Amicus Curiae Brief — Boy Scouts of America v. Dale

Supreme Court, U.S.

FILED

Feb % aw €4) FEB 2 8 200)

No. 99 |

In The

Supreme Court of the United States

¢

BOY SCOUTS OF AMERICA AND

MONMOUTH COUNCIL, BOY SCOUTS OF AMERICA,

Petitioners,

JAMES DALE,

Respondent.

>

On Writ of Certiorari to the

Supreme Court of New Jersey

>

BRIEF OF AMICUS CURIAE,

THE INDIVIDUAL RIGHTS FOUNDATION,

IN SUPPORT OF PETITIONERS

¢

Paut A. HoFrFMAN

Counsel of Record

Dracup & PATTERSON

505 N. Tustin Avenue, Suite 282

Santa Ana, California 92705

(714) 542-3500

One Bunker Hill Building

601 W. 5th Street, 8th Floor

Los Angeles, California 90071

os for Amicus Curiae

ividual Rights Foundation

TABLE OF CONTENTS

: Page

4 INTEREST OF AMICUS CURIAE............20000000:

Ng STATEMENT OF THE CASE................000000:

. : I aii okeas cok ccadcnnsecsccces

Ruling of Appellate Courts Below ...............

SUMMARY OF ARGUMENT..............0.0000005

Bie aes 4 I. THE NJSC’S JUDGMENT MUST BE

cou 3 REVERSED BECAUSE IT FAILS TO PRO-

We Se ake en 4 TECT THE BOY SCOUTS’ FIRST AMEND-

; yp eey : MENT RIGHT OF SPEAKER’S AUTONOMY

pie | : AND ERRONEOUSLY CONCLUDES THAT

BOY SCOUTS’ IDEOLOGICALLY-RELATED

ph ee ST eae, REJECTION OF RESPONDENT DALE

ager ran eh? | : BASED ON DALE’S PUBLIC SELF-IDENTI-

ee FYING SPEECH WAS MERE DISCRIMINA-

TORY CONDUCT BASED ON DALE’S

REET gee | II. BOY SCOUTS’ UNIQUE EMPHASIS ON

gc Ok Na ae Baa TEACHING BY EXAMPLE AND BY ROLE

SF anh cea = MODELING IS ITSELF A FORM OF SYMBOLIC

SOE i aa : | _ SPEECH OR EXPRESSIVE CONDUCT PRO-

See Re rd TECTED BY THE FIRST AMENDMENT. ......

| III. THE NJSC’S JUDGMENT MUST BE

| i REVERSED BECAUSE IT ASSUMES THAT

s : ” THE RIGHT OF EXPRESSIVE ASSOCIATION

pare ae ie ) : ONLY APPLIES TO VIEWPOINTS WHICH

: xs ARE SHARED UNIVERSALLY BY THE

; ASSOCIATION’S MEMBERS AND IT FAILS

or | : TO RECOGNIZE THAT THE RIGHT OF

SPEAKER’S AUTONOMY IS NOT LIMITED

TO CONSISTENT, DISTINCT OR ARTICU-

Lae wos

ii

TABLE OF CONTENTS - Continued

Page

IV. THIS COURT SHOULD RESIST THE TEMPTA-

TION TO RESTRICT RIGHTS OF SPEECH OR

EXPRESSIVE ASSOCIATION IN THIS CASE

BECAUSE SUCH RESTRICTIONS WILL ULTI-

MATELY WEAKEN THE RIGHT OF ALL PER-

SONS TO SPEAK OR ASSOCIATE FOR

EXPRESSIVE PURPOSES, ESPECIALLY THE

RIGHTS OF GAY AND LESBIAN GROUPS

AND INDIVIDUALS. ............200eeeeeeees 20

V. THIS COURT SHOULD ENSURE THAT THE

SCOPE OF EXPRESSIVE ASSOCIATION

RIGHTS ARE NOT INTERPRETED TOO NAR-

ROWLY SO THAT STATE AND LOCAL LAW-

MAKERS ARE NOT DISCOURAGED FROM

PASSING NEEDED LEGISLATION TO PRO-

TECT MINORITIES SUCH AS GAYS AND

iii

TABLE OF AUTHORITIES

Cases:

Board of Directors of Rotary International v. Rotary

Club of Duarte, 481 U.S. 537 (1987)............. 27-29

Chambers v. Omaha Girls Club, Inc., 834 F.2d 697

EE 17

Dale v. Boy Scouts of America and Monmouth Coun-

cil, Boy Scouts of America, 160 N.J. 562, 734 A.2d

i Par Srcseseceseecccccccceccces 4, 6, 9, 10, 18

Gay Students Organization of the University of New

Hampshire v. Bonner, 509 F.2d 652 (CA1 1974) ..... 24

Fricke v. Lynch, 491 F.Supp. 381 (D.R.I. 1980) ..... 17, 23

Harvey v. YWCA, 533 F.Supp. 949 (W.D.N.C. 1982) .... 17

High Tech Gays v. Defense Ind. Sec. Clearance Office,

ED . « « dalle un caccceeeesckeses 6

Hurley v. Irish-American Gay, Lesbian and Bisexual

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

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

tiie peck eehebesedadencecoesescccescece 15

Riley . National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781 (1988) ................. 15

