P. O. Box 486 Moorestown, N



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Docket No. 45,761 September Term, 1997

SUPREME COURT OF NEW JERSEY



JAMES DALE,

Plaintiff, Respondent,

v.

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

Defendants - Appellants

APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION.,? DOCKET NO. A-2427-95T3,

DECISION DA T~D MARCH 2, 1998

SUPPLEMENTAL BRIEF OF AMICl.CIlRIAE OF 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 SHAD EGG AND MARK SOUbER



David H. Dugan, III, Esquire 17 East Second Street

P.O. Box 486

Moorestown, N.J. 08057

(609) 235-7806





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TABLE OF CONTENTS

Page

TABLE OF CITATIONS PROCEDURAL HISTORY STATEMENT OF FACTS

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4

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(1) Interest of Amici

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(2) Introductory Statement

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LEGAL ARGUMENT

(I) Scope of the New Jersey Law Against Discrimination

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(II) The Boy Scouts Is a "Private" l\1embership Organization,

Not a "Public Accommodation" Under New Jersey Law



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(III) The Boy Scouts Is a Private Entity \Vith the Freedoms of Belief, expression, and Association Protected by the First and FOUl"teenth Amendments to the United States Constitution

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(A) First Amendment Principles Protect the Right of Expressive

Association \Vith Others of Like l\1ind 15



(B) The Boy Scouts Is a Private E.ntity Protected by the Due

Process Clause of the FOUl"teenth Amendment 18



CONCLUSION 20


TABLE OF CITATIONS CASES

Board of Directors of Rotary IntI. Y. Rotary Club of Duarte. 481 US. 537 (1987)

Corfield v C0ryell 6 Fed. Cas. 546, No. 3,230 (C.C.E.D. Pa. 1823)

Curran v. Mount Diablo Council of the Boy Scouts of America, 952 P.2d 218 (Calif. Supr. C1. 1998)

Gitlow v. New York. 268 US. 652 (1925)

Hearth of Atlanta Motel v. United States, 379 U.S. 241 (1964)

Hurley v. Irish-American Gay. Lesbian and Bisexual Group of Boston. 515 US. 557 (1995)

Kiwanis IntI. V. Ridgewood Kiwanis Club, 806 F. 2d 468 (3d. Cir. 1986)

Meyer v. Nebraska. 262 US. 390 (1923) NAACP v. Alabama, 357 US. 449 (1958)

National Organization of Women v. Little League Baseball. Inc.,

127 N.J. Super 522 (App. Div. 1974), affd. Mem. 67 N.J. 320 (1974)



New York State Club Ass'n.. Inc. v. City ofNe\\' York 487 US. 1 (1988)

NLRB v. Catholic Bishop of Chicago. 440 US. 490 (1979)

Pierce v Society of Sisters, 268 US. 510 (1925)

Roberts v United States Jaycees, 468 US. 609 (1984)

Schwenk v Boy Scouts of America 551 P. 2d 465 (Ore. Supr. C1. 1976)

Seabourn v. Coronado Area Council. Boy Scouts of America, 891 P. 2d 385 (Kan. Supr. C1. 1995)

State v. Brana, 127 N.J. 64 (1992)

State v. Profaci, 56 N.J. 346 (1970)

State v. Tachin 92 N.J. L. 269 (Sup. C1. 1919)

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15, 19

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9, 11

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United States v. Delaware & Hudson Co.. 2]3 U.S. 366 (1909) United States v. Security Industrial Bank, 459 U.S. 70 (1982)

Welsh v. Boy Scouts of America. 993 F. 2d ] 267 (7lh Cir.),

Cert. Denied, 5]0 U.S. ]0]2 (1993)



ST A TUTES

N.J.S.A. ] 0:5-] et seq. 42 U.S.c. § 2000a

OTHER

Blackstone, Commentaries on the Laws of England Vol. 3. Chap. 9, Vol. 4 Chap. 13

Michael McConnell, "Original Understandings of the Fourteenth Amendment", 8] Va. L. Rev. 947 (May ]995)

1. Story, Bailillents, § § 466a, 470, 476(2) (]846)



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PROCEDURAL HISTORY

This matter is before the court on certification from the Appellate Division's decision of March 2,

1998, reported at 308 N.J. Super. 516 (App. Div. 1998). In that opinion (one judge concurring in part and dissenting in part) the Appellate Division reversed the summary judgment entered by the trial court in favor of defendants on November 20, 1995.

