Amicus Curiae Brief — Boy Scouts of America v. Dale

Supreme Court, U.S.

FILED

Feb a& ovv ~| FEB 28 20)

8)

No. 99-6 CLERK

————

IN THE

Supreme Court of the Gnited 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 CLAREMONT INSTITUTE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN EDWIN MEESE III

THE CLAREMONT INSTITUTE COUNSEL OF RECORD

CENTER FOR CONSTITU- 214 MASSACHUSETTS AVE., N.E.

‘ONAL JURISPRUDENCE WASHINGTON, D.C. 20002

250 W. FIRST ST., SUITE 330 (202) 546-4400

CLAREMONT, CA 91711

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

QUESTIONS PRESENTED

1. Whether a state law requiring the Boy Scouts, a private

membership organization dedicated to fostering the

development of civic and moral virtue in young boys, to

appoint an avowed homosexual activist as an Assistant

Scoutmaster infringes the Boy Scouts’ rights of freedom

of speech and association.

2. Whether such a state law infringes the rights of parents,

who choose to augment the moral education of their

children by participating in the Boy Scouts organization,

to direct the upbringing of their own children.

(

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..................cccccccecceesscseeeeeeeeneees ii

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iv

INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMENT 2

ARGUMENT 4

I. FORCING THE BOY SCOUTS TO ADMIT DALE AS

AN ADULT LEADER VIOLATES THE Boy SCOUTS’

FREEDOM OF ASSOCIATION. .......ccccssscsssssssseseeeseeeeeeees 4

A. The Boy Scouts Is Not A Commercial

ABBB CNBR .ecexsecevcentsccnenssseeee 5

B. Boy Scout Troops Are Highly Intimate

Pravate AGSOGIIGGID cccccccccscssevssitesicstinsannsainaal G

C. The Boy Scouts’ Membership Criteria Is

Directly Tied to its Moral Purpose...................+. 11

II. | FORCING THE Boy SCOUTS TO ACCEPT DALE ASA

SPOKESMAN/ADULT LEADER CONSTITUTES

CONSTITUTIONALL Y-PROHIBITED COMPELLED

PTIBIGIL. 2cccccccsecssesvsnoiecscenseeseunnsanaenanaaanaaaa 15

III. _UNDERMINING THE Boy SCOUTS’ MISSION

INFRINGES THE CONSTITUTIONAL RIGHT OF

PARENTS TO DIRECT THE MORAL UPBRINGING

eb: (0 |. BREESE re ea 17

eee

IV. BECAUSE THE DECISION BELOW INTERFERES

WITH THE MORAL TRAINING PROVIDED By THE

Boy SCOUTS, TRAINING WHICH THE AMERICAN

FOUNDERS BELIEVED TO BE ESSENTIAL IN A

REPUBLICAN FORM OF GOVERNMENT, THE STATE

CANNOT HAVE A COMPELLING INTEREST IN

CONCLUSION 27

- iv

TABLE OF AUTHORITIES

CASES

Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) ............0000 5

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ....... 24, 25

Board of Directors of Rotary Intern. v.

