From http://lawlibrary.rutgers.edu/courts/supreme/a-195-97.opn.html

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

James Dale v. Boy Scouts of America, and Monmouth Council, Boy Scouts of America (A-195/196-97)

    The issue in this appeal is whether New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, prohibits Boy Scouts of America (BSA) from expelling a member solely because he is an avowed homosexual. If the LAD prohibition applies, the Court also must determine whether BSA's First Amendment rights are thereby violated.

    BSA is a federally chartered corporation. Since its inception in 1910, over eighty-seven million youths and adults have joined BSA. BSA's success in attracting members is attributable, in part, to its long-standing commitment to a diverse and "representative" membership, as well as to its aggressive recruitment through national television, radio, and magazine campaigns. BSA's mission, as set forth in its Mission Statement, is "to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime...." Notwithstanding BSA's encouragement of its members' ethical development, BSA does not endorse any specific religion or set of moral beliefs, instead encouraging its members to be guided by their own conscience or ethical judgment. In addition, consistent with its policy of leaving matters of religion and sexual responsibility to church and home, BSA discourages its leaders from discussing sexual topics. Finally, BSA membership is open to any boy who meets the various age requirements.

    James Dale became a member of BSA in 1978 at the age of eight. He remained a youth member of BSA until his eighteenth birthday in l988. Dale was an exemplary scout. During his long membership, he earned many badges and honors, including the award of an Eagle Scout Badge, an honor achieved by only the top three percent of all scouts. On March 21, 1989, Dale sought adult membership in BSA. Monmouth Council and BSA accepted and approved his application for the position of Assistant Scoutmaster of Troop 73, where he served for approximately sixteen months.

    In July 1990, Dale was interviewed by the Star-Ledger, which ran an article reporting on a seminar that addressed the psychological and health needs of lesbian and gay teenagers. In connection with the interview, Dale's photo appeared in the Star-Ledger with a caption identifying him as co-president of the Rutgers University Lesbian/Gay Alliance. Later that month, Dale received a letter from BSA Monmouth Council Executive James W. Kay, revoking Dale's BSA membership. In response to Dale's request for the basis of the Monmouth Council's decision to revoke his BSA membership, Kay indicated that the standards for leadership established by the BSA specifically forbade membership to homosexuals.

    Thereafter, in September 1990, Dale wrote to the BSA Northeast Regional Director asking for a review of his membership decision and for a copy of BSA's leadership standards. In November 1990, the Assistant Regional Director of the Northeast Region notified Dale that the Northeast Review Committee supported the decision of the Monmouth Council to deny his registration with BSA. Although BSA agreed to have the National Council review Dale's membership revocation, Dale opted instead to institute legal proceedings, believing that a National Council review would be futile.

    In July 1992, Dale filed suit against BSA and the Monmouth Council in Superior Court, seeking both declaratory and injunctive relief, as well as compensatory and punitive damages. He alleged that BSA had violated the LAD and common law by revoking his membership based solely on his sexual orientation. In September 1993, Dale moved for partial summary judgment, demanding his immediate reinstatement. BSA and the Monmouth Council cross-moved for summary judgment on all of Dale's claims.

    The trial court denied Dale's motion and granted BSA's and the Monmouth Council's motion. After concluding that Dale was a "sexually active homosexual," the court found that BSA had always had a policy of excluding "active homosexuals." The court opined that homosexual acts are immoral and attributed to BSA a longstanding antipathy toward such behavior. The court further held that the LAD was not applicable because BSA was not a "place of public accommodation," or alternatively, that it was exempt under the "distinctly private" exception found in the LAD. The court rejected Dale's common law claim, finding that the State's policy was that established by the LAD. Finally, because the court believed that BSA's moral position in respect of active homosexuality was clear, it found that its First Amendment freedom of expressive association prevented government from forcing BSA to accept Dale as an adult leader-member.

    The Appellate Division affirmed the dismissal of Dale's common law claim as duplicative, but otherwise reversed and remanded the matter for further proceedings. In a separate opinion, Judge Landau concurred with the majority's holding that BSA should restore Dale's membership, but dissented from the majority to the extent that it would compel BSA to accept Dale in any Scout leadership position.

    The majority held that as a "place of public accommodation," BSA had violated the LAD by denying Dale the privilege of serving as a volunteer assistant scoutmaster based solely on his sexual orientation. The majority found BSA to be a place of public accommodation based on several factors, including its broad-based membership solicitation and the fact that BSA had "historically partnered" with various public entities and public service organizations. For the same reason, the court rejected BSA's argument that it was exempt from the LAD under the "distinctly private" exception. In respect of BSA's freedom of expressive association claim, and noting the compelling state interest in eradicating discrimination, the majority concluded that granting Dale access to the accommodations afforded by scouting will not affect in any significant way BSA's ability to express its views and to carry out its activities.

    The Supreme Court granted BSA's petition for certification and Dale's cross-petition for certification on the dismissal of his common law claims. In addition, the matter is before the Court as of right based on the dissent in the Appellate Division on the issue of BSA's right to remove Dale from a leadership position.

HELD: Boy Scouts of America is a "place of public accommodation" and is, therefore, subject to the provisions of New Jersey's Law Against Discrimination; application of the Law Against Discrimination to Boy Scouts of America does not infringe on its First Amendment rights.

1. The goal of the LAD is to bestow on all persons the opportunity to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, without discrimination based on a variety of factors, including affectional or sexual orientation. The term "public accommodation" has been liberally construed to carry out the legislative purpose of eradicating discrimination. (pp. 25-27)

2. The Legislature's failure to modify the judicial construction of the term "public accommodation" or "place" is evidence of legislative support for prior judicial construction of that portion of the LAD, especially when the Legislature has amended the statute several times without altering the construed sections. (pp. 27-33)

3. A membership association, like BSA, may be a "place" of public accommodation even if the accommodation is provided at a moving situs; the various locations where Boy Scout troops meet fulfill the LAD "place" requirement. (p. 33)

4. When an entity, such as BSA, invites the public to join, attend, or participate in some way, that entity is a public accommodation within the meaning of the LAD. (pp. 33-37)

5. Certain organizations, such as BSA, that benefit from relationships with the government and other public accommodations are themselves places of public accommodation within the meaning of the LAD. (pp. 37-41)

6. The list of places of public accommodation in the LAD is not exclusive. Similarity to the list has been a benchmark for determining whether an unlisted entity should be included. (pp. 41-42)

7. Exemptions from remedial statutes generally should be narrowly construed. (pp. 42-43)

8. The essence of a "distinctly private" club or organization is selectivity in its membership. Joining requirements, such as those identified in the BSA membership application, are insufficient to establish selectivity where they do not function as true limits on the admission of members. BSA is not "distinctly private" because it is not selective in its membership. (pp. 43-53)

9. BSA's clear pronouncements on the subject of religion are inconsistent with its claim that it is exempt from the LAD as an "educational facility operated or maintained by a bona fide religious or sectarian institution." (p. 53)

10. BSA is not exempt from the LAD under the in loco parentis exception because BSA does not assume the responsibilities and duties of a parent or of one who stands in the place of a parent. (pp. 53-55)

11. Because an assistant scoutmaster position is a "privilege" and an "advantage" of Boy Scout membership, and because BSA has revoked Dale's registration based on his avowed homosexuality - a prohibited form of discrimination under the statute - BSA has violated the LAD. (pp. 55-57)

12. Dale's common law claim, if pursued, is duplicative of his LAD claim because it would not protect an interest in addition to or aside from those protected by the statute. (pp. 57-58)

13. In determining whether BSA enjoys a protectable First Amendment intimate association right, one must consider size of the organization, its purpose and selectivity, and whether others are excluded from critical aspects of the relationship. BSA's large size, its nonselectivity, its inclusive rather than exclusive purpose, and its practice of inviting or allowing nonmembers to attend meetings, establish that the organization, at both the local and the national level, is not sufficiently personal or private to warrant constitutional protection under the freedom of intimate association. (pp. 58-67)

14. Infringements on the right to associate for expressive purposes may be justified by regulations adopted to serve compelling state interests that are unrelated to the suppression of ideas and that cannot be achieved through means significantly less restrictive of associational freedom. (pp. 67-69)

15. BSA's ability to disseminate its message is not significantly affected by Dale's inclusion because: BSA members do not associate for the purpose of disseminating the belief that homosexuality is immoral; BSA discourages its leaders from disseminating any views on sexual issues; and BSA includes sponsors and members who subscribe to different views in respect of homosexuality. (pp. 69-75)

16. BSA's expulsion of Dale was based on prejudice and not on a unified Boy Scout position. Thus, Dale's expulsion is not justified by the need to preserve the organization's expressive rights. (pp. 75-79)

17. Discrimination has been justified by the invocation of stereotypes. Adherence to the principle of equality demands that our legal system protect the victims of such discrimination. The purpose of the LAD is to eradicate unlawful discrimination. (pp. 79-81)

18. Because there is nothing to suggest that one of BSA's purposes is to promote the view that homosexuality is immoral, application of the LAD does not infringe on its right of expressive association. However, even if Dale's membership worked some slight infringement on BSA's members' right of expressive association, that infringement would be justified because it serves New Jersey's compelling interest in eliminating discrimination based on sexual orientation. (pp. 81-85)

19. Dale's membership in BSA is not symbolic of an endorsement of homosexuality by BSA and in no way infringes on its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. (pp. 85-89)

    Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Chancery Division for further proceedings consistent with the Court's opinion.

     JUSTICE HANDLER has filed a separate concurring opinion, in which he denounces certain unfounded stereotypical notions in respect of homosexuals, such as the myth that a homosexual male is more likely than a heterosexual male to molest children, as well as the myth that homosexuals are inherently immoral. Justice Handler further stresses the impropriety of BSA's exclusion of Dale on the basis of his expression of his homosexuality because his acknowledgment constitutes self-identifying speech, making it realistically impossible to separate his spoken statements from his status. Thus, Justice Handler views BSA's exclusion of Dale as tantamount to one based on Dale's mere status as a homosexual. Justice Handler notes that had Dale, on the other hand, expressed more general views on the morality, social implications, history, or etiology of homosexuality in his role as a Boy Scout leader, which directly conflicted with BSA's stated positions, then BSA could claim that its discrimination was based purely on expression. In addition, Justice Handler believes that the inconsistency and vagueness of BSA's position regarding its members' views on morality generally, and homosexuality in particular, belies the existence of a "specific expressive purpose," necessary to establish a permissible exclusion.

