SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2427-95T3
JAMES DALE,
Plaintiff-Appellant,
v.
BOY SCOUTS OF AMERICA and
MONMOUTH COUNCIL BOY SCOUTS
OF AMERICA,
Defendants-Respondents.
____________________________________
Argued December 8, 1997 - Decided March 2,
1998
Before Judges Havey, Landau and Newman.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County.
Lewis H. Robertson and Evan Wolfson, of the
New York Bar, admitted pro hac vice, argued
the cause for appellant (Lewis H. Robertson,
attorney; Mr. Robertson, Thomas J. Moloney,
Mr. Wolfson, Ayala Deutsch and Steven M.
Knecht on the brief).
Sanford D. Brown, George A. Davidson, of the
New York Bar, admitted pro hac vice, and
Carla A. Kerr, of the New York Bar, admitted
pro hac vice, argued the cause for
respondents (Cerrato, Dawes, Collins, Saker &
Brown, attorneys; Mr. Brown, Mr. Davidson and
Ms. Kerr, on the brief).
David Rocah, attorney for amici curiae
American Civil Liberties Union and ACLU of
New Jersey (Ruth E. Harlow, Matthew A. Coles
and James D. Esseks, of counsel and on the
brief with Mr. Rocah).
Singer & Fedun, attorneys for amici curiae
American Public Health Association and
Parents, Families and Friends of Lesbians and
Gays (Marvin E. Frankel, Jeffrey S.
Trachtman, Debora C. Fliegelman and William
S. Singer, of counsel and on the brief).
David H. Dugan, III, attorney for amici
curiae Claremont Institute for the Study of
Statesmanship and Political Philosophy
(Mr. Dugan, of counsel; Phillip J. Griego, on
the brief).
Kathleen A. Mazzouccolo, attorney for amici
curiae Diocesan Council of the Episcopal
Diocese of Newark, The Friends Committee of
National Legislation, The Jewish Recon-structionist Federation, The Union of
American Hebrew Congregations and The
Unitarian Universalist Association (Ms.
Mazzouccolo and Michael D. Silverman, on the
brief).
Warshaw & Barnes, attorneys for amici curiae
Individual Rights Foundation (Bray Barnes,
Brian Baker and Paul A. Hoffman, on the
brief).
James P.A. Cavanaugh, attorney for amicus
curiae National Association of Social Workers
and New Jersey Chapter of the National
Association of Social Workers (Mr. Cavanaugh,
on the brief).
Joshua D. Goodman, attorney for amicus curiae
New Jersey Lesbian and Gay Law Association
(Theodore R. Bohn and Mr. Goodman, of
counsel; Mr. Goodman on the brief).
The opinion of the court was delivered by
HAVEY, P.J.A.D.
Plaintiff James Dale was expelled from his position as an
Assistant Scoutmaster with defendant Monmouth Council, Boy Scouts
of America when he publicly declared he was a homosexual. He was
expelled by the Boy Scouts of America (BSA) because of its policy
excluding avowed homosexuals from membership in its organization.
We conclude that: (1) the BSA is a place of public accommodation
under New Jersey's Law Against Discrimination (LAD), N.J.S.A.
10:5-1 to -42; (2) the BSA's expulsion of plaintiff from his
position with the BSA violated the LAD by depriving him of a
public accommodation; and (3) the LAD's prohibition of the BSA's
policy of excluding gay members does not infringe upon
defendants' freedom of expressive association. Accordingly,
except to affirm the dismissal of plaintiff's common law claim,
we reverse and remand for further proceedings.
The BSA charters local groups to maintain units including
Cub Scout Packs (boys under eleven), Boy Scout Troops (boys
eleven to eighteen), and Explorer Posts (young men and women
fourteen through twenty). The troops are sponsored by religious,
civic, fraternal or educational organizations, and other groups
whose goals are compatible with those of the BSA.
As of December 1992, the BSA reported 3,453,315 youth
members and 1,172,485 adults registered in 123,045 traditional
Scout units. The national organization is headed by a National
Council and divided into regional administrative units and
subdivided into local councils. Monmouth Council has
jurisdiction over the geographical area in which plaintiff
served. There are approximately 400 local councils. Monmouth
Council was incorporated in 1924. In 1991, Monmouth Council had
9,446 youth members and 2,781 adults registered in 215 units.
The BSA was chartered by an Act of Congress in 1915, with
its stated purpose:
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, using the
methods which are now in common use by Boy
Scouts.
The BSA's bylaws provide: "In achieving this purpose, emphasis
shall be placed upon its educational program and the oaths,
promises, and codes of the Scouting program for character
development, citizenship training, mental and physical fitness."
The BSA Mission Statement provides:
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 values we strive to instill are based on
those found in the Scout Oath and Law:
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:
Trustworthy Obedient
Loyal Cheerful
Helpful Thrifty
Friendly Brave
Courteous Clean
Kind Reverent
According to the 1990 Boy Scout Handbook, understanding and
agreeing to live by the Scout Oath and the Scout Law are among
the joining requirements. According to the Declaration of
Religious Principle in the BSA bylaws, although scouting is
nonsectarian, all members must recognize an obligation to God.
The Scout Law, set forth in the 1911 Official Handbook for
Boys, has remained fundamental and unchanged. The 1936 Handbook
for Scoutmasters described the Scout Law as "the foundation upon
which the whole Scout Movement rests." It explained:
The genius of Scouting is most evident
in the Law of the Movement. It was based
upon the codes of old, transformed into a
positive, living ideal for the modern boy,
devised as a guide to his actions rather than
as repressive of his faults. That is what
makes the Scout Law outstanding.
The Scout Law neither commands nor prohibits, but positively
states these desired qualities.