Rotary Club of Duarte, 481 U.S. 537 (1987) ....5, 9, 10, 11

Bowers v. Hardwick, 478 U.S. 186 (1986) .............cccccceeeeee 25

Brandenburg v. Ohio, 395 U.S. 444 (1966)..........cceeceeeeees 19

Cornelius v. Benevolent Protective Order of Elks,

382 F. Supp. 1182 (D. Comm. 1974)..........ccccccesesseeeeeneneenes 10

Curran v. Mount Diablo Council of the Boy Scouts of

America, 48 Cal.App.4th 670, 29 Cal.Rptr.2d 580

(Cal.App. 1994), review granted and opinion superseded

by 874 P.2d 901, 31 Cal.Rptr.2d 126 (Cal. 1994) aff'd,

17 Cal.4th 670, 952 P.2d 218 (Cal. 1998) ...........cccccseeeeenees 9

Curran v. Mount Diablo Council of the Boy Scouts

of America, 17 Cal. 4th 670, 952 P.2d 218 (1998) ... passim

Dale v. Boy Scouts of America, No. MON-C-330-92

OE, bn. Daaw, B, Ge ccccessntstnenteenesrstgnncnsenesees 13

Dale v. Boy Scouts of America, 308 N.J. Super. 516,

706 A.2d 270 (N.J. Super., App. Div., 1998) .............0000 18

Dale v. Boy Scouts of America, 160 N.J. 562 (1999)... passim

District of Columbia v. Colts, 282 U.S. 63 (1932) ..........0++« 24

Engel v. Vitale, 370 U.S. 421 (1962) .ccssssscsssssrssseeseeeeeeens23

Everson v. Board of Education, 330 U.S. 1 (1947) ..........+.. 23

Federal Trade Commission v. R.F. Keppel & Bro.,

TBO WB, BOO CO ecenneenimemne 24

Griswold v. Connecticut, 381 U.S. 479 (1965).........0c0-00000 18

Vv

Heart of Atlanta Motel, Inc. v. United States,

i diicediiciiiinn cactirttnibiderntimansiniiatigmimenieel 6

Hurley v. Irish-American Gay, Lesbian & Bisexual

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

Lane v. Cotton, 12 Mod. 472 (1701)............cceccesseeseeseeeeeveeeeees 6

Lemon v. Kurtzman, 403 U.S. 602 (1971) ......cccccccecseeceeeeeee 23

Meyer v. Nebraska, 262 U.S. 390 (1923) ........cccccseeseees 18, 20

N.A.A.C.P. v. Alabama ex rel. Patterson,

Be Cee a catttenicinteinitanicianniinmenmmtonseiied 4

N.A.A.C.P. v. Claiborne Hardware Co.,

a ae ee ntentcttertctnienitnsinsceeenaaniennmaed 4

New York State Club Ass'n, Inc. v. City of New York,

Se Ce ee rteneniicisietnsntsiniinnintiiiniadinatioaniail 5,11, 12

Ohio v. Whisner, 351 N.E.2d 750 (Ohio 1976) ............0000-+ 18

Parker v. Levy, 417 U.S. 733 (1974) .......c.ccceceeseeeees 24, 26, 27

Pierce v. Society of Sisters, 268 U.S. 510 (1925)............. 3,18

Prince v. Massachusetts, 321 U.S. 158 (1944) ..........c.ccc0000 18

Randall v. Orange County Council,

17 Cal.4th 736, 952 P.2d 261 (1998)............cceccecceesescensees 18

Reynolds v. United States, 98 U.S. 145 (1878).............000000 24

Roberts v. United States Jaycees,

Se I iicnrrirticeineriirnmereaniniatreuaiatinininieess passim

Schenck v. United States, 249 U.S. 47 (1919) ........cccceceeseeee 19

Schwenk v. Boy Scouts of America,

275 Ore. 327, 551 P.2d 465 (Ore. 1976)...........ccceesereeseeeees 8

Seabourn v. Coronado Area Council, Boy Scouts of

America, 257 Kan. 178, 891 P.2d 385 (Kan. 1995).......... 26

Thomasson v. Perry, 80 F.3d 915 (CA4 1996)............c000000+ 25

Tinker v. Des Moines Ind. Comm. School Dist.,

RC aera ae 17

vi

Van Iderstine v. National Discount Co.,

ge 24

Welsh v. Boy Scouts of America, 993 F.2d 1267

(7th Cir.), cert. denied, 510 U.S. 1012 (1993)............... 8, 22

West Virginia State Bd. of Ed. v. Barnette,

Fe ae Go a cteertenneninnmnenin 15

Whitney v. California, 274 U.S. 357 (1927) .......cceecseeeeerees 19

Wisconsin v. Yoder, 406 U.S. 205 (1972) ........ccccccccceeeeeeeees 18

Wooley v. Maynard, 430 U.S. 705 (1977) ........ccccsceeeeseeeeees 15

CONSTITUTIONS AND STATUTES

An Ordinance for the Government of the Territory

of the United States Northwest of the River Ohio,

ORS ee 22

Civil Rights Act of 1964, Title 2,

Sp ee 0b i ctrerncteeinniornmnneninnnnen 13, 15, 17

Mass. Const. of 1780, Pt. 1, Art. 3 ..........ccccsccseeseeeeeeeneees 21, 22

OM: OW 4, V8 8 21

Va. Const. of 1776, Bill of Rights, Sec.15 ...........c.ceseseeees 21

C, Gare, BIG cecceceonememmnannt passim

CE, Ge I, FIG cccttnareersanttinncinnnsttiineinn passim

OTHER AUTHORITIES

110 Cong. Rec. 2293 (Rep. Long) ............cc.ssssssesseeesseeeeeees 10

2 U.S.Code Cong. & Admin.News (1964)..........cccccssessenees 10

W. Blackstone, Commentaries on the Laws of

eee 12, 13

The Federalist No. 55 (Clinton Rossiter and

Charles Kesler eds., Mentor 1999). ...........-seeseereereenenees 22

Vii

G. Cook, “As challengers bow out, Gore comes into

the crosshairs,” Agence Fr.-Presse, 1999 WL 2540136

Jeffrey G. Sherman, “Love Speech: The Social Utility of

Pornography,” 47 Stan. L. Rev. 661, 698 (April 1995)....25

Letter from Rev. Dr. Paul H. Sherry, President of the

United Church, to Jere B. Ratciffe, Chief Scouting

Executive of the Boy Scouts (Sept. 18, 1998) 0.0.00... 14

The Records of the Federal Convention of 1787

(Max Farrand ed., Yale Univ. Press 1966) ................0000000. 4

Alexis de Tocqueville, Democracy in America

(J. P. Mayer ed. & George Lawrence trans.,

HarperPerrenial 1969) (1835)..........ccccccccecccceseseceseecereseeees 23

B. Wattenberg, “Bush may be popular, but McCain has

more of right stuff,” The Topeka Capital-Journal,

1999 WL 31519897 (Oct. 30, 1999)........ccccccccscseseseseseeeees 21

T. West, Vindicating the Founders: Race, Sex,

Class, and Justice in the Origins of America

(Rowman & Littlefield 1997) .0..........:.cccccccscccssesesseeeeeeseeee 26

No. 99-699

IN THE

Supreme Court of the Anited 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 CLAREMONT INSTITUTE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE!

The Claremont Institute for the Study of Statesmanship

and Political Philosophy is a non-profit educational

foundation whose stated mission is to “restore the principles

of the American Founding to their rightful and preeminent

authority in our national life,” including the principle, at issue

in this case, that the inculcation of virtue in the citizenry was

deemed by the Founders to be essential in a republican form

of government.

' The Claremont Institute Center for Constitutional Jurisprudence files this

brief with the consent of all parties. The letters granting consent are being

filed concurrently. This brief has been authored in its entirety by

undersigned counsel for amicus curiae. No person or entity, other than

Amicus Curiae, its members, or its counsel made a monetary contribution

to the preparation and submission of this brief.

2

The Institute pursues its mission through academic

research, publications, scholarly conferences, and the

selective appearance as amicus curiae in cases of

constitutional significance. Of particular relevance here, the

Institute has published extensively about the foundations of

representative government and the constitutional protections

of speech and association that are necessary to protect those

foundations, including a monograph entitled “On the Front

Lines of the Culture War: Recent Attacks on the Boy Scouts.”

In addition, the Claremont Institute participated as an amicus

curiae in the courts below, filing briefs with both the

intermediate appellate court gnd the Supreme Court of New

Jersey, and filed an amicus curiae brief in this Court, in

support of the petition for a writ of certiorari.

Recently, in order to further advance its mission, the

Claremont Institute established an in-house public interest law

firm, the Center for Constitutional Jurisprudence. The

Center’s purpose is to further the mission of the Claremont

Institute through strategic litigation, including the filing of

amicus curiae briefs in cases such as this that involve issues

of constitutional significance going to the heart of the

founding principles of this nation.

SUMMARY OF ARGUMENT

The Boy Scouts of America, as an institution, believes that

homosexuality is wrong, just as it believes that adultery and

pre-marital sex are wrong. It exists, in part, to foster those

beliefs among the boys whose parents involve them in

scouting and to teach boys respect for family as the

cornerstone of civilized society. Its mission in this regard is

consistent with the teachings of most major religions and in

accord with the law of most civilized peoples throughout

history. The Boy Scouts has been immensely successful as an

organization in no small measure because it has remained true

to the moral teachings that have shaped its purpose from its

beginning nearly a century ago.

3

The primary legal issue in this case, however, is not

whether the Boy Scouts’ position on homosexuality is right or

wrong. Rather, it is whether the Boy Scouts, a private

membership organization, can constitutionally be compelled

by a state court to place in an adult leadership position an

individual who by both word and deed conveys a message

about the immorality of homosexual conduct that is contrary

to the message that the Boy Scouts itself seeks to convey.

Amicus Curiae The Claremont Institute respectfully

contends that under the First and Fourteenth Amendments the

Boy Scouts and other private organizations cannot be

compelled by government to convey a message that they

choose not to convey, nor be compelled to associate with

individuals who would undermine the message they do wish

to convey. The order of the New Jersey Supreme Court to the

contrary is in fatal conflict with the precedent of this Court

protecting the freedom of speech of private associations, see

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

Boston, Inc., 515 U.S. 557 (1995), the freedom of expressive

association, see, e.g., Roberts v. United States Jaycees, 468

U.S. 609 (1984), and the right of parents to direct the moral

upbringing of their children, see, e.g, Pierce v. Society of

Sisters, 268 U.S. 510 (1925).

By rejecting the Boy Scouts’ articulation of its own moral

purpose, the New Jersey Supreme Court ventured into

dangerous territory. The precious freedoms protected by the

First Amendment would be rendered meaningless if

governmental bodies could simply define away the expressive

components of a private group’s message. Respondent

himself and his own amici have acknowledged what the New

Jersey Supreme Court flatly rejected—that the executive -

leadership of the Boy Scouts seeks, among other things, to

teach boys about their moral obligations, a teaching that

precludes the notion that there is nothing immoral about

homosexuality, adultery, or pre-marital sex.

4

Finally, and perhaps most fundamentally, the rejection of

the morality that the Boy Scouts itself claims to be fostering in

favor of the moral relativism propounded by the New Jersey

Supreme Court would have astounded our nation’s Founders.

