Amicus Curiae Brief — Boy Scouts of America v. Dale

£5 | Supramefoat ue

No. 99-699 57) [Spans oS

MAR 22 O° !

IN THE |

Supreme Court of the Untted States.

at

BOY SCOUTS OF AMERICA and MONMOUTH COUNCIL,

BOY SCOUTS OF AMERICA,

Petitioners,

a, we

at ani v Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

BRIEF OF THE STATE OF NEW YORK, ET AL..,

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

ELIOT SPITZER

Attorney General of the

State of New York

Preeta D. Bansal

Solicitor General

Counsel of Record

Adam L. Aronson

Assistant Solicitor General

120 Broadway, 25th Floor

New York, New York 10271

(212) 416-8016

Attorneys for the

State of New York

(Counsel continued on inside cover)

“BEST AVAILABLE COPY§

HON. BILL LOCKYER

Attorney General of California

1300 I Street, Suite 1730

Sacramento, California 95814

HON. EARL I. ANZAI

Attorney General of Hawaii

426 Queen Street

Honolulu, Hawaii 96813

HON. J. JOSEPH CURRAN, JR.

Attorney General of Maryland

200 St. Paul Place

Baltimore,: Maryland 21202

HON. THOMAS F. REILLY

Attorney General of Massachusetts

One Ashburton Place

Boston, Massachusetts 02108

HON. PHILIP T. MCLAUGHLIN

Attorney General of New Hampshire

33 Capitol Street

Concord, New Hampshire 03301

HON. W.A. DREW EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Boulevard, Suite 112

Oklahoma City, Oklahoma 73105

HON. HARDY MYERS

Attorney General of Oregon

1162 Court Street NE

Salem, Oregon 97310

HON. WILLIAM H. SORRELL

Attorney General of Vermont

109 State Street

Montpelier, Vermont 05609

HON. CHRISTINE O. GREGOIRE

Attorney General of Washington

1125 Washington Street

P.O. Box 40100

Olympia, Washington 98504

BEST AVAILABLE COPY”

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ........-ccccccccees ill

INTEREST OF AMICI CURIAE ................. 1

SUMMARY OF ARGUMENT ................... 2

UT ceeds eeseees ceed cccecoecécecs 4

I. APPLICATION OF STATE LAW DOES NOT

VIOLATE BSA’S FIRST AMENDMENT

jj Uti eheeethebecebeceboocccecs<

A. BSA’s Discrimination

Is Not Protected By

The First Amendment ............

B. States Should Retain Their

Sovereignty To Determine

The Scope Of Their Compelling

Anti-Discrimination Interests .......

Il. THE STATES HAVE COMPELLING

INTERESTS IN PROHIBITING ILLEGAL

DISCRIMINATION BY ORGANIZATIONS

DEEPLY ENTWINED WITH

DT Sicgebeeccedeseccccccces

A. An Organization With Extensive

Government Entanglements Is Not

Entitled To Special First Amendment

''! aagabegetiesetoede cs

12

Limited To Commercial

SEED cua ccdbecceecsecen 18

Ill. HURLEY DOES NOT UNDERMINE

THE APPLICATION OF STATE

ANTI-DISCRIMINATION LAW TO

OPEN MEMBERSHIP ORGANIZATIONS .... 21

A. As A Pure Expression Case,

Hurley Has No

Bearing On This Case ........... 21

B This Court’s Separate Pure

Expression and Free

Association Doctrines

Should Not Be Merged ........... 24

IV. UNDER PRINCIPLES OF STARE DECISIS,

THIS COURT’S PRECEDENT SHOULD NOT

PGCE coc cnseccecsecccossse 25

GED cccovsncccescnbesvodecsesens 29

TABLE OF AUTHORITIES

CASES PAGE

Baehr v. Miike, 1999 Haw. LEXIS 391

(Case No. 20371) (Ha. 1999)................... 9

Barnes v. Glen Theater, Inc.,

ee Oe CE Nace cn os é0646068% 0066 11-12

Ben-Shalom v. Marsh,

881 F.2d 454 (7th Cir. 1989),

cert. denied, 494 U.S. 1004 (1990) .............. G

Bob Jones University v. United States,

— 2 & TTT LTT ELT TTT eT 4, 16

Board of Directors of Rotary Int'l v.

Rotary Club of Duarte,

481 U.S. 537 (1987) ......... 5, 7, 8, 10, 18, 19, 23

Braunfeld v. Brown,

A ED knock dbsadactesaneseeues 11

City of Cleburne v. Cleburne Living Center, Inc.,

Se ES occeddsevesceeedséccenes 10

Concord Rod & Gun Club, Inc. v.

Mi - raf eer eer a

402 Mass. 716, 524 N.E.2d 1364 (1988) ........ 19

County of Allegheny v. American Civil Liberties Union,

— . fs ee . 28

Cox v. New Hampshire,

BE Bs Ge ED hc cc cccecccccasecccssscn 11

Crawford v. Board of Ed. of Los Angeles,

GE as GT GE ¢ cece cosets ecncecsesesecs 11

Curran v. Mount Diablo Council

of the Boy Scouts of America,

17 Cal. 4th 670, 952 P.2d 218 (1998) ........... 13

Dale v. Boy Scouts of America,

160 N.J. 562, 734 A.2d 1196 (1999)......... passim .

Elks Lodges 19 & 2021 v. Alcohol Beverage Control,

276 Utah Adv. Rep. 8, 905 P.2d 1189 (1995),

cert. denied, 517 U.S. 1221 (1996) ............. 26

Frank v. Ivy Club,

120 N.J. 73, 576 A.2d 241 (1990) ............. 19

Frontiero v. Richardson,

Ge ee ee GE boc ctedcccdetdbecaneeus 25

Gilmore v. City of Montgomery,

Gay Gk SE 6b SEW ee bbs sb eoecdens 16, 24-25

Heckler v. Mathews,

Gs CED hc cédcdecusceeesééaeeceun 25

High Tech Gays v. Defense Industrial Security

Clearance Office, 895 F.2d 563 (9th Cir. 1990) ..... a

Hurley v. Irish-American

Gay, Lesbian & Bisexual Group of Boston, Inc.,

515 U.S. 557 (1995) ........... 3, 21, 22, 23, 25, 27

iv

Invisible Empire of the Knights of the Ku Klux Klan

v. Mayor, 700 F. Supp. 281 (D. Md. 1988) ....... 27

Isbister v. Boys’ Club of Santa Cruz, Inc.,

40 Cal.3d 72, 707 P.2d 212 (1985) ............. 19

Louisiana Debating and Literary Ass’n v.

