(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions
of any opinion may not have been summarized).
Argued January 5, 1999 -- Decided August 4, 1999
PORITZ, C.J., writing for a unanimous Court.
The issue in this appeal is whether New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, prohibits
Boy Scouts of America (BSA) from expelling a member solely because he is an avowed homosexual. If the LAD prohibition
applies, the Court also must determine whether BSA's First Amendment rights are thereby violated.
BSA is a federally chartered corporation. Since its inception in 1910, over eighty-seven million youths and adults
have joined BSA. BSA's success in attracting members is attributable, in part, to its long-standing commitment to a diverse
and “representative” membership, as well as to its aggressive recruitment through national television, radio, and magazine
campaigns. BSA's mission, as set forth in its Mission Statement, is “to serve others by helping to instill values in young
people and, in other ways, to prepare them to make ethical choices over their lifetime....” Notwithstanding BSA's
encouragement of its members' ethical development, BSA does not endorse any specific religion or set of moral beliefs,
instead encouraging its members to be guided by their own conscience or ethical judgment. In addition, consistent with its
policy of leaving matters of religion and sexual responsibility to church and home, BSA discourages its leaders from
discussing sexual topics. Finally, BSA membership is open to any boy who meets the various age requirements.
James Dale became a member of BSA in 1978 at the age of eight. He remained a youth member of BSA until his
eighteenth birthday in l988. Dale was an exemplary scout. During his long membership, he earned many badges and honors,
including the award of an Eagle Scout Badge, an honor achieved by only the top three percent of all scouts. On March 21,
1989, Dale sought adult membership in BSA. Monmouth Council and BSA accepted and approved his application for the
position of Assistant Scoutmaster of Troop 73, where he served for approximately sixteen months.
In July 1990, Dale was interviewed by the Star-Ledger, which ran an article reporting on a seminar that addressed the
psychological and health needs of lesbian and gay teenagers. In connection with the interview, Dale's photo appeared in the
Star-Ledger with a caption identifying him as co-president of the Rutgers University Lesbian/Gay Alliance. Later that month,
Dale received a letter from BSA Monmouth Council Executive James W. Kay, revoking Dale's BSA membership. In response
to Dale's request for the basis of the Monmouth Council's decision to revoke his BSA membership, Kay indicated that the
standards for leadership established by the BSA specifically forbade membership to homosexuals.
Thereafter, in September 1990, Dale wrote to the BSA Northeast Regional Director asking for a review of his
membership decision and for a copy of BSA's leadership standards. In November 1990, the Assistant Regional Director of the
Northeast Region notified Dale that the Northeast Review Committee supported the decision of the Monmouth Council to deny
his registration with BSA. Although BSA agreed to have the National Council review Dale's membership revocation, Dale
opted instead to institute legal proceedings, believing that a National Council review would be futile.
In July 1992, Dale filed suit against BSA and the Monmouth Council in Superior Court, seeking both declaratory and
injunctive relief, as well as compensatory and punitive damages. He alleged that BSA had violated the LAD and common law
by revoking his membership based solely on his sexual orientation. In September 1993, Dale moved for partial summary
judgment, demanding his immediate reinstatement. BSA and the Monmouth Council cross-moved for summary judgment on
all of Dale's claims.
The trial court denied Dale's motion and granted BSA's and the Monmouth Council's motion. After concluding that
Dale was a “sexually active homosexual,” the court found that BSA had always had a policy of excluding “active
homosexuals.” The court opined that homosexual acts are immoral and attributed to BSA a longstanding antipathy toward
such behavior. The court further held that the LAD was not applicable because BSA was not a “place of public
accommodation,” or alternatively, that it was exempt under the “distinctly private” exception found in the LAD. The court
rejected Dale's common law claim, finding that the State's policy was that established by the LAD. Finally, because the court
believed that BSA's moral position in respect of active homosexuality was clear, it found that its First Amendment freedom of
expressive association prevented government from forcing BSA to accept Dale as an adult leader-member.
The Appellate Division affirmed the dismissal of Dale's common law claim as duplicative, but otherwise reversed and
remanded the matter for further proceedings. In a separate opinion, Judge Landau concurred with the majority's holding that
BSA should restore Dale's membership, but dissented from the majority to the extent that it would compel BSA to accept Dale
in any Scout leadership position.
The majority held that as a “place of public accommodation,” BSA had violated the LAD by denying Dale the
privilege of serving as a volunteer assistant scoutmaster based solely on his sexual orientation. The majority found BSA to be
a place of public accommodation based on several factors, including its broad-based membership solicitation and the fact that
BSA had “historically partnered” with various public entities and public service organizations. For the same reason, the court
rejected BSA's argument that it was exempt from the LAD under the “distinctly private” exception. In respect of BSA's
freedom of expressive association claim, and noting the compelling state interest in eradicating discrimination, the majority
concluded that granting Dale access to the accommodations afforded by scouting will not affect in any significant way BSA's
ability to express its views and to carry out its activities.
The Supreme Court granted BSA's petition for certification and Dale's cross-petition for certification on the dismissal
of his common law claims. In addition, the matter is before the Court as of right based on the dissent in the Appellate Division
on the issue of BSA's right to remove Dale from a leadership position.
HELD: Boy Scouts of America is a “place of public accommodation” and is, therefore, subject to the provisions of New
Jersey's Law Against Discrimination; application of the Law Against Discrimination to Boy Scouts of America does not
infringe on its First Amendment rights.
