeling is clearly expressive in character, the second

prong of Texas v. Johnson requires a determination

“whether the State’s regulation is related to the suppression

of free expression.” 491 U.S. at 403. If the state’s interest

is related to suppression of ideas, then strict scrutiny is

the standard of review. United States v. O’Brien, 391 U.S.

367, 377 (1968). Even a regulation which is intended to

vindicate a compelling state interest must be shown to be

“unrelated to the suppression of free expression” and “the

incidental restriction on alleged First Amendment free-

doms [must be] no greater than is essential to the further-

ance of that interest.” Id.

The NJSC’s ruling results in the suppression of expres-

sion because Dale’s forced admission to Boy Scouts would

alter both the form and content of Boy Scouts’ expressive

role modeling. In Riley v. National Federation of the

Blind of North Carolina, Inc., 487 U.S. 781 (1988), this

Court stated that “[m]Jandating speech that a speaker

would not otherwise make necessarily alters the content

of the speech.” 487 U.S. at 795 (emphasis added). In-

stead, “[t]he First Amendment mandates that we presume

that speakers, not the government, know best both what

they want to say and how to say it . .. . To this end, the

government, even with the purest of motives, may not sub-

stitute its judgment as to how best to speak... .” Id.

at 790-791 (emphasis added). Moreover, “[g]overnmental

restraint on [speech] need not fall into familiar or tradi-

tional patterns to be subject to constitutional limitations

on governmental powers.” Miami Herald Publishing Co.

v. Tornillo, 418 U.S. 241, 256 (1974).

In Texas v. Johnson, this Court, while recognizing the

special place of the flag in our tradition and history,

expressly declined to create an exception under the First

Amendment that would allow the government to restrict

expressive conduct to orthodox viewpoints. 491 U.S. at

418. The Court also suggested that “other concepts vir-

tually sacred to our Nation as a whole,” such as the

state's interest in preventing discrimination, may be ques-

tioned “in the marketplace of ideas” and cannot be used

to override the supremacy of the First Amendment. Id.

This case raises serious issues of state-mandated cen-

sorship precisely because of the controversial nature of

Boy Scouts’ definition of what is “morally straight.” “If

there is a bedrock principle underlying the First Amend-

ment, it is that the government may not prohibit the

expression of an idea simply because society finds the idea

itself offensive or disagreeable.” Id. at 414. “[{TYhat the

government may not prohibit expression simply because

it disagrees with its message, is not dependent on the par-

ticular mode in which one chooses to express an idea.”

Id. at 416 (emphasis added). Accordingly, the govern-

ment may not “ensure that a symbol be used to express

only one view of that symbol or its referents.” Id. at 417.

The role of Scoutmaster is clearly symbolic in large

measure. Hence, to deny the symbolic nature of Boy

Scouts’ role modeling arguably limits the number of mes-

sages that can be conveyed through Scoutmaster role

modeling and amounts to a limitation on speech. “To

conclude that the government may permit designated

symbols to be used to communicate only a limited set

of messages would be to enter territory having no discerni-

ble or defensible boundaries.” /d.

The present Petition clearly raises the issue that Boy

Scouts seek to control the messages they send to youth

and the public through their unique emphasis on role

modeling. Choosing a role model in such a context is

just as vital to Boy Scouts’ expressive purposes as choos-

ing their speakers or their speech at a Court of Honor.

Thus. when the state seeks, as in this case, to dictate

who may occupy role modeling positions, there is a great

danger that it may be substantially altering both the

form and the content of such expression.

It is precisely in the area of governmental regulation of

expressive conduct through public accommodation statutes

that the danger of ideological constraint is high, espe-

cially if the nexus between the expressive nature of the

activity and the interest being regulated is not well under-

stood. Since Boy Scouts seek to teach their messages and

values by quiet role modeling and not by boisterous

debate, there is a great danger that outsiders (including

the state) may interpret such a position as no position

at all, as the NJSC has done in this case. However, this

does not mean that such quiet advocacy is not worthy of

protection under the First Amendment.

The danger of state-mandated orthodoxy is especially

high in this case because there remains a strong likelihood

that requiring admission of openly gay Scoutmasters will

confuse both the Scouts and the community as to what

message Boy Scouts are really sending. For example, even

if openly gay persons promised to teach only Boy Scouts’

viewpoint on sexual morality, their contradictory example

could lead to a logical conclusion in the minds of voung

Scouts and other observers of “do as I say, not as I do.”

Such a message would completely undermine the peda-

gogical value of role modeling as well as destroy the

moral teaching against homosexual conduct. Therefore,

the state’s attempt to dictate appropriate role models

in this case is little different than, for instance, a state

regulation requiring non-celibates to be admitted as Cath-

olic priests. Accordingly, there is a great likelihood that

the NJSC’s ruling, if left intact, will be disruptive of core

First Amendment expression.