City of New Orleans, 42 F.3d 1483 (Sth Cir. 1995) . 26

McCloud v. Testa,

97 F.3d 1S36 (6th Cir. 1996) .... 2... cece eee. 26

Mississippi for Women v. Hogan,

Cs PE oc eee edeoeeeeeueeeeseea 25

Mitchell v. United States,

es Sah ocd dn ekeekedecawees 28

National Org. for Women v.

Little League Baseball, Inc.,

127 N.J. Super. 522, 318 A.2d 33 (App. Div.),

aff'd, 67 N.J. 320, 338 A.2d 198 (1974) ......... 20

New York State Club Ass’n v. New York City,

Ty wah PT. suncacceseacoseuseens 5, 10, 22

Norwood v. Harrison,

Se SED a o Ue ew eee eee ecébeccoees 23

Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992) ... 26, 27

Prince v. Massachusetts,

i Cn <. -tesedeguaasneesennes 1l

Roberts v. United States Jaycees,

Se a PEED o co ccbsbcvcoccdeuceens passim

Vv

Romer v. Evans,

DEP We, Ga Gans cece ccc ecececncesetes 9

Runyon v. ,

427 U.S. 160 (1976) ............ 4, 8, 18-19, 23, 28

State v. Burning Tree Club, Inc.,

315 Md. 254, 554 A.2d 366,

cert. denied, 493 U.S. 816 (1989) .............. 26

U.S. Power Squadrons v.

State Human Rights Appeal Board,

59 N.Y.2d 401, 452 N.E.2d 1199 (1983) ....... 19-20

United States v. O’Brien,

BS WA, Se GRD ccceccccsceeses ee (pret 12

STATUTES

Bie, Gate BSGGas 2c cctccncccvecececccees 15

Ark. Code Ann. § 26-52-401 .............0055. 15

Ark. Code Ann. § 26-52-1004 .............55.. 15

Cal. Educ. Code 8 SBIS4 2... cc cece ccc cccnes 15

Cal. Educ. Codie 8 S254 .. wc cece eee cccces 15

Cal. Rev. & Tax Code § 6361 ............25055- 15

Fla. Stat. Ann. § 320.08058 ..............46.- 15

Ind. Code Ann. § 6-1.1-10-25 ........5..55005- 15

Ind. Code Ann. § 9-18-37-5 2... ..... 2c eee ees 15

Kan. Stat. Ann. § 19-2696 .............55008 15

La. Rev. Stat. Ann., tit. 48,§ 971 .............. 15

La. Rev. Stat. Ann., tit. 48,§999 .............. 15

Md. Code Ann. Tax-Prop. § 7-233 ............. 15

Mich. Comp. Laws § 211.7q...........0.e000. 15

Ohio Rev. Code Ann. § 4501.41 ............... 15

Ohio Rev. Code Ann. § 4501.71 ............... 15

Okla. Stat. Ann., tit. 63,§ 4106 ............... 15

Okla. Stat. Ann., tit. 68,§ 1356 ............... 15

Tex. Parks & Wild. Code Ann. § 68.082 ......... 15

Va. Code Ann. § 58.1-3609 .................. 15

Va. Code Ann. § 58.1-3614 .................. 15

ae ee 15

OTHER AUTHORITIES

1990 Boy Scouts of America Annual Report,

submitted to the United States

House of Representatives .................... 14

Http: //www.bsa.scouting.org ................ 17

Larry A. Taylor, How Your Tax Dollars

Support the Boy Scouts of America,

SS The Humanist No. 5 (Sept-Oct 1995)......... 14

vii

The State of New York, joined by the states of

California, Hawaii, Maryland, Massachusetts, New

Hampshire, Oklahoma, Oregon, Vermont and

Washington, respectfully submits this brief in support of

respondent James Dale. Amici states urge affirmance of

the New Jersey Supreme Court’s unanimous judgment

that application of the New Jersey Law Against

Discrimination does not violate petitioner Boy Scouts of

America’s First Amendment free association rights.

INTEREST OF AMICI CURIAE

Equality of opportunity for all people to

participate, benefit and contribute as full members of

society, regardless of race, gender, religion or other

applicable criteria, is a value of utmost importance to

amici states. State anti-discrimination laws promote this

vital state interest, thereby protecting not only citizens’

privileges and rights, but the foundation of a free

democratic society, its institutions, and the peace, safety

and general welfare of the states and their inhabitants.

Amici remain firmly committed to ending invidious

discrimination by requiring full compliance with their

state anti-discrimination laws. Reversal of the decision

below would severely hamper the states in the

attainment of such goals by carving out a broad,

unprecedented exemption to generally applicable anti-

discrimination laws with respect to all invidious

distinctions sought to be eradicated by the people of a

state.

Because petitioner actively promotes and publicly

touts its close ties with both state and local government

agencies throughout the country, moreover, the states’

interest in this case is deeper than in any of this Court’s

l

prior free association membership cases. Allowing

petitioner to invoke an unprecedented and overbroad

“First Amendment exemption” would make state and

local governments unwilling accomplices in

discrimination prohibited by their own laws. The

fundamental legal and constitutional issues would be

identical if petitioner were expelling its members on the

basis of race, religion, national origin, or various other

invidiously discriminatory grounds prohibited by all amici

states’ laws. The decision that the Court renders in this

case, therefore, will determine whether states retain their

sovereignty to pass, implement and enforce laws that

they determine are necessary to protect their citizens’

equality of opportunity and personal dignity.

SUMMARY OF ARGUMENT

Under this Court’s free association precedent

involving membership organizations, BSA’s

discrimination cannot be immune from state anti-

discrimination law because it does not promote BSA’s

true expressive purposes or any views that “brought

[BSA’s members] together.” Petitioner argues that the

courts should not analyze an organization’s expressive

purposes but rather must blindly accept its bald

statement of its expressive purposes in litigation, no

matter how contrary to the record. In addition to finding

no support in the case law, petitioner’s argument would

eviscerate state anti-discrimination law by providing a

license for otherwise illegal discrimination.

Even if BSA’s discrimination did further an

expressive purpose of the organization, New Jersey’s

compelling interests in eliminating discrimination

substantially outweigh the incidental abridgement of

2

BSA's free association rights. Under settled principles of

state sovereignty, a state may determine that its

compelling interests in fighting discrimination extend

beyond what is required by the Federal Constitution, as

long as the state law is not aimed at the suppression of

ideas, and requires no more than is necessary for

furtherance of the state’s compelling interests. New

Jersey’s anti-discrimination law satisfies both

requirements.

BSA’s deep entwinement with state and local

government agencies strengthens the states’ compelling

interests in this case, and weakens BSA’s claim to a

special exemption from state anti-discrimination laws.

