Syllabus of Supreme Court on Dale v. BSA, June 2000

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

BOY SCOUTS OF AMERICA et al. v. DALE

CERTIORARI TO THE SUPREME COURT OF NEW JERSEY


No. 99-699. Argued April 26, 2000-Decided June 28, 2000


Petitioners are the Boy Scouts of America and its Monmouth Council
(collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit
organization engaged in instilling its system of values in young people. It
asserts that homosexual conduct is inconsistent with those values.
Respondent Dale is an adult whose position as assistant scoutmaster of a
New Jersey troop was revoked when the Boy Scouts learned that he is an
avowed homosexual and gay rights activist. He filed suit in the New Jersey
Superior Court, alleging, inter alia, that the Boy Scouts had violated the
state statute prohibiting discrimination on the basis of sexual orientation
in places of public accommodation. That court's Chancery Division granted
summary judgment for the Boy Scouts, but its Appellate Division reversed in
pertinent part and remanded. The State Supreme Court affirmed, holding,
inter alia, that the Boy Scouts violated the State's public accommodations
law by revoking Dale's membership based on his avowed homosexuality. Among
other rulings, the court held that application of that law did not violate
the Boy Scouts' First Amendment right of expressive association because
Dale's inclusion would not significantly affect members' ability to carry
out their purposes; determined that New Jersey has a compelling interest in
eliminating the destructive consequences of discrimination from society,
and that its public accommodations law abridges no more speech than is
necessary to accomplish its purpose; and distinguished Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S.
557, on the ground that Dale's reinstatement did not compel the Boy Scouts
to express any message.

Held: Applying New Jersey's public accommodations law to require the Boy
Scouts to admit Dale violates the Boy Scouts' First Amendment right of
expressive association. Government actions that unconstitutionally burden
that right may take many forms, one of which is intrusion into a group's
internal affairs by forcing it to accept a member it does not desire.
Roberts v. United States Jaycees, 468 U.S. 609, 623. Such forced membership
is unconstitutional if the person's presence affects in a significant way
the group's ability to advocate public or private viewpoints. New York
State Club Assn., Inc. v. City of New York, 487 U.S. 1, 13. However, the
freedom of expressive association is not absolute; it can be overridden 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. Roberts, 468 U.S., at 623. To
determine whether a group is protected, this Court must determine whether
the group engages in "expressive association." The record clearly reveals
that the Boy Scouts does so when its adult leaders inculcate its youth
members with its value system. See id., at 636. Thus, the Court must
determine whether the forced inclusion of Dale would significantly affect
the Boy Scouts' ability to advocate public or private viewpoints. The Court
first must inquire, to a limited extent, into the nature of the Boy Scouts'
viewpoints. The Boy Scouts asserts that homosexual conduct is inconsistent
with the values embodied in the Scout Oath and Law, particularly those
represented by the terms "morally straight" and "clean," and that the
organization does not want to promote homosexual conduct as a legitimate
form of behavior. The Court gives deference to the Boy Scouts' assertions
regarding the nature of its expression, see, Democratic Party of United
States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 123-124. The Court
then inquires whether Dale's presence as an assistant scoutmaster would
significantly burden the expression of those viewpoints. Dale, by his own
admission, is one of a group of gay Scouts who have become community
leaders and are open and honest about their sexual orientation. His
presence as an assistant scoutmaster would interfere with the Scouts'
choice not to propound a point of view contrary to its beliefs. See Hurley,
515 U.S., at 576-577. This Court disagrees with the New Jersey Supreme
Court's determination that the Boy Scouts' ability to disseminate its
message would not be significantly affected by the forced inclusion of
Dale. First, contrary to the state court's view, an association need not
associate for the purpose of disseminating a certain message in order to be
protected, but must merely engage in expressive activity that could be
impaired. Second, even if the Boy Scouts discourages Scout leaders from
disseminating views on sexual issues, its method of expression is
protected. Third, the First Amendment does not require that every member of
a group agree on every issue in order for the group's policy to be
"expressive association." Given that the Boy Scouts' expression would be
burdened, the Court must inquire whether the application of New Jersey's
public accommodations law here runs afoul the Scouts' freedom of expressive
association, and concludes that it does. Such a law is within a State's
power to enact when the legislature has reason to believe that a given
group is the target of discrimination and the law does not violate the
First Amendment. See, e.g., id., at 572. The Court rejects Dale's
contention that the intermediate standard of review enunciated in United
States v. O'Brien, 391 U.S. 367, should be applied here to evaluate the
competing interests of the Boy Scouts and the State. Rather, the Court
applies an analysis similar to the traditional First Amendment analysis it
applied in Hurley. A state requirement that the Boy Scouts retain Dale
would significantly burden the organization's right to oppose or disfavor
homosexual conduct. The state interests embodied in New Jersey's public
accommodations law do not justify such a severe intrusion on the freedom of
expressive association. In so ruling, the Court is not guided by its view
of whether the Boy Scouts' teachings with respect to homosexual conduct are
right or wrong; public or judicial disapproval of an organization's
expression does not justify the State's effort to compel the organization
to accept members in derogation of the organization's expressive message.
While the law may promote all sorts of conduct in place of harmful
behavior, it may not interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one, however
enlightened either purpose may seem. Hurley, supra, at 579. Pp. 5-17.