Plaintiff became a Cub Scout at the age of eight and
remained an extremely active and successful youth member of the
BSA, achieving the rank of Eagle Scout. In March 1989, seven
months after his eighteenth birthday on August 2, 1988, he
applied for adult membership and was approved. He then served as
an Assistant Scoutmaster for Troop 73 in Matawan, during periods
when he was not away at college.
Plaintiff has been a devoted and exemplary Boy Scout. He
earned thirty merit badges, advanced to the highest rank, and
held numerous trooper leadership positions, including Junior
Assistant Scoutmaster. In addition, he was active in the Order
of the Arrow, an affiliated honor camping association. In the
Order of the Arrow, he was chosen for the highest possible honor,
Vigil, and also held numerous offices. Plaintiff was also
selected as a delegate to the 1985 National Boy Scout Jamboree,
and was chosen to speak at Monmouth Council functions on more
than one occasion.
On August 5, 1990, plaintiff, twenty years old at the time,
received a letter dated July 19, 1990, from James W. Kay, Council
Executive of Monmouth Council, informing him that his
registration was revoked. Registration is a prerequisite for
service as a volunteer adult leader. The letter said in part:
After careful review, we have decided that
your registration with the Boy Scouts of
America should be revoked. We are therefore
compelled to request that you sever any
relations that you may have with the Boy
Scouts of America.
You should understand that BSA membership
registration is a privilege and is not
automatically granted to everyone who
applies. We reserve the right to refuse
registration whenever there is a concern that
an individual may not meet the high standards
of membership which the BSA seeks to provide
for American youth.
Plaintiff answered by letter dated August 8, 1990, asking the grounds of the decision. In a letter dated August 10, 1990, Kay responded: "The grounds for this membership revocation are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals." Kay explained later in a deposition that he became aware that
plaintiff was an affirmed homosexual through a newspaper article.
The article, published on July 8, 1990, in the Newark Star
Ledger, was entitled, "Seminar addresses needs of homosexual
teens." It pictured plaintiff, a Rutgers student; identified him
as co-president of the Rutgers University Lesbian/Gay Alliance;
and quoted him as saying that he had pretended to be straight
while in high school, "only admitting his homosexuality during
his second year at Rutgers." According to Kay, plaintiff
demonstrated his failure to live by the Scout Oath and Law by
publicly avowing that he was a homosexual.
By letter dated November 27, 1990, Charles D. Ball,
Assistant Regional Director, Northeast Region, BSA, informed
plaintiff that the Northeast Region Review Committee supported
the decision of Monmouth Council. After further correspondence,
a December 21, 1990, letter from the BSA's legal counsel David K.
Park to plaintiff's counsel explained: "As your client is
apparently an avowed homosexual and the Boy Scouts of America
does not admit avowed homosexuals to membership in the
organization, no useful purpose would apparently be served by
having Mr. Dale present at the regional review meeting."
According to plaintiff, he was "devastated" by the
instruction to sever relations with scouting, which he
interpreted to mean that he was not only removed from his
position as Assistant Scoutmaster, but also stripped of all his
scouting honors, including his Eagle Scout status. However,
according to Kay, plaintiff was not stripped of any awards he had
earned as a youth, including his attainment of Eagle Scout rank,
and his membership revocation was kept confidential.
According to the BSA Rules and Regulations, to serve in an
adult leadership position, an individual must be recommended by
the scout executive, approved by the council executive board, and
be at least twenty-one (eighteen for assistant leaders). All
leaders must be commissioned annually. The BSA bylaws provide:
"No person shall be approved as a leader unless, in the judgment
of the Corporation, that person possesses the moral, educational,
and emotional qualities deemed necessary for leadership and
satisfies such other leadership qualifications as it may from
time to time require." The 1990 Troop Committee Guidebook lists
"[h]igh moral standards" and "[c]ommitment to the ideals of
Scouting" as the top two characteristics sought in a Scoutmaster.
It also suggests that the same standards used to choose a
Scoutmaster should be used to qualify Assistant Scoutmasters
(eighteen and up).
The 1972 Scoutmaster's Handbook emphasized the leaders' duty
as role models, and advised:
You are providing a good example of what a
man should be like. What you do and what you
are may be worth a thousand lectures and
sermons.
. . . .
What you are speaks louder than what you
say. This ranges from simple things like
wearing a uniform to the matter of your
behavior as an individual. Boys need a model
to copy and you might be the only good
example they know.
According to Parvin L. Bishop, National Director of Program
of the BSA, the requirements that a scout be "morally straight"
and "clean" are inconsistent with homosexuality, and therefore
known or avowed homosexuals or those who advocate to scouting
youth that homosexual conduct is morally straight or clean, will
not be registered as adult leaders. The BSA literature does not
detail prohibited sexual conduct, but the 1990 Boy Scout Handbook
includes a section on "Sexual Responsibility," which summarizes
responsibilities to women, to children, to the scout's beliefs,
and to himself. It says in part:
For the followers of most religions, sex
should take place only between married
couples. . . .
An understanding of wholesome sexual behavior
can bring you lifelong happiness. . . .
You owe it to yourself to enrich your life by
learning what is right.
In a policy statement dated March 17, 1978, addressed to
Executive Committee Members, the National Council asserted that
an individual who openly declares himself to be a homosexual
would not be selected to be a volunteer scout leader, be
registered as a unit member, or be employed as a professional or
nonprofessional. This was the earliest express statement
concerning homosexual members that defendants produced. Later
Position Statements affirmed that stance.
In a Position Statement dated January 1993, several years
after the revocation of plaintiff's membership, the BSA stated in
part:
The Boy Scouts of America does not ask
prospective members about their sexual
preference, nor do we check on the sexual
orientation of boys who are already Scouts.