State statutes extend special access, tax exemptions and

other benefits to BSA. The organization trumpets its ties

to government in its recruiting efforts. Even if this Court

were to adopt a free association analysis that, contrary to

its precedent, examines only the nature of the

organization, therefore, BSA’s unusual and extensive ties

to government make a special exemption from that

government’s law more inappropriate in this case than in

any of this Court’s prior membership cases.

Petitioner erroneously contends that under Hurley

v. Irish-American Gay, Lesbian and Bisexual Group, 515

U.S. 557 (1995), an organization’s specific expressive

purposes are not “legally relevant” in determining

whether its discrimination is protected by the First

Amendment. Hurley involved direct infringement on pure

expression, not the free association interest of a

membership organization. This Court’s free association

membership cases have consistently required the

balancing of three factors that are generally not present

in pure expression cases: the burden on an

organization’s particular expressive purposes, the equal

3

access rights of individuals, and the state’s compelling

interests in eliminating discrimination. Petitioner would

have this Court ignore all of these factors and abandon

its free association jurisprudence.

This case provides no basis for departing from this

Court’s settled free association precedent. For decades,

that precedent has been embraced and easily applied by

both state and federal lower courts. The states have

relied on it in the drafting, implementation and

enforcement of their anti-discrimination laws.

Individuals have relied on it to protect their equal

opportunity and personal dignity. Organizations’

memberships have relied on it to protect their First

Amendment free association rights. No contrary law has

evolved, nor has discrimination been eliminated so as to

warrant any change in this Court’s free association

jurisprudence.

ARGUMENT

I. APPLICATION OF STATE LAW DOES NOT

VIOLATE BSA’S FIRST AMENDMENT RIGHTS _

Under this Court’s free association precedent

involving membership organizations (the “membership

precedent”),! a private organization with expressive

purposes may not discriminate in violation of state or

\Petitioner refers to three of the membership cases as “the Roberts

trilogy.” As discussed below, numerous other decisions by this

Court, including Bob Jones University v. United States, 461 U.S. 574

(1983), and Runyon v. McCrary, 427 U.S. 160 (1976), also provide

guidance on resolving the tension between the First Amendment and

invidious discrimination by private organizations. Amici states refer

to these cases collectively as the Court’s “membership precedent.”

4

federal law, unless it can “show that it is organized for

specific expressive purposes and that it will not be able to

advocate its desired viewpoints nearly as effectively if it

cannot confine its membership.” New York State Club

Ass'n v. New York City, 487 U.S. 1, 13 (1988) (emphasis

added); see also Board of Directors of Rotary Int'l v. Rotary

Club of Duarte, 481 U.S. 537, 548 (1987) (although

Rotary Clubs engage in activities protected by First

Amendment, admitting women would not interfere with

organization’s specific expressive purposes); Roberts v.

United States Jaycees, 468 U.S. 609, 626 (1984)

(compelling Jaycees to accept women as members did not

infringe expressive association rights even though “a ‘not

insubstantial part’ of the Jaycees’ activities constitutes

protected expression”). Application of anti-discrimination

law interferes with an “expressive purpose” only if it

“impair(s] the ability of the original members to express

only those views that brought them together.” Roberts,

468 U.S. at 623 (emphasis added).

In this case, the application of New Jersey’s anti-

discrimination law does not interfere with any of BSA’s

expressive purposes. Even if it did, BSA’s First

Amendment challenge would fail, because compelling

State interests in eliminating discrimination substantially

outweigh any incidental abridgement of BSA’s expressive

purposes.

A. | BSA’s Discrimination Is Not Protected

The Fi e t

hak Given BSA’s policy statements inconsistent with

discrimination, concessions that such discrimination is

morally offensive to a substantial portion of its

membership, and entanglement with government that

opposes its discrimination,’ petitioner’s litigation

contention that discrimination is necessary to one of its

expressive purposes lacks credibility. As in Roberts,

Dale’s membership in BSA “requires no change in the

[organization’s] creed of promoting the interests of young

men, and it imposes no restrictions on the organization’s

ability to exclude individuals with ideologies or

philosophies different from those of its existing

members.” 468 U.S. at 627. Thus, as in Roberts,

petitioner’s attempt to use the First Amendment to

justify its discrimination should be rejected.

While acknowledging that “it does not have an

‘anti-gay’ policy,” Pet. Br. at 6, petitioner contends that

the courts must accept. its litigation-based

“interpretation” of the words “clean” and “morally

straight” to require exclusion of gay people, because “/t/he

very argument that the government may impose its own

interpretation on an organization’s moral message raises

First Amendment concerns of the highest order.” Pet. Br.

at 25-26 (emphasis in original).

The essence of petitioner’s argument is that a

2See Dale v. Boy Scouts of America, 160 N.J. 562, 609, 734 A.2d

1196 (1999) (BSA has long maintained an expressly inclusive policy,

stating that “any boy” is welcome); id. at 612, 615 (“Boy Scouts

inchades sponsors and members who subscribe to different views in

respect of homosexuality”); Petitioner’s Brief (“Pet. Br.”) at 26 n. 7 &

Petitioner's Reply on Petition for Certiorari (“Reply Pet. Cert.”) at 8 &

sponsors view petitioner’s discrimination, not homosexuality, as

epensem view pattienate dientninstion That petitioner has not

expelled the tens of thousands of BSA members who belong to faiths

that oppose its discrimination further demonstrates that its position

in this litigation does not promote an expressive purpose, but is a

6

party’s litigation stance as to its expressive purposes,

even if otherwise unsupported by the record, is entitled

to unconditional judicial deference. Yet courts can and

do make factual determinations that are contrary to a

party’s claims. Indeed, petitioner’s insistence that this

Court has always blindly “accepted . . . groups’

characterizations of their views” in litigation is erroneous.

See Reply Pet. Cert. at 2. In Rotary Club, for example,

Rotary International’s Constitution expressly excluded

women as members. 481 U.S. at 541. Similarly, the

General Secretary of Rotary International “testified that

the exclusion of women results in an ‘aspect of

fellowship . . . that is enjoyed by the present male

membership,” and that the policy was necessary to

“operate effectively in foreign countries with varied

cultures and social mores.” Id. Yet this Court concluded

that “the evidence failfed] to demonstrate that admitting

women to Rotary Clubs will affect in any significant way

the existing members’ ability to carry out their various

purposes.” Id. at 548; see also Roberts, 468 U.S. at 627-

28 (rejecting Jaycees’ express all-male policy and

assertion that admitting women would interfere with

Jaycees’ public positions on political issues).