160 N. J. 562, 734 A. 2d 1196, reversed and remanded.

Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor,
Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting
opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Souter, J.,
filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined.
-----------------------------------------------
Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports. Readers are requested
to notify the Reporter of Decisions,
Supreme Court of the United States, Washington, D. C. 20543, of any
typographical or other formal errors, in order that corrections may be made
before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 99-699


BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al., PETITIONERS v.
JAMES DALE

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEW JERSEY

[June 28, 2000]
Chief Justice Rehnquist delivered the opinion of the Court.

Petitioners are the Boy Scouts of America and the Monmouth Council, a
division of the Boy Scouts of America (collectively, Boy Scouts). The Boy
Scouts is a private, not-for-profit organization engaged in instilling its
system of values in young people. The Boy Scouts asserts that homosexual
conduct
is inconsistent with the values it seeks to instill. Respondent is James
Dale, a former Eagle Scout whose adult membership in the Boy Scouts was
revoked
when the Boy Scouts learned that he is an avowed homosexual and gay rights
activist. The New Jersey Supreme Court held that New Jersey's public
accommodations law requires that the Boy Scouts admit Dale. This case
presents the question whether applying New Jersey's public accommodations
law
in this way violates the Boy Scouts' First Amendment right of expressive
association. We hold that it does.

I

James Dale entered scouting in 1978 at the age of eight by joining
Monmouth Council's Cub Scout Pack 142. Dale became a Boy Scout in 1981 and
remained a Scout until he turned 18. By all accounts, Dale was an exemplary
Scout. In 1988, he achieved the rank of Eagle Scout, one of Scouting's
highest honors.

Dale applied for adult membership in the Boy Scouts in 1989. The Boy
Scouts approved his application for the position of assistant scoutmaster of
Troop 73. Around the same time, Dale left home to attend Rutgers
University. After arriving at Rutgers, Dale first acknowledged to himself
and others that
he is gay. He quickly became involved with, and eventually became the
copresident of, the Rutgers University Lesbian/Gay Alliance. In 1990, Dale
attended a seminar addressing the psychological and health needs of lesbian
and gay teenagers. A newspaper covering the event interviewed Dale about his
advocacy of homosexual teenagers' need for gay role models. In early July
1990, the newspaper published the interview and Dale's photograph over a
caption identifying him as the copresident of the Lesbian/Gay Alliance.

Later that month, Dale received a letter from Monmouth Council
Executive James Kay revoking his adult membership. Dale wrote to Kay
requesting the
reason for Monmouth Council's decision. Kay responded by letter that the
Boy Scouts "specifically forbid membership to homosexuals." App. 137.

In 1992, Dale filed a complaint against the Boy Scouts in the New
Jersey Superior Court. The complaint alleged that the Boy Scouts had
violated New
Jersey's public accommodations statute and its common law by revoking
Dale's membership based solely on his sexual orientation. New Jersey's
public
accommodations statute prohibits, among other things, discrimination on the
basis of sexual orientation in places of public accommodation. N. J. Stat.
Ann. §§10:5-4 and 10:5-5 (West Supp. 2000); see Appendix, infra, at 18-19.

The New Jersey Superior Court's Chancery Division granted summary
judgment in favor of the Boy Scouts. The court held that New Jersey's public
accommodations law was inapplicable because the Boy Scouts was not a place
of public accommodation, and that, alternatively, the Boy Scouts is a
distinctly private group exempted from coverage under New Jersey's law. The
court rejected Dale's common-law claim holding that New Jersey's policy is
embodied in the public accommodations law. The court also concluded that
the Boy Scouts' position in respect of active homosexuality was clear and
held
that the First Amendment freedom of expressive association prevented the
government from forcing the Boy Scouts to accept Dale as an adult leader.

