PAGES PGT: OPIN

BOY SCOUTS OF AMERICA et al. v. DALE

certiorari to the supreme court of new jersey

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

Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist.

He filed suit in the New Jersey Superior Court, alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.

That court's Chancery Division granted summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and remanded. The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the State's public accommodations law by revoking Dale's membership based on his avowed homosexuality.

Among other rulings, the court held that application of that law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' ability to carry out their purposes; determined that New Jersey has a compelling interest in eliminating the destructive consequences of discrimination from society, and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose; and distinguished Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.,  515 U.S. 557, on the ground that Dale's reinstatement did not compel the Boy Scouts to express any message.

Held: Applying New Jersey's public accommodations law to require the Boy Scouts to readmit Dale violates the Boy Scouts' First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group's internal affairs by forcing it to accept a member it does not desire.

Roberts v. United States Jaycees,  468 U.S. 609, 623. Such forced membership is unconstitutional if the person's presence affects in a significant way the group's ability to advocate public or private viewpoints.

New York State Club Assn., Inc. v. City of New York,  487 U.S. 1, 13. However, the freedom of expressive association is not absolute; it can be overridden by regulations adopted to serve compelling

PAGES PGT: OPIN

state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.

Roberts, 468 U. S., at 623. To determine whether a group is protected, this Court must determine whether the group engages in "expressive association." The record clearly reveals that the Boy Scouts does so when its adult leaders inculcate its youth members with its value system. See id., at 636. Thus, the Court must determine whether the forced inclusion of Dale would significantly affect the Boy Scouts' ability to advocate public or private viewpoints. The Court first must inquire, to a limited extent, into the nature of the Boy Scouts' viewpoints. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior.

The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see Demo-cratic Party of United States v. Wisconsin ex rel. La Follette,  450 U.S. 107, 123­124.

The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs. See Hurley, 515 U. S., at 576­577. This Court disagrees with the New Jersey Supreme Court's determination that the Boy Scouts' ability to disseminate its message would not be significantly affected by the forced inclusion of Dale.

First, contrary to the state court's view, an association need not associate for the purpose of disseminating a certain message in order to be protected, but must merely engage in expressive activity that could be impaired.

Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, its method of expression is protected. Third, the First Amendment does not require that every member of a group agree on every issue in order for the group's policy to be "expressive association." Given that the Boy Scouts' expression would be burdened, the Court must inquire whether the application of New Jersey's public accommodations law here runs afoul of the Scouts' freedom of expressive association, and concludes that it does.

Such a law is within a State's power to enact when the legislature has reason to believe that a given group is the target of discrimination and the law does not violate the First Amendment.

See, e. g., id., at 572. The Court rejects Dale's contention that the intermediate standard of review enunciated in UnitedStates v. O'Brien,  391 U.S. 367, should be applied here to evaluate the

PAGES PGT: OPIN

competing interests of the Boy Scouts and the State. Rather, the Court applies an analysis similar to the traditional First Amendment analysis it applied in Hurley. A state requirement that the Boy Scouts retain Dale would significantly burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the freedom of expressive association. In so ruling, the Court is not guided by its view of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of an organization's expression does not justify the State's effort to compel the organization to accept members in derogation of the organization's expressive message.

While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem.

Hurley, supra, at 579. Pp. 647­661.

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

C. J., delivered the opinion of the Court, in which O'ConRehnquist, and Thomas, JJ., joined. filed a nor, Scalia, Kennedy, Stevens, J., dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 663. filed a dissenting opinion, in which Ginsburg Souter, J., and Breyer, JJ., joined, post, p. 700.

George A. Davidson argued the cause for petitioners.

With him on the briefs were Carla A. Kerr, David K. Park,Michael W. McConnell, and Sanford D. Brown.

Evan Wolfson argued the cause for respondent. With him on the brief were Ruth E. Harlow, David Buckel, JonW. Davidson, Beatrice Dohrn, Patricia M. Logue, ThomasJ. Moloney, Allyson W. Haynes, and Lewis H. Robertson.* *Briefs of amici curiae urging reversal were filed for Agudath Israel of

America by David Zwiebel; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Vincent McCarthy, John P. Tuskey, and Laura B. Hernandez; for the American Civil Rights Union by Peter J.Ferrara; for the Becket Fund for Religious Liberty by Kevin J. Hassonand Eric W. Treene; for the California State Club Association et al. by William I. Edlund; for the Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kim-berlee Wood Colby and Carl H. Esbeck; for the Claremont Institute Center

PAGES PGT: OPIN

delivered the opinion of the Chief Justice Rehnquist Court.

Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of America (col

for Constitutional Jurisprudence by Edwin Meese III; for the Eagle Forum Education & Legal Defense Fund et al. by Erik S. Jaffe; for the Family Defense Council et al. by William E. Fay III; for the Family Research Council by Janet M. LaRue; for Gays and Lesbians for Individual Liberty by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the Individual Rights Foundation by Paul A. Hoffman and Patrick J. Manshardt;for the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America by Nathan J. Diament; for the Liberty Legal Institute by Kelly Shackelford and George B. Flint; for the National Catholic Committee on Scouting et al. by Von G. Keetch; for the National Legal Foundation by Barry C. Hodge; for the Pacific Legal Foundation by JohnH. Findley; for Public Advocate of the United States et al. by William J.Olson and John S. Miles; for the United States Catholic Conference et al. by Mark E. Chopko and Jeffrey Hunter Moon; and for John J. Hurley et al. by Chester Darling, Michael Williams, and Dwight G. Duncan.

