The U.S. Supreme Court ruled that the Boy Scouts of America has the right to exclude gays from its membership and leadership. The Court agreed with the Scouts’ contention that the presence of gays communicates a message contrary to the organization’s professed values.

James Dale joined the Boy Scouts of America (B.S.A.) in 1978 at the age of eight. He excelled in the goals of the organization, earned the rank of Eagle Scout in 1988, and subsequently attained the position of assistant scoutmaster. While attending Rutgers University, Dale acknowledged that he was gay, and he eventually led the campus’s lesbian and gay alliance. In July of 1990, he was interviewed by the Star-Ledger of Newark, New Jersey, which published an article on July 8, 1990, that identified Dale as a gay student. [kw]Boy Scouts of America v. Dale (June 28, 2000)
[kw]Dale, Boy Scouts of America v. (June 28, 2000)
Supreme Court, U.S.;discrimination
First Amendment;and speech[speech]
Civil rights;and Boy Scouts of America[Boy Scouts of America]
Boy Scouts of America v. Dale (2000)
[c]Laws, acts, and legal history;June 28, 2000: Boy Scouts of America v. Dale[2570]
[c]Organizations and institutions;June 28, 2000: Boy Scouts of America v. Dale[2570]
[c]Civil rights;June 28, 2000: Boy Scouts of America v. Dale[2570]
Dale, James
Kay, James W.

On August 5, Dale was notified by James W. Kay, Monmouth scout council executive, that his membership in the Boy Scouts was revoked, stating, according to trial records, that “the Boy Scouts of America…specifically forbid membership to homosexuals.” The basis for this position was the scout oath promise to be “morally straight” and the scout “law” requirement to be “clean,” both construed to mean “heterosexual.” Denied an opportunity to appeal his case, Dale filed a six-count complaint against the B.S.A. on July 29, 1992.

While the trial court sided with the B.S.A., the appellate court, and ultimately a unanimous state supreme court, ruled in favor of Dale. The courts found that the scouts constituted a public accommodation and thus was subject to New Jersey’s Law Against Discrimination, which had been amended in 1991 to prohibit discrimination because of a person’s “affectional or sexual orientation.”

The U.S. Supreme Court, in a 5-4 decision, reversed the ruling of the New Jersey appellate court, holding that to apply New Jersey’s public accommodations law to the scouts violated the organization’s First Amendment right of expressive association. Claiming to not take a position on the soundness of the scout’s exclusion of gays, the majority opinion, written by Chief Justice William Rehnquist, explained,

The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.

The Court relied significantly upon its earlier decision to exclude a gay and lesbian group from Boston’s St. Patrick’s Day parade St. Patrick’s Day parade, Boston[Saint Patricks Day parade] (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 1995). Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)[Hurley v Irish American Gay] Dale’s mere presence, according to the Court, was sufficiently communicative to send a message equal to the sign-carrying gay and lesbian parade participants in the Hurley case. On the principle that speakers should be allowed to control the message they send, the Court permitted the scouts to exclude Dale from its membership.

Dale arguably represents the nadir of American judicial activism against lesbians and gays. Unlike cases that addressed the actions of homosexuals, such as Bowers v. Hardwick (1986), which had upheld the criminalization of state sodomy laws, and Hurley, which barred a gay and lesbian group from carrying its own sign in a parade, Dale held that the mere presence of a gay man had toxic effects upon an organization’s constitutional guarantees. James Dale was found to have “done” nothing more than exist without shame; at no time was he accused of seeking to use his B.S.A. position to speak about homosexuality, or to influence others to adopt his views or his sexual identity.

Conceivably, under this new lax standard, no “known” homosexual can be protected by antidiscrimination laws: Paradoxically, antidiscrimination laws will only protect those who stay in the closet, removing a person’s expressed sexual orientation and gender identity from antidiscrimination protections.

Contrary to this negative outcome, some scholars, including Nancy Knauer, have argued that Dale highlights “the uniquely expressive character of the openly gay individual.” Both sides of the culture war, she argues, “agree [that] an openly gay individual sends a message of gay pride, encourages others to embrace homosexuality, and puts an ordinary face on homosexuality for the non-gay majority.” Because society assumes a standard of “heteronormativity,” that is, “the largely unstated assumption that heterosexuality is the essential and elemental ordering [principle] of society,” the majority in Dale rightly concluded that the unapologetic presence of an “openly gay” individual communicates a message that raises First Amendment issues. This “presence,” in effect, can be interpreted as a form of expressive power as well. That is, being gay or lesbian in the presence of those who are not, or in the presence of those who are “uncomfortable” with lesbians and gays, sends a message of its own.