The New Jersey Superior Court's Appellate Division affirmed the
dismissal of Dale's common-law claim, but otherwise reversed and remanded
for
further proceedings. 308 N. J. Super. 516, 70 A. 2d 270 (1998). It held
that New Jersey's public accommodations law applied to the Boy Scouts and
that
the Boy Scouts violated it. The Appellate Division rejected the Boy Scouts'
federal constitutional claims.

The New Jersey Supreme Court affirmed the judgment of the Appellate
Division. It held that the Boy Scouts was a place of public accommodation
subject to the public accommodations law, that the organization was not
exempt from the law under any of its express exceptions, and that the Boy
Scouts
violated the law by revoking Dale's membership based on his avowed
homosexuality. After considering the state-law issues, the court addressed
the Boy
Scouts' claims that application of the public accommodations law in this
case violated its federal constitutional rights " 'to enter into and
maintain Š
intimate or private relationships Š [and] to associate for the purpose of
engaging in protected speech.' " 160 N. J. 562, 605, 734 A. 2d 1196, 1219
(1999)
(quoting Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481
U.S. 537, 544 (1987)). With respect to the right to intimate association,
the
court concluded that the Boy Scouts' "large size, nonselectivity, inclusive
rather than exclusive purpose, and practice of inviting or allowing
nonmembers
to attend meetings, establish that the organization is not 'sufficiently
personal or private to warrant constitutional protection' under the freedom
of intimate
association.' " 160 N. J., at 608-609, 734 A. 2d, at 1221 (quoting Duarte,
supra, at 546). With respect to the right of expressive association, the
court
"agree[d] that Boy Scouts expresses a belief in moral values and uses its
activities to encourage the moral development of its members." Ibid., 734
A. 2d,
at 1223. But the court concluded that it was "not persuaded Š that a shared
goal of Boy Scout members is to associate in order to preserve the view that
homosexuality is immoral." 160 N. J., at 613, 734 A. 2d, at 1223-1224
(internal quotation marks omitted). Accordingly, the court held "that Dale's
membership does not violate the Boy Scouts' right of expressive association
because his inclusion would not 'affect in any significant way [the Boy
Scouts'] existing members' ability to carry out their various purposes.' "
Id., at 615, 734 A. 2d, at 1225 (quoting Duarte, supra, at 548). The court
also
determined that New Jersey has a compelling interest in eliminating "the
destructive consequences of discrimination from our society," and that its
public
accommodations law abridges no more speech than is necessary to accomplish
its purpose. 160 N. J., at 619-620, 734 A. 2d, at 1227-1228. Finally,
the court addressed the Boy Scouts' reliance on Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), in
support of its claimed First Amendment right to exclude Dale. The court
determined that Hurley did not require deciding the case in favor of the Boy
Scouts because "the reinstatement of Dale does not compel Boy Scouts to
express any message." 160 N. J., at 624, 734 A. 2d, at 1229.

We granted the Boy Scouts' petition for certiorari to determine whether
the application of New Jersey's public accommodations law violated the First
Amendment. 528 U.S. 1109 (2000).

II

In Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984), we
observed that "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." This right is crucial in preventing the majority from imposing its
views on groups that would rather express other, perhaps unpopular, ideas.
See
ibid. (stating that protection of the right to expressive association is
"especially important in preserving political and cultural diversity and in
shielding
dissident expression from suppression by the majority"). Government actions
that may unconstitutionally burden this freedom may take many forms, one
of which is "intrusion into the internal structure or affairs of an
association" like a "regulation that forces the group to accept members it
does not desire."
Id., at 623. Forcing a group to accept certain members may impair the
ability of the group to express those views, and only those views, that it
intends to
express. Thus, "[f ]reedom of association Š plainly presupposes a freedom
not to associate." Ibid.

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. New York State Club Assn., Inc. v. City of New York, 487 U.S.
1, 13
(1988). But the freedom of expressive association, like many freedoms, is
not absolute. We have held that the freedom could be overridden "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." Roberts, supra, at 623.

To determine whether a group is protected by the First Amendment's
expressive associational right, we must determine whether the group engages
in
"expressive association." The First Amendment's protection of expressive
association is not reserved for advocacy groups. But to come within its
ambit, a
group must engage in some form of expression, whether it be public or private.