The reality is that Scouting serves children
who have no knowledge of, or interest in,
sexual preference. We allow youth to live as
children and enjoy Scouting and its diversity
without immersing them in the politics of the
day.
Membership in Scouting is open to all youth
who meet basic requirements for membership
and who agree to live by the applicable oath
and law.
It summarized the BSA position:
The Boy Scouts of America has always
reflected the expectations that Scouting
families have had for the organization.
We do not believe that homosexuals provide a
role model consistent with these
expectations.
Accordingly, we do not allow for the
registration of avowed homosexuals as members
or as leaders of the BSA.
Plaintiff filed a six-count complaint in the Superior Court,
Chancery Division, alleging that defendants' revocation of his
membership and his expulsion as an Assistant Scoutmaster violated
the LAD, as well as certain common law rights. In the complaint
he seeks both reinstatement and damages. Plaintiff filed a
notice of motion for partial summary judgment seeking a
declaration that he had been deprived of an accommodation in
violation of the LAD. He also demanded an immediate
reinstatement to his position as Assistant Scoutmaster.
Defendants filed a cross-motion for summary judgment on all
counts.
In granting summary judgment to defendants, the trial judge
determined that the parties had stipulated that plaintiff was "a
sexually active homosexual." The judge found that the BSA had
consistently excluded from youth and adult membership any self-declared homosexual and that the BSA considered homosexual
conduct neither "morally straight" under the Scout Oath nor
"clean" under the Scout Law. The judge relied on the entrenched
biblical and historical view of homosexuality as not only morally
wrong, but criminal, as a basis for the presumption that, from
its inception, the BSA implicitly subscribed to that historical
view as well.
The judge concluded that plaintiff had no cause of action
under the LAD because the BSA was not a "place of public
accommodation" as defined by the Act. The judge also agreed with
defendants that they qualified for the LAD exclusion in N.J.S.A.
10:5-5(
l
) for any "institution . . . which is in its nature
distinctly private[.]" Finally, the judge concluded that
defendants' "First Amendment freedom of expressive association
rights prevent[ed] government from forcing them to accept
[plaintiff] as an adult leader-member" in view of defendants'
historical belief that homosexual conduct was morally wrong, and
"[t]he presence of a publicly avowed active homosexual as an
adult leader of boy scouts is absolutely antithetical to the
purpose of Scouting."
The parties agree that the there are no genuine issues of
material fact. Accordingly, the issues raised by this appeal may
be resolved as a matter of law.
Plaintiff contends that the BSA is a place of public accommodation under the LAD, prohibited from discriminating on the basis of affectional or sexual orientation. Plaintiff argues that his expulsion from the Boy Scouts and his position as an Assistant Scoutmaster violated the LAD by depriving him of the privileges and advantages of scouting based solely on his sexual orientation.
The LAD provides:
All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.
[N.J.S.A. 10:5-4 (emphasis added).]
The categories "affectional or sexual orientation" were added in 1991. L.1991, c. 519, § 2. "`Affectional or sexual orientation' means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation." N.J.S.A.
10:5-5hh.See footnote 1
The LAD renders unlawful certain employment practices or
discriminations. N.J.S.A. 10:5-12. Plaintiff asserts in his
complaint (first cause of action) that defendants have violated
N.J.S.A. 10:5-12f, which provides in pertinent part that it is
unlawful:
For any owner, . . . agent, or employee
of any place of public accommodation directly
or indirectly to refuse, withhold from or
deny to any person any of the accommodations,
advantages, facilities or privileges thereof,
or to discriminate against any person in the
furnishing thereof, . . . on account of the
. . . affectional or sexual orientation . . .
of such person . . . .
In its definitions, the LAD lists, expressly without
limitation, numerous places of public accommodation, which "shall
include" such places as hotels, camps, shops, restaurants,
theaters, swimming pools, hospitals, libraries, colleges and
universities. N.J.S.A. 10:5-5(
l
). It further provides:
Nothing herein contained shall be construed
to include or to apply to any institution,
bona fide club, or place of accommodation,
which is in its nature distinctly private;
nor shall anything herein contained apply to
any education facility operated or maintained
by a bona fide religious or sectarian
institution . . . .
[Ibid.]
The trial judge held that:
BSA is not a "place of accommodation"
under N.J.S.A. 10:5-12(f) and as defined in
N.J.S.A. 10:5-5(
l
). The lengthy list set
forth in the definition is a list of places
not one of organizations. A physical place
to which one may point is clearly intended.
He added:
A Boy Scout troop bears no similarity to
the enumerated places of public
accommodation. It consists of a small group
of boys and their adult leaders who meet
together in various places, viz. their
regular meeting hall, in tents during summer
camp or at other scout gatherings on scout-owned properties. None of those activities
or places are open to the public. The
benefits to the boys spring not from the
"facility" but from their interaction,
training and experiences as a group. Those
goals and objectives are totally different
from "places" to which the public is invited.
The question whether the BSA is a "place of public
accommodation" or "business" has been the subject of lively
debate in recent years in other jurisdictions. See generally
John E. Theuman, Annotation, Exclusion or Expulsion From
Association or Club As Violation of State Civil Rights Act,
38
A.L.R.4th 628 (1985) (collecting cases). The extreme divergence
of views on the social issues implicated is emphasized by the
prevalence of vigorous dissenting opinions in most cases.
In Welsh v. Boy Scouts of Am.,
993 F.2d 1267 (7th Cir.),
cert. denied,
510 U.S. 1012,
114 S.Ct. 602,
126 L.Ed.2d 567
(1993), the BSA denied membership to a boy who refused to affirm
a belief in God, as required by the Boy Scout Oath. Id. at 1268.