Briefs of amici curiae urging affirmance were filed for the State of New Jersey by John J. Farmer, Jr., Attorney General, Jeffrey Burstein, Senior Deputy Attorney General, and Charles S. Cohen, Deputy Attorney General; for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Adam L. Aronson,Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Earl I. Anzai of Hawaii, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Philip T. McLaughlin of New Hampshire, W. A. Drew Edmondson of Oklahoma; Hardy Myers of Oregon, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the city of Atlanta et al. by PeterT. Barbur, Sara M. Darehshori, James K. Hahn, David I. Schulman,Jeffrey L. Rogers, Madelyn F. Wessel, Thomas J. Berning, Lawrence E.Rosenthal, Benna Ruth Solomon, Michael D. Hess, Leonard J. Koerner,Florence A. Hutner, and Louise Renne; for the American Association of School Administrators et al. by Mitchell A. Karlan; for the American Bar Association by William G. Paul and Robert H. Murphy; for the American Civil Liberties Union et al. by Matthew A. Coles, Steven R. Shapiro, SaraL. Mandelbaum, and Lenora M. Lapidus; for the American Jewish Congress by Marc D. Stern; for the American Psychological Association by Paul M. Smith, Nory Miller, James L. McHugh, and Nathalie F. P. Gil-

PAGES PGT: OPIN

lectively, Boy Scouts). The Boy Scouts is a private, not-forprofit organization engaged in instilling its system of values in young people. The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent is James Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist.

The New Jersey Supreme Court held that New Jersey's public accommodations law requires that the Boy Scouts readmit Dale. This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment right of expressive association.

We hold that it does.

I

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

In 1988, he achieved the rank of Eagle Scout, one of Scouting's highest honors.

Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his application for the position of assistant scoutmaster of Troop 73. Around the same time, Dale left home to attend Rutgers University. After arriving at Rutgers, Dale first acknowledged to himself and

foyle; for the American Public Health Association et al. by Marvin E.Frankel, Jeffrey S. Trachtman, and Kerri Ann Law; for Bay Area Lawyers for Individual Freedom et al. by Edward W. Swanson and Paula A.Brantner; for Deans of Divinity Schools and Rabbinical Institutions by David A. Schulz; for the National Association for the Advancement of Colored People by Dennis C. Hayes and David T. Goldberg; for Parents, Families, and Friends of Lesbians and Gays, Inc., et al. by John H. Picker-ing, Daniel H. Squire, and Carol J. Banta; for the Society of American Law Teachers by Nan D. Hunter and David Cole; and for Roland Pool et al. by David M. Gische and Merril Hirsh.

Michael D. Silverman filed a brief for the General Board of Church and Society of the United Methodist Church et al.

PAGES PGT: OPIN

others that he is gay. He quickly became involved with, and eventually became the copresident of, the Rutgers University Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing the psychological and health needs of lesbian and gay teenagers. A newspaper covering the event interviewed Dale about his advocacy of homosexual teenagers' need for gay role models. In early July 1990, the newspaper published the interview and Dale's photograph over a caption identifying him as the copresident of the Lesbian/ Gay Alliance.

Later that month, Dale received a letter from Monmouth Council Executive James Kay revoking his adult membership. Dale wrote to Kay requesting the reason for Monmouth Council's decision. Kay responded by letter that the Boy Scouts "specifically forbid membership to homosexuals." App. 137. In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court. The complaint alleged that the Boy Scouts had violated New Jersey's public accommodations statute and its common law by revoking Dale's membership based solely on his sexual orientation.

New Jersey's public accommodations statute prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation.

N. J. Stat. Ann. §§ 10:5­4 and 10:5­5 (West Supp. 2000); see Appendix, infra,at 661­663.

The New Jersey Superior Court's Chancery Division granted summary judgment in favor of the Boy Scouts. The court held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation, and that, alternatively, the Boy Scouts is a distinctly private group exempted from coverage under New Jersey's law.

The court rejected Dale's common-law claim, holding that New Jersey's policy is embodied in the public accommodations law. The court also concluded that the Boy Scouts' position in respect of active homosexuality was clear

PAGES PGT: OPIN

and held that the First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader.

The New Jersey Superior Court's Appellate Division affirmed the dismissal of Dale's common-law claim, but otherwise reversed and remanded for further proceedings.

308

N. J. Super. 516, 706 A. 2d 270 (1998). It held that New Jersey's public accommodations law applied to the Boy Scouts and that the Boy Scouts violated it. The Appellate Division rejected the Boy Scouts' federal constitutional claims.

The New Jersey Supreme Court affirmed the judgment of the Appellate Division. It held that the Boy Scouts was a place of public accommodation subject to the public accommodations law, that the organization was not exempt from the law under any of its express exceptions, and that the Boy Scouts violated the law by revoking Dale's membership based on his avowed homosexuality.

After considering the state-law issues, the court addressed the Boy Scouts' claims that application of the public accommodations law in this case violated its federal constitutional rights " `to enter into and maintain . . . intimate or private relationships . . . [and] to associate for the purpose of engaging in protected speech.' " 160 N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Boardof Directors of Rotary Int'l v. Rotary Club of Duarte,  481 U.S. 537, 544 (1987)).

With respect to the right to intimate association, the court concluded that the Boy Scouts' "large size, nonselectivity, inclusive rather than exclusive purpose, and practice of inviting or allowing nonmembers to attend meetings, establish that the organization is not `sufficiently personal or private to warrant constitutional protection' under the freedom of intimate association."