    Finally, Justice Handler agrees with the Court's determination that BSA had engaged in no selectivity in admitting its members, providing strong evidence that BSA is "public," and thus subject to the proscriptions of the LAD. However, he further notes that while membership selectivity is relevant to a determination of whether an organization meets the LAD's definition of "place of public accommodation," it is not necessarily determinative, as other factors may outweigh the presence of genuine selectivity in ultimately finding that an organization is subject to the LAD.

     JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in CHIEF JUSTICE PORITZ's opinion. JUSTICE HANDLER filed a separate concurring opinion.

JAMES DALE,

    Plaintiff-Respondent
    and Cross-Appellant,    

        v.

BOY SCOUTS OF AMERICA and
MONMOUTH COUNCIL, BOY SCOUTS OF AMERICA,

    Defendants-Appellants
    and Cross-Respondents.

        Argued January 5, 1999 -- Decided August 4, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 308 N.J. Super. 516 (1998).

George A. Davidson, a member of the New York bar, argued the cause for appellants and cross-respondents (Cerrato, Dawes, Collins, Saker & Brown; attorneys; Mr. Davidson, Sanford D. Brown and Carla A. Kerr, a member of the New York bar, on the briefs).

Evan Wolfson, a member of the New York bar, argued the cause for respondent and cross appellant (Lewis H. Robertson, attorney; Mr. Wolfson, Mr. Robertson and Thomas J. Moloney, a member of the New York bar, on the briefs).

David R. Rocah submitted a letter in lieu of brief on behalf of amici curiae American Civil Liberties Union of New Jersey and American Civil Liberties Union (Lenora M. Lapidus, Legal Director, attorney).

William S. Singer submitted a letter in lieu of brief on behalf of amici curiae American Public Health Association and Parents, Families and Friends of Lesbians and Gays (Singer & Fedun, attorneys).

Robert E. Rochford submitted a brief on behalf of amici curiae National Catholic Committee on Scouting, The Church of Jesus Christ of Latter-Day Saints, General Commission on United Methodist Men, The United Methodist Church and The Lutheran Church-Missouri Synod (Winnie Banta Rizzi Hetherington & Basralian, attorneys).

David H. Dugan, III, submitted a brief on behalf of amici curiae The Claremont Institute for the Study of Statesmanship and Political Philosophy and United States Congressmen Charles T. Canady, Christopher B. Cannon, Tom A. Coburn, M.D., John E. Peterson, John Shadegg and Mark Souder.

Kathleen A. Mazzouccolo submitted a letter in lieu of brief on behalf of amici curiae Diocesan Council of the Episcopal Diocese of Newark, Friends Committee on National Legislation, Jewish Reconstructionist Federation, Union of American Hebrew Congregations and Unitarian Universalist Association.

Bray B. Barnes submitted a brief on behalf of amicus curiae The Individual Rights Foundation (Warshaw & Barnes, attorneys).

Theodore R. Bohn submitted a letter in lieu of brief on behalf of amicus curiae New Jersey Lesbian and Gay Law Association.

James P.A. Cavanaugh submitted a letter in lieu of brief on behalf of amici curiae National Association of Social Workers and New Jersey Chapter of the National Association of Social Workers.

Michael Patrick Carroll submitted a brief on behalf of amicus curiae Southeastern Legal Foundation (Mr. Carroll, attorney; Valle Simms Dutcher, a member of the Georgia Bar, on the brief).

James J. Cerbone submitted a brief on behalf of amici curiae United States Congressmen, Honorable Robert Aderholt (Ala.), Ernest Istook (Okla.), Asa Hutchinson (Ark.) and Charles "Chip" Pickering (Miss.)(Cerbone & Lombardo, attorneys).

    The opinion of the Court was delivered by
PORITZ, C.J.
    In 1991, the New Jersey Legislature amended the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, to include protections based on "affectional or sexual orientation." This case requires us to decide whether that law prohibits Boy Scouts of America (BSA) from expelling a member solely because he is an avowed homosexual.
    Defendants BSA and Monmouth Council (collectively Boy Scouts) seek review of a decision of the Appellate Division holding that: (1) Boy Scouts is a place of public accommodation as defined by the LAD; (2) Boy Scouts' expulsion of plaintiff James Dale, an assistant scoutmaster, based solely on the club's policy of excluding avowed homosexuals from membership is prohibited by the LAD; and (3) the LAD prohibition does not violate Boy Scouts' First Amendment rights. Plaintiff, James Dale, seeks certification on his common law claim, dismissed by the Appellate Division. We granted both parties' petitions, __ N.J. __ (1999), and now affirm.

     A.     Boy Scouts of America
         1.    Organizational Structure and ProgramsFootnote1See footnote 1¹
    BSA, a federally chartered corporation, 36 U.S.C.A. §30901, operates four scout membership programs: Cub Scouts (for boys eight to eleven-and-a-half), Boy Scouts (for boys and young men eleven to seventeen), Varsity Scouts (for young men fourteen to seventeen), and Explorers (for young men and women fourteen to twenty). In addition to these well-known membership programs, BSA publishes Boys' Life, Exploring and Scouting magazines, and offers an in-school scouting curriculum called Learning for Life that is taught in many schools throughout the country.
    BSA membership is an American tradition. Since the program's inception in 1910 through the beginning of this decade, over eighty-seven million youths and adults have joined BSA. As of December 1992, over four million youths and over one million adults were active BSA members. BSA's success in attracting members is at least partly attributable to its long-standing commitment to a diverse and "representative" membership, as well as its aggressive recruitment through national television, radio, and magazine campaigns. BSA also organizes local membership drives, including "School Nights" conducted in cooperation with schools across the nation and held at school facilities.
    This vast network of members is managed through a complex of national, regional and local organizations. The National Council is the highest BSA governing body. Its primary functions include "develop[ing] programs, set[ting] and maintain[ing] quality standards in training, leadership selection, uniform[s], registration records, literature development, and advancement requirements; and publish[ing] Boy's Life and Scouting magazines." BSA membership programs are also governed by regional committees that are further divided into area committees. Within each area, BSA accepts applications for the creation of local councils. Defendant, Monmouth Council, is one of sixteen local councils in New Jersey, and one of over four hundred local councils nationwide.
    Each local council is made up of districts that are governed by district committees. BSA grants unit charters to individual sponsors in the districts consisting of "organizations and groups of citizens" that establish and "maintain units . . . and . . . issue certificates of membership . . . to the officers and members thereof." Unit charters allow the "organization to use the Scouting program under its own leadership to serve the youth and families for which it has concern, to help it accomplish its own objectives." Individual units are based on age groupings and designated as Cub Scout Packs, Boy Scout Troops, Varsity Scout Teams, and Explorer Posts. In 1991, Monmouth Council chartered approximately 215 units comprised of nearly 8500 youth members and over 2700 adult members.
    When deciding whether to grant an individual unit charter, BSA investigates "the general objectives, purpose, character, intent, and programs of the prospective chartered organization or community group and its compatibility with the aims and purposes of the Boy Scouts of America." In respect of established groups, BSA also considers the group's "history, length of service, and general reputation." Generally, BSA prefers granting unit charters to sponsors that are "existing organizations," i.e., established religious, civic, or educational groups. In New Jersey, for example, public schools and school-affiliated groups sponsor close to 500 scouting units, comprising approximately one-fifth of the chartering organizations in the State. Other governmental entities, such as law enforcement agencies, fire departments, city governments, and the military, sponsor approximately 250 scouting units in New Jersey. Sponsor approvals "obligate the organization to provide adequate facilities, supervision, and leadership for at least one year[,] and to make an effort to provide youth members with the opportunity for a quality program experience as set forth in the official literature of the Boy Scouts of America."

    A unit charter is renewed annually, "upon application, provided a review of past activities, personnel, and plans for the future shows a satisfactory effort to carry out the scouting program, as set forth in the official handbooks, and [demonstrates compliance] with the Rules and Regulations of the Boy Scouts of America."Footnote2See footnote 2² Each chartered unit is supervised by a "unit committee, consisting of three or more qualified adults, 21 years of age or over, selected by the organization with which the unit is connected, or in the case of a community unit[,] of those who make application for the unit charter, one of whom [is] designated as chairman." In Monmouth Council, the units are run by approximately 3000 volunteer leaders and four paid scouting professionals. Of the 3000 volunteers, some 340 are assistant scoutmasters.
    According to BSA's federal charter, BSA seeks "to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self reliance, and kindred virtues." BSA's Mission Statement also describes BSA's purpose: "It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential." The Scout Oath and Scout Law set forth the guiding principles of BSA:

        On my honor I will do my best
        To do my duty to God and my country
        and to obey the Scout Law;    
        To help other people at all times;
        To keep myself physically strong,
        mentally awake, and morally straight.

         A Scout is TRUSTWORTHY. A Scout tells the truth. He keeps his promises. Honesty is a part of his code of conduct. People can always depend on him.

         A Scout is LOYAL. A Scout is true to his family, friends, Scout leaders, school, nation, and world community.

         A Scout is HELPFUL. A Scout is concerned about other people. He willingly volunteers to help others without expecting payment or reward.

         A Scout is FRIENDLY. A Scout is a friend to all. He is a brother to other Scouts. He seeks to understand others. He respects those with ideas and customs that are different from his own.

         A Scout is COURTEOUS. A Scout is polite to everyone regardless of age or position. He knows that good manners make it easier for people to get along together.

         A Scout is KIND. A Scout understands there is strength in being gentle. He treats others as he wants to be treated. He does not harm or kill anything without reason.

         A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop. He obeys the laws of his community and country. If he thinks these rules and laws are unfair, he tries to have them changed in an orderly manner rather than disobey them.

         A Scout is CHEERFUL. A Scout looks for the bright side of life. He cheerfully does tasks that come his way. He tries to make others happy.

         A Scout is THRIFTY. A Scout works to pay his way and to help others. He saves for the future. He protects and conserves natural resources. He carefully uses time and property.

         A Scout is BRAVE. A Scout can face danger even if he is afraid. He has the courage to stand for what he thinks is right even if others laugh at him or threaten him.

         A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He goes around with those who believe in living by these same ideals. He helps keep his home and community clean.

         A Scout is REVERENT. A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.

    In its briefs below and to this Court, Boy Scouts claims that the language "morally straight" and "clean" in the Oath and Law, respectively, constitutes a rejection of homosexuality. The Boy Scout Handbook, supra, at 551, defines "morally straight" as follows:

        To be a person of strong character, guide
        your life with honesty, purity, and justice.