The Seventh Circuit held that the BSA was not a place of public
accommodation under Title II of the Civil Rights Act of 1964, 42
U.S.C.A. § 2000a, because the statute by its own terms included
only an entity that serves the public and may be classified as an
"establishment," "place," or "facility," and did not include a
membership organization unconnected to a structural facility.
Id. at 1269. Likewise, the Kansas Supreme Court in Seabourn v.
Coronado Area Council, BSA,
891 P.2d 385 (Kans. 1995), gave a
narrow interpretation of "public accommodation" under the Kansas
Act Against Discrimination. The court held that the BSA was
entitled to reject plaintiff's application for an adult
leadership position on the basis that he was a professed atheist.
Id. t 391. The Seabourn court rejected an interpretation of
public accommodations that divorced them from business
establishments, and contrasted the personal, private and on-going
relationships fostered by scouting with the impersonal, economic
and occasional interactions typical in business. Id. at 406.See footnote 2
In contrast to the Welsh view, Connecticut has interpreted
its state public accommodations statute as regulating "the
discriminatory conduct and not the discriminatory situs of an
enterprise which offers its services to the general public."
Quinnipiac Council, BSA v. Commission on Human Rights and
Opportunities,
528 A.2d 352, 357 (Conn. 1987). However, the
Supreme Court of Connecticut declined to rest its holding on this
issue. Rather, it held that the BSA did not violate
Connecticut's public accommodations statute by refusing to permit
a woman to serve as a scoutmaster because there was no denial of
"access to its goods and services" and therefore the woman was
not deprived of an "accommodation," as that word was used in the
statute. Id. at 358.
We reject the narrow interpretation given by Welsh to "place
of public accommodation." In defining the term we must be
mindful that the LAD is remedial "and should be read with an
approach sympathetic to its objectives." National Org. for Women
v. Little League Baseball, Inc., 127 N.J. Super. 522, 530 (App.
Div.), aff'd,
67 N.J. 320 (1974). "[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 (1988)
(quoting Jackson v. Concord Co.,
54 N.J. 113, 124 (1969)). Its
provisions must be construed liberally to effectuate that
purpose. N.J.S.A. 10:5-3 ("[t]he Legislature intends . . . that
this act shall be liberally construed in combination with other
protections available under the laws of this State"). The LAD
should be (and has consistently been) construed broadly and
"`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)).
Applying Welsh's view that Title II applies only to a
"place" would frustrate our goal of eradicating "the cancer of
discrimination" in New Jersey. To 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." Welsh,
supra, 993 F.
2d at 1282 (Cummings, C.J., dissenting). No one can
seriously argue that those who operate from a fixed "place" are
more apt to discriminate than those who meet at varying locales.
Ibid. Moreover, such a reading indiscriminately targets those
who have the financial wherewithal to own or operate a "place,"
and excludes those who do not.
Indeed, New Jersey has rejected the narrow view advanced by
Welsh. In Little League, supra, 127 N.J. Super. at 531, we held
that Little League Baseball, Inc., is a "place of public
accommodation" subject to the LAD. In rejecting Little League's
assertion that it was not a "place of public accommodation"
because it had no "place" or "situs," Judge Conford for the court
observed that the term was one "of convenience, not of
limitation." Ibid. He added:
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, N.J.S.A. 10:5-12(f), 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.
[Ibid.]
In the Little League court's view, the dispositive factor making
Little League a public accommodation was that its invitation was
"open to children in the community at large, with no restriction
(other than sex) whatever." Ibid.
Even before Little League was decided, our Supreme Court had
held that facilities and activities "offered to and . . .
dependent upon the broad-based participation of members of the
general public" are the types of accommodation the Legislature
intended to reach through the LAD. Fraser v. Robin Dee Day Camp,
44 N.J. 480, 488 (1965). In Fraser, the owner of a day camp
advertised the availability of its facilities to children from
two to fourteen years of age. Id. at 482-83. Plaintiff's
application to enroll his children was rejected because he was
"colored." Id. at 483. No evidence was adduced before the
Division on Civil Rights that the children had not met the
health, physical and emotional standards required by the day
camp. Id. at 484.
The Supreme Court in Fraser rejected the day camp's argument
that, since it was not one of the enumerated "places" under the
act, it was excluded, noting that the statute began by stating
that a place of public accommodation "shall include," a term of
"enlargement and not of limitation." Id. at 485; see also Zorba
Contractors, Inc. v. Housing Auth. of Newark, 282 N.J. Super.
430, 434 (App. Div. 1995). The Fraser Court observed that the
day camp had offered many accommodations in common with swimming
pools, recreation and amusement parks, motion picture houses,
theaters, gymnasiums and schools, "all of which are specifically
enumerated" in the statute as places of public accommodation.
44 N.J. at 487. The day camp was therefore "the type of
accommodation which the Legislature intended to reach." Ibid.
In Clover Hill Swimming Club v. Goldsboro,
47 N.J. 25, 33
(1966), the Supreme Court revisited the issue and found that a
private swimming club was a public accommodation under New
Jersey's anti-discrimination statute because of the club's
advertising and its extending "an invitation to the public
generally" to join. The Court observed that the decision to
operate as a private club "should not be permitted to obscure the
accommodation's non-private nature." Id. at 34. "`No device,
whether innocent or subtly purposeful, can be permitted to
frustrate the legislative determination to prevent
discrimination.'" Ibid. (quoting Jones v. Haridor Realty Corp.,
37 N.J. 384, 396 (1962)); see also Sellers v. Philip's Barber
Shop,
46 N.J. 340, 348 (1966) (a barber shop is a place of public
accommodation because it caters to the public or by advertising
or other form of invitation induces patronage generally).