160 N. J., at 608­609, 734 A. 2d, at 1221 (quoting Duarte, supra, at 546). With respect to the right of expressive association, the court "agree[d] that Boy Scouts expresses a belief in moral values and uses its activities to encourage the moral development

PAGES PGT: OPIN

of its members." 160 N. J., at 613, 734 A. 2d, at 1223. But the court concluded that it was "not persuaded . . . that a shared goal of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral."

Ibid., 734 A. 2d, at 1223­1224 (internal quotation marks omitted). Accordingly, the court held "that Dale's membership does not violate the Boy Scouts' right of expressive association because his inclusion would not `affect in any significant way [the Boy Scouts'] existing members' ability to carry out their various purposes.' "

Id., at 615, 734 A. 2d, at 1225 (quoting Duarte, supra, at 548). The court also determined that New Jersey has a compelling interest in eliminating "the destructive consequences of discrimination from our society," and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose.

160

N. J., at 619­620, 734 A. 2d, at 1227­1228. Finally, the court addressed the Boy Scouts' reliance on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), in support of its claimed First Amendment right to exclude Dale.

The court determined that Hurley did not require deciding the case in favor of the Boy Scouts because "the reinstatement of Dale does not compel Boy Scouts to express any message."

160 N. J., at 624, 734 A. 2d, at 1229. We granted the Boy Scouts' petition for certiorari to determine whether the application of New Jersey's public accommodations law violated the First Amendment. 528 U. S.

1109 (2000). II

In Roberts v. United States Jaycees,  468 U.S. 609, 622 (1984), we observed that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."

This right is crucial in preventing the majority from imposing its views on groups that would

PAGES PGT: OPIN

rather express other, perhaps unpopular, ideas. See ibid. (stating that protection of the right to expressive association is "especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority").

Government actions that may unconstitutionally burden this freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire."

Id., at 623.

Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express.

Thus, "[f]reedom of association . . . plainly presupposes a freedom not to associate." Ibid. The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York,  487 U.S. 1, 13 (1988).

But the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden "by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms."

Roberts, supra, at 623. To determine whether a group is protected by the First Amendment's expressive associational right, we must determine whether the group engages in "expressive association." The First Amendment's protection of expressive association is not reserved for advocacy groups.

But to come within its ambit, a group must engage in some form of expression, whether it be public or private.

Because this is a First Amendment case where the ultimate conclusions of law are virtually inseparable from findings of fact, we are obligated to independently review the

PAGES PGT: OPIN

factual record to ensure that the state court's judgment does not unlawfully intrude on free expression. See Hurley, supra, at 567­568. The record reveals the following. The Boy Scouts is a private, nonprofit organization. According to its mission statement:

"It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential.

"The values we strive to instill are based on those found in the Scout Oath and Law:

"Scout Oath

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

"Scout Law

"A Scout is: "Trustworthy Obedient "Loyal Cheerful "Helpful Thrifty "Friendly Brave "Courteous Clean "Kind Reverent." App. 184.

Thus, the general mission of the Boy Scouts is clear: "[T]o instill values in young people." Ibid. The Boy Scouts seeks to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping, archery, and fishing.

During the time spent with the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy

PAGES PGT: OPIN

Scouts' values--both expressly and by example. It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity. See Roberts, supra, at 636 (O'Connor, J., concurring) ("Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement").

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

The values the Boy Scouts seeks to instill are "based on" those listed in the Scout Oath and Law. App. 184. The Boy Scouts explains that the Scout Oath and Law provide "a positive moral code for living; they are a list of `do's' rather than `don'ts.' "

Brief for Petitioners 3. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values represented by the terms "morally straight" and "clean."

Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation. See supra, at 649.

And the terms "morally straight" and "clean" are by no means self-defining. Different people would attribute to those terms very different meanings. For example, some people may believe that engaging in homosexual conduct is not at odds with being "morally straight" and "clean." And others may believe that engaging in homosexual conduct is contrary to being "morally straight" and "clean." The Boy Scouts says it falls within the latter category. The New Jersey Supreme Court analyzed the Boy Scouts' beliefs and found that the "exclusion of members solely on the basis of their sexual orientation is inconsistent with Boy

PAGES PGT: OPIN

Scouts' commitment to a diverse and `representative' membership . . . [and] contradicts Boy Scouts' overarching objective to reach `all eligible youth.' "

160 N. J., at 618, 734 A. 2d, at 1226. The court concluded that the exclusion of members like Dale "appears antithetical to the organization's goals and philosophy." Ibid. But our cases reject this sort of inquiry; it is not the role of the courts to reject a group's expressed values because they disagree with those values or find them internally inconsistent.

See Democratic Party of United States v. Wisconsin ex rel. La Follette,  450 U.S. 107, 124 (1981) ("[A]s is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational"); see also Thomas v. Review Bd. of Indiana Employ-ment Security Div.,  450 U.S. 707, 714 (1981) ("[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection").

The Boy Scouts asserts that it "teach[es] that homosexual conduct is not morally straight," Brief for Petitioners 39, and that it does "not want to promote homosexual conduct as a legitimate form of behavior," Reply Brief for Petitioners 5. We accept the Boy Scouts' assertion.

We need not inquire further to determine the nature of the Boy Scouts' expression with respect to homosexuality. But because the record

before us contains written evidence of the Boy Scouts' viewpoint, we look to it as instructive, if only on the question of the sincerity of the professed beliefs.

