"How solemn is the duty of the mighty chief": mediating the conflict of rights in Boy Scouts of America v. Dale

Harvard Journal of Law & Public Policy, Fall, 2000 by John C. O'Quinn

"HOW SOLEMN IS THE DUTY OF THE MIGHTY CHIEF"(1): MEDIATING THE CONFLICT OF RIGHTS IN Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000)

I. INTRODUCTION

Since 1910, the Boy Scouts of America(2) has provided what it describes as an educational program for boys and young men to build character, to train in the responsibilities of participatory citizenship, and to develop personal fitness.(3) For much of its ninety-year history, Scouting has been seen as the "embodiment of liberalism," exemplifying values such as "the belief in merit, autonomy, equal treatment, patriotism, community, [and] child development."(4) More recently, however, many of Scouting's values and views have come into question as "bigoted, outmoded boilerplate."(5) As society's mores have shifted away from a "Norman Rockwell" depiction of America, the Boy Scouts has found itself defending lawsuits against some of those they have denied admission.(6) The plaintiffs in these cases maintain that the Boy Scouts of America constitutes a place of public accommodation under state or federal law,(7) and that their denial of admission is unlawful discrimination.(8) Until 1998, the Boy Scouts successfully argued that Scouting was not covered by those statutes or that it fell within a statutory exception, thus avoiding federal constitutional questions.(9) However, when the Boy Scouts faced litigation under New Jersey's broad public accommodations statute,(10) it brought the Scouts' constitutional rights of speech and free association directly into conflict with the State's compelling interest in eliminating discrimination.(11)

Last Term, in Boy Scouts of America v. Dale,(12) the Supreme Court resolved this conflict, holding that requiring the Boy Scouts to admit an avowed homosexual into adult membership violates the Scouts' First Amendment right of expressive association. As the author of the opinion, Chief Justice Rehnquist had the weighty responsibility of mediating the conflicting interests of organizations like the Boy Scouts and excluded individuals such as James Dale, as well as state interests all entangled in public accommodations laws. The Court found that the application of New Jersey's Law Against Discrimination (LAD)(13) to the Boy Scouts in this case "would significantly burden the [Boy Scouts'] right to oppose or disfavor homosexual conduct."(14)

Although the Court was correct in determining that "the First Amendment prohibits the State from imposing" such a "severe intrusion on the Boy Scouts' rights to freedom of expressive association,"(15) the Court should have also considered the case directly under the Free Speech Clause of the First Amendment and the seldom-discussed freedom of intimate association.(16) Boy Scouts thus provided an opportunity not only to delineate the meaning of the right of intimate association, but also to forge greater consensus generally on the protections afforded by the freedoms of speech and association.

Part II of this Comment details the factual and procedural history leading up to the Court's decision as well as the majority and dissenting opinions in Boy Scouts. Part III.A examines the Boy Scouts' claim to a right of expressive association and in particular focuses on the dissent's argument that BSA is agnostic on issues of sexuality. Part III.B discusses the Scouts' free speech claim, which is analogous to the expressive association argument. Part III.C explores the application of the doctrine of intimate association to the Boy Scouts. In concluding, Part IV considers the implications of an opposite outcome in Boy Scouts for religious organizations.

II. FACTS AND PROCEDURAL HISTORY

A. The Boy Scouts of America

The Boy Scouts of America is a "private, not-for-profit organization engaged in instilling its system of values in young people"(17) and "prepar[ing] them to make ethical choices over their lifetime in achieving their full potential."(18) BSA describes itself as a "values-based program with its own code of conduct."(19) This code of conduct is found in the Scout Oath and Law, by which Boy Scouts of all ages--youth and adult leaders--are expected to live:(20)

Scout Oath

   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.

Scout Law

   A Scout is trustworthy, loyal,
   helpful, friendly, courteous, kind,
   obedient, cheerful, thrifty, brave,
   clean, and reverent.(21)

Many Scouting activities involve exploring and appreciating the outdoors, "[b]ut Scouting is far more than fun in the outdoors, hiking, and camping. Scouting is a way of life. Scouting is growing into responsible manhood, learning to be of service to others."(22) Thus, although Scouting "focuses on camping and outdoor skills, this is the means to an end."(23) "As stated by Scouting's founder, Robert S.S. Baden Powell: `Don't let the technical outweigh the moral. Field efficiency, backwoodsrnanship, camping, hiking, good turns, jamborees, comradeship, are all means, not the end. The end is character. Character with a purpose.'"(24) In short, the "several functions and missions of the BSA are important and vital to the whole: there is a religious component, a teaching component and a strong overall emphasis in shaping the moral character of young boys."(25)