Similarly, in Evans v. Ross, 57 N.J. Super. 223, 231 (App. Div.),
certif. denied,
31 N.J. 292 (1959), Judge Goldmann observed:
[A]n establishment which caters to the
public, and by advertising and other forms of
invitation induces patronage generally,
cannot refuse to deal with members of the
public who have accepted the invitation,
because of their race, creed, color, national
origin or ancestry. The law is designed to
insure that all citizens of this State shall
have equal rights as members of the public
and not be subjected to the embarrassment and
humiliation of being invited to an
establishment, only to find its doors barred
to them. Once a proprietor extends his
invitation to the public he must treat all
members of the public alike.
[Emphasis added.]
We conclude that the BSA and its local councils are places
of public accommodation. The BSA invites "the public at large,"
Little League, supra, 127 N.J. at 530, to join its ranks, and is
"dependent upon the broad-based participation of members of the
general public." Fraser, supra, 44 N.J. at 488. As of 1993,
scouting had nearly 5,000,000 youth and adult members nationwide,
and over 100,000 members in New Jersey alone. Plaintiff points
out that nearly 90,000,000 boys and men have joined the scouting
ranks since 1910. This is no doubt so because the BSA emphasizes
open membership in order to maintain its vitality and to reach
every aspect of society. Its publication "A Representative
Membership" announces that:
Our federal charter sets forth our obligation
to serve boys. Neither the charter nor the
bylaws of the Boy Scouts of America permits
the exclusion of any boy. The National
Council and Executive Board have always taken
the position that Scouting should be made
available for all boys who meet entrance age
requirements.
[Emphasis added.]
Moreover, the BSA engages in advertising and public
promotion to encourage new membership. Fraser, supra, 44 N.J. at
488. Local councils run radio and television spots and conduct
"school nights." The BSA has undertaken national television
campaigns, hired public relations firms and has produced magazine
inserts in national magazines promoting the benefits of scouting.
One BSA spokesman has explained "I think of scouting as a product
and we've got to get the product into the hands of as many
consumers as we can."
Citing Kiwanis Int'l v. Ridgewood Kiwanis Club,
806 F.2d 468
(3d Cir. 1986), reh'g denied,
811 F.2d 247 (3d Cir.), cert.
dismissed,
483 U.S. 1050,
108 S.Ct. 362,
97 L.Ed.2d 812 (1987),
the BSA argues that it is not a place of public accommodation
because its membership practices and policy do not "reflect an
open and unrestricted invitation to the community at large to
join" the organization. Id. at 476. The BSA points to the fact
that it engages in "selectivity" in that membership "is
restricted to those willing and able to understand and live by
the Scout Oath and Scout Law."
Kiwanis Int'l involved a federal action between Kiwanis
International and one of its local clubs, Kiwanis Ridgewood.
Kiwanis International sought to revoke the local club's license
to use the Kiwanis "marks" because the club had admitted a woman
in violation of Kiwanis International bylaws. Id. at 470-71.
The Third Circuit concluded that Kiwanis Ridgewood was not a
place of public accommodation under New Jersey's LAD because of
the selective criteria for membership in Kiwanis Ridgewood. Id.
at 471. The evidence was that Kiwanis Ridgewood had only twenty-eight members. Id. at 475. Each new member had to be sponsored;
sponsorship "acted as a primary screening mechanism in the
maintenance of the quality of membership." Ibid. Moreover, the
local club engaged in a selective, rather than large scale
membership solicitation by sending invitations only to prospects
already known by current members. Ibid. The court concluded:
This evidence of membership practices
and policy does not reflect an open and
unrestricted invitation to the community at
large to join Kiwanis Ridgewood. Rather, all
the evidence points totally in the opposite
direction. If the test of "place of public
accommodation" is unselectivity,
unrestrictedness, and open invitation, as
Little League informs us that it is, it is
evident Kiwanis Ridgewood's practices do not
pass the test.
[Id. at 476.]
The BSA contends that membership in its organization is "no less
selective than membership in a local Kiwanis club."
Kiwanis Int'l is clearly distinguishable. There the focus
was on the attributes and membership criteria of a small local
club. Here, plaintiff was expelled because of the BSA's
enforcement of its national policy precluding avowed homosexuals
from its membership. Thus, we focus on the membership criteria
of the BSA as a national organization. The BSA's national
membership criteria are clearly less restrictive than those
applied by the local club in Kiwanis Int'l. The BSA's criteria,
acceptance of the Scout Oath and adherence to its laws, are
conditions not significantly different from the boys' willingness
to abide by the standards of the Little League: requiring
tryouts; demanding adherence to the rules of the game; and
requiring the physical attributes and skills to play it. See
Little League, supra, 127 N.J. at 530-31. Considering the
undisputed invitation for membership in its literature to "all
boys," we deem the BSA's "selectivity" criteria inconsequential.
The BSA adds that we should focus on the "even more
restricted and selective" criteria for adult membership in
deciding whether the BSA is a place of public accommodation. It
points to the fact that troop committees weigh prospective adult
leaders according to various characteristics including: (1) high
moral standards; (2) commitment to the ideals of scouting;
(3) ability to relate to boys; (4) ability to keep a "cool head"
under pressure; and (5) organizing ability.
We reject the suggestion that the BSA organization as a
whole is not a place of public accommodation because more
stringent membership criteria are applied to a single component
of the organization, its adult members. Such a result is clearly
inconsistent with the remedial purposes of the LAD. Acceptance
of the argument would mean that the private clubs in Clover Hill,
supra, 47 N.J. at 34 and Fraser, supra, 44 N.J. at 485, are not
places of public accommodation because their member-counsellors
or lifeguards are subject to more stringent, enhanced training
criteria. An extension of defendants' argument would be that the
BSA is not a place of public accommodation because of the
demanding standards that must be met to become an Eagle Scout.