        Respect and defend the rights of all people.
        Your relationships with others should be
        honest and open. Be clean in your speech
        and actions, and faithful in your religious
         beliefs. The values you follow as a Scout
        will help you become virtuous and self-reliant.

The Boy Scout Handbook also defines "clean":

        A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the company of those who live by these same ideals. He helps keep his home and community clean.

        You never need to be ashamed of dirt that will wash off. . . .

        There's another kind of dirt that won't come off by washing. It is the kind that shows up in foul language and harmful thoughts.

        Swear words, profanity, and dirty stories are weapons that ridicule other people and hurt their feelings. The same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He avoids it in his own words and deeds. He defends those who are the targets of insults.

[Id. at 561.]

    Although one of BSA's stated purposes is to encourage members' ethical development, BSA does not endorse any specific set of moral beliefs. Instead, "moral fitness" is deemed an individual choice:

        Morality . . . concerns the "principles of right and wrong" in our behavior, and "what is sanctioned by our conscience or ethical judgment." . . .

            In any consideration of moral fitness, a key word has to be "courage." A boy's courage to do what his head and his heart tell him is right. And the courage to refuse to do what his heart and his head say is wrong.

            [Scoutmaster Handbook, supra, at 71 (emphasis added) (additional internal quotations omitted).]

BSA also does not espouse any one religion, explaining in the Scoutmaster Handbook that "[t]here is a close association between the Boy Scouts of America and virtually all religious bodies and denominations in the United States." Id. at 227. Consistent with its nonsectarian nature, BSA Bylaws require "respect [for] the convictions of others in matters of custom and religion." Boy Scouts "encourages no particular affiliation, [and does not] assume[] [the] functions of religious bodies," ibid.; indeed, in a training manual entitled Scoutmaster Fundamentals prepared "for Scoutmasters, Assistant Scoutmasters, Troop Committee members, and parents," BSA categorically states: "Religious instruction is the responsibility of the home and church."
    A large and diverse group of religions that subscribe to many different and sometimes contradictory beliefs sponsor BSA units throughout the United States. Some of those sponsors have participated in this case as amici curiae, taking a variety of positions in respect of homosexuality, i.e., that homosexuality is "immoral"; that "discrimination based upon sexual orientation" is to be "strongly condemn[ed]." BSA, however, encourages its leaders to refrain from talking about sexual topics. Although the Boy Scout Handbook, supra, at 528, contains a subchapter entitled "Sexual Responsibility" which states that "[f]or the followers of most religions, sex should take place only between married couples," sexual topics are not formally discussed during Boy Scout activities. Rather, BSA "believes that boys should learn about sex and family life from their parents, consistent with their spiritual beliefs."

         2.     Boy Scout Troops
    In 1992, of the five million members of BSA, approximately one million youths and 420,000 adults were involved in the Boy Scout division. Those members belonged to over 44,000 Boy Scout troops throughout the country.
    According to the Boy Scout Handbook, id. at 2, a boy may become a Boy Scout if he "has completed the fifth grade, or . . . has earned the Arrow of Light Award, or [is at least] 11 years of age but not yet 18" and "[c]omplete[s] the Boy Scout joining requirements." The Boy Scout joining requirements call for the applicant to:

        Submit a completed Boy Scout application and health history signed by [a] parent or guardian.

        Repeat the Pledge of Allegiance.

        Demonstrate the Scout salute, sign, and handclasp.
        
        Show how to tie the square knot.

        Understand and agree to live by the Scout Oath, the Scout Law, the Scout motto, the Scout slogan, and the Outdoor Code.

        Describe the Scout badge.

        With [a] parent or guardian, complete the exercises in the pamphlet How to Protect Your Children from Child Abuse and Drug Abuse.

        Participate in a Scoutmaster conference.

[Id. at 4.]

    Adult applicants are also subject to joining requirements. They must be recommended by the troop representative and approved by the local council, and they must subscribe to the Declaration of Religious Principle,Footnote3See footnote 3³ the Scout Oath and the Scout Law. Once an adult member is approved, that person is also qualified to be a leader. Boy Scouts explains that the terms "adult membership and adult leadership. . . . are interchangeable . . . since adults . . . have no other reason to join apart from leadership in service to boys."

    B.     James Dale
    James Dale first became a BSA member in 1978 when, at the age of eight, he joined Monmouth Council's Cub Scout Pack 142. He remained a Cub Scout until 1981, when he became a member of Boy Scout Troop 220, also in Monmouth Council. He joined Monmouth Council's Boy Scout Troop 128 in 1983, and Troop 73 in 1985. Until his eighteenth birthday in 1988, he remained a youth member of Troop 73.
    Dale was an exemplary scout. Over the ten years of his membership, he earned more than twenty-five merit badges. In 1983, he was admitted into Boy Scouts' Order of the Arrow, the organization's honor camping society, and achieved the status of Virgil Honor. The pinnacle of Dale's career as a youth member came in 1988, when BSA awarded him an Eagle Scout Badge, an honor achieved by only the top three percent of all scouts.

    Dale's participation in Boy Scout leadership began at an early age. Throughout his years as a member, Dale was an assistant patrol leader, patrol leader, and bugler, and from 1985 to 1988, Dale served as a Junior Assistant Scoutmaster for Troop 73. He was also invited to speak at organized Boy Scout functions, such as the Joshua Huddy Distinguished Citizenship Award Dinner, and attended national events, including the National Boy Scout Jamboree. On March 21, 1989, Dale sought adult membership in Boy Scouts. Monmouth Council and BSA accepted and approved his application for the position of Assistant Scoutmaster of Troop 73 where he served for approximately sixteen months.
    At about the same time that Dale applied for adult membership, he left home to attend Rutgers University. While at college, Dale first acknowledged to himself, and to his family and friends, that he was gay. Shortly thereafter, he became involved with, and eventually became the co-president of the Rutgers University Lesbian/Gay Alliance. Then, in July 1990, Dale attended a seminar that addressed the psychological and health needs of lesbian and gay teenagers. The Star-Ledger interviewed Dale and published an article on July 8, 1990 that discussed the seminar. The article included Dale's photograph and a caption identifying him as "co-president of the Rutgers University Lesbian/Gay Alliance." Kinga Borondy, Seminar Addresses Needs of Homosexual Teens, Star-Ledger (Newark), July 8, 1990, § 2, at 11.
    Later that month, Dale received a letter from Monmouth Council Executive James W. Kay, revoking his BSA membership. The letter asked Dale to "sever any relations [he] may have with the Boy Scouts of America," and granted Dale sixty days to request a review of his termination from the Monmouth Council Regional Review Committee.
    Dale wrote to Kay on August 8, 1990, and requested the basis for the Monmouth Council's decision. In a letter dated August 10, 1990, Kay notified Dale that the "grounds for [his] membership revocation" were "the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals."Footnote4See footnote 4⁴ On September 30, 1990, Dale wrote a letter to the Northeast Regional Director, Rudy Flythe, asking for a review of his membership decision and a copy of BSA's leadership standards. Dale also requested permission to attend the review, a right to which he was entitled under the Monmouth Council Review Procedures. The Regional Review Committee acknowledged receipt of Dale's request, but neglected to provide him with a copy of the BSA standards for leadership or a review date.
    In another letter dated October 16, 1990, Dale once again asked for a copy of the leadership standards and notice of the review date. On November 27, 1990, Charles Ball, the Assistant Regional Director of the Northeast Region, notified Dale that the "Northeast Region, [BSA] Review Committee supports the decision of the Monmouth Council . . . to deny your registration with [BSA]," and granted Dale thirty days to seek review by the National Council Review Committee. Three weeks later, through counsel, Dale wrote to the Chief Scout Executive of BSA and requested a rehearing and an opportunity to attend the review. BSA's counsel informed Dale on December 21, 1990, that he had been denied the right to attend because: "[BSA] does not admit avowed homosexuals to membership in the organization so no useful purpose would apparently be served by having Mr. Dale present at the regional review meeting." BSA did agree, however, to have the National Council review Dale's membership revocation. Because Dale believed that a National Council review "would be futile," he initiated these legal proceedings.

II
PROCEDURAL HISTORY

    On July 29, 1992, Dale filed a six-count complaint against BSA and Monmouth Council in the Superior Court of New Jersey. Dale alleged that Boy Scouts had violated the New Jersey Law Against Discrimination and common law by revoking his membership based solely on his sexual orientation. He sought declaratory, injunctive, compensatory and punitive monetary relief, as well as costs and attorney fees.

    A.     Chancery Division
    Dale moved for partial summary judgment in September 1993, demanding immediate reinstatement based on his claim that defendants had violated the LAD and New Jersey's public policy. Defendants, in response, cross-moved for summary judgment on all counts. The court denied Dale's motion and granted Boy Scouts' cross-motion. Dale v. Boy Scouts of Am., No. MON-C-330-92 (Ch. Div. Nov. 3, 1995). After concluding that Dale was "a sexually active homosexual," the court found that Boy Scouts had always had a policy of excluding "active homosexual[s]." Id. at 6, 38. The court opined that homosexual acts are immoral and attributed to Boy Scouts a longstanding antipathy toward such behavior. Id. at 39-40. In the judge's view, "[i]t [was] unthinkable . . . that the BSA could or would tolerate active homosexuality if discovered in any of its members." Id. at 40.
    As to the applicability of the LAD, the court held that Boy Scouts was not a place of public accommodation, or alternatively, that Boy Scouts was exempt under the "distinctly private" exception found at N.J.S.A. 10:5-5l. Id. at 55. The court rejected Dale's common law claim, finding that the State's policy "is that established by the NJLAD . . . [and] not some prior common law policy." Id. at 45. Because the court believed that Boy Scouts' moral position in respect of active homosexuality was clear, it found that Boy Scouts' First Amendment freedom of expressive association "prevent[ed] government from forcing [the organization] to accept Dale as an adult leader-member." Id. at 71.

