The Supreme Court decided 5–4 for the BSA on June 28, 2000.
Majority opinion Chief Justice William Rehnquist's majority opinion held that expressive associations are protected from being forced to transmit messages contrary to their beliefs, and that the state public accommodations law may not be applied to burden the Boy Scouts' associational right. The Court begins its analysis by affirming a fundamental principle: the right to expressive association is an essential component of the First Amendment. This right allows individuals to join together to pursue a broad range of goals—political, social, religious, and cultural. Its purpose is to promote cultural diversity and protect dissident expression from being silenced. However, it is not an absolute freedom, and there have been tensions with public accommodations laws as the concept of a "public accommodation" has been stretched from commercial businesses to private membership organizations. The Supreme Court has acknowledged that states have a compelling interest in eradicating discrimination, and performs a balancing test in expressive association cases: it weighs the organization's expressive associational interest against the state's interest, examining whether the law's application imposes a serious burden on the group's freedom of expression. The Court ruled that application of public accommodations law to force the Boy Scouts to accept Dale as a scoutmaster would unconstitutionally burden the Boy Scouts' associational right. To determine whether a group is protected by the First Amendment's expressive associational right, it must first be determined whether the group engages in "expressive association." After a
de novo review of the factual record, including the
Scout Oath and
Scout Law, the court decided that the general mission of the Boy Scouts was clear—"to instill values in young people"—an expressive activity protected by the First Amendment. The Court firmly rejected the New Jersey Supreme Court's finding that the Boy Scouts' expressive message would remain unharmed. The state court had reasoned that opposing homosexuality was not the group's primary purpose, that it discouraged leaders from discussing sexual topics, and that it included members with diverse views. The Supreme Court found this analysis legally flawed. First, an expressive association is protected from being forced to convey a message contrary to its beliefs, even if advocating views about homosexuality is not the association's central purpose. The Court afforded significant deference to the Boy Scouts’ own assertions about: • The nature of its expression: The Boy Scouts asserted that it "teach[es] that homosexual conduct is not morally straight", and that it does "not want to promote homosexual conduct as a legitimate form of behavior". • What would impair that expression: The Boy Scouts asserted that an openly gay scoutmaster would “force the organization to send a message” undermining its expressive activity. Second, even assuming the Boy Scouts prefers its leaders to avoid explicit discussions on sexuality, the First Amendment protects the organization's chosen method of expression. If the Boy Scouts aims to instill its values through example and conduct rather than verbal instruction on sexual topics, this pedagogical choice does not undermine the sincerity or constitutional significance of its underlying belief. The manner in which a group conveys its message is itself shielded by the First Amendment. Third, while the policy may not represent the views of all Boy Scouts, 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." The Boy Scouts has a First Amendment right to control its public message by deciding that the visible presence of an openly gay activist in a leadership role would express a message of acceptance it does not wish to convey, while the presence of a heterosexual leader who disagrees with this message would not. The decision concluded:
Dissenting opinion Justice Stevens wrote a dissent in which Justices
Souter,
Ginsburg, and
Breyer joined. He observed that "every state law prohibiting discrimination is designed to replace prejudice with principle."
Justice Brandeis had observed in his dissent from
New State Ice Company v. Liebmann (1932) that 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". The Scout Oath and the Scout Law, which set forth the Scouts' central tenets, assist in this goal. One of these tenets is that a Scout is "morally straight". Another is that a Scout is "clean". As these terms were defined in the Scout Handbook, Stevens said, "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 Scouts' Law and Oath expresses any position whatsoever on sexual matters." What guidance the Boy Scouts gave to the adult leaders that have direct contact with the Scouts themselves urged those leaders to avoid discussing
sexual matters. "Scouts... are directed to receive their sex education at home or in school, but not from the organization." Scoutmasters, in turn, are told to direct "curious adolescents" to their family, religious leaders, doctors, or other professionals. The Boy Scouts had gone so far as to devise specific guidelines for Scoutmasters: • Do not advise Scouts about sexual matters, because it is outside the expertise and comfort level of most Scoutmasters. • If a Scout brings specific questions to his Scoutmaster, the Scoutmaster should answer within his comfort level, remembering that a "boy who appears to be asking about sexual intercourse... may really only be worried about pimples". • Boys with "sexual problems" should be referred to an appropriate professional. Stevens ended his dissent by noting that serious and "ancient"
prejudices facing homosexuals could be aggravated by the "creation of a constitutional shield". ==Reaction==