Roberts v. United States Jaycees, 468 U.S. 609 (1984) . . .26-29

Spence v. Washington, 418 U.S. 405 (1974)............ 12

Texas v. Johnson, 491 U.S. 397 (1989)........... 11-16, 28

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

STATUTES AND Rutes or Court:

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

BE Oc ccccccesececccccccccscccccccsccccccce 3

iv

TABLE OF AUTHORITIES - Continued

Page

OrTHER AUTHORITIES:

Jack M. Battaglia, Religion, Sexual Orientation, and

Self-Realization: First Amendment Principles and

Anti-Discrimination Laws, 76 U. Det. Mercy

See TEP GEGOe ce cccccosccscousscosebassauebenses

David E. Bernstein, Sex Discrimination Laws Versus

Civil Liberties, 1999 Univ. Chi. Legal Forum 133. ..26, 30

Andrew J. Breuner, Expression By Association:

Towards Defining An Expressive Association

Defense In Unruh-Based Sexual Orientation Dis-

crimination Actions, 33 Santa Clara L.Rev. 467

GUSEED oc cccccsceconcccssentstotenespeacbooneseecass

William David Cole & William N. Eskridge, From

Hand-Holding to Sodomy: First Amendment Protec-

tion of Homosexual (Expressive) Conduct, 29 Harv.

CRGB. E.R. FED CITED. cc ccccccccveccceseves 7, 25

Comment, Civil Rights - Public Accommodation

Statutes —- New Jersey Supreme Court Holds That

Boy Scouts May Not Deny Membership To Homo-

sexuals — Dale v. Boy Scouts of America, 734 A.2d

1196 (N.J. 1999), Petition for Cert. Filed, 68

U.S.L.W. 1083 (U.S. Oct. 25, 1999) (No. 99-699),

Bap See, Gas Gee Gnancccdateccenccceces ca 26

William N. Eskridge, Gaylegal Narratives, 46 Stan.

Se GSP GEESE vecvccnccecccecepscnesstcencsessac

Jose Gomez, The Public Expression of Lesbian/Gay

Personhood As Protected Speech, 1 Law & Ineq. J.

GRE GIFU « cn ccccsccvesscccéccecsecceeseseesocseses

v

TABLE OF AUTHORITIES - Continued .

age

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) .......-- 6. cece cence eee eenees 6-7

William B. Rubenstein, Since When Is the Fourteenth

Amendment Our Route To Equality? Some Reflec-

tions on the Construction of the ‘Hate-Speech’

Debate from a Lesbian/Gay Perspective, in Speaking

of Race, Speaking of Sex: Hate Speech, Civil Rights,

And Civil Liberties (1994)............-.---005: 6, 21-23

The Guide to Gifts and ~~ 1995-1997: A Direc-

tory of Philanthropically Supported Institutions

GIDE cc cccccccccccccccccesesccccocccccoscoccccces 19

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) ..... 7

1

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

Amendment's free speech and associational guarantees.

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.

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STATEMENT OF THE CASE

This amicus adopts the Statement of the Case set

forth in Petitioners’ Brief on the Merits (“Petitioner's

Brief”).2, Nonetheless, the IRF wishes to highlight a few

points in the record below.

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 consents of Petitioners and Respondent have been

filed with the Clerk of the Court.

2 Numbers preceded by “JA” refer to the Joint Appendix

being filed with the Petitioners’ Brief on the Merits; numbers

followed by “a” refer to pages in the Appendix submitted with

the Petition for Writ of Certiorari; numbers preceded by “R.”

refer to pages in the record before the New Jersey Supreme

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, unan-

nounced 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. (JA 460) This

is shown by Dale’s own admission that he is “aware of

other homosexuals active in-Scouting against whom no

adverse action has been taken because they have not

‘gone public’ with their sexual orientation.” (160a) This

finding is consistent with Boy Scouts’ position that “Boy

Scouting makes no effort to investigate the sexual orien-

tation 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.”

(JA 138) Boy Scouts were interested in Dale’s public state-

ments 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”), expréssly 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 present. . . .

It is the firm position of BSA that [homosexual] conduct

Court; numbers preceded by “P.” refer to the Petition for Writ of

Certiorari.

3

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 toa

reporter for The Newark Star-Ledger, who identified Dale

as Co-President of the Rutgers University Lesbian/Gay

Alliance. (JA 517) Boy Scouts became aware of Dale’s

homosexuality solely as a result of his voluntary news-

paper interview. (JA 753) 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 Divi-

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

concluding, 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 unrelated

to the suppression of ideas because it will not signifi-

cantly 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 dues not have a significant

impact on Boy Scout members’ ability to associ-

ate with one another in pursuit of shared views.