     B.     Appellate Division
    The Appellate Division affirmed the dismissal of Dale's common law claim, but otherwise reversed and remanded for further proceedings. Dale v. Boy Scouts of Am., 308 N.J. Super. 516, 523 (App. Div. 1998). In a separate opinion, Judge Landau concurred with the majority's holding that Boy Scouts should restore Dale's membership, but dissented from the majority "to the extent it would compel the Boy Scouts to accept . . . Dale . . . [in] any Scout leadership position." Id. at 564.
    The majority held that Boy Scouts, a "place of public accommodation," had violated the LAD by denying Dale the "privilege" of serving as a volunteer assistant scoutmaster based solely on his sexual orientation. Boy Scouts was a "public accommodation" because it "invite[d] 'the public at large,'" was "dependent upon the broad-based participation of members of the general public," "engage[d] in advertising and public promotion," shared "many attributes in common with" the places and activities enumerated in the LAD, and had "historic[ally] partner[ed] with various public entities and public service organizations." Id. at 536, 539. "For the [same] reasons," the court "summarily" rejected Boy Scouts' argument that it was exempt from the LAD under the "distinctly private" exception. Id. at 540. The court dismissed Dale's common law claim, finding Dale had "not demonstrate[d] that a common law cause of action would vindicate any additional interests." Id. at 543. Consequently, the common law claim was held merely "duplicative of the LAD claim." Id. at 541.
    On Boy Scouts' federal constitutional claims, the Appellate Division ruled that Boy Scouts was not protected by either the right to freedom of intimate association or to expressive association "inferred from other rights and protections guaranteed by the constitution" and found in the First Amendment. Id. at 544-45. The court quickly disposed of Boy Scouts' freedom of intimate association argument, observing that the organization "consists of nearly 5,000,000 members[,] . . . is open to all boys[,] . . . engages in aggressive advertising and undertakes a variety of special interest activities in schools and other public forums." Id. at 546. Based on those characteristics, the court held that Boy Scouts "lacks the distinctive qualities that might afford constitutional protections under this component of the First Amendment." Ibid.
    In respect of Boy Scouts' freedom of expressive association claim, the majority "conclude[d] that enforcement of the LAD by granting plaintiff access to the accommodations afforded by scouting will not affect in 'any significant way' BSA's ability to express [its] views and to carry out [its] activities." Id. at 550. Noting "the tension between the freedom to associate for the purpose of expressing fundamental views and the compelling state interest in eradicating discrimination," the court found that the "organization or club asserting the freedom has a substantial burden of demonstrating a strong relationship between its expressive activities and its discriminatory practice." Id. at 548. Although the court accepted the argument that the First Amendment protects Boy Scouts' goals and activities, it determined that the relationship between Boy Scouts' stated goals and Boy Scouts' exclusionary practice was not significant enough to overcome the compelling state interest in eradicating invidious discrimination. Id. at 549-50.
    In its analysis, the Appellate Division focused on Boy Scouts' "'expressive purpose,' [which] is not to condemn homosexuality," but to "instill values in young people." Id. at 549, 550. The court found that "enforcement of the LAD by granting plaintiff access to the accommodations afforded by scouting will not affect in 'any significant way' [Boy Scouts'] ability to express these views and to carry out these activities." Id. at 550. The court observed that the LAD "does not aim at the suppression of speech," and "[n]othing . . . suggests that a male, simply because he is gay, will somehow undermine [Boy Scouts'] fundamental beliefs and teachings." Id. at 550, 552. Boy Scouts' 1991 and 1993 position statements were rejected as representations of the "collective 'expression'" of Boy Scouts because these papers were issued at "a time when [Boy Scouts'] anti-gay policy was subject to judicial challenge in California"; "such policy [had] not been incorporated into [Boy Scouts'] bylaws, rules, regulations and handbooks"; the position expressed "hardly squares with the view shared by a substantial percentage of church groups who sponsor local boy scout troops"; and Boy Scouts "has not attempted to exclude" religious institutions and heterosexual scouts who "have condemned [Boy Scouts'] anti-gay policy." Id. at 554-55, 556.
    The Appellate Division distinguished Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed.2d 487 (1995), a case that held parade organizers have "the autonomy to choose the content of [their] own message," id. at 573, 115 S. Ct. at 2347, 132 L. Ed. 2d at 503. The court pointed out that, unlike Hurley, Dale does not involve "pure forms of speech" or a "plaintiff [who] is . . . asserting a right . . . to alter the content of [Boy Scouts'] viewpoint." Dale, supra, 308 N.J. Super. at 559, 560. The court refused to accept Boy Scouts' allegation that Dale's "public declaration that he is gay in and of itself constitutes 'expressive activity' sufficient to forfeit his entitlement to membership in the BSA." Id. at 560. "In [the court's] view, there is a patent inconsistency in the notion that a gay scout leader who keeps his 'secret' hidden may remain in scouting and one who adheres to the scout laws by being honest and courageous enough to declare his homosexuality publicly must be expelled." Ibid.
    Judge Landau concurred with the majority's determination that Dale's adult membership could not be terminated, but dissented on whether Dale could be removed from his leadership position in the troop. Although Judge Landau refused to look behind Boy Scouts' claim that its "fundamental" message would be altered if an avowed homosexual served as an assistant scoutmaster, id. at 563, in his view Boy Scouts' message was ultimately irrelevant. According to Judge Landau, "Boy Scouts['] . . . right of unfettered advocacy" is violated when Dale is reinstated as a leader "whether or not the Boy Scouts' stand on homosexuality is fundamental to that organization's creation." Id. at 564.

    We first consider whether Boy Scouts is subject to the LAD, which provides that "[a]ll persons shall have the opportunity
. . . to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, . . . without discrimination because of . . . affectional or sexual orientation." N.J.S.A. 10:5-4. Boy Scouts must therefore abide by the LAD if Boy Scouts is a place of public accommodation and does not meet any of the LAD exceptions. See, e.g., N.J.S.A. 10:5-5l (exempting "distinctly private" entities, religious educational facilities, and parents or individuals acting "in loco parentis" in respect of "the education and upbringing of a child").

         1. Place of Public Accommodation
    "[T]he overarching goal of the [LAD] is nothing less than the eradication 'of the cancer of discrimination.'" Fuchilla v. Layman, 109 N.J. 319, 334 (quoting Jackson v. Concord Co., 54 N.J. 113, 124 (1969)), cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed.2d 51 (1988). "[D]iscrimination threatens not only the rights and proper privileges of the inhabitants of [New Jersey,] but menaces the institutions and foundation of a free democratic State." N.J.S.A. 10:5-3. In furtherance of its purpose to root out discrimination, the Legislature has directed that the LAD "shall be liberally construed." Ibid. We have adhered to that legislative mandate by historically and consistently interpreting the LAD "'with that high degree of liberality which comports with the preeminent social significance of its purposes and objects.'" Andersen v. Exxon Co., 89 N.J. 483, 495 (1982) (quoting Passaic Daily News v. Blair, 63 N.J. 474, 484 (1973)).
    A clear understanding of the phrase "place of public accommodation" is critical. That is because "place of public accommodation" is, in large measure, determinative of the LAD's scope. Certainly, if the statute is broadly applicable, the antidiscriminatory impact of its provisions is greater. The Legislature's finding that the effects of discrimination are pernicious, and its directive to liberally construe the LAD, have informed our cases interpreting the reach of "place of public accommodation."

             a.    Place
    In 1965, the Court held that places of public accommodation were not limited to those enumerated in the statute. Fraser v. Robin Dee Day Camp, 44 N.J. 480, 486 (1965) (then N.J.S.A. 18:25 5(l)). At that time, the statutory definition used the word "include" to preface a list of specific "places" of public accommodation. See id. at 485. We reasoned that the Legislature's choice of the word "include" indicated that the "places" expressly mentioned were "merely illustrative of the accommodations the Legislature intended to be within the scope of the statute. Other accommodations, similar in nature to those enumerated, were also intended to be covered." Id. at 486. Less than a year later, the Legislature amended the LAD to expressly state that "'a place of public accommodation' shall include, but not be limited to" the various examples identified, L. 1966, c. 17 (emphasis added), thereby reaffirming our broad construction of the statutory language.Footnote5See footnote 5⁵

    Later, the word "place" became a further source of legal dispute. In National Organization of Women v. Little League Baseball, Inc., 67 N.J. 320 (1974), we affirmed the decision of
the Appellate Division holding that: "[t]he statutory noun 'place' . . . is a term of convenience, not of limitation[,]
. . . employed to reflect the fact that public accommodations are commonly provided at fixed 'places.'" 127 N.J. Super. 522, 531 (App. Div. 1974). The defendant in Little League was a chartered baseball league that excluded girls between the ages of eight and twelve years from participation in its programs. The league contended that it did not come "within the meaning of the statute, primarily because it [was] a membership organization which does not operate from any fixed parcel of real estate in New Jersey of which it had exclusive possession by ownership or lease." Id. at 530. The court rejected that narrow view of "place":

        The "place" of public accommodation in the case of Little League is obviously the ball field at which tryouts are arranged, instructions given, practices held and games played. The statutory "accommodations, advantages, facilities and privileges" at the place of public accommodation is the entire agglomeration of the arrangements which Little League and its local chartered leagues make and the facilities they provide for the playing of baseball by the children.

[Id. at 531 (citations omitted).]