This supplemental brief is being submitted to provide interpretive perspective on the 1998 opinion

of the California Supreme Court in the case of Curran v. Mount Diablo Council of the Boy Scouts of

America 952 P.2d 218 (Calif. Supr. C1..1998)

ST A TEI\1ENT OF FACTS

(1) Interest of Amici

Amicus The Claremont Institute for the Study of Statesmanship and Political Philosophy ("Claremont") is a non-profit educational foundation whose stated mission is to "restore the principles of the American Founding to their rightful and preeminent authority in our national life." The Institute

pursues its mission through academic research, publications, conferences, and the selective appearance as amicus curiae in cases of constitutional significance; It has published extensively about the foundations of representative government and the constitutional protections of speech and association that are necessary to protect those foundations, including a monograph entitled "On the Front Line of the Culture War:

Recent Attacks on the Boy Scouts of America."

Amici Charles T. Canady, Christopher B. Cannon, Tom A. Coburn, M.D., John E. Peterson, John

Shadegg and Mark Souter, are members 0rthe United States Congress. By virtue of Section 5 of the

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Fourteenth Amendment to the United States Constitution, they and their colIeagues have a particular responsibility to ensure that the rights enumerated in the Fourteenth Amendment are protected against abridgement by State governments.

(2) Introductory Statement

The Boy Scouts of America, as an institution, believes that homosexuality is wrong, just as it believes that adultery and pre-marital sex are wrong. It exists, in part, to foster those beliefs among the boys whose parents involve them in scouting and to teach boys respect for family as the cornerstone of

civilized society. Its mission in this regard is consistent with the teachings of most major religions and in

accord with the law of most civilized peoples throughout history. The Boy Scouts has been immensely successful as an organization in no smalI measure because it has remained true to the moral teachings that

have shaped its purpose from its beginning nearly a century ago.

The primary legal issue in this case, however, is not whether the Boy Scouts' position on homosexuality is right or wrong. Rather, it is whether the Boy Scouts is a "private" membership

organization under New Jersey law and, if not, whether it had a right under the United States Constitution to hold a belief regarding homosexuality-or any other subject, for that matter-and to associate with others oflike mind to express and propagate that belief. )fthis Court holds that the Boy

Scouts is a "private" organization under the statute, the matter ends because the statute would not apply

by its own terms. But if this Court finds that the Boy Scouts is not a private entity under the terms of the statute, that holding would raise a constitutional issue of considerable magnitude. Even if the New Jersey

Legislature plainly meant to impose an exceedingly narrow definition of "private" for the purposes of the

. . Law Against Discrimination, the protection afforded by the United States Constitution may not be

circumscribed by the State Legislature. The Boy Scouts is constitutionalIy protected in its associational

choices and may limit membership to those who agree with its principles. Any State law purporting to

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impose a contrary result violates the First Amendment principles made applicable to the States by the Fourteenth Amendment.

In deciding whether the New Jersey Legislature intended to preclude membership organizations from making judgments based on their own moral and religious views, and from associating only with those who share their views, this Court should consider the language of the statute and any history that might give context and content to the statutory phrase, "public accommodation." As part of the context the Court might also take into account the interpretation by numerous other courts of other States' public

accomodation statutes. The most recent State decision of relevance is Curran v. MOl/111 Diablo COl/ncil

of the Boy SCOl/ts of America, 952 P.2d 218 (Calif. Supr. Ct. 1998), in which the California Supreme

Court held, in a situation essentially identical to the case at bar, that California's Unruh Civil Rights Act

did not apply to the Boy Scouts.

If, after examining the language of the statute and any relevant context, there remains any

ambiguity as to whether the New Jersey Legislature intended the statute to apply to private membership organizations such as the Boy Scouts, this Court should apply the rationale upon which Justice Kennard based his concurrance in Curran: The well-established canon of construction that a statute, if at all

possible, should be interpreted to avoid raising serious constitutional questions. See Curran, 952 P.2d at

253 (Kennard, 1., concurring). Legislatures are presumed not to skirt casually the edge of constitutional

cliffs. Where there is no clear and manifest intent by the Legislature to force a constitutional

confrontation, the Court. should not itself instigate one.

LEGAL ARGUMENT

I. Scope of the New Jersey Law Against Discrimination

New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1, et seq., prohibits certain

forms of discrimination based upon, among other things, "affectional or sexual orientation." In this case,

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the Boy Scouts is alleged to have violated a provision of the LAD that, in relevant part, makes it



unlawful:

[f]or any owner, . . . agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accomodations,

advantages, facilities or privileges thereof, or to discriminate against any person in the

furnishing thereof, . . . on account of the. . . affectional or sexual orientation. . . of

such person . . . .