The organization’s ability to disseminate its

message is not significantly affected by Dale’s

4

inclusion because: Boy Scouts members do not

associate for the purpose of disseminating the belief

that homosexuality is immoral; Boy Scouts dis-

courages its leaders from disseminating any

views on sexual issues; and Boy 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 consti-

tutional errors by the NJSC require reversal by this Court

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 expres-

sive 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 modeling. 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.

5

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 expressive association shares a “single

view” which functions as “a unifying associational goal

of the organization” can justify exclusion of those repre-

senting contrary viewpoints. Limiting the right of expres-

sive association to only those few viewpoints that bring

the entire membership together would not only eviscerate

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

bian & 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.

(4) A narrow interpretation of the rights of speech

and expressive association in this case will adversely

affect the right of all Americans, including gays and

lesbians, to engage in expressive activities and will actu-

ally discourage legislators from expanding civil rights

laws for fear of negatively impacting the expressive inter-

ests of a whole host of social and cultural associations.

+

ARGUMENT

I. THE NJSC’S JUDGMENT MUST BE REVERSED

BECAUSE IT FAILS TO PROTECT THE BOY

SCOUTS’ FIRST AMENDMENT RIGHT OF

SPEAKER’S AUTONOMY AND ERRONEOUSLY

CONCLUDES THAT BOY SCOUTS’ IDEOLOGI-

CALLY-RELATED REJECTION OF RESPONDENT

DALE BASED ON DALE’S PUBLIC SELF-IDENTI-

FYING SPEECH WAS MERE DISCRIMINATORY

CONDUCT BASED ON DALE’S STATUS

The NJSC’s opinion attempts to distinguish the facts

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

6

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.*

Since homosexuality is generally a latent characteris-

tic, 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

3 The 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 in 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.” These examples suggest that the speech

principles announced in Hurley are broad and cannot be limited

to just one narrow category of speech (i.e., parades).

. “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 Speech, Civil Rights, And Civil Liberties 283 (1994) (“sexual

orientation 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’ ”).

7

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

(“coming out speech ought to be recognized by the courts as

political expression”) (emphasis added); Jack M. Battaglia,

Religion, Sexual Orientation, and Self-Realization: First

Amendment Principles and Anti-Discrimination Laws, 76 U.

Det. Mercy L.Rev. 189, 326-27 (1999) (“ ‘Coming out’ is

profoundly personal and highly political.”) (emphasis

added); William David Cole & William N. Eskridge, From

Hand-Holding to Sodomy: First Amendment Protection of

Homosexual (Expressive) Conduct, 29 Harv. C.R.-C.L. L.Rev.

319, 325 (1993) (“An admission of sexual identity is expres-

sive in the strictest sense of the word.”) (emphasis added);

Jose Gomez, The Public Expression of Lesbian/Gay Person-

hood As Protected Speech, 1 Law & Ineq. J. 121 (1983).5

A variety of messages arise from “coming or *”

speech, from social defiance to the viewpoint that the

homosexual lifestyle is normal and acceptable. See, e.g.,

Andrew J. Breuner, Expression By Association: Towards

Defining An Expressive Association Defense 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 accept-

able”) (emphasis added); William N. Eskridge, Gaylegal

Narratives, 46 Stan. L.Rev. 607, 635-36 (1994) (“decision to

come out is not merely an individual assertion of identity,

but also a risky act of social defiance”) (emphasis added).

The issue of whether a direct burden would be

placed on Boy Scouts’ First Amendment rights by forcing

5 Dale’s counsel of record, Evan Wolfson, even 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).)

8

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

clearly raised in Hurley. The parade organizers in Hurley

represented that they reflected “traditional religious and

social values” and wished to exclude “groups with sexual

themes.” Hurley, 515 U.S. at 562. Although participation

by the Irish-American Gay, Lesbian & Bisexual Group of

Boston (“GLIB”) was also expressive in character, 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.’” Id. Based on these facts, this Court

concluded that GLIB had sought to “communicate its

ideas as part of the existing parade.” Id. This alone was

enough to find an implied message that conflicted 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 accommoda-

tion statutes, however well intentioned, are used to

require acceptance, the state is clearly compelling accep-

tance 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, Appellate Divi-

sion: “This principle is not changed merely because the

altered message is implicitly, but no less strongly, con-

veyed by example rather than by verbal articulation or by

© 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 prostitution, polygamy, adultery or unmarried heterosexual

cohabitation.

9

signs.” (153a) Accordingly, the present case 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 seriousness of the threat to private

speech rights in this case is not abated 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 homosexual 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 argument only begs the very ques-

tion at issue in this case: whether Dale’s self-identifying

speech is interfering with Boy Scouts’ free speech and

association rights.

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

homosexual persons is also, a priori, forcing them to

accept such persons’ speech, thereby violating the asso-

ciation’s right of speaker’s autonomy. Unless this Court is

willing to carve out a new exception to First Amendment

jurisprudence 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.

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

conclusion. 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 organization.

10

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.