1. The goal of the LAD is to bestow on all persons the opportunity to obtain all the accommodations, advantages, facilities,
and privileges of any place of public accommodation, without discrimination based on a variety of factors, including
affectional or sexual orientation. The term “public accommodation” has been liberally construed to carry out the legislative
purpose of eradicating discrimination. (pp. 25-27)
2. The Legislature's failure to modify the judicial construction of the term “public accommodation” or “place” is evidence of
legislative support for prior judicial construction of that portion of the LAD, especially when the Legislature has amended the
statute several times without altering the construed sections. (pp. 27-33)
3. A membership association, like BSA, may be a “place” of public accommodation even if the accommodation is provided at
a moving situs; the various locations where Boy Scout troops meet fulfill the LAD “place” requirement. (p. 33)
4. When an entity, such as BSA, invites the public to join, attend, or participate in some way, that entity is a public
accommodation within the meaning of the LAD. (pp. 33-37)
5. Certain organizations, such as BSA, that benefit from relationships with the government and other public accommodations
are themselves places of public accommodation within the meaning of the LAD. (pp. 37-41)
6. The list of places of public accommodation in the LAD is not exclusive. Similarity to the list has been a benchmark for
determining whether an unlisted entity should be included. (pp. 41-42)
7. Exemptions from remedial statutes generally should be narrowly construed. (pp. 42-43)
8. The essence of a “distinctly private” club or organization is selectivity in its membership. Joining requirements, such as
those identified in the BSA membership application, are insufficient to establish selectivity where they do not function as true
limits on the admission of members. BSA is not “distinctly private” because it is not selective in its membership. (pp. 43-53)
9. BSA's clear pronouncements on the subject of religion are inconsistent with its claim that it is exempt from the LAD as an
“educational facility operated or maintained by a bona fide religious or sectarian institution.” (p. 53)
10. BSA is not exempt from the LAD under the in loco parentis exception because BSA does not assume the responsibilities
and duties of a parent or of one who stands in the place of a parent. (pp. 53-55)
11. Because an assistant scoutmaster position is a “privilege” and an “advantage” of Boy Scout membership, and because
BSA has revoked Dale's registration based on his avowed homosexuality - a prohibited form of discrimination under the
statute - BSA has violated the LAD. (pp. 55-57)
12. Dale's common law claim, if pursued, is duplicative of his LAD claim because it would not protect an interest in addition
to or aside from those protected by the statute. (pp. 57-58)
13. In determining whether BSA enjoys a protectable First Amendment intimate association right, one must consider size of
the organization, its purpose and selectivity, and whether others are excluded from critical aspects of the relationship. BSA's
large size, its nonselectivity, its inclusive rather than exclusive purpose, and its practice of inviting or allowing nonmembers to
attend meetings, establish that the organization, at both the local and the national level, is not sufficiently personal or private to
warrant constitutional protection under the freedom of intimate association. (pp. 58-67)
14. Infringements on the right to associate for expressive purposes may be justified by regulations adopted to serve
compelling state interests that are unrelated to the suppression of ideas and that cannot be achieved through means significantly
less restrictive of associational freedom. (pp. 67-69)
15. BSA's ability to disseminate its message is not significantly affected by Dale's inclusion because: BSA members do not
associate for the purpose of disseminating the belief that homosexuality is immoral; BSA discourages its leaders from
disseminating any views on sexual issues; and BSA includes sponsors and members who subscribe to different views in respect
of homosexuality. (pp. 69-75)
16. BSA's expulsion of Dale was based on prejudice and not on a unified Boy Scout position. Thus, Dale's expulsion is not
justified by the need to preserve the organization's expressive rights. (pp. 75-79)
17. Discrimination has been justified by the invocation of stereotypes. Adherence to the principle of equality demands that
our legal system protect the victims of such discrimination. The purpose of the LAD is to eradicate unlawful discrimination.
(pp. 79-81)
18. Because there is nothing to suggest that one of BSA's purposes is to promote the view that homosexuality is immoral,
application of the LAD does not infringe on its right of expressive association. However, even if Dale's membership worked
some slight infringement on BSA's members' right of expressive association, that infringement would be justified because it
serves New Jersey's compelling interest in eliminating discrimination based on sexual orientation. (pp. 81-85)
19. Dale's membership in BSA is not symbolic of an endorsement of homosexuality by BSA and in no way infringes on its
right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. (pp. 85-89)
Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Chancery Division for
further proceedings consistent with the Court's opinion.
JUSTICE HANDLER has filed a separate concurring opinion, in which he denounces certain unfounded
stereotypical notions in respect of homosexuals, such as the myth that a homosexual male is more likely than a heterosexual
male to molest children, as well as the myth that homosexuals are inherently immoral. Justice Handler further stresses the
impropriety of BSA's exclusion of Dale on the basis of his expression of his homosexuality because his acknowledgment
constitutes self-identifying speech, making it realistically impossible to separate his spoken statements from his status. Thus,
Justice Handler views BSA's exclusion of Dale as tantamount to one based on Dale's mere status as a homosexual. Justice
Handler notes that had Dale, on the other hand, expressed more general views on the morality, social implications, history, or
etiology of homosexuality in his role as a Boy Scout leader, which directly conflicted with BSA's stated positions, then BSA
could claim that its discrimination was based purely on expression. In addition, Justice Handler believes that the inconsistency
and vagueness of BSA's position regarding its members' views on morality generally, and homosexuality in particular, belies
the existence of a “specific expressive purpose,” necessary to establish a permissible exclusion.
Finally, Justice Handler agrees with the Court's determination that BSA had engaged in no selectivity in admitting its
members, providing strong evidence that BSA is “public,” and thus subject to the proscriptions of the LAD. However, he
further notes that while membership selectivity is relevant to a determination of whether an organization meets the LAD's
definition of “place of public accommodation,” it is not necessarily determinative, as other factors may outweigh the presence
of genuine selectivity in ultimately finding that an organization is subject to the LAD.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in CHIEF JUSTICE PORITZ's
opinion. JUSTICE HANDLER filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-195/
196 September Term 1997
JAMES DALE,
Plaintiff-Respondent
and Cross-Appellant,
v.