In any event, selectivity for membership is not necessarily
dispositive. For example, colleges and universities are places
of public accommodation, see N.J.S.A. 10:5-5(
l
), despite the
rigorous admission requirements imposed by many. Moreover, the
majority of New Jersey decisions do not embrace the notion,
advanced by Kiwanis Int'l and the BSA here, that the litmus test
in determining whether an organization is subject to the LAD is
whether it employs selective membership criteria. For example,
in Frank v. Ivy Club,
120 N.J. 73 (1990), cert. denied,
498 U.S. 1073,
111 S.Ct. 799,
112 L.Ed.2d 860 (1991), the issue was
whether Princeton University's private eating clubs were
"distinctly private" and thus exempt from the LAD. Id. at 102.
Membership in certain eating clubs was by invitation only after
the applicant submitted to a "Bicker" process, involving
interviews and a demanding selection process. Id. at 84-85. The
Court concluded that the eating clubs were subject to the LAD
notwithstanding these selective membership criteria because of
the integral and "symbiotic relationship" between the eating club
and the University, a place of public accommodation. Id. at 108.
See also Clover Hill, supra, 47 N.J. at 31-32 (despite
selectivity criteria employed by privately-owned swim club, the
club was a place of public accommodation because it had extended
an invitation to the public generally by advertisement or
otherwise).
Other factors support the conclusion that the BSA is a place
of public accommodation. The BSA offers accommodations which
"have many attributes in common with [the places and activities
enumerated under N.J.S.A. 10:5-5(
l
)] . . . which can be
characterized either as educational or recreational in nature."
See Fraser, supra, 44 N.J. at 487. The BSA seeks to establish in
its members self-sufficiency, physical strength, cleanliness and
healthiness through such outdoor activities as camping, biking
and hiking. It also stresses educational topics such as
democracy, civics, respect for the family and personal
development.
Further, although the BSA may not have the type of integral
and "symbiotic relationship" with a place of public
accommodation, as existed in Frank, supra, 120 N.J. at 104, we
cannot ignore the BSA's historic partnership with various public
entities and public service organizations. Local BSA units are
chartered by public schools, parent-teacher associations,
firehouses, local civic associations, and the United States Army,
Navy, Air Force and National Guard. The BSA's "learning for
life" program has been installed in many public school classrooms
throughout the country. Many troops meet in public facilities.
These relationships benefit the BSA. The BSA in turn provides
essential services through its scouts to the public and quasi-public organizations. This close relationship underscores the
BSA's fundamental public character.
For the foregoing reasons, we conclude that the BSA is a
place of public accommodation under the LAD.
For the reasons above-expressed, we reject summarily the trial judge's conclusion that defendants qualified for the LAD exclusion in N.J.S.A. 10:5-5( l ) for any "institution . . . which is in its nature distinctly private[.]" The characterization of "distinctly private" has been interpreted to represent merely "the other side of the `public accommodation' coin." Kiwanis Int'l, supra, 806 F. 2d at 476. Accord Brounstein v. American Cat Fanciers Ass'n, 839 F.Supp. 1100, 1107 (D.N.J. 1993). Because we conclude that the BSA is a place of public accommodation, it cannot be characterized as "distinctly private."
We also find unpersuasive defendants' alternative argument that they are exempt from the LAD because they qualify as an "educational facility operated or maintained by a bona fide religious or sectarian institution." N.J.S.A. 10:5-5( l ). The BSA is expressly nonsectarian. Even if its requirement that members profess a belief in God were sufficient to render it a bona fide religious or sectarian institution, it does not qualify as an "educational facility." It also does not fall within the exception in the LAD respecting "the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control." Ibid. The BSA's temporary charge of young members does not place it in loco parentis. The status in loco parentis derives from the intent to assume the parental relationship. A.S. v. B.S., 139 N.J. Super. 366, 369 (Ch. Div. 1976), aff'd, 150 N.J. Super. 122 (App. Div. 1977). Scouting, no
matter how significant a role it may play in a boy's development,
does not purport to take the place of parents.
The trial judge also found that plaintiff was not denied accommodations, advantages, facilities or privileges under N.J.S.A. 10:5-12f. He reasoned that plaintiff suffered "no legally remedial adverse consequences . . . from his termination" and "lost nothing of compensable value," since he was merely a volunteer assistant scoutmaster. We disagree. Clearly, the opportunity to serve as a volunteer must be construed as a privilege within the meaning of the LAD, whether despite, or because of, the duties attached. See Brounstein, supra, 839 F.Supp. at 1108 (designation of cat show judge was privilege or advantage offered by association to certain of its members, and therefore a privilege under the LAD).
Quinnipiac Council, BSA, supra, 528 A. 2d at 360, relied on by defendants, is distinguishable. There, the Connecticut Supreme Court held that a local boy scout council did not violate the state public accommodation statute by refusing to permit a woman to serve as a scoutmaster. This was so, the Court held, because Connecticut's public accommodation statute guarantees "access to its goods and services," but not the opportunity to offer services. Id. at 358. In contrast, the LAD prohibits denial of "accommodations, advantages, facilities or privileges." N.J.S.A. 10:12-5f. Defendants do not argue persuasively that serving as an assistant scoutmaster does not constitute an
advantage or privilege.
Plaintiff's count in his complaint that he is protected by the common law right not to be expelled from membership on grounds contrary to public policy is duplicative of the LAD claim, and consequently must be dismissed.