Moreover, the risk that Dale’s speech interferes with

Boy Scouts’ right of speaker’s autonomy is especially

grave in this case because of the NJSC’s conclusion that

“Boy Scouts expresses a belief in moral values and uses

its activities to encourage the moral development of its

members.” (160 N.J. at 613.) Thus, it is undisputed that

the NJSC found that Boy Scouts are at least expressive

with respect to “moral values” and the “moral develop-

ment of its members.”

Since the issue of the morality of homosexual behav-

ior is highly controversial, the likelihood of interference

with Boy Scouts’ expressive purposes arising from Dale’s

public self-identifying speech is extremely high in this

case. That likelihood is further increased in this case

because of the fact that Dale has actively promoted his

message in the media, announcing that he is a “gay

activist” and “very active in gay politics” as co-president

of the Rutgers University Lesbian and Gay Alliance. (JA

468-469, 511, 513, 515-518) Dale is also openly critical of

Boy Scouts’ role modeling policy: “I owe it to the organi-

zation to point out to them how bad and wrong this policy

is....” (JA 513) (Emphasis added.)

Accordingly, this Court should exercise its obligation

to independently review the record and reverse the judg-

ment of the NJSC based upon the Court’s finding that

11

Boy Scouts’ rejection of Dale was not simply an act of

prohibited discrimination based on status but is logically

related to exclusion of ideological speech which may

inherently subvert Boy Scouts’ own expression in favor of

the moral values they prefer.

II. BOY SCOUTS’ UNIQUE EMPHASIS ON TEACH-

ING BY EXAMPLE AND BY ROLE MODELING IS

ITSELF A FORM OF SYMBOLIC SPEECH OR

EXPRESSIVE CONDUCT PROTECTED BY THE

FIRST AMENDMENT

In addition to violating the Boy Scouts’ right of

speaker’s autonomy by requiring Boy Scouts’ acceptance

of Dale’s self-identifying speech, the NJSC’s judgment

also 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 bystanders

along the way.” Id. at 568.

Because expressive conduct, and not just words, con-

vey 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

12

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 princi-

ples 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. Washington, 418 U.S. 405,

410-411 (1974)). The communicative 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.” (JA 184

(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

ieader 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 pos-

sess the moral, educational, and emotional qualities

deemed necessary by BSA for leadership before he will be

commissioned.” (222a) The Chancery Division concluded

that requiring Dale to be admitted as a Scout leader

“would be devastating to the essential nature of scout-

ing” partly because a role model’s example is “critical” to

13

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 mes-

sage through role modeling.

The record below also shows a great likelihood that

those viewing the conduct would understand the mes-

sage. 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 provide 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.

(JA 543) (Emphasis added.) The Handbook further stated:

“What you are speaks louder than what you say.” (Id.)

(Emphasis added.) The Scoutmaster Handbook also

advises Scout leaders: “When you're on a Scout campout,

remember that boys will look up to you as a role model —

someone they want to respect and copy.” (R.2685) (emphasis

added). “Boys learn from the example set by their adult

leaders.” (JA 244) (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... .”

(R.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.” (JA

120) (emphasis added).

Evidence in the record indicated the drastic effect

that admission of known or avowed homosexuals would

14

have on the communicative aspects of role modeling and

on young Scouts’ understanding of what it means to be

morally straight and clean. (JA 447-449) Professor Slav-

ings 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 posi-

tion of adult leader. (Id.) These facts show that young

Scouts understand the messages® of Scouting’s 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 suppres-

sion 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 expres-

sion” and “the incidental restriction on alleged First

Amendment freedoms [must be] no greater than is essen-

tial to the furtherance of that interest.” Id.

§ Evidence of the fact that Boy Scouts’ role modeling sends

a message that is understood by those receiving it is virtually

admitted in writings posted on the website of Dale’s own legal

representative, Lambda Legal Defense and Education Fund

(“Lambda”). In an article entitled “Ford Foundation Adds to

Support for Gay Youth,” dated October 1, 1999, Lambda’s

Executive Director, Kevin Cathcart, states with specific

reference to this case: “The outrage of the Boy Scout policy is not

just that it bars openly gay people from scouting, but also that it

sends a message to all youth. . . . [Mjany young people absorb that

message. .. . [W]Je must keep fighting to stop these messages.

That is Lambda’s job.” See http:/ /www.lambdalegal.org/cgi-

bin/pages/documents/record?record=492 (emphasis added).

15

The NJSC’s ruling results in the suppression of

expression 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 “[mJjandating speech that a speaker

would not otherwise make necessarily alters the content of

the speech.” 487 U.S. at 795 (emphasis added). Instead,

“(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

substitute its judgment as to how best to speak. . . .” Id. at

790-791 (emphasis added). Moreover, “[gjovernmental

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

questioned “in the marketplace of ideas” and cannot be

used to override the supremacy of the First Amendment.

Id.