BOY SCOUTS OF AMERICA and
MONMOUTH COUNCIL, BOY SCOUTS OF
AMERICA,
Defendants-Appellants
and Cross-Respondents.
Argued January 5, 1999 -- Decided August 4, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
308 N.J. Super. 516 (1998).
George A. Davidson, a member of the New York
bar, argued the cause for appellants and
cross-respondents (Cerrato, Dawes, Collins,
Saker & Brown; attorneys; Mr. Davidson,
Sanford D. Brown and Carla A. Kerr, a member
of the New York bar, on the briefs).
Evan Wolfson, a member of the New York bar,
argued the cause for respondent and cross
appellant (Lewis H. Robertson, attorney; Mr.
Wolfson, Mr. Robertson and Thomas J. Moloney,
a member of the New York bar, on the briefs).
David R. Rocah submitted a letter in lieu of
brief on behalf of amici curiae American
Civil Liberties Union of New Jersey and
American Civil Liberties Union (Lenora M.
Lapidus, Legal Director, attorney).
William S. Singer submitted a letter in lieu
of brief on behalf of amici curiae American
Public Health Association and Parents,
Families and Friends of Lesbians and Gays
(Singer & Fedun, attorneys).
Robert E. Rochford submitted a brief on
behalf of amici curiae National Catholic
Committee on Scouting, The Church of Jesus
Christ of Latter-Day Saints, General
Commission on United Methodist Men, The
United Methodist Church and The Lutheran
Church-Missouri Synod (Winnie Banta Rizzi
Hetherington & Basralian, attorneys).
David H. Dugan, III, submitted a brief on
behalf of amici curiae The Claremont
Institute for the Study of Statesmanship and
Political Philosophy and United States
Congressmen Charles T. Canady, Christopher B.
Cannon, Tom A. Coburn, M.D., John E.
Peterson, John Shadegg and Mark Souder.
Kathleen A. Mazzouccolo submitted a letter in
lieu of brief on behalf of amici curiae
Diocesan Council of the Episcopal Diocese of
Newark, Friends Committee on National
Legislation, Jewish Reconstructionist
Federation, Union of American Hebrew
Congregations and Unitarian Universalist
Association.
Bray B. Barnes submitted a brief on behalf of
amicus curiae The Individual Rights
Foundation (Warshaw & Barnes, attorneys).
Theodore R. Bohn submitted a letter in lieu
of brief on behalf of amicus curiae New
Jersey Lesbian and Gay Law Association.
James P.A. Cavanaugh submitted a letter in
lieu of brief on behalf of amici curiae
National Association of Social Workers and
New Jersey Chapter of the National
Association of Social Workers.
Michael Patrick Carroll submitted a brief on
behalf of amicus curiae Southeastern Legal
Foundation (Mr. Carroll, attorney; Valle
Simms Dutcher, a member of the Georgia Bar,
on the brief).
James J. Cerbone submitted a brief on behalf
of amici curiae United States Congressmen,
Honorable Robert Aderholt (Ala.), Ernest
Istook (Okla.), Asa Hutchinson (Ark.) and
Charles "Chip" Pickering (Miss.)(Cerbone &
Lombardo, attorneys).
The opinion of the Court was delivered by
PORITZ, C.J.
In 1991, the New Jersey Legislature amended the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49, to include
protections based on "affectional or sexual orientation." This
case requires us to decide whether that law prohibits Boy Scouts
of America (BSA) from expelling a member solely because he is an
avowed homosexual.
Defendants BSA and Monmouth Council (collectively Boy
Scouts) seek review of a decision of the Appellate Division
holding that: (1) Boy Scouts is a place of public accommodation
as defined by the LAD; (2) Boy Scouts' expulsion of plaintiff
James Dale, an assistant scoutmaster, based solely on the club's
policy of excluding avowed homosexuals from membership is
prohibited by the LAD; and (3) the LAD prohibition does not
violate Boy Scouts' First Amendment rights. Plaintiff, James
Dale, seeks certification on his common law claim, dismissed by
the Appellate Division. We granted both parties' petitions, __
N.J. __ (1999), and now affirm.
FACTS
1. Organizational Structure and ProgramsSee footnote 11
BSA, a federally chartered corporation, 36 U.S.C.A. §30901, operates four scout membership programs: Cub Scouts (for boys eight to eleven-and-a-half), Boy Scouts (for boys and young men eleven to seventeen), Varsity Scouts (for young men fourteen to seventeen), and Explorers (for young men and women fourteen to twenty). In addition to these well-known membership programs, BSA publishes Boys' Life, Exploring and Scouting magazines, and offers an in-school scouting curriculum called Learning for Life that is taught in many schools throughout the country.
BSA membership is an American tradition. Since the program's inception in 1910 through the beginning of this decade, over eighty-seven million youths and adults have joined BSA. As of December 1992, over four million youths and over one million adults were active BSA members. BSA's success in attracting members is at least partly attributable to its long-standing commitment to a diverse and "representative" membership, as well as its aggressive recruitment through national television, radio, and magazine campaigns. BSA also organizes local membership drives, including "School Nights" conducted in cooperation with schools across the nation and held at school facilities.
This vast network of members is managed through a complex of national, regional and local organizations. The National Council is the highest BSA governing body. Its primary functions include "develop[ing] programs, set[ting] and maintain[ing] quality standards in training, leadership selection, uniform[s], registration records, literature development, and advancement requirements; and publish[ing] Boy's Life and Scouting magazines." BSA membership programs are also governed by regional committees that are further divided into area committees. Within each area, BSA accepts applications for the creation of local councils. Defendant, Monmouth Council, is one of sixteen local councils in New Jersey, and one of over four hundred local councils nationwide.