Because this is a First Amendment case where the ultimate conclusions
of law are virtually inseparable from findings of fact, we are obligated to
independently review the factual record to ensure that the state court's
judgment does not unlawfully intrude on free expression. See Hurley, supra,
at
567-568. The record reveals the following. The Boy Scouts is a private,
nonprofit organization. According to its mission statement:

"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:

"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 Obedient

Loyal Cheerful

Helpful Thrifty

Friendly Brave

Courteous Clean

Kind Reverent." App. 184.

Thus, the general mission of the Boy Scouts is clear: "[T]o instill values
in young people." Ibid. The Boy Scouts seeks to instill these values by
having its
adult leaders spend time with the youth members, instructing and engaging
them in activities like camping, archery, and fishing. During the time
spent with
the youth members, the scoutmasters and assistant scoutmasters inculcate
them with the Boy Scouts' values-both expressly and by example. It seems
indisputable that an association that seeks to transmit such a system of
values engages in expressive activity. See Roberts, supra, at 636
(O'Connor, J.,
concurring) ("Even the training of outdoor survival skills or participation
in community service might become expressive when the activity is intended
to
develop good morals, reverence, patriotism, and a desire for
self-improvement").

Given that the Boy Scouts engages in expressive activity, we must
determine whether the forced inclusion of Dale as an assistant scoutmaster
would
significantly affect the Boy Scouts' ability to advocate public or private
viewpoints. This inquiry necessarily requires us first to explore, to a
limited extent,
the nature of the Boy Scouts' view of homosexuality.

The values the Boy Scouts seeks to instill are "based on" those listed
in the Scout Oath and Law. App. 184. The Boy Scouts explains that the Scout
Oath
and Law provide "a positive moral code for living; they are a list of
'do's' rather than 'don'ts.' " Brief for Petitioners 3. The Boy Scouts
asserts that
homosexual conduct is inconsistent with the values embodied in the Scout
Oath and Law, particularly with the values represented by the terms "morally
straight" and "clean."

Obviously, the Scout Oath and Law do not expressly mention sexuality or
sexual orientation. See supra, at 6-7. And the terms "morally straight" and
"clean" are by no means self-defining. Different people would attribute to
those terms very different meanings. For example, some people may believe
that
engaging in homosexual conduct is not at odds with being "morally straight"
and "clean." And others may believe that engaging in homosexual conduct is
contrary to being "morally straight" and "clean." The Boy Scouts says it
falls within the latter category.

The New Jersey Supreme Court analyzed the Boy Scouts' beliefs and found
that the "exclusion of members solely on the basis of their sexual
orientation
is inconsistent with Boy Scouts' commitment to a diverse and
'representative' membership Š [and] contradicts Boy Scouts' overarching
objective to reach
'all eligible youth.' " 160 N. J., at 618, 734 A. 2d, at 1226. The court
concluded that the exclusion of members like Dale "appears antithetical to
the
organization's goals and philosophy." Ibid. But our cases reject this sort
of inquiry; it is not the role of the courts to reject a group's expressed
values
because they disagree with those values or find them internally
inconsistent. See Democratic Party of United States v. Wisconsin ex rel. La
Follette, 450
U.S. 107, 124 (1981) ("[A]s is true of all expressions of First Amendment
freedoms, the courts may not interfere on the ground that they view a
particular
expression as unwise or irrational"); see also Thomas v. Review Bd. of
Indiana Employment Security Div., 450 U.S. 707, 714 (1981) ("[R]eligious
beliefs need not be acceptable, logical, consistent, or comprehensible to
others to merit First Amendment protection").

The Boy Scouts asserts that it "teach[es] that homosexual conduct is
not morally straight," Brief for Peti-
tioners 39, and that it does "not want to promote homosexual conduct as a
legitimate form of behavior," Reply Brief for Petitioners 5. We accept the
Boy
Scouts' assertion. We need not inquire further to determine the nature of
the Boy Scouts' expression with respect to homosexuality. But because the
record
before us contains written evidence of the Boy Scouts' viewpoint, we look
to it as instructive, if only on the question of the sincerity of the
professed beliefs.

A 1978 position statement to the Boy Scouts' Executive Committee,
signed by Downing B. Jenks, the President of the Boy Scouts, and Harvey L.
Price, the Chief Scout Executive, expresses the Boy Scouts' "official
position" with regard to "homosexuality and Scouting":

"Q. May an individual who openly declares himself to be a homosexual
be a volunteer Scout leader?