Ill. THE FACT THAT BOY SCOUTS’ MEMBERS’ OR

SPONSORS’ VIEWS MAY NOT BE UNANIMOUS

DOES NOT DIMINISH BOY SCOUTS’ RIGHT TO

EXCLUDE CONTRARY ROLE MODELS BECAUSE

THE RIGHT OF SPEAKER’S AUTONOMY IS NOT

LIMITED TO CONSISTENT, DISTINCT OR ARTIC-

ULATE MESSAGES

The NJSC’s decision below also demands review be-

cause it denigrates the principle established in Hurley that

the right of speaker’s autonomy is not limited to con-

sistent, distinct or articulate messages. The NJSC appears

to have mistakenly assumed that all or most members of

Boy Scouts must have as a “shared goal” the “view that

homosexuality is immoral” in order for that viewpoint to

achieve any constitutional protection. Dale, supra, 160

N.J. at 613. The NJSC concluded that “Boy Scouts’

religious sponsors differ in their views about homosexu-

ality” and, therefore, “it appears that no single view on

this subject functions as a unifying associational goal of

the organization.” Jd. at 615 (emphasis added). The

NJSC’s limited view of the rights of speech and expressive

association in this regard were clearly rejected in Hurley.

Notwithstanding the fact that the Hurley parade had

“multifarious” and “conflicting” voices, this Court ruled

that it was, nevertheless, still an expressive association

entitled to First Amendment protection. Hurley, 515 U.S.

at 562, 569. Unlike Boy Scouts, the parade organizers

“had no written criteria and employed no particular pro-

cedures for admission, voted on new applications in

batches, had occasionally admitted groups who simply

showed up at the parade without having submitted an

application, and did ‘not generally inquire into the specific

messages or views of each applicant.’” Jd. at 562 (cita-

tions omitted). These facts did not diminish their First

Amendment right to exclude from the parade individuals

bearing an undesirable message. Since the record in this

case discloses that Boy Scouts are much more selective

and have a clearer sense of expressive purposes, the pro-

tection from government interference arguably should be

greater here.

Furthermore, there are important policy reasons why

the right of expressive association should not be limited

to viewpoints in which the members of an association

agree. As a practical matter, such a limitation would so

limit the right of expressive association as to make it

meaningless to any large organization. There are many

large private groups in this country which lack “genuine

selectivity” and contain many members whose “messages”

contradict each other. For example, only two generations

ago, the Democratic Party had some members who wanted

to enact extensive civil rights legislation (such as Senators

Hubert Humphrey and Paul Douglas) and other members

who believed with equal fervor in segregation (such as

Senator Richard Russell). The Democratic Party also

did not have (and still does not have) a consistent way of

selecting its members. Merely because the Democratic

Party members who believed in segregation as well as

those who wanted extensive civil rights laws enacted does

8 For example, the American Bible Society, American Mizrachi

Women, Inc., Baptist World Alliance, Catholic Relief Services,

‘Christian Records Services, Inc., Ecumenical Association For Hous-

ing, Episcopal Community Services, Girl Scouts of the U.S.A.,

Graduate Theological Union, Jewish Community Centers Associa-

tion of North America, The Jerusalem Fund of Aish HaTorah,

Jewish Vocational and Career Counseling Service, Lutheran World

Relief, Inc., Masonic Lodges, The Salvation Army, The Society For

The Propagation Of The Faith, Union of American Hebrew Con-

gregations, Union Rescue Mission, and Young Women’s Christian

Association. See The Guide to Gifts and Bequests, 1995-1997: A

Directory of Philanthropically Supported Institutions (1995) at

23-239.

not mean that the First Amendment right of expressive

association does not apply to the Democratic Party and

its chosen platform. This Court in Hurley clearly rejected

the view limiting expressive association rights to small

homogeneous groups with narrow viewpoints or rigid

rules of selection. Thus, the NJSC’s decision below de-

serves review because it directly conflicts with this Court’s

opinion in Hurley regarding the applicability of expressive

association rights to large and diverse private associations.

CONCLUSION

This amicus respectfully submits that this Court should

overturn efforts from any part of the political spectrum to

compel ideological orthodoxy, especially when it is directed

against expressive associations. Far from vindicating the

rights of homosexuals, a ruiing which undermines the

right of expressive association ‘n this case may lay the

groundwork for denial of Firs: Amendment rights of all

citizens, including First Amendment rights of homosexuals.

Granting certiorari in this case and reversing the ruling

below will not lead to a general undermining of legal

protection for gays and lesbians. Hotels, restaurants, and

other commercial establishments rarely, if ever, exist for

an expressive purpose. Unlike Boy Scouts, the purpose of

most commercial establishments is to make a profit, not

a moral point. It simply strains credibility to suggest

that most, or even many, businesses exist to teach their

customers, clients, or membership the virtues of traditional

fatherhood and family values. Therefore, their conduct

can be constitutionally regulated in conformity with the

civil rights laws.

However, by refusing to grant the Petition in this case,

the freedom of all private expressive associations to speak

and associate for the promotion of their expressive pur-

poses will be substantially chilled. Therefore, your amicus

respectfully urges this Court to grant the Petition in this

case in order to avoid erosion of important First Amend-

ment rights of all expressive associations.

Respectfully submitted,