Each local council is made up of districts that are governed by district committees. BSA grants unit charters to individual sponsors in the districts consisting of "organizations and groups of citizens" that establish and "maintain units . . . and . . . issue certificates of membership . . . to the officers and members thereof." Unit charters allow the "organization to use the Scouting program under its own leadership to serve the youth and families for which it has concern, to help it accomplish its own objectives." Individual units are based on age groupings and designated as Cub Scout Packs, Boy Scout Troops, Varsity Scout Teams, and Explorer Posts. In 1991, Monmouth Council chartered approximately 215 units comprised of nearly 8500 youth members and over 2700 adult members.
When deciding whether to grant an individual unit charter, BSA investigates "the general objectives, purpose, character, intent, and programs of the prospective chartered organization or community group and its compatibility with the aims and purposes of the Boy Scouts of America." In respect of established groups, BSA also considers the group's "history, length of service, and general reputation." Generally, BSA prefers granting unit charters to sponsors that are "existing organizations," i.e., established religious, civic, or educational groups. In New Jersey, for example, public schools and school-affiliated groups sponsor close to 500 scouting units, comprising approximately one-fifth of the chartering organizations in the State. Other governmental entities, such as law enforcement agencies, fire departments, city governments, and the military, sponsor approximately 250 scouting units in New Jersey. Sponsor approvals "obligate the organization to provide adequate facilities, supervision, and leadership for at least one year[,] and to make an effort to provide youth members with the opportunity for a quality program experience as set forth in the official literature of the Boy Scouts of America." A unit charter is renewed annually, "upon application, provided a review of past activities, personnel, and plans for the future shows a satisfactory effort to carry out the scouting program, as set forth in the official handbooks, and [demonstrates compliance] with the Rules and Regulations of the Boy Scouts of America."See footnote 22 Each chartered unit is supervised by a "unit committee, consisting of three or more qualified adults, 21 years of age or over, selected by the organization with which the unit is connected, or in the case of a community unit[,] of those who make application for the unit charter, one of whom [is] designated as chairman." In Monmouth Council, the units are run by approximately 3000 volunteer leaders and four paid scouting professionals. Of the 3000 volunteers, some 340 are assistant scoutmasters.
According to BSA's federal charter, BSA seeks "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." BSA's Mission Statement also describes BSA's purpose: "It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential." The Scout Oath and Scout Law set forth the guiding principles of BSA:
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
A Scout is LOYAL. A Scout is true to his
family, friends, Scout leaders, school,
nation, and world community.
A Scout is HELPFUL. A Scout is concerned
about other people. He willingly volunteers
to help others without expecting payment or
reward.
A Scout is FRIENDLY. A Scout is a friend to
all. He is a brother to other Scouts. He
seeks to understand others. He respects
those with ideas and customs that are
different from his own.
A Scout is COURTEOUS. A Scout is polite to
everyone regardless of age or position. He
knows that good manners make it easier for
people to get along together.
A Scout is KIND. A Scout understands there
is strength in being gentle. He treats
others as he wants to be treated. He does
not harm or kill anything without reason.
A Scout is OBEDIENT. A Scout follows the
rules of his family, school, and troop. He
obeys the laws of his community and country.
If he thinks these rules and laws are unfair,
he tries to have them changed in an orderly
manner rather than disobey them.
A Scout is CHEERFUL. A Scout looks for the
bright side of life. He cheerfully does
tasks that come his way. He tries to make
others happy.
A Scout is THRIFTY. A Scout works to pay his
way and to help others. He saves for the
future. He protects and conserves natural
resources. He carefully uses time and
property.
A Scout is BRAVE. A Scout can face danger
even if he is afraid. He has the courage to
stand for what he thinks is right even if
others laugh at him or threaten him.
A Scout is CLEAN. A Scout keeps his body and
mind fit and clean. He goes around with
those who believe in living by these same
ideals. He helps keep his home and community
clean.
A Scout is REVERENT. A Scout is reverent
toward God. He is faithful in his religious
duties. He respects the beliefs of others.
In its briefs below and to this Court, Boy Scouts claims
that the language "morally straight" and "clean" in the Oath and
Law, respectively, constitutes a rejection of homosexuality. The
Boy Scout Handbook, supra, at 551, defines "morally straight" as
follows:
To be a person of strong character, guide
your life with honesty, purity, and justice.
Respect and defend the rights of all people.
Your relationships with others should be
honest and open. Be clean in your speech
and actions, and faithful in your religious
beliefs. The values you follow as a Scout
will help you become virtuous and self-reliant.
The Boy Scout Handbook also defines "clean":
A Scout is CLEAN. A Scout keeps his body and
mind fit and clean. He chooses the company
of those who live by these same ideals. He
helps keep his home and community clean.
You never need to be ashamed of dirt that
will wash off. . . .
There's another kind of dirt that won't come
off by washing. It is the kind that shows up
in foul language and harmful thoughts.
Swear words, profanity, and dirty stories are
weapons that ridicule other people and hurt
their feelings. The same is true of racial
slurs and jokes making fun of ethnic groups
or people with physical or mental
limitations. A Scout knows there is no
kindness or honor in such mean-spirited
behavior. He avoids it in his own words and
deeds. He defends those who are the targets
of insults.
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:
Morality . . . concerns the "principles of right and wrong" in our behavior, and "what is sanctioned by our conscience or ethical judgment." . . .
In any consideration of moral fitness, a key word has to be "courage." A boy's courage to do what his head and his heart tell him is right. And the courage to refuse to do what his heart and his head say is wrong.
[Scoutmaster Handbook, supra, at 71 (emphasis added) (additional internal quotations omitted).]
BSA also does not espouse any one religion, explaining in the
Scoutmaster Handbook that "[t]here is a close association between
the Boy Scouts of America and virtually all religious bodies and
denominations in the United States." Id. at 227. Consistent
with its nonsectarian nature, BSA Bylaws require "respect [for]
the convictions of others in matters of custom and religion."