For them, moral virtue, based on the innate nature of human

beings, was a necessary prerequisite for republican

government. The Boy Scouts has, for nearly a century, been a

significant part of the effort to pass such virtue, and the

freedom that flows from it, on to our posterity. By barring the

Boy Scouts from continuing its mission, the New Jersey

Supreme Court’s decision strikes a blow to our republican

regime.

ARGUMENT

I. Forcing the Boy Scouts to Admit Dale as an Adult

Leader Violates the Boy Scouts’ Freedom of

Association.

This Court has long recognized that the First

Amendment’s protection of speech and assembly

encompasses a correlative freedom of association. See, e.g.,

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 907-

909 (1982); N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S.

449, 460 (1958). And there is perhaps no more fundamental

tenet of the freedom of association than the right of the

association itself to determine who shall be admitted to

membership. During debate in the convention which gave us

our Constitution, for example, Gouverneur Morris noted that

“every Society from a great nation down to a club had the

right of declaring the conditions on which new members

should be admitted .. . .” The Records of the Federal

Convention of 1787, at 238 (Max Farrand ed., Yale Univ.

Press 1966). The sanctity of that principle continues to be

recognized to this day: “There can be no clearer example of

an intrusion into the internal structure or affairs of an

association than a regulation that forces the group to accept

members it does not desire.” Roberts v. U.S. Jaycees, 468

U.S. 609, 623 (1984). “Freedom of association ... plainly

5

presupposes a freedom not to associate.” Jd. (citing Abood v.

Detroit Bd. of Ed., 431 U.S. 209, 234-35 (1977)).

Although not absolute, id., the freedom to choose one’s

associates is particularly strong in the context of intimate and

expressive associations, such as those fostered by the Boy

Scouts at issue here. There are exceptions, as this Court’s

rulings in Roberts and two subsequent cases, Board of

Directors of Rotary Intern. v. Rotary Club of Duarte, 481 U.S.

537 (1987), and New York State Club Ass'n, Inc. v. City of

New York, 487 U.S. 1 (1988), make clear. But even a casual

review of those cases demonstrates how clearly the Boy

Scouts falls on the protection rather than the exception side of

the line, for at least three reasons.

A. The Boy Scouts Is Not A Commercial Association

First, Roberts, Rotary Club, and New York State Club

Ass'n all dealt with associations that fostered business and

commercial connections. Roberts, 468 U.S., at 616, 626;

Rotary Club, 481 U.S., at 549; New York State Club Ass’n.,

487 U.S., at 5-6. The Boy Scouts, on the other hand, is not a

commercial organization. See, e.g., Curran v. Mount Diablo

Council of the Boy Scouts of America, 17 Cal. 4th 670, 673,

952 P.2d 218, 220 (1998) (holding that the Boy Scouts is not

a “business establishment” under the California Unruh Civil

Rights Act). Its purpose is not to foster commercial

relationships but rather to instill in young men certain moral

principles and “to prepare them to make ethical choices over

their lifetime in achieving their full potential.” Boy Scouts

Petition, at 2 (citing A.2238, the record before the New Jersey

Supreme Court).

No mere formalism, the distinction between commercial

and non-commercial private associations is rooted in the

historic understanding of public accommodations, and until

the New Jersey court’s ruling, the latter has always been

understood as constitutionally protected.

In English common law, a public accommodation was a

business, such as an inn or eatery, that operated along the

6

highways and byways of the realm. William Blackstone

noted that such businesses were said to have an implied

contractual obligation to serve all comers by virtue of the fact

that they held themselves out as serving the public.”

Moreover, the English common law treated an innkeeper’s

refusal to accept a traveler without sufficient reason as more

than merely a breach of an implied contract; it was also a

breach of the peace. Innkeepers would be subject to a fine

and even criminal indictment for thus “frustrat[ing] the end of

their institution,” namely, the provision of meals and lodging

to travelers. W. Blackstone, 4 Commentaries, ch. 13.

Although these simple origins have been expanded upon

in modern times, the Blackstonian principles remain at the

root of State and federal public accommodations law and

jurisprudence. When it enacted Title II of the Civil Rights

Act of 1964, for example, Congress built upon the implied

contractual commitment undertaken by innkeepers and

applied it to other commercial enterprises such as hotels,

restaurants, gas stations, theaters, and other places of

entertainment.

Similarly, the California Supreme Court recently held that

the Unruh Civil Rights Act, one of the most expansive state

public accommodations statutes in the country, emphasizes

the commercial nature of covered entities and does not extend

2 See W. Blackstone, 3 Commentaries on the Laws of England, ch. 9 (“If

an inn-keeper, or other victualler, hangs out a sign and opens his house for

travelers, it is an implied engagement to entertain all persons who travel

that way; and upon this universal assumpsit an action on the case will lie

against him for damages, if he without good reason refused to admit a

traveller”); see also J. Story, Bailments §§ 466a, 470, 476(2) (1846);

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 284 (1964)

(Douglas, J., concurring) (“[The English common law] reasoned that one

who employed his private property for purposes of commercial gain by

offering goods or services to the public must stick to his bargain”

(emphasis added)); Lane v. Cotton, 12 Mod. 472 (1701), cited in The Civil

Rights Act of 1964: What it Means to Employers, Businessmen, Unions,

Employees, Minority Groups 79 (BNA, 1964).

————

7

to organizations that are not commercial in nature.’ It is

precisely the engagement in commerce that makes a private

entity one which is “open to the public” and therefore within

an area of traditional government concern and regulation.

The Boy Scouts as an organization does not fit within the

Blackstonian or the Curran commercial framework for public

accommodations. Unlike the innkeepers of old or their

modern-day counterparts, the Boy Scouts is not engaged in a

business or anything even resembling a business as far as its

membership activities are concerned. See Curran, 17 Cal.4",

at 699-700, 952 P.2d, at 238 (noting that although the Boy

Scouts “engages in business transactions with nonmembers on

a regular basis,” those “business transactions are distinct from

the Scouts’ core functions and do not demonstrate that the

organization has become a commercial purveyor of the

primary incidents and benefits of membership in the

organization”). | Furthermore, the Boy Scouts neither

explicitly nor implicitly welcomes all comers. Rather, it

offers membership only to those boys and adult leaders who

are willing to subscribe to its principles. And unlike the

innkeeper of old who refused a place to a weary traveler,

refusing membership to one who does not subscribe to the

Boy Scouts’ views furthers rather than frustrates the ends for

which the institution was established.

* See Curran v. Mount Diablo Council of the Boy Scouts, 17 Cal.4® 670,

697, 952 P.2d 218, 236 (Cal. 1998) (“[A]lthough past California decisions

demonstrate that the [Unruh] Act clearly applies to any type of for-profit

commercial enterprise, and to nonprofit entities ... whose purpose is to

serve the business or economic interests of its owners or members, no

prior decision has interpreted the ‘business establishments’ language of the

Act so expansively as to include the membership decisions of a charitable,

expressive, and social organization, like the Boy Scouts, whose formation

and activities are unrelated to the promotion or advancement of the

economic or business interests of its members”); see also Seabourn v.

