Amicus Curiae Brief — Boy Scouts of America v. Dale

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Supreme Court of the United States

Boy Scouts of America, et al,

Petitioners,

James Dale,

Respondent

On Writ of Certiorari to the

Supreme Court

for the State of New Jersey

BRIEF OF THE LIBERTY LEGAL INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

George B. Flint Kelly Shackelford*

Flint « Lambert, P.C. Suite 230

Suite 1001 903 East 18th St.

101 East Park Blvd. Plano, Texas 75074

Plano, Texas 75074 (972) 423-8889

(972) 424-4004

Counsel for Amicus Curiae

February 25, 2000 *Counsel of Record

ser

QUESTION PRESENTED

Boy Scout Troop to

Whether a state law

appoint an avowed homosexual and gay rights activist as an

Scouting’s moral values to youth members abridges First

Amendment rights of freedom of speech and freedom of

PEERS ETT

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TABLE OF CONTENTS

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INTEREST OF THE AMICUS CURIAE ............. l

| STATEMENT OF THE CASE .... 2... ccc cc cccccees 2

; SUMMARY OF ARGUMENT .............. 200000: 2

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I There is no essential difference

between the Boy Scouts of

America and any large religious

denomination or organization ........... 3

Il. If New Jersey is allowed to

require acceptance and

promotion of a particular

viewpoint and to override the

Boy Scouts of America’s

associational rights, it would

have serious consequences for all

religious institutions since the

law being applied is arguably

neutral and of general

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TABLE OF AUTHORITIES

CASES

Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872,

110 S. Ct. 1595, 108 L.Ed. 2d 876 (1990) ......

Hsu v. Roslyn Union Free School District No. 3, 85

F.3d 839 (2nd Cir.), cert. den. 519 U.S. 1040,

117 S.Ct. 608, 136 L.Ed.2d 534 (1996) ........

Roberts v. United States Jaycees, 468 U.S. 609,

622, 104 S. Ct. 3244, 3252, 82 L.Ed. 2d 462

NE ee eee re ec

INTEREST OF THE AMICUS CURIAE'

Amicus Liberty Legal Institute is a legal organization

specializing in the defense of religious freedoms and First

Amendment rights. In its commitment to the protection of

religious liberty of all faiths, the Institute represents religious

liberties are directly threatened by the New Jersey Supreme

Court’s imposition of state approved viewpoint regarding the

morality of the homosexual lifestyle upon a voluntary

association expressing a contrary viewpoint. If the State is

allowed to supercede a voluntary association’s right to define

itself according to its own moral conscience, then all institutions,

including religious organizations, are at substantial risk. Since

the State’s interest at issue before the Court is arguably neutral

and of general applicability, religious institutions would have no

protection under the Free Exercise Clause. The determination

of this case therefore implicates religious freedom at its core.

As an organization committed to the defense of religious liberty,

therefore, the Institute has an exceptional interest in the

continuing vitality of associational liberty as a bulwark against

violation of religious freedom.

'The parties have consented to the filing of this Brief. Letters of

has not been authored in whole or in part by counsel for a party. No

person, other than amicus, its members or its counsel, has made a monetary

contribution to the preparation of submission of this brief.

STATEMENT OF THE CASE

Amicus hereby adopts the statement of the case pre-

sented in the Brief for Petitioners.

SUMMARY OF ARGUMENT

The Boy Scouts of America, although large, is a

voluntary association with defining characteristics and principles

similar to large religious organizations. Petitioners did not deny

Mr. Dale a leadership position because he was a homosexual,

but because he openly advocated a homosexual lifestyle before

impressionable boys which was deemed contrary to Petitioners’

If the State is allowed to require a voluntary association

to suppress its viewpoints, moral or otherwise, in favor of the

State approved opinion du jour and to override a voluntary

association’s right to determine the content of its own speech,

there could be serious consequences for the religious freedom

of all religious institutions and associations. Any such State

“interests” are arguably neutral and of general applicability, and

would operate to require all religious institutions to abandon

their religious conscience in favor of the State approved speech.

An adverse ruling against Petitioners in this case could well

begin a movement down the long, slow road of abandoning,

slowly but surely, the freedom of religious organizations to

define themselves.

ARGUMENT

I. There is no essential difference between the Boy

Scouts of America and any large religious

denomination or organization.

People organize together for a variety of reasons,

including fraternal, charitable, and religious. This right of

association is an essential element of the fundamental freedoms

which form the bedrock of our constitutional compact.

“... [W]e have long understood as implicit in the

right to engage in activities protected by the

First Amendment a corresponding right to

associate with others in pursuit of a wide variety

of political, social, economic, educational,

religious, and cultural ends.” Roberts v. United

States Jaycees, 468 U.S. 609, 622, 104 S. Ct.

3244, 3252, 82 L.Ed. 2d 462 (1984)

Assuming, arguendo, that the Boy Scouts of America is

not a “religious” association, it has many associative and

organizational elements similar to religious organizations, as

demonstrated by the following:”

"For the “Generic Denomination,” counsel has adopted the

Episcopal Church as a model and has quoted from The Book of Common

as BCP. Because pronouncements of the Episcopal Church are, however,

contained throughout several sources, these quotations and the use of the

Episcopal Church as a model are illustrative only and are not intended to

represent the official position of the Episcopal Church toward any of the

matters presented.