In New Jersey, "place" has been more than a fixed location since 1974.
    As Boy Scouts correctly observes, other jurisdictions interpreting their antidiscrimination laws have found "place" to be a limiting factor encompassing only a fixed location. See, e.g., Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1269 (7th Cir.) (holding that Boy Scouts is not "place of public accommodation" under Title II of Civil Rights Act of 1964 because "Congress when enacting § 2000a(b) never intended to include membership organizations that do not maintain a close connection to a structural facility within the meaning of 'place of public accommodation'"), cert. denied, 510 U.S. 1012, 114 S. Ct. 602, 126 L. Ed.2d 567 (1993); United States Jaycees v. Richardet, 666 P.2d 1008, 1011 (Alaska 1983) (stating that "the word 'place'
. . . .would not encompass a service organization lacking a fixed geographical situs"); United States Jaycees v. Bloomfield, 434 A.2d 1379, 1381 (D.C. 1981) (disagreeing with lower court's conclusion that "it is not necessary that there be a building
. . . in order to categorize an existing entity as a place of public accommodation"); United States Jaycees v. Iowa Civil Rights Comm'n, 427 N.W.2d 450, 454 (Iowa 1988) (stating that "United States Jaycees is not a 'place' within our definition of 'public accommodation'"); United States Jaycees v. Massachusetts Comm'n Against Discrimination, 463 N.E.2d 1151, 1156 (Mass. 1984) (finding that Massachusetts antidiscrimination law "does not apply to [a] membership organization, since such an organization does not fall within the commonly accepted definition of 'place'").
     We observe that not all jurisdictions have interpreted "place" so narrowly. The New York Court of Appeals has held that a "place of public accommodation need not be a fixed location, it is the place where petitioners do what they do," including "the place where petitioners' meetings and activities occur." United States Power Squadrons v. State Human Rights Appeal Bd., 452 N.E.2d 1199, 1204 (N.Y. 1983). The Supreme Court of Minnesota has also approved a flexible construction of the term "place." In United States Jaycees v. McClure, 305 N.W.2d 764, 773 (Minn. 1981), the Minnesota court agreed with the Little League premise that a "'place of public accommodation' . . . is less a matter of whether the organization operates on a permanent site, and more a matter of whether the organization engages in activities in places to which an unselected public is given an open invitation."
    Despite numerous additions and modifications to the LAD in the twenty-four years since Little League was decided, the New Jersey Legislature has not enacted a limiting definition of place. See Massachusetts Mutual Life Ins. Co. v. Manzo, 122 N.J. 104, 116 (1991) (stating that "[t]he Legislature's failure to modify a judicial determination, while not dispositive, is some evidence of legislative support for the judicial construction of a statute . . . . [especially when] the Legislature has amended [the] statute several times without altering the judicial construction"). We decline now to construe "place" so as to include only membership associations that are connected to a particular geographic location or facility. As the Appellate Division has so aptly pointed out, "[t]o have the LAD's reach turn on the definition of 'place' is irrational because 'places do not discriminate; people who own and operate places do.'" Dale, supra, 308 N.J. Super. at 533 (quoting Welsh, supra, 993 F. 2d at 1282 (Cummings, J., dissenting)). A membership association, like Boy Scouts, may be a "place" of public accommodation even if the accommodation is provided at "a moving situs." Little League, supra, 127 N.J. Super. at 531. In this case it is readily apparent that the various locations where Boy Scout troops meet fulfill the LAD "place" requirement.
            
            b.     Public Accommodation
    Our case law identifies various factors that are helpful in determining whether Boy Scouts is a "public accommodation." We ask, generally, whether the entity before us engages in broad public solicitation, whether it maintains close relationships with the government or other public accommodations, or whether it is similar to enumerated or other previously recognized public accommodations.
    Broad public solicitation has consistently been a principal characteristic of public accommodations. Our courts have repeatedly held that when an entity invites the public to join, attend, or participate in some way, that entity is a public accommodation within the meaning of the LAD. See, e.g., Clover Hill Swimming Club, Inc. v. Goldsboro, 47 N.J. 25, 33 (1966) (stating that "[a]n establishment which by advertising or otherwise extends an invitation to the public generally is a place of public accommodation"); Sellers v. Philip's Barber Shop, 46 N.J. 340, 345 (1966) (stating that "[a]n establishment which caters to the public or by advertising or other forms of invitation induces patronage generally is a place of public accommodation"); Fraser, supra, 44 N.J. at 488 (stating that "[i]n light of the nature of the facilities and activities offered to the general public by respondent's day camp, we hold that it is a public accommodation"); Little League, supra, 127 N.J. Super. at 531 (stating that "Little League is a public accommodation because the invitation is open to children in the community at large"); Evans v. Ross, 57 N.J. Super. 223, 231 (App. Div.) (stating that LAD requires "an establishment which caters to the public, and by advertising or other forms of invitation induces patronage generally, [not to] refuse to deal with members of the public who have accepted the invitation"), certif. denied, 31 N.J. 292 (1959); see also Kiwanis Int'l v. Ridgewood Kiwanis Club, 806 F.2d 468, 475 (3d Cir. 1986) (stating that LAD applies whenever "the organization or club . . . invite[s] an unrestricted and unselected public to join as members"); Brounstein v. American Cat Fanciers Ass'n, 839 F. Supp. 1100, 1107 (D.N.J. 1993) (stating that "'primary [public accommodation] consideration'" under LAD is "'whether the invitation to gather is open to the public at large'") (quoting Kiwanis Int'l, supra, 806 F. 2d at 474).
    BSA engages in broad public solicitation through various media. In 1989, for example, BSA spent more than $1 million on a national television advertising campaign. A New York Times article describes one of Boy Scouts' "hip" television ads, quoting a BSA spokesman as stating, "scouting [is] a product and we've got to get the product into the hands of as many consumers as we can."Footnote6See footnote 6⁶ Kim Foltz, TV Ad's Hip Pitch: It's 'Cool' to be a Boy Scout, N.Y. Times, Oct. 30, 1989. BSA has also advertised in widely distributed magazines, such as Sports Afield and Redbook. Local Boy Scout councils engage in substantial public solicitation. BSA frequently supplies the councils with recruiting materials, such as television and radio public service announcements, advertisements, and other promotional products. Monmouth Council, in particular, has expressly invited the public by conducting recruiting drives and by providing local troops with BSA-produced posters and promotions aimed at attracting new members.
    Boy Scout troops also take part in perhaps the most powerful invitation of all, albeit an implied one: the symbolic invitation extended by a Boy Scout each time he wears his uniform in public. See Sellers, supra, 46 N.J. at 345 (finding that barber shop's pole extended implied invitation to public). A boy in a uniform may well be Boy Scouts' strongest recruiting tool. By encouraging scouts to wear their uniforms to school, and when participating in "School Nights" and public demonstrations, Boy Scouts invites the curiosity and awareness of others in the community. Boy Scouts admits that it encourages these displays in the hope of attracting new members.
    On the facts before us, it cannot be controverted that Boy Scouts reaches out to the public in a myriad of ways designed to increase and sustain a broad membership base. Whether by advertising or active recruitment, or through the symbolism of a Boy Scout uniform, the intent is to send the invitation to as many members of the general public as possible. Once Boy Scouts has extended this invitation, the LAD requires that all members of the public must "have equal rights . . . and not be subjected to the embarrassment and humiliation of being invited[,] . . . only to find [the] doors barred to them." Evans, supra, 57 N.J.

Super. at 231.
    Boy Scouts is a "public accommodation," not simply because of its solicitation activities, but also because it maintains close relationships with federal and state governmental bodies and with other recognized public accommodations. Our cases have held that certain organizations that benefit from relationships with the government and other public accommodations are themselves places of public accommodation within the meaning of the LAD. In Little League, for example, the court concluded that Little League was "public in the added sense that local governmental bodies characteristically make the playing areas available to the local leagues, ordinarily without charge." 127 N.J. Super. at 531, aff'd, 67 N.J. 320 (1974). More recently, in Frank v. Ivy Club, 120 N.J. 73, 79, 110 (1990), a female student sought membership in the all-male eating clubs at Princeton University. Although they did not publicly solicit new members, we held that the clubs' close relationship to the University, a place of public accommodation, rendered them subject to the LAD. Id. at 110.
    It is clear that Boy Scouts benefits from a close relationship with the federal government. Indeed, BSA was chartered by Congress in 1916, 36 U.S.C.A. §30901, and has been the recipient of equipment, supplies, and services from the federal government, also by act of Congress, 10 U.S.C.A. §2544. Thus, the Secretary of Defense, 10 U.S.C.A. §2544(a), and other departments of the federal government, 10 U.S.C.A. §2544(h), have been authorized to

        lend to the Boy Scouts of America, for the use and accommodation of Scouts, Scouters, and officials who attend any national or world Boy Scout Jamboree, such cots, blankets, commissary equipment, flags, refrigerators, and other equipment and without reimbursement, furnish services and expendable medical supplies, as may be necessary or useful to the extent that items are in stock and items or services are available.

[ 10 U.S.C.A. §2544(a).]

    Since its inception, BSA has maintained a special association with each successive President of the United States. According to a BSA public relations fact sheet:

        One of the causes contributing to the success of the Boy Scouts of America has been the thoughtful, wholehearted way in which each President of the United States since William Howard Taft in 1910 has taken an active part in the work of the movement. Each served as Honorary President during his term in office.

Another fact sheet states that seventy-eight percent of the members of the 100th Congress participated in scouting.
    Boy Scouts also maintains a close relationship with the military. According to a BSA pamphlet entitled Organizations That Use Scouting, "military personnel serve Scouting in many capacities." "At many [Army, Navy, Air Force, and National Coast Guard] installations, facilities are available for Scouting shows, meetings, training activities," and other "similar Scouting events." Monmouth Council, in particular, has used the New Jersey military installation known as Fort Monmouth.
    Likewise, state and local governments have contributed to Boy Scouts' success.Footnote7See footnote 7⁷ In New Jersey, the Legislature has authorized the Division of Fish, Game and Wildlife in the Department of Environmental Protection to "stock with fish any body of water in this state that is under the control of and for the use of . . . Boy Scouts," N.J.S.A. 23:2-3, and has exempted Boy Scouts from having to pay motor vehicle registration fees, N.J.S.A. 39:3-27. Local governmental agencies, such as fire departments and law enforcement agencies, serve Boy Scouts by sponsoring scouting units. Nationally, over 50,000 youth members belong to units sponsored by fire departments, whereas in New Jersey alone over 130 units are sponsored by fire departments and over 100 units are sponsored by law enforcement agencies.     Perhaps Boy Scouts' connection to public schools and school affiliated groups constitutes its single most beneficial governmental relationship. Organizations That Use Scouting advises that "the education field holds our greatest potential." Boy Scouts currently recruits many of its members through its presence in and use of school facilities. A large percentage of scouting units nationally, as well as in New Jersey, are chartered by public schools and affiliated organizations.
    Moreover, public schools and community colleges often host scouting meetings, activities, and recruiting events such as "School Nights." "School Night for Scouting [is a] recruiting plan operated by many councils in connection with the schools." Under this plan, an open scout meeting is held at a school in order to encourage students to join scouting. Public schools not only aid Boy Scouts by allowing the organization to use their facilities after school, but also during the school day. According to Boy Scouts, "[m]ore and more of our schools are becoming available for other than formal education. . . . In school Scouting, where the pack, troop, team, or post meets during the school day, is recognized in many areas." In 1992, close to 700,000 students throughout the nation were taught the Boy Scouts' Learning for Life curriculum during the school day.
    Given Boy Scouts' public solicitation activities, and considering its close relationship with governmental entities, it is not surprising that Boy Scouts resembles many of the recognized and enumerated places of public accommodation. Similarity to the places of public accommodation listed in the LAD has been a benchmark for determining whether the unlisted entity should be included. Cf. Board of Chosen Freeholders v. New Jersey, ___ N.J. ___, ___ (slip op. at 16) (1999) (stating that "[u]nder the ejusdem generis principle of statutory construction, when specific words follow more general words in a statutory enumeration, we can consider what additional items might also be included by asking whether those items are similar to those enumerated"). In Fraser v. Robin Dee Day Camp, for example, this Court held that a "day camp is the type of accommodation which the Legislature intended to reach" because a "day camp offers accommodations which have many attributes in common with swimming pools, recreation and amusement parks, motion picture houses, theatres, music halls, gymnasiums, kindergarten and primary schools, all of which are specifically enumerated" in the LAD. 44 N.J. at 487. The Appellate Division in Little League identified Little League's "'educational or recreational nature'" as a basis for the court's conclusion that Little League was similar to the types of public accommodations listed in the statute. 127 N.J. Super. at 531 (quoting Fraser, supra, 44 N.J. at 487). Similarly, Boy Scouts' educational and recreational nature, like the day camp in Fraser or the baseball teams in Little League, further supports our conclusion that Boy Scouts is a "place of public accommodation" under the LAD. See, e.g., Advancement Guidelines 4 (1992 ed.) (stating that "[e]ducation and fun are functions of the scouting movement").