"It is well-settled that courts will invalidate an expulsion from a private organization when the expulsion is based on reasons that violate public policy." Rutledge v. Gulian, 93 N.J. 113, 119 (1983). The basis for relief from wrongful expulsion is the member's valuable personal relationship to the organization. Id. at 118. However, where the plaintiff was entitled to bring a similar claim under the LAD, it is unnecessary to consider whether a common law action would have been possible. Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 491 (App. Div.), certif. denied, 136 N.J. 298 (1994).
Plaintiff is correct that his BSA membership conferred the kind of status that merits judicial protection. However, he nevertheless fails to establish that, either at the time of his expulsion or at present, the public policy of New Jersey required greater regulation of discrimination within membership organizations than that required by the LAD. New Jersey's public policy against discrimination based on affectional or sexual orientation is now codified in the LAD. See Brounstein, supra, 839 F.Supp. at 1111 (public policy against discrimination based on religion made explicit in LAD). We have held that
"supplementary common law causes of action may not go to the jury
when a statutory remedy under the LAD exists." Catalane, supra,
271 N.J. Super. at 492.
The LAD does not "bar, exclude or otherwise affect any right
or action, civil or criminal, which may exist independently of
any right to redress against or specific relief from any unlawful
employment practice or unlawful discrimination." N.J.S.A. 10:5-27. Nor does the LAD preclude other remedies. "All remedies
available in common law tort actions shall be available to
prevailing plaintiffs. These remedies are in addition to any
provided by this act or any other statute." N.J.S.A. 10:5-13.
The Legislature declared:
Such harms [those suffered because of
discrimination] have, under the common law,
given rise to legal remedies, including
compensatory and punitive damages. The
Legislature intends that such damages be
available to all persons protected by this
act and that this act shall be liberally
construed in combination with other
protections available under the laws of this
State.
[N.J.S.A. 10:5-3.]
This passage has been interpreted to express a legislative intent
to read the LAD to encompass all those claims and damages
previously available at common law, rendering unnecessary a
separate common law claim for discrimination in employment.
Catalane, supra, 271 N.J. Super. at 492. Accord DeJoy v. Comcast
Cable Communications, Inc.,
941 F.Supp. 468, 475-76 (D.N.J.
1996). There is no reason not to apply the same rule to claims
for discrimination by places of public accommodation.
Prior cases support the principle that where a separate
claim for relief is based on the same discrimination allegations
underlying the LAD claim, and the court determines that the LAD
was not violated, no additional consideration is needed.
Erickson v. Marsh & McLennan Co., Inc.,
117 N.J. 539, 561 (1990).
Also, if the LAD creates a remedy, it may be unnecessary to
recognize or create a common law action to vindicate
substantially the same rights and provide similar relief. Shaner
v. Horizon Bancorp,
116 N.J. 433, 454 (1989).
In contrast, in some circumstances a plaintiff could pursue
an independent action "to vindicate particular interests in
addition to or aside from those sought to be protected by a LAD
action." Ibid. Plaintiff does not demonstrate that a common law
cause of action would vindicate any additional interests. He
provides no support for a theory that the common law would go
farther than the LAD in forbidding discrimination based on
affectional or sexual orientation within private organizations as
well as places of public accommodation. He argues instead merely
that a parallel common law claim should have been permitted. We
disagree.
The trial judge, as an alternative basis for dismissing plaintiff's complaint, held that the First Amendment freedom of association sheltered defendants from the LAD's reach. The judge accepted defendants' assertion that the BSA's fundamental right of freedom of expression permits it to exclude avowed homosexuals
who represent and espouse values that are antithetical to boy
scout teachings and activities. Defendants' argument, accepted
by the trial judge, is that its mission to instill the values of
the Scout Oath and Scout Law in boys who join the boy scout
troops would be undermined if the state intrudes into its
internal affairs by forcing it to accept homosexual members.
This contention is predicated on the BSA's policy of excluding
avowed homosexuals because homosexuality conflicts with the Scout
Oath, demanding that the scout be "morally straight," and the
Scout Law, requiring scouts to be "clean."
The trial judge endorsed this view. He stated:
It is abundantly clear from the proofs
presented by BSA that from its inception
Scouting has excluded from membership and
adult leadership any person who openly
declares himself a homosexual and that such
policy has continued unchanged, to the
present. Such policy applies, a fortiori, to
one who engages in homosexual conduct. It is
the firm position of BSA that such conduct is
not "morally straight" under the Scout Oath
nor is it "clean" under the Scout Law.
The judge thereupon gave the generally-recognized definitions of
"sodomy" and "buggery," and cited the Judeo-Christian tradition
condemning sodomy as a "gravely serious moral wrong." The judge
also noted that sodomy in New Jersey was a crime until 1979. He
concluded:
To suggest that the BSA had no policy
against active homosexuality is nonsense. It
was an organization which from its inception
had a God-acknowledged, moral foundation. It
required its members, youth and adult, to
take the Scout Oath that they would be
"morally straight." It is unthinkable that
in a society where there was universal
governmental condemnation of the act of
sodomy as a crime, that the BSA could or
would tolerate active homosexuality if
discovered in any of its members. . . .
. . . .
According to its mission and purpose,
BSA has determined that an assistant
scoutmaster who is an active sodomist is
simply incompatible with scouting and is not
"morally straight." Does the NJLAD require a
fundamental, court-imposed, change in its
policies? The short answer is No.
The federal constitution does not expressly recognize the
right to freedom of association. However, the right may be
inferred from other rights and protections guaranteed by the
constitution. Freedom of association was first recognized in
1958 in NAACP v. Alabama,
357 U.S. 449, 460,
78 S.Ct. 1163, ____,
2 L.Ed.2d 1488, 1498 (1958), where the Supreme Court observed
that "[e]ffective advocacy of both public and private points of
view . . . is undeniably enhanced by group association, as this
Court has more than once recognized by remarking upon the close
nexus between freedoms of speech and assembly." Ibid. It is
therefore "beyond debate that freedom to engage in association
for the advancement of beliefs and ideas is an inseparable aspect
of the `liberty' assured by the Due Process Clause of the
Fourteenth Amendment, which embraces freedom of speech." Ibid.