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

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

PAGES PGT: OPIN

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

App. 453­454.

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

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

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

Id., at 457.

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

"The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization.

We do not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA."

Id., at 461.

The Boy Scouts publicly expressed its views with respect to homosexual conduct by its assertions in prior litigation. For example, throughout a California case with similar facts filed in the early 1980's, the Boy Scouts consistently asserted the same position with respect to homosexuality that it asserts today.

See Curran v. Mount Diablo Council of Boy

PAGES PGT: OPIN

Scouts of America, No. C­365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th 670, 29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P. 2d 218 (1998).

We cannot doubt that the Boy Scouts sincerely holds this view. We must then determine whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not "promote homosexual conduct as a legitimate form of behavior."

Reply Brief for Petitioners 5. As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression. See, e. g., La Follette, supra, at 123­124 (considering whether a Wisconsin law burdened the National Party's associational rights and stating that "a State, or a court, may not constitutionally substitute its own judgment for that of the Party"). That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.

But here Dale, by his own admission, is one of a group of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation."

App. 11. Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.

Hurley is illustrative on this point. There we considered whether the application of Massachusetts' public accommodations law to require the organizers of a private St. Patrick's Day parade to include among the marchers an IrishAmerican gay, lesbian, and bisexual group, GLIB, violated the parade organizers' First Amendment rights.

We noted that the parade organizers did not wish to exclude the GLIB members because of their sexual orientations, but because they wanted to march behind a GLIB banner.

We observed:

PAGES PGT: OPIN

"[A] contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals . . . . The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade.

But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control." 515

U. S., at 574­575.

Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not "promote homosexual conduct as a legitimate form of behavior."

Reply Brief for Petitioners 5. As the presence of GLIB in Boston's St. Patrick's Day parade would have interfered with the parade organizers' choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout's choice not to propound a point of view contrary to its beliefs.

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

"Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts discourages its leaders from disseminating any views on sexual issues; and Boy Scouts includes sponsors and members who subscribe to different views

PAGES PGT: OPIN

in respect of homosexuality." 160 N. J., at 612, 734 A. 2d, at 1223.

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

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

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

Third, the First Amendment simply does not require that every member of a group agree on every issue in order for the group's policy to be "expressive association." The Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes.

In this same vein, Dale makes much of the claim that the Boy Scouts does not revoke the membership of heterosexual Scout leaders that openly disagree with the Boy Scouts' policy on sexual orientation.

But if this is true, it is irrelevant.

1 The presence of an avowed homosexual and gay 1

The record evidence sheds doubt on Dale's assertion. For example, the National Director of the Boy Scouts certified that "any persons who advocate to Scouting youth that homosexual conduct is" consistent with Scouting values will not be registered as adult leaders.

App. 746 (emphasis added). And the Monmouth Council Scout Executive testified that the

PAGES PGT: OPIN

rights activist in an assistant scoutmaster's uniform sends a distinctly different message from the presence of a heterosexual assistant scoutmaster who is on record as disagreeing with Boy Scouts policy.

The Boy Scouts has a First Amendment right to choose to send one message but not the other. The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.

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

State public accommodations laws were originally enacted to prevent discrimination in traditional places of public accommodation--like inns and trains. See, e. g., Hurley, supra, at 571­572 (explaining the history of Massachusetts' public accommodations law); Romer v. Evans,  517 U.S. 620, 627­629 (1996) (describing the evolution of public accommodations laws).

Over time, the public accommodations laws have expanded to cover more places.

2 New Jersey's statu

advocacy of the morality of homosexuality to youth members by any adult member is grounds for revocation of the adult's membership. Id., at 761. 2 Public accommodations laws have also broadened in scope to cover more groups; they have expanded beyond those groups that have been given heightened equal protection scrutiny under our cases. See Romer, 517 U. S., at 629. Some municipal ordinances have even expanded to cover criteria such as prior criminal record, prior psychiatric treatment, military status, personal appearance, source of income, place of residence, and political ideology.

See 1 Boston, Mass., Ordinance No. § 12­9.7 (1999) (ex-offender, prior psychiatric treatment, and military status); D. C. Code Ann. § 1­2519 (1999) (personal appearance, source of income, place of residence); Seattle, Wash., Municipal Code § 14.08.090 (1999) (political ideology).

PAGES PGT: OPIN

tory definition of " `[a] place of public accommodation' " is extremely broad. The term is said to "include, but not be limited to," a list of over 50 types of places. N. J. Stat. Ann. § 10:5­5(l) (West Supp. 2000); see Appendix, infra, at 661­ 663. Many on the list are what one would expect to be places where the public is invited. For example, the statute includes as places of public accommodation taverns, restaurants, retail shops, and public libraries. But the statute also includes places that often may not carry with them open invitations to the public, like summer camps and roof gardens. In this case, the New Jersey Supreme Court went a step further and applied its public accommodations law to a private entity without even attempting to tie the term "place" to a physical location.

3

As the definition of "public accommodation" has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.

We recognized in cases such as Roberts and Duarte that States have a compelling interest in eliminating discrimination against women in public accommodations. But in each of these cases we went on to conclude that the enforcement of these statutes would not materially interfere with the ideas that the organization sought to express.

In Roberts, we said "[i]ndeed, the Jaycees has failed to demonstrate . . .