Moreover, petitioner’s argument that the courts

must blindly accept an organization’s litigation stance as

to its expressive purposes would eviscerate all states’

anti-discrimination laws. Under petitioner’s theory, any

organization engaging in invidious discrimination could

simply assert in litigation (as petitioner has) that its

stated purposes, on their face irrelevant to illegal

discrimination, implicitly require it. If “morally straight”

and “clean” suffice to immunize otherwise illegal

discrimination, so must every description of positive

character traits, such as “ethical,” “proper,” “worthy” and

7

“respectable.” Nor could there be any limit as to the

kinds of discrimination that would become permissible

under this framework. An organization’s “interpretation”

of “worthy” to exclude people of certain races, religions or

national origins would not be subject to judicial

assessment. Both state and federal anti-discrimination

law would become widely unenforceable, thereby undoing

decades of this Court’s membership precedent. See, e.g.,

Runyon v. McCrary, 427 U.S. 160, 175-76 (1976)

(rejecting racially discriminatory private schools’ free

association challenge to enforcement of federal civil

rights statute).’

B. States Should Retain Their Sovereignty To

Determine The Scope Of Their Compelling

Anti-Discrimination I

Even if application of New Jersey’s law does

abridge BSA’s free association rights, the compelling

state interests served by a law such as New Jersey's

*Petitioner also argues that New Jersey law infringes its right of

intimate association. Pet. Br. at 39-44. The intimate relationships

to which this Court has accorded such protection -- marriage,

begetting and bearing children, child rearing and education, and

cohabitation with relatives -- provide no support for petitioner’s

intimate association claim. See Rotary, 481 U.S. at 545. Further,

each of the factors that this Court considers in determining whether

an association is “sufficiently personal or private to warrant

constitutional protection,” id. at 546, weighs against petitioner’s

claimed right: BSA is large, nonselective, has an inclusive rather than

exclusive purpose, and invites nonmembers to attend meetings. See

160 N.J. at 608-09. Petitioner’s intimate association claim is further

contradicted by its extensive ties with government agencies across

the country, which sponsor and “own” tens of thousands of

petitioner’s troops and units, as well as by its affiliations with the

federal government. See infra, Point II.A.

justify its application. Several amici submitting briefs in

support of petitioner have argued that New Jersey cannot

have compelling interests in eliminating sexual

orientation discrimination because it is not entitled to

heightened scrutiny under the Federal Constitution. See

Brief of American Center for Law and Justice et al. at 21-

23; Brief of the Public Advocate of the United States et al.

at 23. Whether or not sexual orientation is a

classification that should be entitled to heightened

scrutiny,‘ petitioner’s amici miss the point. Under

settled principles of state sovereignty, states may have

compelling interests in providing greater protection for

their citizens than the Federal Constitution requires.

“Contrary to arguments by petitioner’s amici, the question remains

unsettled for purposes of federal law. In Romer v. Evans, 517 U.S.

620, 632 (1996), it was not necessary for this Court to decide

whether sexual orientation discrimination should be entitled to

heightened scrutiny because Colorado’s Amendment 2 failed rational

basis scrutiny. Even courts that have declined to apply heightened

scrutiny have recognized that gay people “have suffered a history of

discrimination.” See, e.g., High Tech Gays v. Defense Industrial

Security Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990); Ben-

Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989), cert. denied, 494

U.S. 1004 (1990); cf Romer, 517 U.S. at 627 (But for this Court’s

application of the Equa! Protection Clause to strike down Amendment

2, Colorado’s voters would have “withdraw/(n] from homosexuals, but

no others, specific legal protection from the injuries caused by

suggested that sexual orientation may be entitled to strict scrutiny

under that State’s Constitution. See Baehr v. Miike, 1999 Haw.

LEXIS 391, at *S n.1 (Case No. 20371) (Ha. 1999). In any event,

amici states need not take a position on the constitutional suspect

class status of gay people because, as discussed below, the Federal

Constitution does not establish an upper limit on state compelling

interests.

9

In consistently holding that anti-discrimination

laws serve “compelling state interests of the highest

order” in “eliminating discrimination and assuring [the

states’ citizens equal access,” this Court has made clear

that states may define the scope of their “compelling

interests,” an long as they do co through neutral laws of

eral applicability, “unrelated to the suppression

ican.” and the incidental restriction on alleged First

Amendment freedoms is no greater than is essential to

the furtherance of those interests. See, e.g., New York

State Club, 487 U.S. at 13 (upholding law that “prevents

an association from using race, sex and other specified

characteristics as shorthand measures in place of what

the city considers to be more legitimate criteria for

determining membership”) (emphasis added); Rotary, 481

U.S. at 549 (public accommodations laws, which protect

classes beyond those protected by Federal constitutional

heightened scrutiny, “plainly serv(e] compelling state

interests of the highest order”).

In Roberts, this Court noted that “many

states... . ha[ve] progressively broadened the scope of

[their] public accommodations law(s] in the years since

[they were] first enacted, both with respect to the number

and type of covered facilities and with respect to the

groups against whom discrimination is forbidden.” 468

U.S. at 624 (emphasis added). Indeed, the state law

upheld in Roberts included disability, which is not

entitled to heightened scrutiny under the Federal

Constitution. See 468 U.S. at 615; City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 440-41 (1985)

(classifications based on physical and mental disability

not entitled to heightened constitutional scrutiny). This

Court nonetheless held that Minnesota’s law promoted

the state’s “compelling interests” in eliminating

10

discrimination.

This Court’s analysis of “compelling state

interests” in the membership cases is consistent with its

longstanding precedent as well as with principles of state

sovereignty. In defining the scope of their anti-

discrimination laws, and of their “compelling interests,”

the states may go beyond what is required by federal or

constitutional law. See Crawford v. Board of Ed. of Los

Angeles, 458 U.S. 527, 542 (1982) (states may go beyond

the requirements of the Federal Constitution in their

anti-discrimination laws). Indeed, this Court has

specifically held that state interests not identified in the

Federal Constitution may nevertheless be sufficiently

important to outweigh incidental infringements on First

Amendment rights. See Braunfeld v. Brown, 366 U.S.

599, 602-03 (1961) (plurality opinion), and 366 U.S. at

461-62 (cross-referenced concurring _ opinion)

(Pennsylvania’s interests in improving health, safety,

morals and general well-being of citizens justify Sunday

closing laws despite indirect burden on exercise of

religion); Prince v. Massachusetts, 321 U.S. 158, 168

(1944) (state statute prohibiting sale of literature by

minors, designed to reach crippling effects of child

employment, upheld despite infringement on Jehovah’s

Witnesses free exercise of religion); Cox v. New

Hampshire, 312 U.S. 569, 574 (1941) (“Where a [state]

restriction . . . is designed to promote the public

convenience in the interest of all, it cannot be

disregarded by the attempted exercise of some civil right

which in other circumstances would be entitled to

protection”).