Boy Scouts "encourages no particular affiliation, [and does not]
assume[] [the] functions of religious bodies," ibid.; indeed, in
a training manual entitled Scoutmaster Fundamentals prepared "for
Scoutmasters, Assistant Scoutmasters, Troop Committee members,
and parents," BSA categorically states: "Religious instruction
is the responsibility of the home and church."
A large and diverse group of religions that subscribe to
many different and sometimes contradictory beliefs sponsor BSA
units throughout the United States. Some of those sponsors have
participated in this case as amici curiae, taking a variety of
positions in respect of homosexuality, i.e., that homosexuality
is "immoral"; that "discrimination based upon sexual orientation"
is to be "strongly condemn[ed]." BSA, however, encourages its
leaders to refrain from talking about sexual topics. Although
the Boy Scout Handbook, supra, at 528, contains a subchapter
entitled "Sexual Responsibility" which states that "[f]or the
followers of most religions, sex should take place only between
married couples," sexual topics are not formally discussed during
Boy Scout activities. Rather, BSA "believes that boys should
learn about sex and family life from their parents, consistent
with their spiritual beliefs."
2. Boy Scout Troops
In 1992, of the five million members of BSA, approximately
one million youths and 420,000 adults were involved in the Boy
Scout division. Those members belonged to over 44,000 Boy Scout
troops throughout the country.
According to the Boy Scout Handbook, id. at 2, a boy may
become a Boy Scout if he "has completed the fifth grade, or . . .
has earned the Arrow of Light Award, or [is at least] 11 years of
age but not yet 18" and "[c]omplete[s] the Boy Scout joining
requirements." The Boy Scout joining requirements call for the
applicant to:
Submit a completed Boy Scout application and
health history signed by [a] parent or
guardian.
Repeat the Pledge of Allegiance.
Demonstrate the Scout salute, sign, and
handclasp.
Show how to tie the square knot.
Understand and agree to live by the Scout
Oath, the Scout Law, the Scout motto, the
Scout slogan, and the Outdoor Code.
Describe the Scout badge.
With [a] parent or guardian, complete the
exercises in the pamphlet How to Protect Your
Children from Child Abuse and Drug Abuse.
Participate in a Scoutmaster conference.
B. James Dale
James Dale first became a BSA member in 1978 when, at the
age of eight, he joined Monmouth Council's Cub Scout Pack 142.
He remained a Cub Scout until 1981, when he became a member of
Boy Scout Troop 220, also in Monmouth Council. He joined
Monmouth Council's Boy Scout Troop 128 in 1983, and Troop 73 in
1985. Until his eighteenth birthday in 1988, he remained a youth
member of Troop 73.
Dale was an exemplary scout. Over the ten years of his
membership, he earned more than twenty-five merit badges. In
1983, he was admitted into Boy Scouts' Order of the Arrow, the
organization's honor camping society, and achieved the status of
Virgil Honor. The pinnacle of Dale's career as a youth member
came in 1988, when BSA awarded him an Eagle Scout Badge, an honor
achieved by only the top three percent of all scouts.
Dale's participation in Boy Scout leadership began at an
early age. Throughout his years as a member, Dale was an
assistant patrol leader, patrol leader, and bugler, and from 1985
to 1988, Dale served as a Junior Assistant Scoutmaster for Troop
73. He was also invited to speak at organized Boy Scout
functions, such as the Joshua Huddy Distinguished Citizenship
Award Dinner, and attended national events, including the
National Boy Scout Jamboree. On March 21, 1989, Dale sought
adult membership in Boy Scouts. Monmouth Council and BSA
accepted and approved his application for the position of
Assistant Scoutmaster of Troop 73 where he served for
approximately sixteen months.
At about the same time that Dale applied for adult
membership, he left home to attend Rutgers University. While at
college, Dale first acknowledged to himself, and to his family
and friends, that he was gay. Shortly thereafter, he became
involved with, and eventually became the co-president of the
Rutgers University Lesbian/Gay Alliance. Then, in July 1990,
Dale attended a seminar that addressed the psychological and
health needs of lesbian and gay teenagers. The Star-Ledger
interviewed Dale and published an article on July 8, 1990 that
discussed the seminar. The article included Dale's photograph
and a caption identifying him as "co-president of the Rutgers
University Lesbian/Gay Alliance." Kinga Borondy, Seminar
Addresses Needs of Homosexual Teens, Star-Ledger (Newark), July
8, 1990, § 2, at 11.
Later that month, Dale received a letter from Monmouth
Council Executive James W. Kay, revoking his BSA membership. The
letter asked Dale to "sever any relations [he] may have with the
Boy Scouts of America," and granted Dale sixty days to request a
review of his termination from the Monmouth Council Regional
Review Committee.
Dale wrote to Kay on August 8, 1990, and requested the basis
for the Monmouth Council's decision. In a letter dated August
10, 1990, Kay notified Dale that the "grounds for [his]
membership revocation" were "the standards for leadership
established by the Boy Scouts of America, which specifically
forbid membership to homosexuals."See footnote 44 On September 30, 1990, Dale
wrote a letter to the Northeast Regional Director, Rudy Flythe,
asking for a review of his membership decision and a copy of
BSA's leadership standards. Dale also requested permission to
attend the review, a right to which he was entitled under the
Monmouth Council Review Procedures. The Regional Review
Committee acknowledged receipt of Dale's request, but neglected
to provide him with a copy of the BSA standards for leadership or
a review date.
In another letter dated October 16, 1990, Dale once again
asked for a copy of the leadership standards and notice of the
review date. On November 27, 1990, Charles Ball, the Assistant
Regional Director of the Northeast Region, notified Dale that the
"Northeast Region, [BSA] Review Committee supports the decision
of the Monmouth Council . . . to deny your registration with
[BSA]," and granted Dale thirty days to seek review by the
National Council Review Committee. Three weeks later, through
counsel, Dale wrote to the Chief Scout Executive of BSA and
requested a rehearing and an opportunity to attend the review.