3

Four State Supreme Courts and one United States Court of Appeals have ruled that the Boy Scouts is not a place of public accommodation. Welsh v. Boy Scouts of America,  993 F.2d 1267 (CA7), cert. denied, 510 U. S. 1012 (1993); Curran v. Mount Diablo Council of the Boy Scouts ofAmerica, 17 Cal. 4th 670, 952 P. 2d 218 (1998); Seabourn v. CoronadoArea Council, Boy Scouts of America, 257 Kan. 178, 891 P. 2d 385 (1995); Quinnipiac Council, Boy Scouts of America, Inc. v. Comm'n on HumanRights & Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987); Schwenk v. Boy Scouts of America, 275 Ore. 327, 551 P. 2d 465 (1976).

No federal appellate court or state supreme court--except the New Jersey Supreme Court in this case--has reached a contrary result.

PAGES PGT: OPIN

any serious burdens on the male members' freedom of expressive association." 468 U. S., at 626. In Duarte, we said:

"[I]mpediments to the exercise of one's right to choose one's associates can violate the right of association protected by the First Amendment.

In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their various purposes."

481 U. S., at 548 (internal quotation marks and citations omitted).

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

In Hurley, we said that public accommodations laws "are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments."

515 U. S., at 572.

But we went on to note that in that case "the Massachusetts [public accommodations] law has been applied in a peculiar way" because "any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own."

Id., at 572­573. And in the associational freedom cases such as Roberts, Duarte, and New York StateClub Assn., after finding a compelling state interest, the Court went on to examine whether or not the application of the state law would impose any "serious burden" on the organization's rights of expressive association.

So in these

cases, the associational interest in freedom of expression has

PAGES PGT: OPIN

been set on one side of the scale, and the State's interest on the other.

Dale contends that we should apply the intermediate standard of review enunciated in United States v. O'Brien, 391 U.S. 367 (1968), to evaluate the competing interests. There the Court enunciated a four-part test for review of a governmental regulation that has only an incidental effect on protected speech--in that case the symbolic burning of a draft card.

A law prohibiting the destruction of draft cards only incidentally affects the free speech rights of those who happen to use a violation of that law as a symbol of protest. But New Jersey's public accommodations law directly and immediately affects associational rights, in this case associational rights that enjoy First Amendment protection.

Thus, O'Brien is inapplicable. In Hurley, we applied traditional First Amendment analysis to hold that the application of the Massachusetts public accommodations law to a parade violated the First Amendment rights of the parade organizers.

Although we did not explicitly deem the parade in Hurley an expressive association, the analysis we applied there is similar to the analysis we apply here.

We have already concluded that a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct.

The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association.

That being the

case, we hold that the First Amendment prohibits the State from imposing such a requirement through the application of its public accommodations law.

4 4

We anticipated this result in Hurley when we illustrated the reasons for our holding in that case by likening the parade to a private membership organization. 515 U. S., at 580. We stated: "Assuming the parade

PAGES PGT: OPIN

dissent makes much of its observation Justice Stevens' that the public perception of homosexuality in this country has changed. See post, at 699­700. Indeed, it appears that homosexuality has gained greater societal acceptance. See ibid. But this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not. See, e. g., Texas v. Johnson,  491 U.S. 397 (1989) (holding that Johnson's conviction for burning the American flag violates the First Amendment); Bran-denburg v. Ohio,  395 U.S. 444 (1969) (per curiam) (holding that a Ku Klux Klan leader's conviction for advocating unlawfulness as a means of political reform violates the First Amendment).

And the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.

extolling of Justice Brandeis' comments Justice Stevens' in New State Ice Co. v. Liebmann,  285 U.S. 262, 311 (1932) (dissenting opinion); see post, at 664, 700, confuses two entirely different principles.

In New State Ice, the Court struck down an Oklahoma regulation prohibiting the manufacture, sale, and distribution of ice without a license. Justice Brandeis, a champion of state experimentation in the economic realm, dissented. But Justice Brandeis was never a champion of state experimentation in the suppression of free speech. To the contrary, his First Amendment commentary provides compelling support for the Court's opinion in this case. In speaking of the Founders of this Nation, Justice Brandeis emphasized that they "believed that free

to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members."

Id., at 580­581.

PAGES PGT: OPIN

Appendix to opinion of the Court

dom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." Whitney v. California,  274 U.S. 357, 375 (1927) (concurring opinion).

He continued:

"Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form.

Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."

Id., at 375­376.

We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message.

"While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."

Hurley, 515 U. S., at 579. The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

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

"All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommoda-

PAGES PGT: OPIN

Appendix to opinion of the Court

tion, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons.

This opportunity is recognized as and declared to be a civil right."

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

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

"l. `A place of public accommodation' shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall; any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey.

PAGES PGT: OPIN

dissenting Stevens, J.,

Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed; nor shall anything herein contained be construed to bar any private secondary or post secondary school from using in good faith criteria other than race, creed, color, national origin, ancestry or affectional or sexual orientation in the admission of students."

with whom Justice Souter, Justice Justice Stevens, and Justice Breyer join, dissenting.

Ginsburg,

New Jersey "prides itself on judging each individual by his or her merits" and on being "in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society."

Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80, 389 A. 2d 465, 478 (1978). Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges "of any place of public accommodation." N. J. Stat. Ann. § 10:5­4 (West Supp. 2000).

The New Jersey Supreme Court's construction of the statutory definition of a "place of public accommodation" has given its statute a more expansive coverage than most similar state statutes.