Coronado Area Council, Boy Scouts of America, 257 Kan. 178, 207, 891

P.2d 385, 404 (Kan. 1995) (declining to “divorce the concept of public

accommodation from the usual meaning and the common understanding of

the word business”).

Consistent with this historical view, numerous courts

throughout the country have found that the Boy Scouts is not

covered by public accommodations laws. For example, in

Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir.),

cert. denied, 510 U.S. 1012 (1993), the Seventh Circuit held

that the “place of public accommodation” language in Title II

of the Federal Civil Rights Act of 1964, 42 U.S.C. § 2000a—

language identical to that in the New Jersey public

accommodations law at issue here—did not cover the Boy

Scouts because the Boy Scouts is neither a “place” nor a

“public” accommodation.

Similarly, the California Supreme Court in Curran

interpreted the California Unruh Civil Rights Act to exclude

the Boy Scouts from the Act’s strictures. The Court there

held that, “given the organization’s overall purpose and

function, the Boy Scouts cannot reasonably be found to

constitute a business establishment whose membership

decisions are su ayect to to the [Unruh] Act.” 17 Cal. 4th at 697,

952 P. 2d at 236.

Of course, New Jersey need not interpret its own public

accommodations law in conformity with other states’ laws or

with Title II, but it must conform its interpretation to the

mandates of the federal Constitution. The point of the

commercial/non-commercial distinction is that the “public”

* Other states have reached similar results under their own public

accommodation laws. See, e.g., Seabourn, 257 Kan., at 210, 891 P.2d, at

406 (holding that the Boy Scouts is not covered by the Kansas public

accommodations statute because “the Boy Scouts has no business purpose

other than maintaining the objectives and programs to which the operation

of facilities is merely incidental”); Schwenk v. Boy Scouts of America, 275

Ore. 327, 334, 336, 551 P.2d 465, 468, 469 (Ore. 1976) (“[T]he primary

concern and purpose of the Oregon legislature in its enactment of the

Oregon Public Accommodation Act was to prohibit discrimination by

Business or commercial enterprises which offer goods or services to the

public. . . . [T]he term ‘place of public accommodation,’ as defined by [the

Oregon statute], was not intended by the Oregon legislature to include the

Boy Scouts of America”).

9

business purpose of the former may permit certain

governmental regulations that are constitutionally

impermissible when applied to the latter. Quite simply, the

governmental interest is much less compelling, and the

infringement on private liberty much more stark, when public

accommodations laws are extended beyond their common law

origins, and in this case, the law has been extended beyond

the constitutional breaking point.

B. Boy Scout Troops Are Highly Intimate Private

Associations

Second, unlike the Jaycees or Rotary Club, the Boy

Scouts’ structure and purpose foster relationships second to

virtually no group other than a family in their degree of

intimacy. See, e.g., Curran v. Mount Diablo Council of the

Boy Scouts of America, 48 Cal.App.4th 670, 29 Cal.Rptr.2d

580, 597-98 (Cal.App. 1994), review granted and opinion

superseded by 874 P.2d 901, 31 Cal.Rptr.2d 126, (Cal. 1994)

aff'd, 17 Cal.4th 670, 952 P.2d 218 (Cal. 1998). As such, the

Boy Scouts has a much stronger liberty interest protected by

the Due Process Clause of the Fourteenth Amendment than

did the Jaycees or the Rotary Club. ;

The primary unit of the Cub Scouts, the organizational

division of the Boy Scouts for boys between the ages of 8 and

11, is the Den, consisting of between 6 and 10 boys. These

boys meet weely, often at the home of one of the boys, for

various activities. Similarly, the Boy Scouts itself is

organized into Troops of about 30 boys ages 11 to 17, and

further organized into Patrols of about 8 boys. Jd. 29

Cal.Rptr.2d, at 598 The very smallness of the groups in

which the boys interact and the location in people’s homes

demonstrate the intimate nature of the organizational units.

Because they are such intimate units, the Boy Scouts must

have great control over who participates in those units.°

* That the policies each of these units follow are set by a national

organization does not in any way undermine the intimately private nature

of the associations. As this Court stated in Roderts, the relevant unit for

10

It is out ef recognition that interference with such

associations amounts to a severe intrusion upon liberty that

most, if not all, state public accommodations laws, as well as

Title II of the federal Civil Rights Act of 1964, exempt private

membership clubs. These textual exemptions have

historically been viewed as constit:tior ally compelled. When

Congress enacted Title II, for example, it explicitly excluded

private membership organizations because it believed that the

Constitution prohibited it from doing otherwise. See, e.g.,

Cornelius v. Benevolent Protective Order of Elks, 382 F.

Supp. 1182, 1201 (D. Conn. 1974) (“Congress appears to

have doubted the very constitutionality of legislation which

did not exempt private clubs” (citing 2 U.S.Code Cong. &

Admin.News (1964), at 2459-62 (Minority Report); 110

Cong. Rec. 2293 (Rep. Long)).

The reason for the private club exemptions, and for the

constitutional protection afforded to private associations, is

that “the formation and preservation of certain kinds of highly

personal relationships” must be afforded “a substantial

measure of sanctuary from unjustified interference by the

State” if individual liberty is to be secured. Roberts, 468

U.S., at 618. Indeed, the description in Roberts of the right to

intimate association reads almost as if it was written with

groups such as the Boy Scouts in mind:

[C]ertain kinds of personal bonds have played a

critical role in the culture and traditions of the Nation

by cultivating and transmitting shared ideals and

beliefs; they thereby foster diversity and act as critical

buffers between the individual and the power of the

State.

Id. The Boy Scouts not only fosters close relationships but, as

described below, its whole purpose is to cultivate and transmit

purposes of addressing the right to intimate association is not the entire

ization, but the local unit only. 468 U.S., at 621 (1984); see also

Rotary, 481 U.S., at 546.

ll

shared ideals and beliefs; it is therefore easily entitled to the

C. The Boy Scouts’ Membership Criteria Is Directly

Tied to its Moral Purpose

Finally, and perhaps most importantly, the membership

criterion at issue in this case is not based on a stereotypical

generalization such as was at issue in Roberts, where it was

claimed that admitting women would force the club to alter its

civic, political or business messages (apparently based on the

stereotypical view that women have different positions on

such matters than men). 468 U.S., at 627-28. The Boy Scouts

is not claiming that homosexual adult leaders are less likely

than heterosexual adult leaders to be trustworthy, or brave, or

loyal, and thus less able to serve as role models for those

aspects of the Scout Law. But the Boy Scouts is contending

that an avowed homosexual adult leader is less able than other

adult leaders to serve as a role model for the aspect of the

Scout Oath that calls on boys to be “morally straight,” a

phrase which the Boy Scouts itself interprets as encompassing

the belief that homosexual conduct is immoral. Curran, 17

Cal.4", at 672, 952 P.2d, at 219.

By forcing the Boy Scouts to place in an adult leadership

position someone who espouses by word and deed a position

about the immorality of homosexuality inimical to that taken

by the Boy Scouts, the New Jersey Supreme Court repudiated

the principle articulated in Roberts, Rotary Club, and New

York State Club Ass'n that a private association could not be

forced to admit members whose views were contrary to those

of the organization.

