Boy Scouts of America v. Dale

Following is the case brief for Boy Scouts of America v. Dale, 530 U.S. 640 (2000)

Case Summary of Boy Scouts of America v. Dale:

  • James Dale was a Boy Scout from the age of 8.  He was an exemplary Scout and eventually became an Eagle Scout.
  • He was accepted in the Scouts as an adult scoutmaster until the Boy Scouts discovered that Dale was openly gay.  They then revoked his membership.
  • Dale sued the Boy Scouts, alleging that it had violated New Jersey’s public accommodations law.
  • The New Jersey Supreme Court held that the Boy Scouts’ discrimination against Dale based on his sexual orientation violated the public accommodations law.
  • The U.S. Supreme Court disagreed, holding that the Boy Scouts’ First Amendment right to express an anti-homosexual message could not be infringed by New Jersey’s public accommodations law.

Boy Scouts of America v. Dale Case Brief

Statement of the Facts:

The Boy Scouts of America is a private, not-for-profit organization.  It claims that it is engaged in instilling values in young people.  It also states that homosexual conduct is inconsistent with the values it instills.

James Dale was a Boy Scout since he was eight years old.  He was an exemplary Scout and eventually achieved the distinction of Eagle Scout.  He then applied, and was accepted, to be an adult member of the Scouts as an assistant scoutmaster.  When the Scouts came to learn that Dale was openly gay and active in the LGBT group as a student at Rutgers University, they revoked his adult membership.

Dale the sued the Boy Scouts in New Jersey state court, claiming that revoking his membership was a violation of New Jersey’s public accommodations law, which prohibits discriminating against people based on sexual orientation in places of public accommodation.

Procedural History:

  • The New Jersey trial court granted summary judgment to the Boy Scouts.
  • The New Jersey appellate court reversed and remanded.
  • The New Jersey Supreme Court affirmed the reversal, holding that the Boy Scouts violated the public accommodations law.  It also found that the Boy Scouts’ First Amendment right of expressive association would not be violated because Dale’s inclusion would not significantly affect its ability to carry out its purposes or express any message.  Moreover, the Boy Scouts are founded on inclusion of all young people.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Did application of New Jersey’s public accommodation law violate the Boy Scouts’ First Amendment right of expressive association?  Yes.


The decision of the New Jersey Supreme Court is reversed and remanded.

Rule of Law or Legal Principle Applied:

The Boy Scouts of America, as a private organization, has the First Amendment right of expressive association to discriminate against homosexuals by excluding them from membership.


The Court essentially reasoned that an organization that is private can exclude homosexuals if it so desires, even if its primary message is not an anti-homosexual one.  Also, it reasoned that a public accommodations law must give way to First Amendment concerns in that context.

Forcing a group to accept a member it does not desire is unconstitutional if it significantly affects the group’s ability to advocate public or private viewpoints.  Freedom of expressive association, however, can be overridden by regulations that serve a compelling state interest that is not related to suppressing ideas, and where there is no less restrictive means available.

In this case, the Boy Scouts engage in “expressive association” because its adult members instill the young members with certain values, one of which is that homosexual conduct is bad.  Forcing Dale to be a part of the Scouts would infringe on that message.

The New Jersey Supreme Court held that Dale’s presence would not affect the Scouts’ ability to express its message because its message is not just an anti-homosexual message.  However, according to the U.S. Supreme Court, the First Amendment protects a message even if a group does not associate primarily to express that message, and not every member of a group needs to agree on every issue for a group’s policy to be “expressive association.”

Implying that New Jersey’s public accommodation law has been stretched beyond the typical “taverns and trains” types of public accommodations, the Court reasoned that New Jersey’s law runs afoul of the First Amendment in this case.  It found that it does not serve a compelling state interest such that it overrides the Boy Scouts’ First Amendment right.

The Court concluded that it expresses no opinion as to whether homosexuality is right or wrong.  It is simply allowing the Boy Scouts to express its message.

Concurring and Dissenting Opinions:

Dissenting Opinion (Stevens):

New Jersey purposefully has an expansive public accommodations law.  The Court’s opinion does not give New Jersey the respect that it is due.  New Jersey’s law does not impose serious burdens on the Boy Scouts’ shared goals, nor does having Dale as part of the Scouts force the Scouts to communicate a message it does not wish to endorse.  Therefore, New Jersey’s law does not abridge any of the Scouts’ constitutional rights.

Dissenting Opinion (Souter):

The Boy Scouts have simply not made out an expressive association claim here.  It has not established that it has had a clear anti-homosexual message advocated over time in an unequivocal way.  Therefore, there is no expression here that could override a valid anti-discrimination law.


Boy Scouts of America v. Dale is a significant case for both practical and legal reasons.  Practically speaking, the decision was taken as a blow to LGBT rights in America at the time it was decided, and it motivated further LGBT rights litigation.

Legally speaking, the majority decision lacks internal consistency, which suggests a serious weakness of legal reasoning.  The decision purports to protect a group’s ability to express a specific message, i.e., that homosexuality is bad.  Yet, the decision acknowledges, as it must, that anti-homosexuality was not the Boy Scouts’ primary message, and that not everyone in the group even agreed with that particular message.  So, at bottom, it is unclear whose First Amendment rights the Court was protecting, or even what viewpoint was being protected.

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments

ALCU article regarding Court opinion