And as amended in 1991, the law prohibits discrimination on the basis of nine different traits including an individual's "sexual orientation." 1

The question in this case is whether that ex1

In 1992, the statute was again amended to add "familial status" as a tenth protected class. It now provides: "10:5­4 Obtaining employment, accommodations and privileges without discrimination; civil right

"All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any

PAGES PGT: OPIN

dissenting Stevens, J.,

pansive construction trenches on the federal constitutional rights of the Boy Scouts of America (BSA).

Because every state law prohibiting discrimination is designed to replace prejudice with principle, Justice Brandeis' comment on the States' right to experiment with "things social" is directly applicable to this case.

"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure.

But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold." New State Ice Co. v. Liebmann,  285 U.S. 262, 311 (1932) (dissenting opinion).

In its "exercise of this high power" today, the Court does not accord this "courageous State" the respect that is its due.

The majority holds that New Jersey's law violates BSA's right to associate and its right to free speech. But that law

place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons.

This opportunity is recognized as and declared to be a civil right."

PAGES PGT: OPIN

dissenting Stevens, J.,

does not "impos[e] any serious burdens" on BSA's "collective effort on behalf of [its] shared goals," Roberts v. UnitedStates Jaycees,  468 U.S. 609, 622, 626­627 (1984), nor does it force BSA to communicate any message that it does not wish to endorse.

New Jersey's law, therefore, abridges no constitutional right of BSA. I

James Dale joined BSA as a Cub Scout in 1978, when he was eight years old. Three years later he became a Boy Scout, and he remained a member until his 18th birthday. Along the way, he earned 25 merit badges, was admitted into the prestigious Order of the Arrow, and was awarded the rank of Eagle Scout--an honor given to only three percent of all Scouts.

In 1989, BSA approved his application to be an Assistant Scoutmaster. On July 19, 1990, after more than 12 years of active and honored participation, the BSA sent Dale a letter advising him of the revocation of his membership. The letter stated that membership in BSA "is a privilege" that may be denied "whenever there is a concern that an individual may not meet the high standards of membership which the BSA seeks to provide for American youth."

App. 135. Expressing surprise at his sudden expulsion, Dale sent a letter requesting an explanation of the decision. Id., at 136. In response, BSA sent him a second letter stating that the grounds for the decision "are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals."

Id., at 137. At that time, no such standard had been publicly expressed by BSA. In this case, BSA contends that it teaches the young boys who are Scouts that homosexuality is immoral. Consequently, it argues, it would violate its right to associate to force it to admit homosexuals as members, as doing so would be at odds with its own shared goals and values.

This contention, quite plainly, requires us to look at what, exactly, are the values that BSA actually teaches.

PAGES PGT: OPIN

dissenting Stevens, J.,

BSA's mission statement reads as follows: "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."

Id., at 184. Its federal charter declares its purpose is "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 values, using the methods which were in common use by Boy Scouts on June 15, 1916."

36 U. S. C. § 23; see also App. 315­316. BSA describes itself as having a "representative membership," which it defines as "boy membership [that] reflects proportionately the characteristics of the boy population of its service area."

Id., at 65. In particular, the group emphasizes that "[n]either the charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy. . . . 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 66­67 (emphasis in original).

To instill its shared values, BSA has adopted a "Scout Oath" and a "Scout Law" setting forth its central tenets. For example, the Scout Law requires a member to promise, among other things, that he will be "obedient."

Accompa

nying definitions for the terms found in the Oath and Law are provided in the Boy Scout Handbook and the Scoutmaster Handbook.

For instance, the Boy Scout Handbook defines "obedient" as follows:

"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." Id., at 188 (emphasis deleted).

PAGES PGT: OPIN

dissenting Stevens, J.,

To bolster its claim that its shared goals include teaching that homosexuality is wrong, BSA directs our attention to two terms appearing in the Scout Oath and Law. The first is the phrase "morally straight," which appears in the Oath ("On my honor I will do my best . . . To keep myself . . . morally straight"); the second term is the word "clean," which appears in a list of 12 characteristics together constituting the Scout Law.

The Boy Scout Handbook defines "morally straight," as such:

"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." Id., at 218 (emphasis deleted).

The Scoutmaster Handbook emphasizes these points about being "morally straight":

"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. Moral fitness, like emotional fitness, will clearly present opportunities for wise guidance by an alert Scoutmaster."

Id., at 239­240.

As for the term "clean," the Boy Scout Handbook offers the following:

"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.

If you play hard and work hard you can't help get-

PAGES PGT: OPIN

dissenting Stevens, J.,

ting dirty. But when the game is over or the work is done, that kind of dirt disappears with soap and water. "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 targets of insults." Id., at 225­226 (emphasis in original); see also id., at 189. 2

It is plain as the light of day that neither one of these principles--"morally straight" and "clean"--says the slightest thing about homosexuality.

Indeed, neither term in the Boy 2

Scoutmasters are instructed to teach what it means to be "clean" using the following lesson: "(Hold up two cooking pots, one shiny bright on the inside but sooty outside, the other shiny outside but dirty inside.) Scouts, which of these pots would you rather have your food cooked in? Did I hear somebody say, `Neither one?' "That's not a bad answer. We wouldn't have much confidence in a patrol cook who didn't have his pots shiny both inside and out. "But if we had to make a choice, we would tell the cook to use the pot that's clean inside. The same idea applies to people. "Most people keep themselves clean outside. But how about the inside? Do we try to keep our minds and our language clean? I think that's even more important than keeping the outside clean. "A Scout, of course, should be clean inside and out. Water, soap, and a toothbrush tak[e] care of the outside. Only your determination will keep the inside clean. You can do it by following the Scout Law and the example of people you respect--your parents, your teachers, your clergyman, or a good buddy who is trying to do the same thing." App. 289­290.