The present case raises serious issues of state-manda-

ted censorship precisely because of the controversial

nature of Boy Scouts’ definition of what is “morally

straight.” “If there is a bedrock principle underlying the

First Amendment, it is that the government may not

prohibit the expression of an idea simply because society

16

finds the idea itself offensive or disagreeable.” Id. at 414.

“[T)hat the government may not prohibit expression sim-

ply because it disagrees with its message, is not dependent

on the particular mode in which one chooses to express an

idea.” Id. at 416 (emphasis added). Accordingly, the gov-

ernment 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 discern-

ible or defensible boundaries.” Id.

Boy Scouts clearly 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 choosing 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 alter-

ing 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,

especially if the nexus between the expressive nature of

the activity and the interest being regulated is not well

understood. Since Boy Scouts seek to teach their mes-

sages and values by quiet role modeling and not by bois-

terous debate, there is a great danger that outsiders

(including the state) may interpret such'a position as no

17

position at all, as the NJSC has done in this case. How-

ever, this does not mean that such quiet advocacy is not

worthy of protection under the First Amendment.

In related contexts involving similar expressive asso-

ciations, role modeling has already been recognized as a

defense to application of state and federal antidiscrimina-

tion laws where private youth clubs have terminated

adult employees who seek to model alternative sexual

lifestyles. See, e.g., Chambers v. Omaha Girls Club, Inc., 834

F.2d 697, 701-702 (CA8 1987) (“to permit single pregnant

staff members to work with the girls would convey the

impression that the Girls Club condoned pregnancy for

the girls in the age group it serves”); Harvey v. YWCA, 533

F.Supp. 949, 952 (W.D.N.C. 1982) (rejecting a pregnancy

discrimination claim of employee who was fired because

she wished to offer herself as role model of the “alterna-

tive lifestyle” of unwed pregnancy to young women,

which was “contrary to the [YWCA’s] purpose”). Cf.

Fricke v. Lynch, 491 F.Supp. 381 (D.R.I. 1980) (holding that

role modeling example by gay male who merely attended

high school prom with male date was “political state-

ment” which constituted “protected speech”).

The danger of state-mandated orthodoxy is especially

high in this case because there remains a strong likeli-

hood that requiring admission of openly gay Scoutmas-

ters will confuse both the Scouts and the community as to

what message Boy Scouts are really sending. For exam-

ple, even if openly gay persons promised to teach only

Boy Scouts’ viewpoint on sexual morality, their contradic-

tory example could lead to a logical conclusion in the minds

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

do.” Such a message would completely undermine the

pedagogical 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

18

this case is little different than, for instance, a state regu-

lation requiring non-celibates to be admitted as Catholic

priests.

Based on the foregoing, there is a great likelihood

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

core First Amendment expression.

Ill. THE NJSC’S JUDGMENT MUST BE REVERSED

BECAUSE IT ASSUMES THAT THE RIGHT OF

EXPRESSIVE ASSOCIATION ONLY APPLIES TO

VIEWPOINTS WHICH ARE SHARED UNIVER-

SALLY BY THE ASSOCIATION’S MEMBERS

AND IT FAILS TO RECOGNIZE THAT THE

RIGHT OF SPEAKER’S AUTONOMY IS NOT

LIMITED TO CONSISTENT, DISTINCT OR

ARTICULATE MESSAGES

The NJSC’s decision below also demands review

because it denigrates the principle established in Hurley

that the right of speaker’s autonomy is not limited to

consistent, distinct or articulate messages. The NJSC

appears to have mistakenly assumed that members of

Boy Scouts must universally 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

homosexuality” and, therefore, “it appears that no single

view on this subject functions as a unifying associational goal

of the organization.” Id. at 615 (emphasis added). The

NJSC’s limited view of the rights of speech and expres-

sive 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.

te ee eee 2

19

at 562, 569. Unlike Boy Scorits, 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 speci-

fic messages or views of each applicant.” Id. at 562

(citations omitted). These facts did not diminish their

First Amendment right to exclude from the parade indi-

viduals 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 protection from government interference should be

even 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

universally 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

9 For example, the American Bible Society, American

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

Services, Christian Records Services, Inc., Ecumenical

Association For Housing, Episcopal Community Services, Girl

Scouts of the U.S.A., Graduate Theological Union, Jewish

Community Centers Association 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 Congregations, 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.

20

generations ago, the Democratic Party had some mem-

bers 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 Demo-

cratic Party also did not have (and still does not have) a

consistent way of selecting its members. Merely because

the Democratic Party included members who believed in

segregation as well as those who wanted extensive civil

rights laws enacted does not mean that the First Amend-

ment 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 asso-

ciation rights to small homogeneous groups with narrow

viewpoints or rigid rules of selection. Thus, the NJSC’s

decision below directly conflicts with this Court’s opinion

in Hurley regarding the applicability of expressive asso-

ciation rights to large and diverse private associations.