"A. No. The Boy Scouts of America is a private, membership
organization and leadership therein is a privilege and not a right. We do
not believe that
homosexuality and leadership in Scouting are appropriate. We will continue
to select only those who in our judgment meet our standards and
qualifications
for leadership." App. 453-454.

Thus, at least as of 1978-the year James Dale entered Scouting-the official
position of the Boy Scouts was that avowed homosexuals were not to be Scout
leaders.

A position statement promulgated by the Boy Scouts in 1991 (after
Dale's membership was revoked but before this litigation was filed) also
supports its
current view:

"We believe that homosexual conduct is inconsistent with the requirement in
the Scout Oath that a Scout be morally straight and in the Scout Law that a
Scout be clean in word and deed, and that homosexuals do not provide a
desirable role model for Scouts." Id., at 457.

This position statement was redrafted numerous times but its core message
remained consistent. For example, a 1993 position statement, the most
recent in
the record, reads, in part:

"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." Id., at 461.

The Boy Scouts publicly expressed its views with respect to homosexual
conduct by its assertions in prior litigation. For example, throughout a
California case with similar facts filed in the early 1980's, the Boy
Scouts consistently asserted the same position with respect to
homosexuality that it
asserts today. See Curran v. Mount Diablo Council of Boy Scouts of America,
No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th 670,
29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P.2d 218 (1998). We
cannot doubt that the Boy Scouts sincerely holds this view.

We must then determine whether Dale's presence as an assistant
scoutmaster would significantly burden the Boy Scouts' desire to not
"promote
homosexual conduct as a legitimate form of behavior." Reply Brief for
Petitioners 5. As we give deference to an association's assertions
regarding the
nature of its expression, we must also give deference to an association's
view of what would impair its expression. See, e.g., La Follette, supra, at
123-124 (considering whether a Wisconsin law burdened the National Party's
associational rights and stating that "a State, or a court, may not
constitutionally substitute its own judgment for that of the Party"). That
is not to say that an expressive association can erect a shield against
antidiscrimination laws simply by asserting that mere acceptance of a
member from a particular group would impair its message. But here Dale, by
his own
admission, is one of a group of gay Scouts who have "become leaders in
their community and are open and honest about their sexual orientation."
App. 11.
Dale was the copresident of a gay and lesbian organization at college and
remains a gay rights activist. Dale's presence in the Boy Scouts would, at
the very
least, force the organization to send a message, both to the youth members
and the world, that the Boy Scouts accepts homosexual conduct as a
legitimate
form of behavior.

Hurley is illustrative on this point. There we considered whether the
application of Massachusetts' public accommodations law to require the
organizers
of a private St. Patrick's Day parade to include among the marchers an
Irish&nbhyph;American gay, lesbian, and bisexual group, GLIB, violated the
parade organizers' First Amendment rights. We noted that the parade
organizers did not wish to exclude the GLIB members because of their sexual
orientations, but because they wanted to march behind a GLIB banner. We
observed:

"[A] contingent marching behind the organization's banner would at least
bear witness to the fact that some Irish are gay, lesbian, or bisexual, and
the
presence of the organized marchers would suggest their view that people of
their sexual orientations have as much claim to unqualified social
acceptance as
heterosexuals Š . The parade's organizers may not believe these facts about
Irish sexuality to be so, or they may object to unqualified social
acceptance of
gays and lesbians or have some other reason for wishing to keep GLIB's
message out of the parade. But whatever the reason, it boils down to the
choice of
a speaker not to propound a particular point of view, and that choice is
presumed to lie beyond the government's power to control." 515 U.S., at
574-575.

Here, we have found that the Boy Scouts believes that homosexual conduct is
inconsistent with the values it seeks to instill in its youth members; it
will not
"promote homosexual conduct as a legitimate form of behavior." Reply Brief
for Petitioners 5. As the presence of GLIB in Boston's St. Patrick's Day
parade would have interfered with the parade organizers' choice not to
propound a particular point of view, the presence of Dale as an assistant
scoutmaster
would just as surely interfere with the Boy Scout's choice not to propound
a point of view contrary to its beliefs.

The New Jersey Supreme Court determined that the Boy Scouts' ability to
disseminate its message was not significantly affected by the forced
inclusion
of Dale as an assistant scoutmaster because of the following findings:

"Boy Scout members do not associate for the purpose of disseminating the
belief that homosexuality is immoral; Boy Scouts discourages its leaders
from
disseminating any views on sexual issues; and Boy Scouts includes sponsors
and members who subscribe to different views in respect of
homosexuality." 160 N. J., at 612, 734 A. 2d, at 1223.