In Roberts, this Court upheld a decision requiring the

Jaycees to admit women only after finding that the Minnesota

public accommodations law did not require any change in the

organization’s creed or impose any restrictions on its “ability

to exclude individuals or philosophies different from those of

its existing members.” 468 U.S., at 627. In Rotary Club, this

12

Court upheld a similar decision requiring the Rotary Clubs to

admit women only after finding that the admission of women

would not affect that organization’s ability to carry out its

purposes “in any significant way.” 481 U.S., at 548-49.

And in New York State Club Ass'n, this Court specifically

noted: “If a club seeks to exclude individuals who do not share

the views that the club’s members wish to promote, the Law

erects no obstacles to this end.” 487 U.S., at 13. Indeed,

Justice O’Connor pointed out in her concurring opinion that

the right to exclude individuals who do not share the

organization’s views exists even if the organization’s purpose

requires that membership be based—legitimately rather than

stereotypically—on race, religion, or some other “suspect”

classification. Jd., at 19 (O’Connor, J., concurring); see also

Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J.,

concurring) (“the question whether- racial or sex-based

classifications communicate an invidious message [is] in large

part a legal question to be answered on the basis of judicial

interpretation of social facts” (emphasis added)). Invidious

discrimination is simply not at work when, for example, the

Knights of Columbus limits membership to Catholics.

Apparently recognizing the force of this distinction, the

New Jersey court simply mischaracterized the Boy Scouts’

own beliefs in order to avoid the force of this Court’s

precedents. In an opinion that can only be called Orwellian,

the New Jersey court refused to accept that the Boy Scouts

actually believes that homosexual conduct is immoral and

therefore incompatible with the virtues the organization seeks

to foster. See Dale v. Boy Scouts of America, 160 N.J. 562,

613 n.12 (1999) (rejecting the Boy Scout’s position because

nor expressly adopted until after homosexuality became an

issue); id., at 614-15 (“The words ‘morally straight’ and

‘clean’ do not, on their face, express anything about sexuality,

much less that homosexuality, in particular, is immoral”).

And it did so on its own initiative, without benefit of trial

court factual findings.

13

In contrast, trial court factfinders that have considered the

issue have recognized the obvious clarity and consistency of

the Boy Scouts’ position. As noted by the California Supreme

Court in Curran, for example, the trial court in that case

found, after a trial: “that sexual morality is addressed in the

Boy Scout Oath and Law under the rubric of ‘morally

straight’ and ‘clean’”; “that the Boy Scouts of America as an

organization has taken a consistent position that

homosexuality is immoral and incompatible with the Boy

Scout Oath and Law”; and that “this is the view that is

communicated whenever the issue comes up.” 17 Cal. 4th at

682. And the ‘rial court in this case “found that Boy Scouts

had always had a policy of excluding ‘active homosexual[s].””

Dale, 160 N.J., at 580-81, 734 A.2d, at 1206 (citing Dale v.

— of America, No. MON-C-330-92 (Ch. Div. Nov. 3,

Respondent’s amici assert that they sponsor Boy Scout

troops to teach boys “values consistent with the true purposes

of Scouting, such as loyalty, courage, kindness, cleanliness,

obedience and reverence.” Brief of Amici Curiae The General

Board of Church and Society of the United Methodist Church,

et al., in Support of Respondent [at the petition stage], at 14

(emphasis added); see also id., at 5 (defining “Scouting’s true

purposes” as including “trustworthiness, loyalty, kindness,

respect for others, and bravery” (emphasis in original)).

Tellingly, Respondent’s amici never once mention the

“morally straight” clause of the Scout Oath. Thus, the fact

that some sponsoring organizations such as Respondent’s

amici might choose to highlight certain aspects of the Boy

Scouts’ purpose and not others does not alter the fact that

teaching boys to be “morally straight,” in all its ramifications,

1s an express part of Scouting’s purpose.

Moreover, Respondent and his amici actually concede that

the executive leadership of the Boy Scouts does have a

“policy” of opposing homosexuality among scout members

and adult leaders. See, e.g., General Board amici curiae Brief

in Opposition to Petition, at 11 (quoting Sept. 18, 1998 letter

14

from Rev. Dr. Paul H. Sherry, President of the United Church,

to Jere B. Ratciffe, Chief Scouting Executive of the Boy

Scouts, urging the Boy Scouts “to abandon [their] policies and

practices” denying membership to avowed homosexuals

(emphasis added)); Respondent’s Brief in Opposition to

Petition, at 14-16 (repeatedly referring to the Boy Scouts’

exclusionary “policy”). The opposition to the Boy Scouts’

“policy” by Respondent and his amici only serves to highlight

what the Curran trial court explicitly found but the New

Jersey Supreme Court refused to acknowledge: The Boy

Scouts’ purpose of fostering morality among its members

includes the view that homosexuality is immoral. Forcing the

Boy Scouts to admit avowed homosexuals is therefore a

constitutionally impermissible restriction on the Boy Scouts’

“ability to exclude individuals or philosophies different from

those of its existing members.” Roberts, 468 U.S., at 627.

The Gay and Lesbian Student Alliance, of which

Respondent is a member, itself provides a striking example of

the dangers inherent in intruding upon a membership

organization’s associational rights. Suppose, as happened not

too long ago at an Ivy League college, that a student opposed

to homosexuality joined the homosexual students’

organization with the specific though unspoken purpose of

“outing” its members or even the less nefarious purpose of

trying to “cure” the homosexual students of their “disease.”

Surely our law must recognize the right of the organization

not to associate with such an individual, whose very presence

would undermine one of the purposes of the organization.

And surely our law must so recognize even if the way in

which the organization went about making that membership

decision was to use religion or sexual orientation in its

membership decisions.

What is prescriptive in this example as good policy is in

fact constitutionally mandated. As this Court has repeatedly

recognized, most recently in the case of Hurley v. Irish-

American Gay, Lesbian and Bisexual Group of Boston, “the

choice of a speaker not to propound a particular point of view

15

[by excluding proponents of that view from participation in

the speaker’s expressive activities] is presumed to lie beyond

the government’s power to control.” 515 U.S. 557, 575

(1995); see also Curran, 17 Cal.4", at 727, 952 P.2d, at 255-

56 (Kennard, J., concurring) (recognizing that, under Hurley,

“an organization’s right of expressive association allows it to

exclude applicants with ‘manifest views’ at odds with those of

the organization”).

Dale and his amici would hardly tolerate a court order

requiring the Gay and Lesbian Alliance to accept as a leader

an evangelical Christian who was committed to “curing” or

converting all of the homosexual members of the organization.

Yet they seek to do much the same thing here—forcing the

Boy Scouts to accept into its organization a person who

disagrees with one of the principles of the organization and

who would seek to “cure” the organization of its supposed

wrong-headedness. Neither result is constitutionally

permissible.

II. Forcing the Boy Scouts to Accept Dale as a Spokes-

man/Adult Leader Constitutes Constitutionally-

Prohibited Compelled Speech.