While this Court has consistently held that state

anti-discrimination laws promote “compelling state

interests,” in this case, at most an “important or

11

substantial” state interest is necessary to outweigh any

“incidental abridgement” of BSA’s free association rights

(which, as discussed above, were not abridged at all).

Barnes v. Glen Theater, Inc., 501 U.S. 560, 567, 582, 588-

90 (1991) (plurality, concurring and dissenting opinions,

with eight members of the Court agreeing upon proper

standard); United States v. O’Brien, 391 U.S. 367, 376-77

(1968). The New Jersey Supreme Court’s holding that

the State’s compelling interests in eliminating

discrimination outweigh the incidental abridgement of

petitioner’s associational rights, if any, is therefore firmly

rooted in this Court’s precedent.

Il. THE STATES HAVE COMPELLING INTERESTS IN

PROHIBITING ILLEGAL DISCRIMINATION BY

ORGANIZATIONS DEEPLY ENTWINED WITH

GOVERNMENT

The states’ sovereignty in determining the scope of

their compelling interests in eliminating illegal

discrimination must extend at least as far as an

organization such as BSA, which actively promotes and

touts its extensive government entanglements, including

sponsorships (i.e., ownership) of troops by government

agencies and a vast array of government-provided

‘Under Justice Scalia’s concurring opinion in Barnes, the

application of New Jersey’s anti-discrimination law in this case

should not be subject to any heightened First Amendment scrutiny

because it is a “general law regulating conduct,” in this case

discrimination, “and not specifically directed at expression.” 501

U.S. at 572 ; see also Roberts, 468 U.S. at 628 (indicating that a

“legitimate state interest” might have sufficed to uphold Minnesota's

law).

12

benefits and privileges.’ Ignoring its deep entwinement

with government, however, petitioner relies in part on

Justice O’Connor’s concurring opinion in Roberts to

contend that, as a non-commercial, nonprofit

membership organization, it is entitled to a special

exemption from the application of state anti-

discrimination laws. See Pet. Br. at 34-35. Of all

organizations, BSA’s strong ties to government make it

one of the least deserving of any such special exemption.

Indeed, while Justice O’Connor’s Roberts analysis

examines the nature of the organization, rather than its

specific expressive purposes, to determine whether it is

entitled to First Amendment protection, see 468 U.S. at

633 (O’Connor, J., concurring in the judgment), she

expressly noted that she was proposing a different

analysis from the one adopted by the Court, see id. at

632. Even under a logical extension of the analysis in

that opinion, petitioner should not be entitled to evade

state anti-discrimination law.

*Amici states do not contend that all state anti-discrimination laws

must be applicable to BSA, but that states should retain sovereignty

to determine whether their laws do extend so far. Thus, the

California Supreme Court’s decision in Curran v. Mount Diablo Council

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

holding that BSA is not a “business establishment” subject to

California's Unruh Civil Rights Act, does not represent a conflict with

the New Jersey Supreme Court’s decision in this case, but an

example of the different reach of different states’ anti-discrimination

laws that contain very different language.

13

A. An Organization With Extensive

Government Entanglements Is Not Entitled

BSA’s extensive government affiliations

distinguish it from the vast majority of organizations. As

of 1993, over 22,000 Scouting units nationwide,

approximately one in six, and over 7,000 of the highly

prestigious “Explorer Units,” approximately one in three,

were sponsored by state and local government agencies.

See Larry A. Taylor, How Your Tax Dollars Support the

Boy Scouts of America, 55 The Humanist No. 5 at 3-4

(Sept-Oct 1995).’ Each sponsor actually “owns” its local

troop. Jd. at 1. BSA describes the relationship as similar

to “franchising”: “local ownership while still using the

corporation name and resources.” Id. at 2 (citing BSA

literature).

State laws throughout the country, moreover,

confer special benefits on BSA, including numerous tax

exemptions, free use of and special access to state

property, and use of school facilities, among many other

7Because government-sponsored units tend to be substantially

larger than those sponsored by other institutions, these “unit-based”

statistics understate government involvement in BSA. In 1990, the

year that BSA expelled Dale, for example, public schools alone

sponsored more than 25 percent of the youth members nationwide,

more than any other single institution, and more than three times as

many as the second largest sponsor, the Mormon Church. See 1990

Boy Scouts of America Annual Report, submitted to the United States

House of Representatives, at 8, 16.

14

privileges.' State statutes also authorize direct financial

support to BSA funded through, for example, specialty

license plate programs.’ The New Jersey Supreme

Court’s opinion detailed other links that BSA has to not

only state and local governments, but the federal

government as well, including the military. See 160 N.J.

at 591-94.

“An association must choose its market.” Roberts,

468 U.S. at 636 (O’Connor, J., concurring in the

judgment). Petitioner has chosen to actively promote

close affiliations with and sponsorships from government

agencies, and proudly “markets” those unique

*See, e.g., Ark. Code Ann. §§ 26-52-401, 26-52-1004 (exemption

from tax on sale and rental of all tangible personal property and

services); Cal. Educ. Code §§ 38134, 82542 (use of facilities and

grounds of elementary and secondary schools and community

colleges); Cal. Rev. & Tax Code § 6361 (exemption from retailer tax for

sale of food, beverage and other products); Ind. Code Ann. § 6-1.1-

10-25 (exemption from property tax); Kan. Stat. Ann. § 19-2696

(special agreements for use of public lands); Md. Code Ann. Tax-Prop.

§ 7-233 (exemption from property tax); La. Rev. Stat. Ann., tit. 48, §§

971, 999 (free passage over toll bridges and ferries); Mich. Comp.

Laws § 211.7q (exemption from property tax); N.J.S.A. 23:2-3

(authorizes Division of Fish, Game and Wildlife to “stock with fish any

body of water in this state that is under the control of and for the use

of ... Boy Scouts”); N.J.S.A. 39:3-27 (exemption from motor vehicle

registration fees); Okla. Stat. Ann., tit. 63, § 4106, tit. 68, § 1356

(exemptions from sales and excise taxes); Tex. Parks & Wild. Code

Ann. § 68.082 (special permission to possess and shoot firearms on

state lands); Va. Code Ann. §§ 58.1-3609, 58.1-3614 (exemption from

property tax); Wis. Stat. Ann. § 70.11 (exemption from property tax).

*See, e.g., Ala. Code § 32-6-511; Fla. Stat. Ann. § 320.08058; Ind.