Characteristic Boy Scouts of Generic Religious

Size Large Large

Organization National, with National, with

Council (Regional) | Diocesan

Supervising (Regional)

Structure, Local Supervising

Troops Structure, Local

Churches

Openness to Invites all, but Invites all, but

Public expects willingness expects

Participation to adhere to willingness to

standards adhere to

standards

Written Scout Oath, Scout Catechism,

Statements of | Law Nicene Creed and

Beliefs Apostles Creed

View Toward | “duty to God” made in God’s

God (Oath), as taught by | image, Father,

family and religious | creator; duty to

leaders (explanation) | God is to “believe

and trust in him”

(BCP 847)

Method of Lecture, discussion, | Lecture (sermon),

Teaching and demonstration discussion, and

by example demonstration by

example

represent and promote a particular viewpoint, way of thinking,

and approach to life.’

For associational purposes, therefore, there is little, if

anything, to separate the Boy Scouts of America from any large

religious group.

*Thus, it has been recognized that “[e]ven the training of outdoor

survival skills or participation in community service might become

expressive when the activity is intended to develop good morals, reverence,

patriotism, and a desire for self-improvement.” Roberts v. United States

Jaycees, 468 U.S. 609, 636, 104 S. Ct. 3244, 3259-60, 82 L.Ed. 2d 462

(1984) (O’Connor, J., concurring)

I. If New Jersey is allowed to require acceptance

and promotion of a particular viewpoint and to

override the Boy Scouts of America’s associa-

tional rights, it would have serious consequences |

for all religious institutions since the law being

applied is arguably neutral and of general

licability,

‘In Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595,

108 L.Ed. 2d 876 (1990), this Court held that the State could

enforce laws against religious institutions without regard to the

Free Exercise Clause if the laws were neutral and of general

applicability. Therefore, if a State passes a neutral law of

general applicability which challenges a religious institution’s

right to define itself in membership, leadership, or in public

proclamation of opinion, the religious institution cannot rely

upon the Free Exercise Clause but must, instead, rely upon its

rights under the First Amendment protecting its and its

members’ freedom of association. Without the protection of the

Free Exercise Clause and free speech associational rights,

religious organizations stand defenseless against such a

challenge.

No one has alleged (and no one could allege) that New

Jersey has passed a law regarding homosexuals which is speci-

fically targeted against the Boy Scouts of America. Instead,

Respondent attempts to enforce an anti-discrimination law

against Petitioners which is arguably a neutral law of general

applicability, applied in a manner to require Petitioners to

accept, permit, and, because of the context, participate in

promoting viewpoints to impressionable youth with which it

fundamentally disagrees. :

Ju-t as in the present case, most States will always

present their “interest” in a neutral fashion, not aimed

specifically at religious institutions. Without freedom of

association protection from such “neutral” laws, religious

institutions will be unshielded from the power of the State to

dictate the very language and concepts used by those institutions

to define themselves and their particular religious, moral, and

political perspectives.

Such attempts are already being made. An instructive

reported case in this regard is Hsu v. Roslyn Union Free School

District No. 3, 85 F.3d 839 (2nd Cir.), cert. den. 519 U.S. 1040,

117 S.Ct. 608, 136 L.Ed.2d 534 (1996). In this case, a student

Christian group attempted to form a Christian club at school. In

its proposed club constitution, the club stated that it would be

open to all people “regardless of race, color, age, religion, sex,

national origin, or physical handicap,” but that the meetings

would be gatherings of “Christians” and that elected officers

(the leadership) would have to be “professed Christians.” /d. at

pg. 849. The school insisted that the club’s constitution be

changed to delete the. word “Christian” and to remove any

requirements that the club officers profess any particular faith,

and then denied the club status when the club refused to make

the changes because the requirement that the club’s leadership

be “professed Christians” constituted a violation of the school’s

anti-discrimination regulations. /d. at pg. 850. The club was

subsequently granted permission to organize, but only on the

condition that it remove the requirement that officers be

Christian. /d. at pg. 851.

The District Court denied the club organizers’ requests

for relief, relying heavily upon Smith.‘ The District Court was

reversed on appeal by the Second Circuit, but not based upon

Free Exercise rights. Instead, the Court focused upon

associational free speech rights in the context of the Equal

Access Act. /d. at pgs. 856-859. Had it not been for the

influence of freedom of association, the State would have been

able to impose its own statement of values and constitution

_ upon the “Christian” club, applying its “neutral” regulation of

The Plaintiffs in Hsu are not alone. Amicus has

represented in just the last year a college religious student

association which was prohibited by a major university from

having a Statement of Faith signed by its members because such

a requirement allegedly violated the college’s neutral regulation

prohibiting discrimination besed upon religi

__ These two cases are but the tip of the iceberg, waiting to

emerge if associational liberties are further weakened. Once the

State is allowed to require a voluntary association to suppress

its viewpoints, moral or otherwise, in favor of the State’s

approved opinions and is allowed to override a voluntary

association’s right to determine the content of its own speech,

religious freedom of all religious institutions and associations is

in jeopardy.

Ultimately, this case is about freedom of conscience, a

concept crucial to religious liberty. Freedom of conscience is

“876 F.Supp. 445, 462 (E.D.N.Y. 1995)

powerful. It is in fact a major reason for the existence of our

religion clauses.

Removing associational protection from a religious

landscape which already has no protection from neutral and

generally applicable laws would be a mistake. Religious

institutions would be forced to choose between following the

State or their religious conscience, their God or their

government. Historically, upon such choices have governments

fallen.

The better approach is to respect freedom of conscience

and allow a diversity of private groups, including religious

groups, to flourish without State interference. Upon this

fundamental freedom has this country risen to become a beacon

for the worid.

CONCLUSION

For the foregoing reasons, as well as those set forth in

the Brief of Petitioners, the decision below should be reversed.

Respectfully submitted,