PAGES PGT: OPIN

dissenting Stevens, J.,

Scouts' Law and Oath expresses any position whatsoever on sexual matters.

BSA's published guidance on that topic underscores this point. Scouts, for example, are directed to receive their sex education at home or in school, but not from the organization: "Your parents or guardian or a sex education teacher should give you the facts about sex that you must know."

Boy Scout Handbook (1992) (reprinted in App. 211). To be sure, Scouts are not forbidden from asking their Scoutmaster about issues of a sexual nature, but Scoutmasters are, literally, the last person Scouts are encouraged to ask: "If you have questions about growing up, about relationships, sex, or making good decisions, ask.

Talk with your parents, religious leaders, teachers, or Scoutmaster." Ibid. Moreover, Scoutmasters are specifically directed to steer curious adolescents to other sources of information:

"If Scouts ask for information regarding . . . sexual activity, answer honestly and factually, but stay within your realm of expertise and comfort.

If a Scout has serious concerns that you cannot answer, refer him to his family, religious leader, doctor, or other professional." Scoutmaster Handbook (1990) (reprinted in App. 264).

More specifically, BSA has set forth a number of rules for Scoutmasters when these types of issues come up:

"You may have boys asking you for information or advice about sexual matters. . . . "How should you handle such matters? "Rule number 1: You do not undertake to instructScouts, in any formalized manner, in the subject of sexand family life.

The reasons are that it is not construed to be Scouting's proper area, and that you are probably not well qualified to do this. "Rule number 2: If Scouts come to you to ask questions or to seek advice, you would give it within your compe-

PAGES PGT: OPIN

dissenting Stevens, J.,

tence. A boy who appears to be asking about sexual intercourse, however, may really only be worried about his pimples, so it is well to find out just what information is needed. "Rule number 3: You should refer boys with sexual problems to persons better qualified than you [are] to handle them.

If the boy has a spiritual leader or a doctor who can deal with them, he should go there. If such persons are not available, you may just have to do the best you can. But don't try to play a highly professional role. And at the other extreme, avoid passing the buck." Scoutmaster Handbook (1972) (reprinted in App. 546­ 547) (emphasis added).

In light of BSA's self-proclaimed ecumenism, furthermore, it is even more difficult to discern any shared goals or common moral stance on homosexuality. Insofar as religious matters are concerned, BSA's bylaws state that it is "absolutely nonsectarian in its attitude toward . . . religious training."

Id., at 362. "The BSA does not define what constitutes duty to God or the practice of religion. This is the responsibility of parents and religious leaders." Id., at 76.

In fact, many diverse religious organizations sponsor local Boy Scout troops. Brief for Petitioners 3. Because a number of religious groups do not view homosexuality as immoral or wrong and reject discrimination against homosexuals, 3

it is exceedingly difficult to believe that BSA none3

See, e. g., Brief for Deans of Divinity Schools and Rabbinical Institutions as Amicus Curiae 8 ("The diverse religi[ous] traditions of this country present no coherent moral message that excludes gays and lesbians from participating as full and equal members of those institutions.

Indeed, the movement among a number of the nation's major religious institutions for many decades has been toward public recognition of gays and lesbians as full members of moral communities, and acceptance of gays and lesbians as religious leaders, elders and clergy"); Brief for General Board of Church and Society of the United Methodist Church et al. as

PAGES PGT: OPIN

dissenting Stevens, J.,

theless adopts a single particular religious or moral philosophy when it comes to sexual orientation. This is especially so in light of the fact that Scouts are advised to seek guidance on sexual matters from their religious leaders (and Scoutmasters are told to refer Scouts to them); 4

BSA surely is aware that some religions do not teach that homosexuality is wrong.

II

The Court seeks to fill the void by pointing to a statement of "policies and procedures relating to homosexuality and Scouting," App. 453, signed by BSA's President and Chief Scout Executive in 1978 and addressed to the members of the Executive Committee of the national organization.

Ante, at 651­652. The letter says that the BSA does "not believe that homosexuality and leadership in Scouting are appropriate." App. 454. But when the entire 1978 letter is read, BSA's position is far more equivocal:

"4. Q. May an individual who openly declares himself to be a homosexual be employed by the Boy Scouts of America as a professional or non-professional?

"A. Boy Scouts of America does not knowingly employ homosexuals as professionals or non-professionals. We are unaware of any present laws which would prohibit this policy.

Amicus Curiae 3 (describing views of the United Methodist Church, the Episcopal Church, the Religious Action Center of Reform Judaism, the United Church Board for Homeland Ministries, and the Unitarian Universalist Association, all of whom reject discrimination on the basis of sexual orientation).

4

See supra, at 667 ("Be . . . faithful in your religious beliefs"); supra, at 668, n. 2 ("by following . . . the example of . . . your clergyman"); supra,at 669 ("If you have questions about . . . sex, . . . [t]alk with your . . . religious leade[r]"); ibid. ("If Scouts ask for information regarding . . . sexual activity . . . refer him to his . . . religious leader"); supra, at 670 ("You should refer boys with sexual problems to [their] spiritual leader").

PAGES PGT: OPIN

dissenting Stevens, J.,

"5. Q. Should a professional or non-professional individual who openly declares himself to be a homosexual be terminated?

"A. Yes, in the absence of any law to the contrary. At the present time we are unaware of any statute or ordinance in the United States which prohibits discrimination against individual's employment upon the basis of homosexuality.