We disagree with the New Jersey Supreme Court's conclusion drawn from these
findings.

First, associations do not have to associate for the "purpose" of
disseminating a certain message in order to be entitled to the protections
of the First
Amendment. An association must merely engage in expressive activity that
could be impaired in order to be entitled to protection. For example, the
purpose
of the St. Patrick's Day parade in Hurley was not to espouse any views
about sexual orientation, but we held that the parade organizers had a
right to
exclude certain participants nonetheless.

Second, even if the Boy Scouts discourages Scout leaders from
disseminating views on sexual issues-a fact that the Boy Scouts disputes
with contrary
evidence-the First Amendment protects the Boy Scouts' method of expression.
If the Boy Scouts wishes Scout leaders to avoid questions of sexuality and
teach only by example, this fact does not negate the sincerity of its
belief discussed above.

Third, the First Amendment simply does not require that every member of
a group agree on every issue in order for the group's policy to be
"expressive
association." The Boy Scouts takes an official position with respect to
homosexual conduct, and that is sufficient for First Amendment purposes. In
this
same vein, Dale makes much of the claim that the Boy Scouts does not revoke
the membership of heterosexual Scout leaders that openly disagree with the
Boy Scouts' policy on sexual orientation. But if this is true, it is
irrelevant.1 The presence of an avowed homosexual and gay rights activist
in an as-
sistant scoutmaster's uniform sends a distinctly different message from the
presence of a heterosexual assistant scoutmaster who is on record as
disagreeing
with Boy Scouts policy. The Boy Scouts has a First Amendment right to
choose to send one message but not the other. The fact that the
organization does
not trumpet its views
from the housetops, or that it tolerates dissent within
its ranks, does not mean that its views receive no First Amendment protection.

Having determined that the Boy Scouts is an expressive association and
that the forced inclusion of Dale would significantly affect its
expression, we
inquire whether the application of New Jersey's public accommodations law
to require that the Boy Scouts accept Dale as an assistant scoutmaster runs
afoul of the Scouts' freedom of expressive association. We conclude that it
does.

State public accommodations laws were originally enacted to prevent
discrimination in traditional places of public accommodation-like inns and
trains.
See, e.g., Hurley, supra, at 571-572 (explaining the history of
Massachusetts' public accommodations law); Romer v. Evans, 517 U.S. 620,
627-629 (1996) (describing the evolution of public accommodations laws).
Over time, the public accommodations laws have expanded to cover more
places.2 New Jersey's statutory definition of " '[a] place of public
accommodation' " is extremely broad. The term is said to "include, but not
be limited
to," a list of over 50 types of places. N. J. Stat. Ann. §10:5-5(l) (West
Supp. 2000); see Appendix, infra, at 18-19. Many on the list are what one
would expect to be places where the public is invited. For example, the
statute includes as places of public accommodation taverns, restaurants,
retail
shops, and public libraries. But the statute also includes places that
often may not carry with them open invitations to the public, like summer
camps and
roof gardens. In this case, the New Jersey Supreme Court went a step
further and applied its public accommodations law to a private entity
without even
attempting to tie the term "place" to a physical location.3 As the
definition of "public accommodation" has expanded from clearly commercial
entities, such
as restaurants, bars, and hotels, to membership organizations such as the
Boy Scouts, the potential for conflict between state public accommodations
laws
and the First Amendment rights of organizations has increased.

We recognized in cases such as Roberts and Duarte that States have a
compelling interest in eliminating discrimination against women in public
accommodations. But in each of these cases we went on to conclude that the
enforcement of these statutes would not materially interfere with the ideas
that
the organization sought to express. In Roberts, we said "[i]ndeed, the
Jaycees has failed to demonstrate Š any serious burden on the male members'
freedom of expressive association." 468 U.S., at 626. In Duarte, we said:

"[I]mpediments to the exercise of one's right to choose one's associates
can violate the right of association protected by the First Amendment. In
this case,
however, the evidence fails to demonstrate that admitting women to Rotary
Clubs will affect in any significant way the existing members' ability to
carry
out their various purposes." 481 U.S., at 548 (internal quotation marks and
citations omitted).

We thereupon concluded in each of these cases that the organizations' First
Amendment rights were not violated by the application of the States' public
accommodations laws.