         2. LAD Exceptions
    Boy Scouts claims that even if it is a place of public accommodation, it is nonetheless exempt from the LAD under three express exceptions: (1) the "distinctly private" exception; (2) the religious educational facility exception; and (3) the in loco parentis exception. N.J.S.A. 10:5-5l. Because we determine that these exceptions do not apply to Boy Scouts, we hold that Boy Scouts is subject to the LAD.
    "While this Court has been scrupulous in its insistence that the [LAD] be applied to the full extent of its facial coverage, it has never found such coverage to exist in the face of an unambiguous exclusion." Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 68 (1978) (citations omitted). Nonetheless, despite our adherence to statutory exceptions expressly and unambiguously set forth by the Legislature, we are mindful that "[e]xemptions from remedial statutes should generally be narrowly construed." Poff v. Caro, 228 N.J. Super. 370, 379 (Law Div. 1987) (citing Service Armament Co. v. Hyland, 70 N.J. 550, 559 (1976)).
    We begin with the "distinctly private" exception. The LAD provides that "[n]othing 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." N.J.S.A. 10:5-5l. Boy Scouts' status as a bona fide club has not been questioned. Our focus is, therefore, on the meaning of "distinctly private." We agree with the New York Court of Appeals that this language, found in both the New York Human Rights Law, N.Y. Exec. Law § 292, and in the LAD, is intended as a narrowly drawn statutory exclusion. Power Squadrons, supra, 452 N.E. 2d at 1204 (stating that this exception "does not refer simply to private clubs or establishments closed to the public but uses more restrictive language excluding from the statute's provisions only clubs which are 'distinctly private'"). Boy Scouts bears the burden of proving that it fits within this narrow exception. Cf. Spragg v. Shore Care & Shore Mem'l Hosp., 293 N.J. Super. 33, 51 (App. Div. 1996) (holding burden of proof on defendant-employer to prove bona fide occupational qualification exception to LAD).
    In deciding whether Boy Scouts is a place of public accommodation, we considered the organization's public solicitation activities. Solicitation of a broad membership base is closely related to the issue of selectivity in membership, which may explain why various courts have considered both factors in their analyses of both "place of public accommodation" and the "distinctly private" exception. See, e.g., Kiwanis, supra, 806 F. 2d at 476 (stating that "distinctly private" exception "represents the other side of the 'public accommodation' coin
. . . . because of the emphasis placed on 'selectivity' as the standard for determining 'public accommodation,' as well as for determining if a club is 'distinctly private'"). We have reviewed the multiple ways in which Boy Scouts reaches out to the public and, therefore, will consider the selectivity issue as the principal determinant of "distinctly private" status. See Power Squadrons, supra, 452 N.E. 2d at 1204 (stating that "the essence of a private club is selectivity in its membership").
    Thirty-three years ago, in Clover Hill Swimming Club, Inc. v. Goldsboro, we said that "not every establishment using the 'club' label can be considered 'distinctly private.' Self serving declarations by . . . an accommodation are not determinative of its character." 47 N.J. at 34. Although the swimming club had represented to the public that "all applications [for membership] would be subject to approval by club officials," it appeared that Clover Hill was only selective when black families applied. Ibid. The Court refused to accept bogus representations concerning the "private" nature of the club when it was quite clear that membership was generally open and had to do with a family's interest in recreation and not much else. Ibid. Little League, citing Clover Hill, primarily relied on the baseball league's "open [invitation] to children in the community at large, with no restriction (other than sex) whatever" as a basis for the court's finding that the league was a "public accommodation." 127 N.J. Super. at 531. The lack of any membership selectivity -- except for the prohibition against the admission of girls -- weighed in the public accommodation calculus; it also bears upon the "distinctly private" exception.
    Kiwanis International v. Ridgewood Kiwanis Club is the only case to hold a club exempt under the "distinctly private" exception. 806 F. 2d at 477. The Third Circuit, relying on Little League, applied a selectivity analysis to determine whether Kiwanis Ridgewood was a public accommodation and, therefore, not "distinctly private." Id. at 476-77. The court found that the local club was selective based on its membership practices, which were described as follows:

        The Ridgewood club is small, comprised of only twenty-eight members. Ten individuals have been members for over twenty years. Indeed, Kiwanis Ridgewood has admitted no more than twenty members over the course of the past decade. Each new member had to be sponsored by a current member, and formally voted in by the Ridgewood Board of Directors. The sponsorship of the existing member acted as a primary screening mechanism in the maintenance of the quality of membership. In addition to national membership requirements, Kiwanis Ridgewood established several local membership requirements, which included, among others, the candidate's willingness to pray at meetings and to recite the pledge of allegiance.

        Although Kiwanis International has encouraged large-scale membership solicitation in the past, the suggested "membership roundup" mailings were sent only to those prospects already known by current members. These individuals would be invited to a Kiwanis meeting to determine their compatibility with the organization's goals and members. The scope of these membership drives was limited. Not only did every solicited individual have to be known by an existing member, but every applicant out of that group of solicited individuals would have to be sponsored by an existing member.

[Id. at 475.]

    Unlike Kiwanis Ridgewood, which used "sponsorship [by an] existing member . . . as a primary screening mechanism in the maintenance of . . . quality membership," Boy Scouts does not require new members "to be sponsored by a current member." Ibid. Nor does Boy Scouts limit its recruiting, or invitations to the public, to individuals who are "known by an existing member." To the contrary, Boy Scout publications indicate that the organization seeks a broad membership base. In a booklet, entitled A Representative Membership,Footnote8See footnote 8⁸ Boy Scouts states that its "national objective, as well as for regions, areas, councils, and districts is to see that all eligible youth have the opportunity to affiliate with the Boy Scouts of America." Id. at 1 (emphasis added). The booklet is emphatically inclusive:

            We have high hopes for our nation's future. These hopes cannot flower if any part of our citizenry feels deprived of the opportunity to help shape the future. How can you persuade other Scouters to accept a commitment to a representative membership? Consider these facts:

            1. 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 available for all boys who meet the entrance age requirements.

            . . . .

            4. Another aim of Scouting is the development of leadership. Leadership in America is needed in all sections of the country and in all economic, cultural, and ethnic groups.

            5. To meet these responsibilities we have made a commitment that our membership shall be representative of all the population in every community, district, and council.

[Id. at 2 (emphasis added).]

    Boy Scouts' large membership further undercuts its claim to selective membership. Nationally, over four million boys and one million adults were Boy Scout members in 1992.Footnote9See footnote 9⁹ Since its inception, over 87 million people have joined Boy Scouts. In 1991, Monmouth Council alone had over 8400 youths and over 2700 adult members. The New York Court of Appeals, construing "distinctly private" in United States Power Squadrons v. State Human Rights Appeal Board, has suggested that an organization's failure to limit its maximum membership, in and of itself, demonstrates that the club is not private: "Organizations which routinely accept applicants and place no subjective limits on the number of persons eligible for membership are not private clubs." 452 N.E. 2d at 1204. We note only that the size of the Boy Scout organization certainly implies an open membership policy.
    Boy Scouts argues, however, that it is "distinctly private" because its Scout Oath and Scout Law constitute genuine selectivity criteria. In support of its position, Boy Scouts relies on Welsh v. Boy Scouts of America, wherein the Seventh Circuit stated:

        Although the Scouts intentionally admit a large number of boys from diverse backgrounds, admission to membership is not without exercise of sound discretion and judgment. This is evident from the Constitution and By-laws as well as the Boy Scouts' Oath and Scout Law.

            . . . We hold therefore that the Scouts organization not only is selective, but that its very Constitution, By-laws and doctrine dictate that it remain selective.

[993 F. 2d at 1276-77.]

    We acknowledge that Boy Scouts' membership application requires members to comply with the Scout Oath and Law. We do not find, however, that the Oath and Law operate as genuine selectivity criteria. To the contrary, the record discloses few instances in which the Oath and Law have been used to exclude a prospective member; in practice, they present no real impediment to joining Boy Scouts. Joining requirements are insufficient to establish selectivity where they do not function as true limits on the admission of members. See Power Squadrons, supra, 452 N.E. 2d at 1204 (requiring examination for basic boating course was not "selective" where club "place[d] no subjective limits on the number of persons eligible for membership"). Here, there is no evidence that Boy Scouts does anything but accept at face value a scout's affirmation of the Oath and Law. See Roberts v. United States Jaycees, 468 U.S. 609, 621, 104 S. Ct. 3244, 3251, 82 L. Ed.2d 462, 473 (1984) (finding group unselective where "new members are routinely recruited and admitted with no inquiry into their backgrounds").
    Most important, it is clear that Boy Scouts does not limit its membership to individuals who belong to a particular religion or subscribe to a specific set of moral beliefs. Boy Scouts asserts that "[t]here is a close association between the Boy Scouts of America and virtually all religious bodies and denominations in the United States," and that each member's concept of "moral fitness" should be determined by his "courage to do what his head and heart tell him is right." See supra at ___ (slip op. at 11-12). Moreover, Boy Scouts encourages its members to "respect and defend the rights of others whose beliefs may differ." Scoutmaster Handbook, supra, at 561. By its own teachings then, Boy Scouts is inclusive, not selective, in its membership practices.
    Boy Scouts also argues that it is "distinctly private" because it is selective in its adult membership. In addition to the Scout Oath and Law requirements, adult members are bound by the Declaration of Religious Principle, and are subject to evaluation according to informal criteria designed to select only individuals capable of accepting responsibility for the moral education and care of other people's children in accordance with scouting values. Several of the Troop 73 leaders who were involved in Dale's adult membership approval have said that they would not have approved Dale's application had they known that Dale was an "avowed" homosexual, thus lending support to BSA's position.
    The Appellate Division's analysis of Boy Scouts' adult membership selectivity dispels the notion that an open membership organization can claim the "distinctly private" exception because it is selective as to a small subset of the larger group:

            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 public clubs in Clover Hill and Fraser, are not places of public accommodation because their member-counselors 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.