Code Ann. § 9-18-37-5; Ohio Rev. Code Ann. §§ 4501.41, 4501.71;

V.I. Code Ann. tit. 17, § 362.

15

advantages in recruiting and public relations materials.

See 160 N.J. at 592-94. An organization so entangled

with government should not be entitled to a First

Amendment exemption from that government’s generally

applicable anti-discrimination laws, even if the

organization is not a “state actor,” and even if its

discrimination arises out of “sincerely held beliefs.” Cf.

Bob Jones University v. United States, 461 U.S. 574, 602-

04 (1983) (upholding, against First Amendment free

exercise challenge, revocation of tax-exempt status to a

religious school “that engage[{d] in racial discrimination

- on the basis of sincerely held religious beliefs”); Gilmore

v. City of Montgomery, 417 U.S. 556, 573 (1974)

(discrimination is prohibited if there is “significant state

involvement in the private discrimination alleged”). To

hold otherwise would put state and local governments in

the untenable position of condoning and facilitating the

violation of their own laws and “compelling interests.”

Thus, if this Court were to follow the approach in Justice

O’Connor’s Roberts concurrence, examining the nature

of the organization rather than its specific expressive

purposes, the judgment of the court below should still be

affirmed.

Respondent should also prevail under Justice

O’Connor’s approach because BSA does not exist

primarily for “expressive” purposes. See 468 U.S. at 638.

The Jaycees, for example, did engage in “protected

expressive activities,” but because it was “first and

although Bob Jones did not result in the mandatory termination

of a racially exclusionary policy (indeed, no party was seeking such

relief), it demonstrates that even an institution with genuine

expressive purposes justifying its discrimination may not engage in

that discrimination if, like BSA, it receives government benefits.

16

foremost” a nonexpressive organization, Justice

O’Connor concluded that its First Amendment challenge

should be rejected. Id. at 639.

Like the Jaycees, BSA “is not a political party, or

even primarily a political pressure group.” Id.

Petitioner’s Internet web site describes the organization’s

“purpose” as “provid{ing] an educational program for boys

and young adults to build character, to train in the

responsibilities of participating citizenship, and to

develop personal fitness.” Http: / /www.bsa.scouting.org;

see also 160 N.J. 593-94 (discussing petitioner’s

“educational and recreational nature,” and its special

access to military facilities for Scouting shows, meetings

and training activities).

Like the Jaycees and the Rotary Club, BSA does

have some expressive characteristics, but its activity is

not “predominantly” protected expression. See 468 U.S.

at 636. Because BSA “first and foremost” provides boys

with unique opportunities for practical learning, physical

fitness, and personal development, it is a nonexpressive

organization, and its First Amendment challenge should

be rejected under the analysis in Justice O’Connor’s

Roberts opinion. See id. at 639. At a minimum,

considering both its extensive government entanglements

and its predominant nonexpressive purposes, BSA

should not be entitled to a special exemption from the

application of state anti-discrimination laws.

17

B. The Application Of State Anti-

Discrimination Laws Should Not Be

Petitioner reads Justice O’Connor’s concurring

opinion in Roberts to suggest that only “commercial”

organizations should be subject to the full enforcement

of anti-discrimination laws. See Pet. Br. at 34-35.

Justice O’Connor did rely on the commercial aspects of

the Jaycees to find that application of Minnesota’s anti-

discrimination laws to the association should not violate

the First Amendment. 468 U.S. at 639. The opinion did

not conclude, however, that commercial organizations

alone should be subject to the full enforcement of anti-

discrimination laws. Petitioner’s misreading of Justice

O’Connor’s opinion, moreover, contradicts this Court’s

settled precedent without promoting any genuine First

Amendment purpose, and would defeat the fundamental

purposes of state anti-discrimination law: protection of

“equal access” and “personal dignity.” Id. at 625.

This Court has expressly upheld the application of

state and federal anti-discrimination law over First

Amendment challenges by non-commercial membership

organizations that hold themselves out to broad sectors

of the public. See Rotary, 481 U.S. at 539 (nonprofit

corporation dedicated to “provid{ing] humanitarian

service, encouragling] high ethical standards in all

vocations, and helpfing to] build goodwill and peace in

the world”); Roberts, 468 U.S. at 612-13 (nonprofit

membership corporation that promoted “a spirit of

genuine Americanism and civic interest, . . . personal

development and achievement and an avenue for

intelligent participation by young men in the affairs of

their community, state and nation”); Runyon v. McCrary,

18

427 U.S. 160, 164 (1976) (“nonprofit association

composed of six state private school associations,

- . . represent[ing] 395 private schools.”).

BSA bears striking resemblances to the

institutions that this Court found unprotected by the

First Amendment in Rotary, Roberts, and Runyon: BSA is

a nonprofit membership organization seeking “to

promote, through organization, and cooperation with

other agencies, the ability of boys to do things for

themselves and others, to train them in Scoutcraft, and

to teach them patriotism, courage, self-reliance, and

kindred virtues.” See 160 N.J. at 573. BSA substantially

differs from the organizations in this Court’s membership

precedent only in that BSA has extensive state and local

government entanglements -- ties that further undermine

BSA’s claim to First Amendment protection. To find

special First Amendment protection for all non-

commercial organizations, therefore, would depart from

decades of this Court’s precedent.

It would also overrule decades of state high court

decisions applying state anti-discrimination laws to non-

commercial organizations. See, e.g., Frank v. Ivy Club,

120 N.J. 73, 576 A.2d 241 (1990) (Princeton’s all-male

eating clubs subject to New Jersey’s anti-discrimination

law); Concord Rod & Gun Club, Inc. v. Mass. Comm’n

Against Discrimination, 402 Mass. 716, 524 N.E.2d 1364

(1988) (monprofit rod and gun club subject to

Massachusetts’ anti-discrimination law); Isbister v. Boys’

Club of Santa Cruz, Inc., 40 Cal.3d 72, 707 P.2d 212

(1985) (private charitable boys’ club that operates

community recreational facility subject to California’s

anti-discrimination law); U.S. Power Squadrons v. State

Human Rights Appeal Board, 59 N.Y.2d 401, 452 N.E.2d

1199 (1983) (nonprofit corporation whose purposes

19

include promotion of safety and skill in boating subject

to New York’s anti-discrimination law); National Org. for

Women v. Little League Baseball, Inc., 127 N.J. Super.

522, 318 A.2d 33 (App. Div.) (baseball league deticated

to “shap[ing] tomorrow’s leaders” subject to New Jersey's

anti-discrimination law), aff'd, 67 N.J. 320, 338 A.2d 198

(1974). .