BSA's counsel informed Dale on December 21, 1990, that he had
been denied the right to attend because: "[BSA] does not admit
avowed homosexuals to membership in the organization so no useful
purpose would apparently be served by having Mr. Dale present at
the regional review meeting." BSA did agree, however, to have
the National Council review Dale's membership revocation.
Because Dale believed that a National Council review "would be
futile," he initiated these legal proceedings.
PROCEDURAL HISTORY
A. Chancery Division
Dale moved for partial summary judgment in September 1993,
demanding immediate reinstatement based on his claim that
defendants had violated the LAD and New Jersey's public policy.
Defendants, in response, cross-moved for summary judgment on all
counts. The court denied Dale's motion and granted Boy Scouts'
cross-motion. Dale v. Boy Scouts of Am., No. MON-C-330-92 (Ch.
Div. Nov. 3, 1995). After concluding that Dale was "a sexually
active homosexual," the court found that Boy Scouts had always
had a policy of excluding "active homosexual[s]." Id. at 6, 38.
The court opined that homosexual acts are immoral and attributed
to Boy Scouts a longstanding antipathy toward such behavior. Id.
at 39-40. In the judge's view, "[i]t [was] unthinkable . . .
that the BSA could or would tolerate active homosexuality if
discovered in any of its members." Id. at 40.
As to the applicability of the LAD, the court held that Boy
Scouts was not a place of public accommodation, or alternatively,
that Boy Scouts was exempt under the "distinctly private"
exception found at N.J.S.A. 10:5-5l. Id. at 55. The court
rejected Dale's common law claim, finding that the State's policy
"is that established by the NJLAD . . . [and] not some prior
common law policy." Id. at 45. Because the court believed that
Boy Scouts' moral position in respect of active homosexuality was
clear, it found that Boy Scouts' First Amendment freedom of
expressive association "prevent[ed] government from forcing [the
organization] to accept Dale as an adult leader-member." Id. at
71.
B. Appellate Division
The Appellate Division affirmed the dismissal of Dale's
common law claim, but otherwise reversed and remanded for further
proceedings. Dale v. Boy Scouts of Am.,
308 N.J. Super. 516, 523
(App. Div. 1998). In a separate opinion, Judge Landau concurred
with the majority's holding that Boy Scouts should restore Dale's
membership, but dissented from the majority "to the extent it
would compel the Boy Scouts to accept . . . Dale . . . [in] any
Scout leadership position." Id. at 564.
The majority held that Boy Scouts, a "place of public
accommodation," had violated the LAD by denying Dale the
"privilege" of serving as a volunteer assistant scoutmaster based
solely on his sexual orientation. Boy Scouts was a "public
accommodation" because it "invite[d] 'the public at large,'" was
"dependent upon the broad-based participation of members of the
general public," "engage[d] in advertising and public promotion,"
shared "many attributes in common with" the places and activities
enumerated in the LAD, and had "historic[ally] partner[ed] with
various public entities and public service organizations." Id.
at 536, 539. "For the [same] reasons," the court "summarily"
rejected Boy Scouts' argument that it was exempt from the LAD
under the "distinctly private" exception. Id. at 540. The court
dismissed Dale's common law claim, finding Dale had "not
demonstrate[d] that a common law cause of action would vindicate
any additional interests." Id. at 543. Consequently, the common
law claim was held merely "duplicative of the LAD claim." Id. at
541.
On Boy Scouts' federal constitutional claims, the Appellate
Division ruled that Boy Scouts was not protected by either the
right to freedom of intimate association or to expressive
association "inferred from other rights and protections
guaranteed by the constitution" and found in the First Amendment.
Id. at 544-45. The court quickly disposed of Boy Scouts' freedom
of intimate association argument, observing that the organization
"consists of nearly 5,000,000 members[,] . . . is open to all
boys[,] . . . engages in aggressive advertising and undertakes a
variety of special interest activities in schools and other
public forums." Id. at 546. Based on those characteristics, the
court held that Boy Scouts "lacks the distinctive qualities that
might afford constitutional protections under this component of
the First Amendment." Ibid.
In respect of Boy Scouts' freedom of expressive association
claim, the majority "conclude[d] that enforcement of the LAD by
granting plaintiff access to the accommodations afforded by
scouting will not affect in 'any significant way' BSA's ability
to express [its] views and to carry out [its] activities." Id.
at 550. Noting "the tension between the freedom to associate for
the purpose of expressing fundamental views and the compelling
state interest in eradicating discrimination," the court found
that the "organization or club asserting the freedom has a
substantial burden of demonstrating a strong relationship between
its expressive activities and its discriminatory practice." Id.
at 548. Although the court accepted the argument that the First
Amendment protects Boy Scouts' goals and activities, it
determined that the relationship between Boy Scouts' stated goals
and Boy Scouts' exclusionary practice was not significant enough
to overcome the compelling state interest in eradicating
invidious discrimination. Id. at 549-50.
In its analysis, the Appellate Division focused on Boy
Scouts' "'expressive purpose,' [which] is not to condemn
homosexuality," but to "instill values in young people." Id. at
549, 550. The court found that "enforcement of the LAD by
granting plaintiff access to the accommodations afforded by
scouting will not affect in 'any significant way' [Boy Scouts']
ability to express these views and to carry out these
activities." Id. at 550. The court observed that the LAD "does
not aim at the suppression of speech," and "[n]othing . . .
suggests that a male, simply because he is gay, will somehow
undermine [Boy Scouts'] fundamental beliefs and teachings." Id.
at 550, 552. Boy Scouts' 1991 and 1993 position statements were
rejected as representations of the "collective 'expression'" of
Boy Scouts because these papers were issued at "a time when [Boy
Scouts'] anti-gay policy was subject to judicial challenge in
California"; "such policy [had] not been incorporated into [Boy
Scouts'] bylaws, rules, regulations and handbooks"; the position
expressed "hardly squares with the view shared by a substantial
percentage of church groups who sponsor local boy scout troops";
and Boy Scouts "has not attempted to exclude" religious
institutions and heterosexual scouts who "have condemned [Boy
Scouts'] anti-gay policy." Id. at 554-55, 556.