Closely tied to the Boy Scouts’ right of expressive

association is its First Amendment right to free speech and the

correlative right not to be compelled to convey messages with

which it disagrees. As Justice Jackson, writing for the Court,

noted more than fifty years ago, “[i]f there is any fixed star in

our constitutional constellation, it is that no official, high or

petty, can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith therein.” West

Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642

(1943). The State’s interest in disseminating an ideology

“cannot outweigh an individual's First Amendment right to

avoid becoming the courier for such message.” Wooley v.

Maynard, 430 U.S. 705, 717 (1977).

16

This well-established constitutional prohibition against

compelled speech was reconfirmed by this Court just five

terms ago in Hurley v. Irish-American Gay, Lesbian &

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

case, this Court unanimously held that the private sponsors of

a parade could not be compelled to include within their parade

a group who sought to convey a message with which the

organizer did not wish to be associated. Significantly, the

Court neither inquired into the views of other parade

participants nor demanded that the parade have an expressive

purpose that was explicitly contrary to that offered by the

excluded group. It was enough that the parade organizers did

not wish to convey the group’s message as part of their own.

Id., at 574; see also id., at 569 (“a narrow, succinctly

articulable message is not a condition of constitutional

protection”); id., at 569-70 (“a private speaker does not forfeit

constitutional protection simply by combining multifarious

voices, or by failing to edit their themes to isolate an exact

message as the exclusive subject matter of the speech”).

The New Jersey Supreme Court’s attempt to distinguish

Hurley by asserting that this case is not about speech

denigrates the speech both of the Boy Scouts and of James

Dale himself. Dale has become a staunch advocate for gay

rights. Indeed, his activism is what led to the news article that

brought his avowed homosexuality to the Boy Scouts’

attention. Pet. at 6. Moreover, by his own reported

admission, Dale seeks to re-join the Boy Scouts as an adult

leader in order to persuade the Boy Scouts that its position on

the immorality of homosexual conduct is wrong. Pet. at 7.

Dale’s purpose here is therefore clearly speech, and under

Hurley, the Boy Scouts cannot be compelled to carry his

message. Hurley, 515 U.S. at 573. This would be true even if

the Boy Scouts did not have an explicit position about the

immorality of homosexuality, for Hurley teaches that an

organization need not have a particular or uniform message as

17

a condition precedent to exercising its constitutional right not

to be compelled to speak a message with which it disagrees.°

Even if Dale could credibly claim that he would support

the Boy Scouts’ position about the immorality of

homosexuality, the very fact that a known, avowed

homosexual was donning a Boy Scout uniform as an adult

Scout leader would send an unmistakeable symbolic message

contrary to the position taken by the Boy Scouts. This Court

has rejected a formalistic view that fails to recognize the

significant speech component evident in such expressive

conduct. See, e.g., Tinker v. Des Moines Ind. Comm. School

Dist., 393 U.S. 503, 505-506 (1969). Thus, while the New

Jersey Supreme Court may technically have been correct in its

assertion that Dale does not come to Boy Scout meetings

“carrying a banner,” 160 N.J. at 623, Dale clearly wears his

homosexuality as a badge for all to see. It takes a blind eye to

fail to recognize that the appointment by the Boy Scouts of

Dale as an Assistant Scoutmaster would be the height of

symbolic speech, severely undermining the Boy Scouts’ own

speech about the immorality of homosexuality.

Ifl.Undermining the Boy Scouts’ Mission Infringes the

Constitutional Right of Parents to Direct the Moral

Upbringing of their Children.

The Boy Scouts is not simply another after-school

playtime organization. Its purpose, as the intermediate

appellate court below recognized, is “to instill values in young

people and, in other ways, to prepare them to make ethical

choices over their lifetime.” Dale v. Boy Scouts of America,

308 N.J. Super. 516, 524, 706 A.2d 270, 274 (N.J. Super.,

* The contention by Respondent’s amici that some groups that sponsor

Boy Scout troops disagree with the Boy Scouts’ position on homosexuality

is therefore beside the point. So too is the “finding” by the New Jersey

Supreme Court that the Boy Scouts does not really have an expressive

purpose opposing homosexuality because its position statements on the

subject were not widely disseminated to its membership. Under Hurley, it

is enough that the Boy Scouts does not wish to convey symbolically the

message that homosexuality is a perfectly acceptable lifestyle alternative.

18

App. Div., 1998) (quoting Boy Scouts Mission Statement).

Many parents choose to have their children participate in

Scouting precisely because of its moral mission. See Randall

v. Orange County Council, 17 Cal.4th 736, 742, 952 P.2d 261,

265 (1998) (“Parents of Cub Scouts . . . testified that they

hoped certain values, including religious ones, would be

instilled through the Cub Scout program, as promised by the

parent handbook for new Cub Scouts”)

The ruling below thus severely undermines the right of

parents to direct the moral upbringing of their children, a right

recognized by this Court more than three-quarters of a century

ago as constitutionally protected. See Meyer v. Nebraska, 262

U.S. 390 (1923); Pierce v. Society of Sisters of the Holy

Names of Jesus and Mary, 268 U.S. 510 (1925).

Of course, this parental right, like the rights of association

and speech discussed above, is not absolute. See, e.g., Prince

v. Massachusetts, 321 U.S. 158 (1944) (upholding conviction

of Jehovah’s Witness for violating state’s child labor law).

But this Court has suggested that it is a fundamental right,

which would render intrusions on the right subject to strict

scrutiny. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 214

(1972); Griswold v. Connecticut, 381 U.S. 479, 482 (1965);

id., at 498 (Goldberg, J., concurring); see also, e.g., Ohio v.

Whisner, 351 N.E.2d 750, 760 (Ohio 1976) (“it has long been

recognized that the right of a parent to guide the education,

including the religious education, of his or her children is

indeed a ‘fundamental right’ guaranteed by the due process

clause of the Fourteenth Amendment’).

While the Boy Scouts may not provide the complete

alternative to public education that was at issue in Pierce,

there is no question that the organization fills a moral void in

that education, and that, as the California Supreme Court

recognized, many parents encourage their children to

participate in the Boy Scouts precisely because it fills that

moral void. The parents who participate in the Boy Scouts

because they wish to impart certain moral views to their

19

children have a constitutionally protected fundamental right to

do so.

IV.Because The Decision Below Interferes With The

Moral Training Provided By The Boy Scouts, Training

Which The American Founders Believed To Be

Essential In A Republican Form Of Government, The

State Cannot Have A Compelling Interest In

Undermining That Training.

Recognizing that application of the New Jersey public

accommodations law to the Boy Scouts infringes upon the

Speech and Association rights of the Boy Scouts and upon the

right of parents to direct the moral upbringing of their

children does not entirely dispose of this case, of course.

Even these constitutionally protected fundamental rights may

in some contexts give way to a law that is narrowly tailored to

further a compelling governmental interest.

In the context of the Boy Scouts’ freedom of speech,

however, this Court has repeatedly recognized that only the

avoidance of imminent harm, amounting to a clear and

present danger, is sufficiently compelling to warrant the

restriction on this fundamental freedom. See, e.g., Schenck v.