Furthermore, because many non-commercial

organizations, especially private nonprofit organizations,

provide access to public accommodations or services that

are otherwise unavailable in a given community -- BSA

being a prime example of such an organization --

according them special First Amendment protection

would be even more harmful than according such

protection to strictly commercial organizations. The

services of commercial organizations are often available

from competitors; moreover, in today’s society, the profit

motive may discourage some corporations from engaging

in invidious discrimination, at least in selling their

products or services to the public. The accommodations

or services of non-commercial organizations, in contrast,

tend to be far less fungible, and the general absence of a

profit motive renders the need for legal protection all the

more compelling. ape

Finally, no First Amendment expressive interest

would be promoted by according special protection to

non-commercial organizations that discriminate on

grounds that are unrelated to any of their expressive

purposes. In contrast to a “commercial” test, the criteria

in this Court’s membership precedent are precisely

tailored to determine whether admission of unwelcome

members would interfere with organizations’ expressive

purposes.

20

fll. HURLEY DOES NOT UNDERMINE THE

APPLICATION OF STATE ANTI-DISCRIMINATION

LAW TO OPEN MEMBERSHIP ORGANIZATIONS

According to petitioner, it is not “legally relevant”

whether compliance with state anti-discrimination law

would interfere with any of the organization’s “specific

expressive purpose|s],” because an organization can

“decide what not to say.” See Pet. Br. at 22-23, 26-27

(quoting Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, Inc., 515 U.S. 557, 573 (1995)).

Petitioner fails to acknowledge that the pending case

involves a membership organization, not pure

expression, and is therefore governed by this Court’s

membership precedent. Hurley is relevant to this case

only by way of contrast and in its affirmation of this

Court’s membership precedent.

A. As A Pure Expression Case, Hurley Has No

Bearing On This C

Petitioner’s reading of Hurley as a sweeping

limitation on the enforceability of state anti-

discrimination laws as applied to membership

organizations flatly contradicts not only this Court’s

membership precedent but Hurley itself. The Court’s

unanimous opinion specifically noted that state anti-

discrimination laws “are well within the State’s usual

power to enact when a legislature has reason to believe

that a given group is the target of discrimination, and

they do not, as a general matter, violate the First or

Fourteenth Amendments.” 515 U.S. at 572 (emphasis

added). Illustrating constitutionally permissible

applications of state anti-discrimination laws, this Court

21

then cited, among other precedent, two of its

membership cases: New York State Club Ass’n and

Roberts. See Hurley, 515 U.S. at 572.

Central to the holding in Hurley was that it

involved a “parade,” which does not simply involve

expressive elements but is in fact “a form of expression.”

515 U.S. 568 (citing cases). Further, the participation of

the Irish-American Gay, Lesbian and Bisexual Group of

Boston (GLIB) as a unit in the parade “was equally

expressive.” Id. at 570. Because both the parade and

GLIB’s participation in it were pure forms of expression,

“the state courts’ application of the [anti-discrimination]

statute had the effect of declaring the sponsors’ speech

itself to be the public accommodation.” Id. at 573.

BSA is not a “form of expression.” It is a

membership organization with extensive government

affiliations. Moreover, unlike the state court in Hurley,

the court below in this case did not declare BSA’s speech

to be the public accommodation. Rather, it correctly

held that BSA as a membership organization is a public

accommodation because of its active solicitation and

open membership policies, its extensive uses of other

public accommodations, and its “close relationships with

federal and state governmental bodies.” 160 N.J. at 591.

Even as a pure expression case, Hurley was

“peculiar,” because the state court had found

discrimination even though “no individual member of

GLIB claims to have been excluded from parading.” 515

U.S. at 572. The parade sponsors only sought to prevent

interference with their own pure expression. Id. In the

pending case, in contrast, petitioner expelled Dale solely

on the basis of his status as a gay person. See 160 N.J.

at 578-79, 617. This Court has specifically refused to

extend constitutional protection to such status-based

22

discrimination, even in cases involving private

petitioner in this case lacked before litigation). See, e.g.,

Board of Directors of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537, 539, 541, 549 & n. 8 (1987) (rejecting free

association challenge where organization’s Constitution

expressly limited membership to men, and organization

claimed policy was necessary to its effectiveness); Roberts

v. United States Jaycees, 468 U.S. 609, 627-28 (1984)

(rejecting free association challenge where organization’s

policy expressly limited membership to men, and

organization claimed that admission of women would

“change [its] message”); Runyon v. McCrary, 427 U.S.

160, 176 (1976) (rejecting free association challenge by

private schools with racial discrimination policies

because “the Constitution . . . places no value on

discrimination”) (quoting Norwood v. Harrison, 413 U.S.

455, 469 (1973)).

Although petitioner attempts to concoct similarity

between this case and Hurley by arguing that it expelled

Dale on the basis of his articulated views and not on the

basis of his status, see Pet. Br. at 29, the New Jersey

Appellate and Supreme Courts’ conclusion to the

contrary is well supported by the record. BSA’s letter

explaining the reason for Dale’s expulsion stated that

“the standards for leadership established by the Boy

Scouts of America... specifically forbid membership to

homosexuals.” 169 N.J. at 579. Petitioner’s express

litigation-based policy, moreover, is to exclude not only

those who declare support for gay rights, but “known or

avowed homosexual persons,” regardless of their stated

views. See Pet. Br. at 27 (quoting BSA’s National

Director). Petitioner’s repeated citations in its brief to

newspaper articles reporting respondent’s comments

23

made after the initiation of this litigation shed no light on

petitioner’s reasons for expelling respondent long before,

nor do they demonstrate that Dale would have made

comments regarding homosexuality in the context of a

Scout meeting. To the contrary, in the newspaper article

that was the basis for Dale’s expulsion, he “does not

identify himself as a Boy Scout leader or member, nor

does he express an opinion about any of Boy Scouts’

policies, or suggest that Boy Scouts should allow him

openly to advocate acceptance of homosexuality. Indeed,

Dale has stated that he accepts and endorses Boy

Scouts’ moral principles.” 160 N.J. at 616.

B. This Court’s Separate Pure Expression and

Free Association Doctrines Should Not Be

Merged _

Both logic and sound policy considerations

support the differences between this Court’s pure

expression and free association jurisprudence. Aside

from the minimal restrictions necessary to maintain the

public order (such as time, place and manner),

government restrictions on pure expression generally do

not promote a countervailing expansion of individual

rights. Rigorous judicial protection of pure expression

therefore promotes First Amendment freedoms without

substantially infringing on the rights of others.