The Appellate Division distinguished Hurley v. Irish
American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557,
115 S. Ct. 2338,
132 L. Ed.2d 487 (1995), a case that held
parade organizers have "the autonomy to choose the content of
[their] own message," id. at 573, 115 S. Ct. at 2347, 132 L. Ed.
2d at 503. The court pointed out that, unlike Hurley, Dale does
not involve "pure forms of speech" or a "plaintiff [who] is . . .
asserting a right . . . to alter the content of [Boy Scouts']
viewpoint." Dale, supra, 308 N.J. Super. at 559, 560. The court
refused to accept Boy Scouts' allegation that Dale's "public
declaration that he is gay in and of itself constitutes
'expressive activity' sufficient to forfeit his entitlement to
membership in the BSA." Id. at 560. "In [the court's] view,
there is a patent inconsistency in the notion that a gay scout
leader who keeps his 'secret' hidden may remain in scouting and
one who adheres to the scout laws by being honest and courageous
enough to declare his homosexuality publicly must be expelled."
Ibid.
Judge Landau concurred with the majority's determination
that Dale's adult membership could not be terminated, but
dissented on whether Dale could be removed from his leadership
position in the troop. Although Judge Landau refused to look
behind Boy Scouts' claim that its "fundamental" message would be
altered if an avowed homosexual served as an assistant
scoutmaster, id. at 563, in his view Boy Scouts' message was
ultimately irrelevant. According to Judge Landau, "Boy Scouts[']
. . . right of unfettered advocacy" is violated when Dale is
reinstated as a leader "whether or not the Boy Scouts' stand on
homosexuality is fundamental to that organization's creation."
Id. at 564.
STATE LAW CLAIMS
. . . to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, . . . without discrimination because of . . . affectional or sexual orientation." N.J.S.A. 10:5-4. Boy Scouts must therefore abide by the LAD if Boy Scouts is a place of public accommodation and does not meet any of the LAD exceptions. See, e.g., N.J.S.A. 10:5-5l (exempting "distinctly private" entities, religious educational facilities, and parents or individuals acting "in loco parentis" in respect of "the education and upbringing of a child").
1. Place of Public Accommodation
"[T]he overarching goal of the [LAD] is nothing less than
the eradication 'of the cancer of discrimination.'" Fuchilla v.
Layman,
109 N.J. 319, 334 (quoting Jackson v. Concord Co.,
54 N.J. 113, 124 (1969)), cert. denied,
488 U.S. 826,
109 S. Ct. 75,
102 L. Ed.2d 51 (1988). "[D]iscrimination threatens not only
the rights and proper privileges of the inhabitants of [New
Jersey,] but menaces the institutions and foundation of a free
democratic State." N.J.S.A. 10:5-3. In furtherance of its
purpose to root out discrimination, the Legislature has directed
that the LAD "shall be liberally construed." Ibid. We have
adhered to that legislative mandate by historically and
consistently interpreting the LAD "'with that high degree of
liberality which comports with the preeminent social significance
of its purposes and objects.'" Andersen v. Exxon Co.,
89 N.J. 483, 495 (1982) (quoting Passaic Daily News v. Blair,
63 N.J. 474, 484 (1973)).
A clear understanding of the phrase "place of public
accommodation" is critical. That is because "place of public
accommodation" is, in large measure, determinative of the LAD's
scope. Certainly, if the statute is broadly applicable, the
antidiscriminatory impact of its provisions is greater. The
Legislature's finding that the effects of discrimination are
pernicious, and its directive to liberally construe the LAD, have
informed our cases interpreting the reach of "place of public
accommodation."
a. Place
In 1965, the Court held that places of public accommodation
were not limited to those enumerated in the statute. Fraser v.
Robin Dee Day Camp,
44 N.J. 480, 486 (1965) (then N.J.S.A. 18:25
5(l)). At that time, the statutory definition used the word
"include" to preface a list of specific "places" of public
accommodation. See id. at 485. We reasoned that the
Legislature's choice of the word "include" indicated that the
"places" expressly mentioned were "merely illustrative of the
accommodations the Legislature intended to be within the scope of
the statute. Other accommodations, similar in nature to those
enumerated, were also intended to be covered." Id. at 486. Less
than a year later, the Legislature amended the LAD to expressly
state that "'a place of public accommodation' shall include, but
not be limited to" the various examples identified, L. 1966, c.
17 (emphasis added), thereby reaffirming our broad construction
of the statutory language.See footnote 55
Later, the word "place" became a further source of legal
dispute. In National Organization of Women v. Little League
Baseball, Inc.,
67 N.J. 320 (1974), we affirmed the decision of
the Appellate Division holding that: "[t]he statutory noun
'place' . . . is a term of convenience, not of limitation[,]
. . . employed to reflect the fact that public accommodations are
commonly provided at fixed 'places.'"
127 N.J. Super. 522, 531
(App. Div. 1974). The defendant in Little League was a chartered
baseball league that excluded girls between the ages of eight and
twelve years from participation in its programs. The league
contended that it did not come "within the meaning of the
statute, primarily because it [was] a membership organization
which does not operate from any fixed parcel of real estate in
New Jersey of which it had exclusive possession by ownership or
lease." Id. at 530. The court rejected that narrow view of
"place":
The "place" of public accommodation in the
case of Little League is obviously the ball
field at which tryouts are arranged,
instructions given, practices held and games
played. The statutory "accommodations,
advantages, facilities and privileges" at the
place of public accommodation is the entire
agglomeration of the arrangements which
Little League and its local chartered leagues
make and the facilities they provide for the
playing of baseball by the children.