In Hurley, we said that public accommodations laws "are well within the
State's usual power to enact when a legislature has reason to believe that a
given group is the target of discrimination, and they do not, as a general
matter, violate the First or Fourteenth Amendments." 515 U.S., at 572. But
we
went on to note that in that case "the Massachusetts [public
accommodations] law has been applied in a peculiar way" because "any
contingent of protected
individuals with a message would have the right to participate in
petitioners' speech, so that the communication produced by the private
organizers would
be shaped by all those protected by the law who wish to join in with some
expressive demonstration of their own." Id., at 572-573. And in the
associational freedom cases such as Roberts, Duarte, and New York State
Club Assn., after finding a compelling state interest, the Court went on to
examine whether or not the application of the state law would impose any
"serious burden" on the organization's rights of expressive association. So
in
these cases, the associational interest in freedom of expression has been
set on one side of the scale, and the State's interest on the other.

Dale contends that we should apply the intermediate standard of review
enunciated in United States v. O'Brien, 391 U.S. 367 (1968), to evaluate the
competing interests. There the Court enunciated a four-part test for review
of a governmental regulation that has only an incidental effect on protected
speech-in that case the symbolic burning of a draft card. A law prohibiting
the destruction of draft cards only incidentally affects the free speech
rights of
those who happen to use a violation of that law as a symbol of protest. But
New Jersey's public accommodations law directly and immediately affects
associational rights, in this case associational rights that enjoy First
Amendment protection. Thus, O'Brien is inapplicable.

In Hurley, we applied traditional First Amendment analysis to hold that
the application of the Massachusetts public accommodations law to a parade
violated the First Amendment rights of the parade organizers. Although we
did not explicitly deem the parade in Hurley an expressive association, the
analysis we applied there is similar to the analysis we apply here. We have
already concluded that a state requirement that the Boy Scouts retain Dale
as an
assistant scoutmaster would significantly burden the organization's right
to oppose or disfavor homosexual conduct. The state interests embodied in
New
Jersey's public accommodations law do not justify such a severe intrusion
on the Boy Scouts' rights to freedom of expressive association. That being
the
case, we hold that the First Amendment prohibits the State from imposing
such a requirement through the application of its public accommodations
law.4

Justice Stevens' dissent makes much of its observation that the public
perception of homosexuality in this country has changed. See post, at 37-39.
Indeed, it appears that homosexuality has gained greater societal
acceptance. See ibid. But this is scarcely an argument for denying First
Amendment
protection to those who refuse to accept these views. The First Amendment
protects expression, be it of the popular variety or not. See, e.g., Texas
v.
Johnson, 491 U.S. 397 (1989) (holding that Johnson's conviction for burning
the American flag violates the First Amendment); Brandenburg v. Ohio,
395 U.S. 444 (1969) (holding that a Ku Klux Klan leaders' conviction for
advocating unlawfulness as a means of political reform violates the First
Amendment). And the fact that an idea may be embraced and advocated by
increasing numbers of people is all the more reason to protect the First
Amendment rights of those who wish to voice a different view.

Justice Stevens' extolling of Justice Brandeis' comments in New State
Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (dissenting opinion); see
post, at 2, 40, confuses two entirely different principles. In New State
Ice, the Court struck down an Oklahoma regulation prohibiting the
manufacture,
sale, and distribution of ice without a license. Justice Brandeis, a
champion of state experimentation in the economic realm, dissented. But
Justice Brandeis
was never a champion of state experimentation in the suppression of free
speech. To the contrary, his First Amendment commentary provides compelling
support for the Court's opinion in this case. In speaking of the Founders
of this Nation, Justice Brandeis emphasized that they "believed that the
freedom to
think as you will and to speak as you think are means indispensable
to the discovery and spread of political truth." Whitney v. California, 274
U.S. 357, 375 (concurring opinion). He continued:

"Believing in the power of reason as applied through public discussion,
they eschewed silence coerced by law-the argument of force in its worst
form.
Recognizing the occasional tyrannies of governing majorities, they amended
the Constitution so that free speech and assembly should be guaranteed."
Id.,
at 375-376.

We are not, as we must not be, guided by our views of whether the Boy
Scouts' teachings with respect to homosexual conduct are right or wrong;
public
or judicial disapproval of a tenet of an organization's expression does not
justify the State's effort to compel the organization to accept members
where such
acceptance would derogate from the organization's expressive message.
"While the law is free to promote all sorts of conduct in place of harmful
behavior,
it is not free to interfere with speech for no better reason than promoting
an approved message or discouraging a disfavored one, however enlightened
either
purpose may strike the government." Hurley, 515 U.S., at 579.