In the event that such a law was applicable, it would be necessary for the Boy Scouts ofAmerica to obey it, in this case as in Paragraph 4 above.It is our position, however, that homosexuality and professional or non-professional employment in Scouting are not appropriate."

Id., at 454­455 (emphasis added).

Four aspects of the 1978 policy statement are relevant to the proper disposition of this case. First, at most this letter simply adopts an exclusionary membership policy. But simply adopting such a policy has never been considered sufficient, by itself, to prevail on a right to associate claim. See infra, at 678­685. Second, the 1978 policy was never publicly expressed--unlike, for example, the Scout's duty to be "obedient." It was an internal memorandum, never circulated beyond the few members of BSA's Executive Committee. It remained, in effect, a secret Boy Scouts policy. Far from claiming any intent to express an idea that would be burdened by the presence of homosexuals, BSA's public posture--to the world and to the Scouts themselves--remained what it had always been: one of tolerance, welcoming all classes of boys and young men.

In this respect, BSA's claim is even weaker than those we have rejected in the past. See ibid. Third, it is apparent that the draftsmen of the policy statement foresaw the possibility that laws against discrimination might one day be amended to protect homosexuals from employment discrimination.

Their statement clearly provided that, in the event such a law conflicted with their policy, a Scout's duty to be "obedient" and "obe[y] the laws," even if

"he thinks [the laws] are unfair," would prevail in such a

PAGES PGT: OPIN

dissenting Stevens, J.,

contingency. See supra, at 666. In 1978, however, BSA apparently did not consider it to be a serious possibility that a State might one day characterize the Scouts as a "place of public accommodation" with a duty to open its membership to all qualified individuals.

The portions of the statement dealing with membership simply assume that membership in the Scouts is a "privilege" that BSA is free to grant or to withhold.

The statement does not address the question whether the publicly proclaimed duty to obey the law should prevail over the private discriminatory policy if, and when, a conflict between the two should arise--as it now has in New Jersey.

At the very least, then, the statement reflects no unequivocal view on homosexuality. Indeed, the statement suggests that an appropriate way for BSA to preserve its unpublished exclusionary policy would include an open and forthright attempt to seek an amendment of New Jersey's statute.

("If he thinks these rules and laws are unfair, he tries to have them changed in an orderly manner rather than disobey them.")

Fourth, the 1978 statement simply says that homosexuality is not "appropriate." It makes no effort to connect that statement to a shared goal or expressive activity of the Boy Scouts. Whatever values BSA seeks to instill in Scouts, the idea that homosexuality is not "appropriate" appears entirely unconnected to, and is mentioned nowhere in, the myriad of publicly declared values and creeds of the BSA.

That idea does not appear to be among any of the principles actually taught to Scouts. Rather, the 1978 policy appears to be no more than a private statement of a few BSA executives that the organization wishes to exclude gays--and that wish has nothing to do with any expression BSA actually engages in.

The majority also relies on four other policy statements that were issued between 1991 and 1993.

5 All of them were 5

The authorship and distribution of these statements remain obscure.

Unlike the 1978 policy--which clearly identifies the authors as the President and the Chief Scout Executive of BSA--these later policies are unsigned.

Two of them are initialed (one is labeled "JCK"; the other says

PAGES PGT: OPIN

dissenting Stevens, J.,

written and issued after BSA revoked Dale's membership. Accordingly, they have little, if any, relevance to the legal question before this Court.

6

In any event, they do not bolster BSA's claim. In 1991, BSA issued two statements both stating: "We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts."

App. 457­458. A third statement issued in 1992 was substantially the same. Id., at 459. By 1993, however, the policy had changed:

"BSA Position "The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. "We do not believe that homosexuals provide a role model consistent with these expectations. "Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA."

Id., at 461.

Aside from the fact that these statements were all issued after Dale's membership was revoked, there are four important points relevant to them. First, while the 1991 and 1992

"js"), but BSA never tells us to whom these initials belong. Nor do we know how widely these statements were distributed. From the record evidence we have, it appears that they were not as readily available as the Boy Scout and Scoutmaster Handbooks; indeed, they appear to be quite difficult to get a hold of.

See App. 662, 668­669. 6 Dale's complaint requested three forms of relief: (1) a declaration that his rights under the New Jersey statute had been violated when his membership was revoked; (2) an order reinstating his membership; and (3) compensatory and punitive damages.

Id., at 27. Nothing that BSA could have done after the revocation of his membership could affect Dale's first request for relief, though perhaps some possible postrevocation action could have influenced the other two requests for relief.

PAGES PGT: OPIN

dissenting Stevens, J.,

statements tried to tie BSA's exclusionary policy to the meaning of the Scout Oath and Law, the 1993 statement abandoned that effort.

Rather, BSA's 1993 homosexual exclusion policy was based on its view that including gays would be contrary to "the expectations that Scouting families have had for the organization."

Ibid. Instead of linking its policy to its central tenets or shared goals--to teach certain definitions of what it means to be "morally straight" and "clean"--BSA chose instead to justify its policy on the "expectatio[n]" that its members preferred to exclude homosexuals.

The 1993 policy statement, in other words, was not based on any expressive activity or on any moral view about homosexuality. It was simply an exclusionary membership policy, similar to those we have held insufficient in the past. See infra, at 678­685.

Second, even during the brief period in 1991 and 1992, when BSA tried to connect its exclusion of homosexuals to its definition of terms found in the Oath and Law, there is no evidence that Scouts were actually taught anything about homosexuality's alleged inco