No subsequent decisions have applied the more draconian implications of the Dale decision. On the contrary, the opinion that was viewed by some as a sword against gay and lesbian equality has more frequently become a shield. For example, in an opinion rendered by the U.S. Court of Appeals for the Third Circuit (Forum for Academic and Institutional Rights v. Rumsfeld, 2004), Forum for Academic and Institutional Rights v. Rumsfeld (2004) the court granted an injunction against enforcement of the Solomon Amendment, which penalized colleges and universities that restricted military recruiters from their campuses, in this case because of the military’s exclusion of lesbians, gays, and bisexuals from service. The opinion cites Dale for the point that forcing colleges and universities to accept recruiters on their campuses would force the campuses to express the military’s message of discriminatory hiring (just as the scouts would have been forced to communicate the message that homosexuality was acceptable had they been forced to accept Dale as a scoutmaster). The appellate court found that being forced to accept recruiters on campus would violate the campuses’ First Amendment rights against communicating another’s message (that of the military and its discriminatory hiring practices).

Although it won its case, the scouts did not emerge unscathed. After the B.S.A. won the right to openly discriminate (it should be noted that Girl Scouts of the United States of America does not discriminate against lesbians), many funding organizations withheld their support. United Way chapters across the country withdrew their funding, and local governments, such as the cities of Los Angeles and San Diego, in California, reduced their dealings with the organization. Connecticut excluded the scouts from its state employee charitable campaign.

Dale currently works as the vice president of a health-care publishing company. His story became the subject of a documentary titled Heroes. Supreme Court, U.S.;discrimination
First Amendment;and speech[speech]
Civil rights;and Boy Scouts of America[Boy Scouts of America]

• 
  Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
• Brower, Todd. “Of Courts and Closets: A Doctrinal and Empirical Analysis of Lesbian and Gay Identity in the Courts.” San Diego Law Review 38, no. 565 (2001).
• Knauer, Nancy J. “’Simply So Different’: The Uniquely Expressive Character of the Openly Gay Individual After Boy Scouts of America v. Dale.” Kentucky Law Journal 89, no. 997 (2001).
• Mechling, Jay. On My Honor: Boy Scouts and the Making of American Youth. Chicago: University of Chicago Press, 2001.
• Shepard, Tom, director. Scout’s Honor. Hohokus, N.J.: New Day Films, 2001. Video recording.
• Walzer, Lee, ed. Gay Rights on Trial: A Reference Handbook. Santa Barbara, Calif.: ABC-CLIO, 2002. Includes discussion of Dale.

January 12, 1939: Thompson v. Aldredge Dismisses Sodomy Charges Against Lesbians

1952-1990: U.S. Law Prohibits Gay and Lesbian Immigration

May 22, 1967: U.S. Supreme Court Upholds Law Preventing Immigration of Gays and Lesbians

January 22, 1973: Roe v. Wade Legalizes Abortion and Extends Privacy Rights

June 21, 1973: U.S. Supreme Court Supports Local Obscenity Laws

August, 1973: American Bar Association Calls for Repeal of Laws Against Consensual Sex

November 17, 1975: U.S. Supreme Court Rules in “Crimes Against Nature” Case

1981: Gay and Lesbian Palimony Suits Emerge

1982-1991: Lesbian Academic and Activist Sues University of California for Discrimination

1986: Bowers v. Hardwick Upholds State Sodomy Laws

May 1, 1989: U.S. Supreme Court Rules Gender-Role Stereotyping Is Discriminatory

December 17, 1991: Minnesota Court Awards Guardianship to Lesbian Partner

1992-2006: Indians Struggle to Abolish Sodomy Law

1993-1996: Hawaii Opens Door to Same-Gender Marriages

September 21, 1993-April 21, 1995: Lesbian Mother Loses Custody of Her Child

November 30, 1993: Don’t Ask, Don’t Tell Policy Is Implemented

December 20, 1999: Baker v. Vermont Leads to Recognition of Same-Gender Civil Unions

June 26, 2003: U.S. Supreme Court Overturns Texas Sodomy Law