The judgment of the New Jersey Supreme Court is reversed, and the cause
remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

N. J. Stat. Ann. §10:5-4 (West Supp. 2000). Obtaining employment,
accommodations and privileges without discrimination; civil right

"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. Stat. Ann. §10:5-5 (West Supp. 2000). Definitions

"As used in this act, unless a different meaning clearly appears from
the context:

. . . . .

"l. 'A place of public accommodation' shall include, but not be limited
to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day
camp,
or resort camp, whether for entertainment of transient guests or
accommodation of those seeking health, recreation or rest; any producer,
manufacturer,
wholesaler, distributor, retail shop, store, establishment, or concession
dealing with goods or services of any kind; any restaurant, eating house,
or place
where food is sold for consumption on the premises; any place maintained
for the sale of ice cream, ice and fruit preparations or their derivatives,
soda
water or confections, or where any beverages of any kind are retailed for
consumption on the premises; any garage, any public conveyance operated on
land or water, or in the air, any stations and terminals thereof; any
bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting
place, or
hall; any theatre, motion-picture house, music hall, roof garden, skating
rink, swimming pool, amusement and recreation park, fair, bowling alley,
gymnasium, shooting gallery, billiard and pool parlor, or other place of
amusement; any comfort station; any dispensary, clinic or hospital; any
public
library; any kindergarten, primary and secondary school, trade or business
school, high school, academy, college and university, or any educational
institution under the supervision of the State Board of Education, or the
Commissioner of Education of the State of New Jersey. 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 educational facility operated or
maintained by a bona fide religious or sectarian institution, and the right
of a natural
parent or one in loco parentis to direct the education and upbringing of a
child under his control is hereby affirmed; nor shall anything herein
contained be
construed to bar any private secondary or post secondary school from using
in good faith criteria other than race, creed, color, national origin,
ancestry or
affectional or sexual orientation in the admission of students."



Notes

1. The record evidence sheds doubt on Dale's assertion. For example, the
National Director of the Boy Scouts certified that "any persons who
advocate to
Scouting youth that homosexual conduct is" consistent with Scouting values
will not be registered as adult leaders. App. 746 (emphasis added). And the
Monmouth Council Scout Executive testified that the advocacy of the
morality of homosexuality to youth members by any adult member is grounds
for
revocation of the adult's membership. Id., at 761.

2. Public accommodations laws have also broadened in scope to cover more
groups; they have expanded beyond those groups that have been given
heightened equal protection scrutiny under our cases. See Romer, 517 U.S.,
at 629. Some municipal ordinances have even expanded to cover criteria
such as prior criminal record, prior psychiatric treatment, military
status, personal appearance, source of income, place of residence, and
political ideology.
See 1 Boston, Mass., Ordinance No. §12-9(7) (1999) (ex-offender, prior
psychiatric treatment, and military status); D. C. Code Ann. §1-2519 (1999)
(personal appearance, source of income, place of residence); Seattle,
Wash., Municipal Code §14.08.090 (1999) (political ideology).

3. Four State Supreme Courts and one United States Court of Appeals have
ruled that the Boy Scouts is not a place of public accommodation. Welsh v.
Boy Scouts of America, 993 F.2d 1267 (CA7); cert. denied, 510 U.S. 1012
(1993); Curran v. Mount Diablo Council of the Boy Scouts of America,
17 Cal. 4th 670, 952 P.2d 218 (1998); Seabourn v. Coronado Area Council,
Boy Scouts of America, 257 Kan. 178, 891 P.2d 385 (1995); Quinnipiac
Council, Boy Scouts of America, Inc. v. Comm'n on Human Rights &
Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987); Schwenk v. Boy
Scouts of America, 275 Ore. 327, 551 P.2d 465 (1976). No federal appellate
court or state supreme court-except the New Jersey Supreme Court in this
case-has reached a contrary result.

4. We anticipated this result in Hurley when we illustrated the reasons
for our holding in that case by likening the parade to a private membership
organization. 515 U.S., at 580. We stated: "Assuming the parade to be large
enough and a source of benefits (apart from its expression) that would
generally justify a mandated access provision, GLIB could nonetheless be
refused admission as an expressive contingent with its own message just as
readily as a private club could exclude an applicant whose manifest views
were at odds with a position taken by the club's existing members." Id., at
580-581.
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