            [Dale, supra, 308 N.J. at 538
            (citations omitted).]

See also Brounstein, supra, 839 F. Supp. at 1107-08 (stating that "[t]he fact that an organization is selective with respect to the privileges and benefits it accords to members does not exempt that organization from the proscriptions of the LAD if it is otherwise a 'public place of accommodation'").
    Boy Scouts accepts boys who come from diverse cultures and who belong to different religions. It teaches tolerance and understanding of differences in others. It presents itself to its members and to the public generally as a nonsectarian organization "available to all boys who meet the entrance age requirements." Its Charter and its Bylaws do not permit the exclusion of any boy. Boy Scouts is not "distinctly private" because it is not selective in its membership.
    Boy Scouts claims, however, that it is exempt from the LAD because it is an "educational facility operated or maintained by a bona fide religious or sectarian institution." N.J.S.A. 10:5 5l. This claim deserves little discussion. Boy Scouts repeatedly states that it is nonsectarian. Its Bylaws declare that no member shall be required "to take part in or observe a religious ceremony distinctly unique" to a church or other religious organization. Boy Scouts emphasizes that religious instruction is better reserved for "the home and the organization or group with which the member is connected." Further, the Scoutmaster Handbook instructs its leaders that scouting "is identified with no particular faith, encourages no particular affiliation, nor assumes functions of religious bodies." We cannot say that Boy Scouts is a "bona fide religious or sectarian institution" in the face of the organization's clear pronouncements on this subject.Footnote10See footnote 10¹⁰
    Finally, Boy Scouts argues that requiring it to admit Dale frustrates "the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control." N.J.S.A. 10:5-5l. The right of a parent to provide for the custody, care, and nurturing of a child is well established. Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 1280, 20 L. Ed.2d 195, 203 (1968). In limited cases, that right is also extended to persons, like a stepparent, whose intent it is "to assume the parental relationship." A.S. v. B.S., 139 N.J. Super. 366, 369 (Ch. Div. 1969). Boy Scouts does not qualify as "one in loco parentis."
    Our prior decisions indicate that the status of in loco parentis is reserved for individuals who function as a parent. See, e.g., Miller v. Miller, 97 N.J. 154, 162 (1984) (recognizing stepparent may have in loco parentis relationship); In re M.S., 72 N.J. 238, 243-44 (1977) (finding juvenile shelter for delinquents stands in loco parentis). Characteristics of that relationship include "the responsibility to maintain, rear and educate the child," Miller, supra, 97 N.J. at 162, as well as the duties of "supervision, care and rehabilitation," In re M.S., supra, 72 N.J. at 242; see also A.S., supra, 139 N.J. Super. at 369 (defining role as "one who means to put himself in the situation of the lawful father with reference to the father's office and duty of making provision for the child"). Boy Scouts does not assume those responsibilities or those duties. It does not maintain or rear children. A Boy Scout leader may function as a supervisor of children for limited periods of time; he does not have "the responsibility to maintain, rear and educate" children such that he stands in the place of a parent.
    We hold that Boy Scouts is a "place of public accommodation" and is not exempt from the LAD under any of the statute's exceptions.

        3. Have Boy Scouts Violated the LAD?
    N.J.S.A. 10:5-4 states that "[a]ll persons shall have the opportunity to obtain . . . all the accommodations, advantages, facilities, and privileges of any place of public accommodation." Because we hold that an assistant scoutmaster position is a "privilege" and an "advantage" of Boy Scout membership, and because Boy Scouts has "revoked" Dale's registration based on his "avowed" homosexuality, a prohibited form of discrimination under the statute, we conclude that Boy Scouts has violated the LAD.
    In Dale's revocation letter, Boy Scouts expressly stated that "BSA membership registration is a privilege." Boy Scouts has also taken the position that "adult membership" and "adult leadership" are "interchangeable" in the scouting world. See supra at ___ (slip op. at 15). Boy Scouts' statements raise the question whether the organization has waived its right to challenge Dale's claim that he has been denied a "privilege" within the meaning of the LAD.
    We find, nonetheless, that Boy Scout membership is both a "privilege" and "advantage." The organization provides its members with numerous benefits, including opportunities to participate in group activities and to develop a variety of skills, e.g., camping, cooking, first aid, lifesaving. Boy Scout leaders are given the "advantage" of numerous training courses that teach valuable lessons in leadership and management. Scouting indirectly benefits its members through the "advantage" of a large influential network, including Air Force Academy, Annapolis and West Point graduates, Rhodes Scholars, astronauts, United States Presidents and Congressmen, as well as businessmen and community leaders. Indeed, Boy Scouts advertises the "privileges" and "advantages" of being a member in order to attract new members.Footnote11See footnote 11¹¹ See id. at ___ (slip op. at 35). It is undeniable that Dale lost those "privileges" and "advantages" when he was expelled. It necessarily follows that Boy Scouts violated the LAD when it expelled him.

    B.    The Common Law
    Dale asserts that Boy Scouts is also prohibited from discriminating against him by the common law. The Legislature did not intend to abrogate all common law causes of action with the enactment of the LAD. See N.J.S.A. 10:5-27 ("Nothing herein contained shall 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."); see also N.J.S.A. 10:5-3 ("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.") (emphasis added). In Shaner v. Horizon Bancorp., we recognized that "a plaintiff in appropriate circumstances could pursue an independent action . . . to vindicate particular interests in addition to or aside from those sought to be protected by a LAD action." 116 N.J. 433, 454 (1989).
    In many cases, however, a common law claim is merely duplicative of a LAD claim and "it might be unnecessary to recognize or create . . . [an] action to vindicate substantially the same rights and provide similar relief." Ibid.; accord Erickson v. Marsh & McLennan Co., 117 N.J. 539, 562 (1990). We find that Dale's common law claim, if pursued, would not protect an interest "in addition to or aside from those" protected by his statutory action. Shaner, supra, 116 N.J. at 454. Accordingly, we hold that Dale's common law claim is duplicative of his LAD claim.

    Our holding that New Jersey's Law Against Discrimination applies to Boy Scouts requires that we reach Boy Scouts' claim that its First Amendment rights are thereby violated. See U.S. Const. amend. I. Boy Scouts asserts the rights of its members "to enter into and maintain . . . intimate or private relationships. . . . [and] to associate for the purpose of engaging in protected speech." Board of Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537, 544, 107 S. Ct. 1940, 1945, 95 L. Ed.2d 474, 483-84 (1987).

    The United States Supreme Court has referred to the constitutionally protected freedom of association in two distinct contexts. "In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Roberts, supra, 468 U.S. at 617-18, 104 S. Ct. at 3249, 82 L. Ed. 2d at 471. Those cases are typically referred to as "intimate association" cases. "In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment - speech, assembly, petition for the redress of grievances, and the exercise of religion." Id. at 618, 104 S. Ct. at 3249, 82 L. Ed. 2d at 471. Those cases have been described as "expressive association" cases.
    Boy Scouts' First Amendment claim requires that we examine the analytical framework within which the United States Supreme Court has discussed this complex of associational rights.