United States, 249 U.S. 47, 52 (1919); Brandenburg v. Ohio,

395 U.S. 444, 447 (1966). Otherwise, the remedy for “bad”

speech—if the Boy Scouts’ position can even credibly be so

characterized—is more speech. See Whitney v. California,

274 U.S. 357, 377 (1927) (Brandeis, J., concurring). And for

compelled speech such as is at issue here, the protection is

near absolute.

Similarly, this Court has repeatedly recognized that

governmental limitations on the expressive associational

rights of private membership organizations are only

permissible when the limitation is unrelated to the

organization’s expressive purpose. See, e.g., Roberts, 468

U.S., at 627. The limitation imposed here by the New Jersey

Supreme Court’s interpretation of the New Jersey public

20

accommodations law, however, is directly related to the Boy

Scouts’ expressive purpose.

And in the parental rights context, this Court has carefully

circumscribed the methods by which government may further

interests that conflict with the right of parents to direct the

moral upbringing of their children. In Meyer, for example,

that State asserted that prohibiting instruction in the German

language and ideals was necessary to promote civic

development in American ideals. But the Court rejected that

claim:

That the State may do much, go very far, indeed, in

order to improve the quality of its citizens, physically,

mentally and morally, is clear; but the individual has

certain fundamental rights which must be respected.

... Perhaps it would be highly advantageous if all had

ready understanding of our ordinary speech, but this

cannot be coerced by methods which conflict with the

Constitution—a desirable end cannot be promoted by

prohibited means.

262 U.S., at 401. The same is true here. Even if it would be

“highly advantageous” for all Americans to adopt New

Jersey’s view about homosexuality, such uniformity of

opinion cannot be coerced by methods which conflict with the

Constitution—and preventing parents from fostering in their

children, through association with the Boy Scouts, the

traditional belief that homosexuality is wrong, is just such a

conflict.

Even were these strict requirements to be relaxed in this

case, there is an Alice-in- Wonderland quality to the claim that

the government has a compelling interest here, ostensibly

because the Boy Scouts’ belief in the immorality of

homosexuality is itself, in the government’s view, contrary to

the public welfare and morals. The Boy Scouts as an

organization is almost synonymous with moral virtue.

Indeed, if anything, the organization is sometimes lampooned

SS

21

for being too moral, too good. See, e.g., G. Cook, “As

challengers bow out, Gore comes into the crosshairs,” Agence

Fr.-Presse, 1999 WL 2540136 (Feb. 4, 1999) (noting that

Vice President “Gore has such a boy-scout image he's often

derided as boring”); B. Wattenberg, “Bush may be popular,

but McCain has more of right stuff,” The Topeka Capital-

Journal, 1999 WL 31519897 (Oct. 30, 1999) (referring to

“goody-good boy scouts”).

For nearly a century, the Boy Scouts has been singularly

successful in its mission of instilling in young boys a sense of

their moral obligations to God, country, and family. Such

moral training was thought by our nation’s Founders to be

essential in a republican form of government. The

Declaration of Rights affixed to the beginning of the Virginia

Constitution of 1776, for example, provides “[t]hat no free

government, or the blessings of liberty, can be preserved to

any people, but by a firm adherence to justice, moderation,

temperance, frugality, and virtue, and by frequent recurrence

to fundamental principles.” Va. Const. of 1776, Bill of

Rights, Sec.15 (emphasis added). The Massachusetts

Constitution of 1780 echoes the sentiment: “[T]he happiness

of a people, and the good order and preservation of civil

government, essentially depend upon piety, religion, and

morality ....” Mass. Const. of 1780, Pt. 1, Art. 3 (emphasis

added). And the Pennsylvania Constitution of 1776 went

even further, asserting that “Laws for the encouragement of

virtue, and prevention of vice and immorality, shall be made

and constantly kept in force, and provision shall be made for

their due execution.” Pa. Const. of 1776, Art. Il, § 45

(emphasis added).

But perhaps the clearest example of the Founders’ views

was penned by James Madison, writing as Publius in the 55th

number of The Federalist Papers: “Republican government

presupposes the existence of [virtue] in a higher degree than

any other form. Were [people as depraved as some opponents

of the Constitution say they are,] the inference would be that

22

there is not sufficient virtue among men for self-government;

and that nothing less than the chains of despotism can restrain

them from destroying and devouring one another.” The

Federalist No. 55, at 314 (Clinton Rossiter and Charles Kesler

eds., Mentor 1999). In short, the Founders viewed a virtuous

citizenry as an essential pre-condition of republican self-

government.

The Founders were also fully cognizant of the fact that

virtue must be continually fostered in order for republican

institutions, once established, to survive. See Welsh v. Boy

Scouts of America, 993 F.2d 1267, 1278 (CA7), cert. denied,

510 U.S. 1012 (1993) (“The Founding Fathers recognized that

a republic cannot endure without a virtuous citizenry”). Most

of the leading Founders, therefore, turned their attentions at

one time or another to education. Perhaps the best example,

but by no means the only one, of this sentiment is expressed in

the Northwest Ordinance, adopted by Congress for the

government of the territories: “Religion, morality, and

knowledge, being necessary to good government and the

happiness of mankind, schools and the means of education

shall forever be encouraged.” An Ordinance for the

Government of the Territory of the United States Northwest of

the River Ohio, Art. 3, 1 Stat. 51, 53 n. a; see also, e.g.,

Mass. Const. of 1780, Ch. V, Sec. 2 (“wisdom and

knowledge, as well as virtue, diffused generally among the

body of the people [are] necessary for the preservation of their

rights and liberties”).

Because the fostering of moral excellence was, for the

Founders, a task intimately tied to religion, see, e.g., George

Washington, Farewell Address, reprinted in George

Washington: A Collection 521 (William B. Allen ed., Liberty

Classics 1988) (noting that “reason and experience both forbid

us to expect that national morality can prevail in exclusion of

religious principle”), much of the moral education thought so

essential by our Founders no longer can be provided in the

public schools. See, e.g., Everson v. Board of Education, 330

23

U.S. 1, 16 (1947) (noting in dicta that “[njo tax in any

amount, large or small, can be levied to support any religious

activities or institutions”); Engel v. Vitale, 370 U.S. 421

(1962); Lemon v. Kurtzman, 403 U.S. 602 (1971). As a result,

the teaching of morality and virtue—so necessary to our

republican form of government—is left largely to private

associations, primarily churches and groups such as the Boy

It is fortuitious, then, that the Founders did not rely on

public institutions alone to foster a virtuous citizenry, but

rather encouraged the development of private associations

that, like the Boy Scouts, were devoted to the development of

moral character. As Alexis de Tocqueville observed more

than a century and a half ago, “[the intellectual and moral

associations in America] are as necessary as the [political and

industrial associations] to the American people, perhaps more

so.” Alexis de Tocqueville, Democracy in America 517 (J. P.

ro ed. & George Lawrence trans., HarperPerrenial 1969)

(1835).

Of course, respondent and his amici contest the claim

made by the Boy Scouts that homosexual conduct is

inherently un-virtuous (and therefore implicitly barred by a

Scout’s oath to be “morally straight”). Apparently, so does

the New Jersey legislature (according to the interpretation

given to its actions by the New Jersey Supreme Court).