IV. THIS COURT SHOULD RESIST THE TEMPTA-

TION TO RESTRICT RIGHTS OF SPEECH OR

EXPRESSIVE ASSOCIATION IN THIS CASE

BECAUSE SUCH RESTRICTIONS WILL ULTI-

MATELY WEAKEN THE RIGHT OF ALL PER-

SONS TO SPEAK OR ASSOCIATE FOR

EXPRESSIVE PURPOSES, ESPECIALLY THE

RIGHTS OF GAY AND LESBIAN GROUPS AND

INDIVIDUALS |

This amicus respectfully submits that this Court

should resist efforts from either side of the political spec-

trum to compel ideological orthodoxy, especially when it

is directed against expressive associations. Far from vin-

dicating the rights of homosexuals, a ruling which under-

mines the concept of expressive activity and association

in this case may lay the groundwork for denial of First

21

Amendment rights of gays and lesbians in other cases

where such a doctrine works in their favor.

For example, there is a strong argument to be made

for the contention that the First Amendment has long

been the strong ally of gays and lesbians. William B.

Rubenstein, the director of the ACLU’s Lesbian and Gay

Rights Project, has written:

“ ...([I]}n the immediate aftermath of Stone-

wall, a series of First Amendment cases challenged

government restrictions on lesbian and gay orga-

nizations. For example, there is a whole line of

cases that traces the formation of lesbian and

gay student groups on college campuses and

these groups’ fights for university recognition.

Without exception, the final decisions in each of

these cases vindicated the rights of the lesbian

and gay litigants... .

“These cases are mirrored by similar cases

outside the university that also uphold the asso-

ciation of lesbians and gay men on First Amend-

ment grounds and ranged from First Amendment

protections for gay bars to the protection of a

gay high school student to bring a male date to

his high school prom. Similarly, the First Amend-

ment has been used to prohibit governmental

publications from denying the existence of les-

bian and gay groups and events.

“This is not to say that the First Amendment

has always worked perfectly for lesbians and

gay men. There are a number of serious internal

and external limitations on its applicability.

First, the First Amendment is triggered only where

‘state action’ exists, although anti-gay silencing is

not so limited. Instances of private censorship — an

encyclopedia’s failure to include an entry on gay

life, for example — are not actionable . . .

22

“ ... [T]he First Amendment has been the only

consistent friend of lesbian and gay rights litigators

since Stonewall. With rare exceptions, when a

case is properly framed as a First Amendment

case, lesbian and gay plaintiffs prevail. . . . The

First Amendment is premised upon an ideal -

currently absent from Fourteenth Amendment

jurisprudence — that the judiciary should protect

those ideas it finds deplorable. It finds ours

deplorable, but has, in a series of important

cases, protected us nonetheless.”

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 Speech,

Civil Rights, and Civil Liberties 286-88 (1994) (emphasis

added) (footnotes omitted).

Since the First Amendment has been the faithful ally

of gays and lesbians, there exists a great danger in cutting

back its protections, even if it is being used as a defense

against a gay plaintiff. Mr. Rubenstein articulately

describes this danger:

“I am cautious, first, because allowing limitations

on free speech might well limit our ability to speak

freely, and in this instance, therefore, particularly

limit our ability to come out, to undertake the very

act of self-identification central to overcoming les-

bian/gay oppression. Second, I am also cautious

because I worry that allowing limitations on the

primary instrument of gay equality may well

limit the equality itself.

“In sum, my experience litigating on behalf of

lesbians and gay men makes me reluctant to be a

party to placing limitations on the First Amendment

- and this is my main point. I hesitate to be a

23

party to limitations on the First Amend-

ment . . . because the First Amendment is our

instrument, at present our strongest tool, of consti-

tutional equality. It's what we've got and I believe

we should guard it carefully.” Id. at pp. 291-92

(emphasis added) (footnote omitted).

Interestingly, in a footnote, Mr. Rubenstein concedes

the fact that the Boy Scouts are exercising First Amendment

rights when they exclude gays from troop leadership

positions. Id. at 287, 297 n.26. He appears not to be

troubled by such a concession because of his overall

theme that strengthening First Amendment rights in gen-

eral will ultimately assist gay and lesbian rights.

This is partly because a ruling in favor of the Boy

Scouts will not lead to a general undermining of legal

protections for gays and lesbians. Hotels, restaurants, and

other commercial establishments rarely, if ever, exist for

an expressive purpose. Unlike the Boy Scouts, the pur-

pose 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. Furthermore, even if some

expressive businesses do exist, the small limitation on

antidiscrimination laws made necessary to guard First

Amendment expression will only advance the civil liber-

ties of all citizens.

By contrast, a ruling against the Boy Scouts in this

case would seriously weaken gay and lesbian rights in

other cases. For example, the case of Fricke v. Lynch, 491

F.Supp. 381 (D.R.I. 1980), is a compelling example of how

cutting back on the right of expressive role modeling in

this case may unwittingly reduce gays’ and lesbians’ First

Amendment rights in other cases. In Fricke, the federal

24

district court ruled that a gay teenager was engaging in

protected expressive activity when he attended his public

high school prom with a male date. The unwillingness of

the Court in this case to recognize the expressive nature

of the Boy Scouts’ role modeling may thus, ironically,

strengthen arguments that gays and lesbians who attend

proms with same-sex partners are likewise not engaging

in protected expressive activity.