     A.     Freedom of Intimate Association

    "[B]ecause the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State." Id. at 618, 104 S. Ct. at 3250, 82 L. Ed. 2d at 471. The freedom to maintain personal relationships or to engage in intimate associations is thus "a fundamental element of liberty protected by the Bill of Rights." Rotary Club, supra, 481 U.S. at 545, 107 S. Ct. at 1945, 95 L. Ed. 2d at 484. Although the Supreme Court has never set the "precise boundaries" of this freedom, "[t]he intimate relationships to which [it] has accorded constitutional protection include marriage, the begetting and bearing of children, child rearing and education, and cohabitation with relatives." Id. at 545, 107 S. Ct. at 1945-46, 95 L. Ed. 2d at 484 (citations omitted). The freedom of intimate association, however, is not restricted to family relationships; rather, the Court has "emphasized that the First Amendment protects those relationships . . . that presuppose 'deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences and beliefs but also distinctly personal aspects of one's life.'" Id. at 545, 107 S. Ct. at 1946, 95 L. Ed. 2d at 484 (quoting Roberts, supra, 468 U.S. at 619-20, 104 S. Ct. at 3250, 82 L. Ed. 2d at 472).
    Two seminal cases have considered the claims of national membership organizations that the intimate association rights of their members had been abridged by the application of state laws similar to the LAD. In Roberts v. United States Jaycees, the Jaycees brought an action contending that application of Minnesota's public accommodations law requiring the organization to admit women as regular members violated the male members' intimate association rights. Under the Jaycees' Bylaws, men between the ages of eighteen and thirty-five were eligible for regular membership, whereas only "associate membership" was available to women. Roberts, supra, 468 U.S. at 613, 104 S. Ct. at 3248, 82 L. Ed. 2d at 468. Unlike regular members, associate members could not vote, hold office, or "participate in certain leadership training and awards programs." Ibid. Nonetheless, as associate members, women "attend[ed] various meetings, participate[d] in selected projects, and engage[d] in many of the organization's social functions." Id. at 621, 104 S. Ct. at 3251, 82 L. Ed. 2d at 473.
    Based on those facts, the Supreme Court concluded that "the Jaycees chapters lack[ed] the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women." Id. at 621, 104 S. Ct. at 3251, 82 L. Ed. 2d at 474. Specifically, the Court emphasized that "the local chapters of the Jaycees are neither small nor selective," and that "much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship." Ibid. At the time of trial, the local chapters involved in the suit had approximately 400 members, id. at 621, 104 S. Ct. at 3251, 82 L. Ed. 2d at 473, and the organization had 295,000 members nationwide, id. at 613, 104 S. Ct. at 3246, 82 L. Ed. 2d at 468. Furthermore, "[a]part from age and sex, neither the national organization nor the local chapters employ[ed] any criteria for judging applicants for membership." Ibid.
    In Board of Directors of Rotary International v. Rotary Club of Duarte, the Court again considered a First Amendment challenge to a state antidiscrimination statute requiring a national membership organization to admit women. There, the charter of a local chapter of Rotary International was revoked by the national organization because it admitted women members. Rotary Club, supra, 481 U.S. at 541, 107 S. Ct. at 1943, 95 L. Ed. 2d at 482. Under the Rotary constitution, women were excluded from membership, although "women [were] permitted to attend meetings, give speeches, and receive awards." Id. at 541, 107 S. Ct. at 1943, 95 L. Ed. 2d at 481. The local chapter and two of its female members brought an action challenging the national organization's exclusionary policy under the California civil rights statute. Id. at 541, 107 S. Ct. at 1943, 95 L. Ed. 2d at 482. Rotary International argued that requiring it to admit women would infringe on its right of intimate association.
    Once again the Court concluded that "the relationship among [the organization's] members is not the kind of intimate or private relation that warrants constitutional protection." Id. at 546, 107 S. Ct. at 1946, 95 L. Ed. 2d at 484-85. The Court noted that local chapters ranged in size from "fewer than 20 [members] to more than 900," and that the national organization did not set an "upper limit on the membership of any local Rotary Club." Id. at 546, 107 S. Ct. at 1946, 95 L. Ed. 2d at 485. The Court also emphasized Rotary International's inclusive membership policy, pointing to the organization's own declaration that "[t]he purpose of Rotary 'is to produce an inclusive, not exclusive, membership.'" Ibid. In order to fulfill this purpose, "[t]he clubs . . . [were] instructed to 'keep a flow of prospects coming' to make up for . . . attrition and gradually to enlarge membership." Ibid. Most important, Rotary International's membership policy was designed to "'enabl[e] the club to be a true cross section of the business and professional life of the community.'" Ibid. On these facts, the Court concluded that "[s]uch an inclusive 'fellowship for service based on diversity of interest,' . . . does not suggest the kind of private or personal relationship to which we have accorded protection under the First Amendment." Id. at 546-47, 107 S. Ct. at 1946, 95 L. Ed. 2d at 485.
    Those cases teach us to consider, among other things, "size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship," when we examine membership organizations to determine whether a protectable intimate association right is present. Id. at 546, 107 S. Ct. at 1946, 95 L. Ed. 2d at 485; see also Roberts, supra, 468 U.S. at 620, 104 S. Ct. at 3251, 82 L. Ed. 2d at 473 (stating that "factors . . . relevant [to an intimate association analysis] include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent"). As applied to Boy Scouts, we find that its 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.
    As a preliminary matter, contrary to Boy Scouts' assertion, whether we evaluate the Boy Scout organization at the national or local troop level, the result would be the same. See supra at ___ (slip op. at 48 n.9). Either way, Boy Scouts cannot claim the right of intimate association for its members. Because Boy Scouts' argument is necessarily stronger at the smaller troop level, we will consider the intimate association factors as applied to local troops.
    Boy Scouts informs us that a typical Boy Scout troop consists of between fifteen and thirty boys and several adult leaders. In Rotary Club, the Supreme Court specifically held that a local club with as few as twenty members did not qualify as "the kind of intimate or private relation that warrants constitutional protection." 481 U.S. at 546, 107 S. Ct. at 1946, 95 L. Ed. 2d at 484-85. Moreover, Boy Scout troops are unselective in their membership. See supra at ___ (slip op. at 49-53). Any boy between the ages of eleven and seventeen can join; indeed, Boy Scouts has quite clearly said that "any boy" is welcome. See id. at ___ (slip op. at 52). Boy Scouts also has not set an upper limit on the number of boys who can join, but instead, actively seeks to interest as many boys as possible through advertising and other outreach methods. See id. at ___ (slip op. at 35-36). Even if Boy Scouts is more selective in choosing its leaders, leaders do not substitute for the boys' parents, see id. at ___ (slip op. at 55); nor do they have private or intimate relationships with troop members. Relationships within the troop are simply not the "kind of . . . personal relationship[s] to which [the Supreme Court has] accorded protection under the First Amendment." Rotary Club, supra, 481 U.S. at 547, 107 S. Ct. at 1946, 95 L. Ed. 2d at 485.
    Boy Scouts' inclusive purpose deserves further discussion in this context. Like the Rotary Clubs analyzed by the Supreme Court, the purpose of Boy Scouts "is to produce inclusive, not exclusive membership." Id. at 546, 107 S. Ct. at 1946, 95 L. Ed. 2d at 485. Boy Scouts has made a commitment to ensure that its membership is "representative of all of the population." See supra at __ (slip op. at 48). "Such an inclusive fellowship
. . . based on diversity of interest, however beneficial to the members" is also not indicative of a protectable form of intimate association. Rotary Club, supra, 481 U.S. at 546-47, 107 S. Ct. at 1946, 95 L. Ed. 2d at 485.

    Boy Scouts' practice of inviting or allowing nonmembers to attend certain troop meetings further persuades us that Boy Scouts cannot claim the right of intimate association. In Rotary Club, the Supreme Court observed that "[m]any of the Rotary Clubs' central activities [were] carried on in the presence of strangers. . . . [and that] clubs [were] encouraged to seek coverage of their meetings and activities in local newspapers." Id. at 547, 107 S. Ct. at 1946-47, 95 L. Ed. 2d at 485. In the Court's view, this negated Rotary International's claim that the California Civil Rights Act "interfere[d] unduly with the members' freedom of private association." Id. at 547, 107 S. Ct. at 1947, 95 L. Ed. 2d at 485. Likewise, Boy Scouts' practice of inviting nonmembers to "School Nights" and other similar activities undermines its intimate association claim. See supra at ___ (slip op. at 5).
    We conclude that Boy Scouts has not demonstrated a protectable intimate association right under the First Amendment.

    B.     Freedom of Expressive Association
    "An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed." Roberts, supra, 468 U.S. at 622, 104 S. Ct. at 3252, 82 L. Ed. 2d at 474. Thus, "the right to engage in activities protected by the First Amendment [carries with it] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Ibid. The freedom to come together in furtherance of a "collective" purpose provides protection for minority views, thereby fostering "political and cultural diversity." Ibid.
    When the government attempts "to interfere with the internal organization or affairs of the group," id. at 623, 104 S. Ct. at 3252, 82 L. Ed. 2d at 474, the members' freedom of expressive association may be curtailed. In this regard, the Supreme Court has said that "[t]here 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." Id. at 623, 104 S. Ct. at 3252, 82 L. Ed. 2d at 474-75. This does not mean, however, "that in every setting in which individuals exercise some discrimination in choosing associates, their selective process of inclusion and exclusion is protected by the Constitution." New York State Club Ass'n v. City of New York, 487 U.S. 1, 13, 108 S. Ct. 2225, 2234, 101 L. Ed.2d 1, 16 (1988). Rather, the Court has found that a group member infringes upon an organization's freedom of expressive association only if he or she "affect[s] 'in any significant way' the [other members'] ability . . . to . . . advocate public or private viewpoints." Ibid.; see also Rotary Club, supra, 481 U.S. at 548, 107 S. Ct. at 1947, 95 L. Ed. 2d at 486 (holding that "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"); Roberts, supra, 468 U.S. at 626-27, 104 S. Ct. at 3254, 82 L. Ed. 2d at 477 (ruling that "the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association" because "[t]here is . . . no basis in the record for concluding that admission of women . . . will impede the organization's ability to engage in these protected activities or to disseminate its preferred views").
    Moreover, "[t]he right to associate for expressive purposes is not . . . absolute." Roberts, supra, 468 U.S. at 623, 104 S. Ct. at 3252, 82 L. Ed. 2d at 475. The Supreme Court has held that "[i]nfringements 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 freedom." Ibid. State laws against discrimination may take precedence over the right of expressive association because "acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent - wholly apart from the point of view such conduct may transmit." Id. at 628, 104 S. Ct. at 3255, 82 L. Ed. 2d at 478. The right of expressive association must, therefore, be weighed against this compelling interest in each case.
    We find that the LAD does not violate Boy Scouts' freedom of expressive association because the statute does not have a significant impact on Boy Scout members' ability to associate with one another in pursuit of shared views. The organization's ability to disseminate its message is not significantly affected by Dale's inclusion because: 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.
    Boy Scouts claims that its members' views regarding homosexuality are evident from its Scout Law and Oath, which embody general moral principles. The Scout Law requires Boy Scout members to be "trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent," whereas the Oath requires each scout to promise: "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." Boy Scouts asserts that it teaches those moral principles to its members through scouting activities. BSA Bylaws require that "in all activities, emphasis [is to] be placed upon practice in daily life of the principles of the Scout Oath." Boy Scouts aims to foster "strength, confidence, and good judgment" by providing boys with "a world full of exciting adventures" and the opportunity "to go places and do things." Boy Scout Handbook, supra, at vii. In the words of the Chief Scout Executive:

As a Scout, you'll hike and camp, learn how to live in the out-of-doors, and discover many ways to care for the land. You can cook your meals over a camp stove and identify all kinds of plants and animals that are part of our environment. No matter what happens, you'll know how to take care of yourself. You'll develop strength, confidence, and good judgment. And you can find out how it feels to be a leader.

[Ibid.]

    We agree that Boy Scouts expresses a belief in moral values and uses its activities to encourage the moral development of its members. Cf. Roberts, supra, 468 U.S. at 636, 104 S. Ct. at 3259-60, 82 L. Ed. 2d at 483-84, (O'Connor, J., concurring in part and concurring in judgment) (stating "protected expression may also take the form of quiet persuasion, inculcation of traditional values, instruction of the young, and community service. . . . [and e]ven 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"). We are not persuaded, however, that a "shared goal[]" of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral. See id. at 622, 104 S. Ct. at 3252, 82 L. Ed. 2d at 474 (recognizing that freedom of expressive association protects an association's "collective effort on behalf of shared goals").
    Boy Scouts argues that the words "morally straight" and "clean" in the Scout Oath and Law explicitly or implicitly stand for the proposition that homosexuality is immoral.Footnote12See footnote 12¹² In support of its position, Boy Scouts relies on the Boy Scout Handbook definition of "morally straight" and "clean":

         To be a person of strong character, guide
        your life with honesty, purity, and justice.
        Respect and defend the rights of all people.
        Your relationships with others should be
        honest and open. Be clean in your speech
        and actions, and faithful in your religious
         beliefs. The values you follow as a Scout
  &nbs