Indeed, the New Jersey Supreme Court rested its opinion in

part upon the claim, grounded in moral relativism, that the

Boy Scouts itself rejects the idea that there is any objective

basis on which to make claims about the morality or

immorality of homosexual conduct, or anything else, for that

matter. See, Dale, 160 N.J., at 575, 734 A.2d, at 1203

(“Although one of BSA’s stated purposes is to encourage

members’ ethical development, BSA does not endorse any

specific set of moral beliefs. Instead, ‘moral fitness’ is

deemed an individual choice”). The New Jersey court finds

support for this astonishing conclusion in the following

24

passage from the Boy Scouts’ Scoutmaster Handbook:

“Morality ... concerns the ‘principles of right and wrong’ in

our behavior, and ‘what is sanctioned by our conscience or

ethical judgment.” Jd. (quoting Scoutmaster Handbook, at

71). The New Jersey court’s reading ignores the distinction

between “good conscience,” on the one hand (to which the

passage clearly refers), and “bad conscience” and

“unconscionable” conduct, on the other. The New Jersey

court’s reading of the Boy Scouts’ code, therefore, cannot be

more wrong, nor more at odds with the idea of virtue regarded

by our Founders as a necessary prerequisite of republican

government.

For two centuries, the people of this nation and their

courts have had little difficulty recognizing the meaning of the

term “virtue,” as well as its opposite—at least in non-marginal

cases. Certain actions, for example, have long been held to be

malum in se—wrongful in and of themselves. See, e.g.,

Reynolds v. United States, 98 U.S. 145, 164 (1878)

(describing polygamy as an “offence against society”); Van

Iderstine v. National Discount Co., 227 U.S. 575, 581 (1913)

(describing fraudulent conveyances of property beyond the

reach of creditors as “malum in se”) District of Columbia v.

Colts, 282 U.S. 63, 73 (1932) (driving recklessly so as to

endanger lives and property desribed as as act “malum in se”,

entitling defendant to a jury trial); Parker v. Levy, 417 U.S.

733, 762-63 (1974) (Blackmun, J., concurring) (describing

“engaging in sexual acts with a chicken, or window peeping in

a trailer park, or cheating while calling bingo numbers” as

contrary to “[fJundamental concepts of right and wrong” and

therefore punishable under the Uniform Code of Military

Justice as “conduct unbecoming an officer and a gentleman”) ;

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 568 (1991)

(“Public nudity was considered an act malum in se’); see also

Federal Trade Commission v. R.F. Keppel & Bro., 291 U.S.

304, 312 (1934) es phrase “unfair methods of

competition” in the Federal Trade Commission Act as

25

“practices in business that are contra bonos mores”). As

Justice Scalia noted in Barnes:

Our society prohibits, and all human societies have

others but because they are considered, in the

traditional phrase, “contra bonos mores,” i.e.,

immoral. In American society, such prohibitions have

included, for example, sadomasochism, cockfighting,

bestiality, suicide, drug use, prostitution, and sodomy.

Id., at 575 (Scalia, J., concurring in the judgment).

Certainly homosexual conduct has for centuries been

included in the list of acts generally deemed malum in se.

See, e.g., Bowers v. Hardwick, 478 U.S. 186, 192-94 (1986);

id. at 196-97 (Burger, of concurring). Indeed, the view that

homosexuality is immoral is still supported by criminal

prohibitions against sodomy in many States and in the

Uniform Code of Military Justice. Jd. at 193-94; Jeffrey G.

Sherman, “Love Speech: The Social Utility of Pornography,”

47 Stan. L. Rev. 661, 698 (April 1995) (citing state statutes

and Uniform Code of Military Justice); see also Thomasson v.

Perry, 80 F.3d 915 (CA4 1996) (upholding Congressional ban

on homosexuals serving in the military).

Even if society wants to relax that view, it requires a sort

of logical gymnastics to move from the traditional view that

homosexual conduct is malum in se to the view, effectively

propounded by the New Jersey Supreme Court, that the

government now has such a compelling interest in eradicating

that long-held view that it may force the Boy Scouts to

proclaim symbolically its very opposite—that there is nothing

immoral about homosexual conduct.

While it may be true, as Justice Blackmun once noted, that

“[rjelativistic notions of right and wrong, or situation ethics,

as some call it, have achieved in recent times a disturbingly

high level of prominence in this country . . . as a justification

of conduct that persons would normally eschew as immoral

26

and even illegal,” Parker v. Levy, 417 U.S. 733, 765 (1974)

(Blackmun, J., concurring), we have not yet reached the day

when the law is allowed to silence those who think otherwise.

“The truth is that the moral horizons of the American people

are not footloose, or limited solely by [the positive law]. The

law should . . . be flexible enough to recognize the moral

dimension of man and his instincts concerning that which is

honorable, decent, and right.” Jd.

The Boy Scouts has always exemplified—and to many

still exemplifies—that which is “honorable, decent, and right.”

As the Supreme Court of Kansas recently recognized, the Boy

Scouts “tends to conserve the moral, intellectual, and physical

life of the coming generation.” Seabourn, 257 Kan., at 180,

891 P.2d, at 388 (emphasis added) (quoting Congressional

Report in Support of Act to Incorporate Boy Scouts of

America). The organization seeks to instill in the coming

generation a key element of what our Founders thought

necessary to republican self-government, namely, the ability

to govern “oneself morally [by] controlling one’s own

tendency to indulge the selfish and violent passions

unreasonably.” T. West, Vindicating the Founders: Race,

Sex, Class, and Justice in the Origins of America 160

(Rowman & Littlefield 1997).

While the Boy Scouts position on homosexuality is not as

universally accepted as it once was, it is a position that is both

well grounded in our nation’s laws and traditions and still

regarded as correct by a large portion of the population.

Almost by definition, then, the government’s interest in

silencing groups such as the Boy Scouts falls well short of

“con.pelling,” if that term is to retain any meaning.

To borrow again from Justice Blackmun’s concurring

opinion in Parker, for the Boy Scouts and their supporters,

“what is at issue here are concepts of ‘right’ and ‘wrong.””

417 U.S., at 763 (Blackmun, J., concurring). These concepts

are and have long been fostered by the Boy Scouts as part of

the Scouts’ oath to be “morally straight.” The State of New

27

Jersey itself apparently agreed until 1979, when it repealed its

law against sodomy. That New Jersey now holds a different

position does not alter the fact that for the Boy Scouts and

many others, “times have not changed in the area of moral

precepts. Fundamental concepts of right and wrong are the

same now as they [ever] were.” Jd. New Jersey may seek to

persuade, but it cannot constitutionally compel, the Boy

Scouts to alter its time-honored views, for in such compulsion

lies intolerance, and tyranny.

CONCLUSION

The decision of the New Jersey Supreme Court should be

reversed, and the grant of summary judgment entered by the

New Jersey trial court in favor of the Boy Scouts should be

reinstated.

Respectfully submitted,

JOHN C. EASTMAN EDWIN MEESE III

THE CLAREMONT INSTITUTE Counsel of Record

CENTER FOR CONSTITU- 214 Massachusetts Ave., NE

TIONAL JURISPRUDENCE Washington, D.C. 20002

250 W. First St., Suite 330 (202) 546-4400

Claremont, California 91711

(909) 621-6825

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

DATED: February 28, 2000