In New Jersey, "place" has been more than a fixed location since
1974.
As Boy Scouts correctly observes, other jurisdictions
interpreting their antidiscrimination laws have found "place" to
be a limiting factor encompassing only a fixed location. See,
e.g., Welsh v. Boy Scouts of Am.,
993 F.2d 1267, 1269 (7th Cir.)
(holding that Boy Scouts is not "place of public accommodation"
under Title II of Civil Rights Act of 1964 because "Congress when
enacting § 2000a(b) never intended to include membership
organizations that do not maintain a close connection to a
structural facility within the meaning of 'place of public
accommodation'"), cert. denied,
510 U.S. 1012,
114 S. Ct. 602,
126 L. Ed.2d 567 (1993); United States Jaycees v. Richardet,
666 P.2d 1008, 1011 (Alaska 1983) (stating that "the word 'place'
. . . .would not encompass a service organization lacking a fixed
geographical situs"); United States Jaycees v. Bloomfield,
434 A.2d 1379, 1381 (D.C. 1981) (disagreeing with lower court's
conclusion that "it is not necessary that there be a building
. . . in order to categorize an existing entity as a place of
public accommodation"); United States Jaycees v. Iowa Civil
Rights Comm'n,
427 N.W.2d 450, 454 (Iowa 1988) (stating that
"United States Jaycees is not a 'place' within our definition of
'public accommodation'"); United States Jaycees v. Massachusetts
Comm'n Against Discrimination,
463 N.E.2d 1151, 1156 (Mass. 1984)
(finding that Massachusetts antidiscrimination law "does not
apply to [a] membership organization, since such an organization
does not fall within the commonly accepted definition of
'place'").
We observe that not all jurisdictions have interpreted
"place" so narrowly. The New York Court of Appeals has held that
a "place of public accommodation need not be a fixed location, it
is the place where petitioners do what they do," including "the
place where petitioners' meetings and activities occur." United
States Power Squadrons v. State Human Rights Appeal Bd.,
452 N.E.2d 1199, 1204 (N.Y. 1983). The Supreme Court of Minnesota
has also approved a flexible construction of the term "place."
In United States Jaycees v. McClure,
305 N.W.2d 764, 773 (Minn.
1981), the Minnesota court agreed with the Little League premise
that a "'place of public accommodation' . . . is less a matter of
whether the organization operates on a permanent site, and more a
matter of whether the organization engages in activities in
places to which an unselected public is given an open
invitation."
Despite numerous additions and modifications to the LAD in
the twenty-four years since Little League was decided, the New
Jersey Legislature has not enacted a limiting definition of
place. See Massachusetts Mutual Life Ins. Co. v. Manzo,
122 N.J. 104, 116 (1991) (stating that "[t]he Legislature's failure to
modify a judicial determination, while not dispositive, is some
evidence of legislative support for the judicial construction of
a statute . . . . [especially when] the Legislature has amended
[the] statute several times without altering the judicial
construction"). We decline now to construe "place" so as to
include only membership associations that are connected to a
particular geographic location or facility. As the Appellate
Division has so aptly pointed out, "[t]o have the LAD's reach
turn on the definition of 'place' is irrational because 'places
do not discriminate; people who own and operate places do.'"
Dale, supra, 308 N.J. Super. at 533 (quoting Welsh, supra, 993
F.
2d at 1282 (Cummings, J., dissenting)). A membership
association, like Boy Scouts, may be a "place" of public
accommodation even if the accommodation is provided at "a moving
situs." Little League, supra, 127 N.J. Super. at 531. In this
case it is readily apparent that the various locations where Boy
Scout troops meet fulfill the LAD "place" requirement.
b. Public Accommodation
Our case law identifies various factors that are helpful in
determining whether Boy Scouts is a "public accommodation." We
ask, generally, whether the entity before us engages in broad
public solicitation, whether it maintains close relationships
with the government or other public accommodations, or whether it
is similar to enumerated or other previously recognized public
accommodations.
Broad public solicitation has consistently been a principal
characteristic of public accommodations. Our courts have
repeatedly held that when an entity invites the public to join,
attend, or participate in some way, that entity is a public
accommodation within the meaning of the LAD. See, e.g., Clover
Hill Swimming Club, Inc. v. Goldsboro,
47 N.J. 25, 33 (1966)
(stating that "[a]n establishment which by advertising or
otherwise extends an invitation to the public generally is a
place of public accommodation"); Sellers v. Philip's Barber Shop,
46 N.J. 340, 345 (1966) (stating that "[a]n establishment which
caters to the public or by advertising or other forms of
invitation induces patronage generally is a place of public
accommodation"); Fraser, supra, 44 N.J. at 488 (stating that
"[i]n light of the nature of the facilities and activities
offered to the general public by respondent's day camp, we hold
that it is a public accommodation"); Little League, supra, 127
N.J. Super. at 531 (stating that "Little League is a public
accommodation because the invitation is open to children in the
community at large"); Evans v. Ross,
57 N.J. Super. 223, 231
(App. Div.) (stating that LAD requires "an establishment which
caters to the public, and by advertising or other forms of
invitation induces patronage generally, [not to] refuse to deal
with members of the public who have accepted the invitation"),
certif. denied,
31 N.J. 292 (1959); see also Kiwanis Int'l v.
Ridgewood Kiwanis Club,
806 F.2d 468, 475 (3d Cir. 1986) (stating
that LAD applies whenever "the organization or club . . .
invite[s] an unrestricted and unselected public to join as
members"); Brounstein v. American Cat Fanciers Ass'n,
839 F.
Supp. 1100, 1107 (D.N.J. 1993) (stating that "'primary [public
accommodation] consideration'" under LAD is "'whether the
invitation to gather is open to the public at large'") (quoting
Kiwanis Int'l, supra, 806 F