Mandating the acceptance of openly gay Scoutmas-

ters in this case might also adversely affect the ability of

activist gay organizations to refuse the membership

applications of “born again” Christian fundamentalists

who are opposed to the founding purposes of the gay

club and who wish to use their membership to “reform”

the gay club from within. Allowing such intrusions actu-

ally implements a false notion of societal “equality” by

attempting to internally “diversify” expressive associa-

tions in a way which dilutes or alters both the content

and impact of the association’s message.

The affected First Amendment rights would not nec-

essarily stop at prom dates and associational rights. In

Gay Students Organization of the University of New Hamp-

shire v. Bonner, 509 F.2d 652 (CA1 1974), the issue was

whether a state university could bar a gay student organi-

zation from sponsoring “social events,” such as dances

and parties. The court ruled in favor of the homosexual

student association on First Amendment grounds: “Con-

sidering the important role that social events can play in

individuals’ efforts to associate to further their common

beliefs, the prohibition of all social events must be taken

to be a substantial abridgement of associational rights,

even if assumed to be an indirect one.” Id. at 659-60. The

court emphasized the importance of the exchange of

ideas occurring “in an informal atmosphere.” Id. at 660.

Thus, in Bonner, an expansive view of First Amendment

25

“associational rights” which includes “conduct” and

“activities” such as parties and dances resulted in more,

not less, protection of a gay association from capricious

state regulations.

One legal commentator eloquently described the

importance to the gay rights movement of not limiting

what is defined as expression:

“Homosexual conduct, from public hand-holding

and kissing by same-sex couples to private sex-

ual conduct, fosters the diverse polity that the First

Amendment envisions. Public expression of same-

sex intimacy is as important a critique of gender

assumptions and gender roles in American soci-

ety as any published treatise. It is therefore not

only individually expressive, but also socially

valuable under the robust pluralism endorsed in

Sullivan. The fact that gestures like kissing and

hand-holding are symbolic of ideas and attitudes

rather than literal statements of position in a

debate does not diminish their importance. The

public debate has never been limited to books,

articles, letters to the editor, speeches, and signs;

it has always included symbolic gestures such as

dancing, visual art, advertising imagery, public

demonstrations, clothing, and physical con-

duct.” (William David Cole & William N.

Eskridge, From Hand-Holding to Sodomy: First

Amendment Protection of Homosexual (Expressive)

Conduct, 29 Harv. C.R.-C.L. L.Rev. 319, 328-29

(1993) (emphasis added).)

If the public debate has always included such expres-

sive conduct as dancing, imagery, and physical conduct,

then there is no reason to exclude expressive role model-

ing from the categories of protected expression. However,

if the Court takes the rigid position advocated by Dale

that role modeling is mere conduct that may be regulated

so long as no “oral expression” or “advocacy” is

26

involved, then gay plaintiffs who seek to rely on the First |

Amendment based primarily on their expressive behavior

will encounter an extremely difficult legal battle and may

find their own expressive activities being restricted

unless such constitutional rights are clearly protected.

Thus, if Dale prevails in this case, it may prove to be a

Pyrrhic victory indeed for homosexuals everywhere and

may actually blunt their best weapon in the fight for civil

rights — the First Amendment.

V. THIS COURT SHOULD ENSURE THAT THE

SCOPE OF EXPRESSIVE ASSOCIATION RIGHTS

ARE NOT INTERPRETED TOO NARROWLY SO

THAT STATE AND LOCAL LAWMAKERS ARE

NOT DISCOURAGED FROM PASSING NEEDED

LEGISLATION TO PROTECT MINORITIES SUCH

AS GAYS AND LESBIANS

Several recent commentators have criticized this

Court’s opinion in Roberts v. United States Jaycees, 468 U.S.

609 (1984) as unduly restrictive of the right of expressive

association. See, e.g., Comment, Civil Rights — Public

Accommodation Statutes - New Jersey Supreme Court Holds

That Boy Scouts May Not Deny Membership To Homosexuals

- Dale v. Boy Scouts of America, 734 A.2d 1196 (N.J. 1999),

Petition for Cert. Filed, 68 U.S.L.W. 1083 (U.S. Oct. 25, 1999)

(No. 99-699), 113 Harv. L.Rev. 621 (1999) (“the Supreme

Court should revisit Roberts to develop a broader and

more accurate association test”); David E. Bernstein, Sex

Discrimination Laws Versus Civil Liberties, 1999 Univ. Chi.

Legal Forum 133, 166 (“ever since Roberts was decided,

litigants and courts have cited it for the proposition that

antidiscrimination laws, no matter how trivial, should

trump federal constitutional rights”).