Early freedom of association cases involved civil rights
groups. See ibid; and see Sally Frank, The Key to Unlocking the
Clubhouse Door: The Application of Anti-Discrimination Laws to
Quasi-Public Clubs, 2 Mich. J. Gender & Law, 27, 57 (1994).
Later, unpopular political groups asserted the protection to
shield themselves from election laws regulating financial
disclosure. Ibid; see also Brown v. Socialist Workers '74
Campaign Comm.,
459 U.S. 87, 89,
103 S.Ct. 416, ___,
74 L.Ed.2d 250, 254 (1982); Buckley v. Valeo,
424 U.S. 1, 74,
96 S.Ct. 612,
___,
46 L.Ed.2d 659, 719 (1976). The early cases did not involve
state attempts to bar discrimination under public accommodation
laws.
In Roberts v. United States Jaycees,
468 U.S. 609,
104 S.Ct. 3244,
82 L.Ed.2d 462 (1984), the United States Supreme Court
provided a framework for analyzing constitutional claims of
freedom of association in the context of protection against
application of a state's public accommodation law. The Court
cited cases affording constitutional protection to freedom of
association in two distinct senses: freedom of intimate
association, and freedom of expressive association. Id. at 617-18, 104 S.Ct. at ___, 82 L.Ed.
2d at 471.
Freedom of intimate association shields against unjust
government intrusion into individual's choice to maintain
intimate or private associations with others. Id. at 618-19, 104
S.Ct. at ___, 82 L.Ed.
2d at 471-72. The intimate relationship
accorded this constitutional protection includes such
relationships as marriage, child bearing, education and
cohabitation with relatives. Id. at 619-20, 104 S.Ct. at ___, 82
L.Ed.
2d at 472. The protection applies only to those groups
having such attributes as "relative smallness," a high degree of
selectivity in decision making, and seclusion from others. Id.
at 620, 104 S.Ct. at ___, 82 L.Ed.
2d at 472.
Freedom of intimate association is not implicated here. The
BSA consists of nearly 5,000,000 members. It is open to all
boys. The BSA engages in aggressive advertising and undertakes a
variety of special interest activities in schools and other
public forums. Thus, the BSA lacks the distinctive qualities
that might afford constitutional protections under this component
of the First Amendment.
Freedom of expressive association is a correlative right to
an individual's freedom to speak. Id. at 622, 104 S.Ct. at ___,
82 L.Ed.
2d at 474. Implicit in the "right to engage in
activities protected by the First Amendment" is "a corresponding
right to associate with others in pursuit of a wide variety of
political, social, economic, educational, religious and cultural
ends." Ibid. Generally speaking, "[o]vertly political
organizations [or organizations formed to advance gender or race
based interests] are the ones most likely to demonstrate
successfully a genuine relationship between their discriminatory
practices and their objectives." Frank, supra, at 59-60.
Justice Brennan, for the Roberts Court, observed:
There can be no clearer example of an
intrusion into the internal structure or
affairs of an association than a regulation
that forces the group to accept members it
does not desire. Such a regulation may
impair the ability of the original members to
express only those views that brought them
together. Freedom of association therefore
plainly presupposes a freedom not to
associate.
[Roberts, supra, 468 U.S. at 623, 104 S.Ct.
at ___, 82 L.Ed.
2d at 474-75.]
The Court cautioned, however, that:
The right to associate for expressive
purposes is not, however, absolute.
Infringements on that right may be justified
by regulations adopted to serve compelling
state interests, unrelated to the suppression
of ideas, that cannot be achieved through
means significantly less restrictive of
associational freedoms.
[Id. at 623, 104 S.Ct. at ___, 82 L.Ed.
2d at
475.]
Applying this framework, the Supreme Court in Roberts held
that Minnesota's public accommodations law, by requiring the
admission of women to the Jaycees, did not unconstitutionally
infringe upon the male members' freedom of expressive
association. Id. at 628-29, 104 S.Ct. at ___, 82 L.Ed.
2d at 478.
The Court found no basis for concluding that the law would
require any change in the organization's creed, or impose any
restrictions on its "ability to exclude individuals with
ideologies or philosophies different from those of its existing
members." Id. at 627, 104 S.Ct. at ___, 82 L.Ed.
2d at 477. See
generally Eunice A. Eichelburger, Annotation Civil Rights Laws
Prohibiting Organization's Membership Restrictions as Violating
Organization's or its Members' Rights of Association Under
Federal Constitution's First Amendment,
82 L.Ed.2d 1040 (1986)
(collecting cases).
Three years later, the United States Supreme Court applied
the Roberts analytical framework in holding that California's
Unruh Act did not violate the First Amendment right of expressive
association by requiring a Rotary Club to admit women, where the
members' ability to carry out their purposes would not be
affected "in any significant way." Board of Dirs. of Rotary
Int'l v. Rotary Club of Duarte,
481 U.S. 537, 548,
107 S.Ct. 1940, ____,
95 L.Ed.2d 474, 486-87 (1987). The Court observed
that Rotary Clubs do not take positions on political issues and,
although they "engage in a variety of commendable service
activities that are protected by the First Amendment," the Unruh
Act "does not require the clubs to abandon or alter any of these
activities." Id. at 548, 107 S.Ct. at ___, 95 L.Ed.
2d at 486.
The Court added:
Even if the Unruh Act does work some
slight infringement on Rotary members' right
of e