Unlike government restrictions on pure

expression, anti-discrimination laws promote equal

access, equal opportunity and personal dignity. See

Roberts, 468 U.S. at 625. “[T]he very exercise of the

freedom to associate by some may serve to infringe that

freedom for others.” Gilmore v. City of Montgomery, 417

U.S. 556, 575 (1974) (holding, inter alia, that exclusion of

24

African Americans from recreational facilities was

correctly enjoined). Indeed, this Court has consistently

recognized that society as a whole benefits from wide

participation in its political, economic, civic and cultural

life. See, e.g., Roberts, 468 U.S. at 625; Heckler v.

Mathews, 465 U.S. 728, 744-45 (1984); Mississippi

University for Women v. Hogan, 458 U.S. 718, 723-26

(1982); Frontiero v. Richardson, 411 U.S. 677, 684-87

(1973) (plurality opinion). The analysis that this Court

has adopted in its membership cases, therefore, properly

balances the burden (if any) on the organization’s

expressive purposes, the rights of those whom the

organization wishes to exclude, and the interests of

government and society as a whole.

IV. UNDER PRINCIPLES OF STARE DECISIS, THIS

COURT'S PRECEDENT SHOULD NOT BE

OVERRULED

Many of the arguments that petitioner has

presented to this Court -- including the arguments that

the pure expression standards set forth in Hurley should

apply to free association cases, and that all non-

commercial organizations should have automatic special

protection against enforcement of state anti-

discrimination laws -- amount to a request that this

Court overrule its membership precedent. Amici states

believe that this Court’s membership cases were correctly

decided based on sound constitutional principles and a

proper balancing of compelling state interests and

organizations’ asserted First Amendment rights. The

membership cases are consistent, well-reasoned, and

easily applied by lower courts. Under principles of stare

decisis, the basis for applying the same analysis to this

25

case is therefore even stronger than when those cases

were decided.

“(T]he very concept of the rule of law underlying

our own Constitution requires such continuity over time

that a respect for precedent is, by definition,

indispensable.” Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 854 (1992)

(Justices O’Connor, Kennedy and Souter, writing for the

Court). In Casey, the Court identified four factors to

weigh the respective costs of reaffirming and overruling

acase. See id. These factors weigh strongly in favor of

reaffirming this Court’s membership precedent.

First, the membership cases “ha[ve] in no sense

proven ‘unworkable.” See Casey, 505 U.S. at 855. The

specific standards set out in those cases for balancing an

organization’s First Amendment interests against the

states’ interests in eliminating discrimination give

appropriate deference to both and have been consistently

and easily applied by lower courts. See, e.g., McCloud v.

Testa, 97 F.3d 1536 (6th Cir. 1996); Louisiana Debating

and Literary Ass’n v. City of New Orleans, 42 F.3d 1483

(Sth Cir. 1995); Elks Lodges 719 & 2021 v. Dep't of

Alcohol Beverage Control, 276 Utah Adv. Rep. 8, 905 P.2d

1189 (1995), cert. denied, 517 U.S. 1221 (1996); State v.

Burning Tree Club, Inc., 315 Md. 254, 554 A.2d 366, cert.

denied, 493 U.S. 816 (1989).

Second, this Court’s membership cases are

“subject to a kind of reliance that would lend a special

hardship to the consequences of overruling and add

inequity to the cost of repudiation.” Casey, 505 U.S. at

854-55. Based on these decisions, both federal and state

courts, as cited above, have rendered numerous

decisions affecting the respective equal opportunity and

26

free association rights of citizens and organizations.

Amici states have relied on this Court’s decisions in

drafting, amending and enforcing their anti-

discrimination laws. As in Casey, “for two decades of

economic and social developments,” organizations’

memberships and individuals’ lives have been affected by

the Court’s membership precedent. Jd. at 856. The

ability of those who are targeted by discrimination “to

participate equally in the economic and social life of the

Nation has been facilitated by their ability” to have equal

access to public accommodations and services. Id. at

856. Likewise, the First Amendment free association

rights of organizations have been protected. See, e.g.,

Invisible Empire of the Knights of the Ku Klux Klan v.

Mayor, 700 F. Supp. 281, 289 (D. Md. 1988) (holding that

KKK’s racist membership policy promotes its expressive

purposes).

Third, “[njo evolution of legal principle has

left . . . the doctrinal footings [of the membership

precedent] weaker than they were [when decided]. No

development of constitutional law since the case[s] wiere]

decided has implicitly or explicitly left [the membership

precedent] behind as a mere survivor of obsolete

constitutional thinking.” Casey, 505 U.S. at 857. Amici

states are aware of no precedent by this Court or any

other that implicitly or explicitly conflicts with this

Court’s membership precedent. Although petitioner

invokes Hurley, that case creates no conflict when

properly viewed as part of pure expression jurisprudence.

Finally, “facts have [not] so changed, or come to be

seen so differently, as to have robbed [the membership

cases] of significant application or justification.” Casey,

SOS U.S. at 855. While society has progressed toward

greater equality in the past several decades, invidious

27

discrimination has not been eliminated.

The “widespread acceptance in the legal culture”

of this Court’s decisions in the membership cases

provides “adequate reason not to overrule” them. See

Mitchell v. United States, 119 S. Ct. 1307, 1316 (1999)

(Scalia, J., dissenting) (case involving constitutional

issues). “[A] concurring opinion in [a] case,” moreover,

should not “take precedence over an opinion joined in its

entirety by five Members of the Court.” County of

Allegheny v. American Civil Liberties Union, 492 U.S. 573,

668 (1989) (Kennedy, J., concurring in part and

dissenting in part)." The membership cases are “now an

important part of the fabric of our law.” See Runyon v.

McCrary, 427 U.S. 160, 190 (1976) (Stevens, J.,

concurring in majority opinion based on stare decisis

principles). To overrule them would shred the fabric of

more than two decades of this Court’s membership

precedent, undermine the enforceability of anti-

discrimination law throughout the states as well as on

the federal level, and upset the delicate balance that has

been achieved in promoting individual rights while

preserving harmony in society at large.

‘In this case, the stare decisis principles weigh even more heavily

that petitioner refers to as “the Roberts trilogy,” the judgments were

unanimous, and no more than two of the participating Justices

departed from any portion of the majority’s analyses.

28

CONCLUSION

For the foregoing reasons, amici states respectfully

urge the Court to affirm the decision below.

Dated: March 28, 2000

Respectfully submitted,

ELIOT SPITZER

Attorney General of the

State of New York

PREETA D. BANSAL

Solicitor General

Counsel of Record

ADAM L. ARONSON

Assistant Solicitor General

120 Broadway, 25th Floor

New York, New York 10271

(212) 416-8016

29