Some suggested resolutions include creating a “com-

merciality test” which would recognize that “businesses

and facilities have attenuated intimate and expressive

27

interests because they promote professional, not personal,

relationships and do not ordinarily advocate social poli-

cies.” (Comment, supra, 113 Harv. L. Rev. at 625.) While

the commerciality test may come closer to protecting the

broad spectrum of cultural interests that are not ade-

quately protected under the Roberts test, it may still be

inadequate because the line between commercial associa-

tions and ideological organizations is not always easily

drawn (e.g., kosher food processing companies). The com-

merciality test, by itself, is suspect because it appears to

merely constitutionalize public accommodations analysis.

Even if this Court decides not to revisit the Roberts

test, the present case is still quite distinguishable from the

facts in Roberts. A close reading of this Court’s opinion in

Roberts and in Board of Directors of Rotary International v.

Rotary Club of Duarte, 481 U.S. 537 (1987), shows that

requiring full membership privileges for women in those

cases did not significantly affect the ideological or philo-

sophical character of the Rotary Club or the Jaycees. In

Rotary Club, this Court specifically found that the Rotary

Club- allowed women to attend their meetings and to

participate in many of their activities. 481 U.S. at 549 n.8.

In Roberts, the court found that the Jaycees allowed

women to be “associate members.” 468 U.S. at 613.

By allowing women to openly participate in their

meetings or to occupy second class membership status,

the Rotary Club and the Jaycees showed that they did not

consider women, as a group, to be “individuals with

ideologies or philosophies different from those of its exis-

ting members.” Id. at 627. Requiring these clubs to allow

women full participation or membership status equal to

men therefore did not significantly interfere with or

impede the right of expressive association because these

clubs already allowed women to participate in a significant

way and because symbolic inclusion of women, as a group,

28

did not significantly alter the form or content of the expressive

interests of these clubs.'°

By contrast, the basis for refusing Dale’s application

in this case is clearly ideological. The Boy Scouts’ selec-

tion criteria is restrictive and ideologically-oriented. All

members, both youth and adult leaders, must outwardly

subscribe to the Scout Oath and Scout Law, which require

the members to be “morally straight” and “clean,” a

requirement which the record shows has been consis-

tently interpreted by the Boy Scouts for over 80 years as

meaning that a scout leader must not outwardly practice

or advocate homosexuality. (JA 457-459.)

Unlike the merely second-class treatment of women

participants in the Rotary Club and Jaycees cases, above,

the Boy Scouts do not in any way encourage openly

homosexual persons to participate in their meetings and

functions. Thus, openly gay persons are not merely made

second-class members by Scouting. Such a total exclusion

is consistent with an ideological exclusion.

Furthermore, the trial court concluded that “[t]}he

consequences of restoring Dale to a position of adult

leadership would be devastating to the essential nature of

scouting.” (223a.) The record in this case shows that

introduction of homosexual role models would likely

impact Scouting’s ideological foundations and support,

leading to possible withdrawal of sponsorship by at least

some religious organizations (see, e.g., JA 712-713), unlike

10 There is no indication in either the Roberts or the Rotary

Club opinions that the Jaycees or the Rotary Club were engaging

in expressive role modeling or that their rules reserving full

membership privileges only to males were intended to

communicate a message. Thus, the male-only aspects of both these

clubs would fail the “intent to convey a particularized message”

prong required to show expressive activity, as laid down in

Texas v. Johnson, supra, 491 U.S. 397, 404.

29

the mere promotion of women to full membership status

in Rotary Club and Roberts, which had no such impact.

The NJSC’s judgment in this case goes far beyond the

original intent of most public accommodations laws

which merely require equal access to public accommoda-

tions when arbitrary exclusion of minorities is unrelated

to constitutionally-protected expression. The ruling

below is in direct contradiction to a long constitutional

tradition which seeks to preserve “political and cultural

diversity” by strengthening, not weakening, the exclu-

sionary rights of expressive associations. See Roberts,

supra, 468 U.S. at 622 (citing numerous cases).

Accordingly, a narrow interpretation of expressive

association rights in this case may actually discourage

state legislators, who might be inclined otherwise, from

expanding public accommodations protections for fear of

negatively impacting social and cultural associations with

expressive interests. Therefore, by interpreting expressive

association rights expansively in this case, the Court will

actually be fostering cultural diversity and encouraging

the expansion of public accommodations protections for

minority groups such as gays and lesbians.

S

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 ruling

which undermines the right of expressive association in

this case may substantially chill the First Amendment

rights of all citizens, including those of homosexuals, and

“will permit the government to acquire ever more power

for itself at the expense of individual autonomy and civil

30

society.” David E. Bernstein, supra, 1999 Univ. Chi. Legal

Forum at 196.

Respectfully submitted,

Pau A. HorrMan

Counsel of Record

Dracup & PATTERSON

505 N. Tustin Avenue, Suite 282

Santa Ana, California 92705

(714) 542-3500

Manus S. KLAUSNER

Patrick J. MANSHARDT

One Bunker Hill Building

601 W. 5th Street, 8th Floor

Los Angeles, California 90071

Attorneys for Amicus Curiae

The Individual Rights Foundation