N.J.S.A. 10:5-12f(emphasis added). Although amici agree with Defendants that the Boy Scouts is not a . "place" of public accommodation and is therefore not covered by the LAD, this brief will focus on the

separate issue of whether the Boy Scouts is a "public" accomodation, rather than a private entity. The public or private nature of the Boy Scouts is significant because a private entity would be exempt from the LAD by the statute's own terms:

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



N.J.S.A. 10:5-5(1).

Amici contend that the Boy Scouts is a "distinctly private" entity regardless of whether it is a

"place" or whether it provides vp.rious "accommodations" to its members. But even if this Court should

disagree and find that the LAD's exemption for "private" entities is too narrow to encompass the Boy Scouts, it is amici's further position that the Boy Scouts is a constitutional1y- protected associational entity with the right under the First and Fourteenth Amendments to determine who sball and who shall

not be members, and especially who shall and who shall not be adult leaders-spokesmen, essentially-for the organization.

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II. THE BOY SCOUTS Is A "PRIVATE" MEI\1BERSHIP ORGANIZATION, NOT A "PUBLIC

ACCOMMODATION," UNDER NEW JERSEY LAW



In order to assess whether the New Jersey legislature intended its prohibition on discrimination by "places of public accommodation" to reach membership organizations such as the Boy Scouts, it is useful to consider the historical development of the idea of a public accommodation and why other courts have

held that the Boy Scouts is not a public accommodation.



In English common law, a public accommodation was a business, such as an inn or eatery, that operated along the highways and byways of the realm. Such businesses \\'ere said to have an implied

contractual obligation to serve all comers by virtue of the fact that they held themselves out as serving the

public. As William Blackstone noted, "[i]f an inn-keeper, or other victualler, hangs out a sign and opens

his house for travelers, it is an implied engagement to entertain all persons who travel that way; an':! upon

this universal assumpsit an action on the case will lie against him for damages, if he without good reason

refused to admit a traveller." 3 Commentaries on the Laws of England, ch. 9. This Blackstonian commercial understanding of a public accommodation was followed in the United States, see, e.g., 1.

Story, Bailments §§ 466a, 470, 476(2) (1846). Justice Douglas recognized this tradition in the leading federal public accommodations case, Heart of At!anta Alate! v. United States, 379 U.S. 241, 284 (1964)

(Douglas, concurring): "[The English common law] reasoned that one who employed his private property for plIlposes of commercia! gain by offering goods or services to the public must stick to his bargain." (Emphasis added). Moreover, the English common law treated an innkeeper's refusal to

accept a traveler without sufficient reason as more than merely a breach of an implied contract; it was

also a breach of the peace. An innkeeper would be subject to a fine and even criminal indictment for thus

"frustrat[ing] the end of their institution," namely, the provision of meals and lodging to travelers.

Blackstone, 4 Commentaries, ch. 13.

Although these simple origins have been expanded upon in modern times, the Blackstonian principles remain at the root of State and federal public accommodations law and jurisprudence. When it

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enacted Title II of the Civil Rights Act of 1964"for example, Congress' built upon the implied contractual



commitment undertaken by innkeepers and applied it to commercial institutions such as hotels,

restaurants, gas stations, theaters, and other places of entertainment.

Similarly, the California Supreme Court recently held that the Unruh Civil Rights Act, one of the

most expansive state public accommodations statutes in the country, emphasizes the commercial nature

of covered entities and does not extend to organizations that are not commercial in nature. See Curran,

952 P.2d at 236 ("[A]lthough past California decisions demonstrate that the [Unruh] Act clearly applies

to any type offor-profit commercial enterprise, and to nonprofit entities. . . whose purpose is to serve

the business or economic interests of its owners or members, no prior decision has interpreted the

'business establishments' language of the Act so expansively as to include the membership decisions of a

charitable, expressive, and social organization, like the Boy Scouts, whose formation and activities are

unrelated to the promotion or advancement of the econ0mic or business interests of its members"); see

also Seabour/1 v. Coronado Area Council, Boy SCOUI.\' of America, 891 P.2d 385, 404 (Kan. Supr. Ct.

1995) (declining to "divorce the concept of public accommodation from the usual meaning and the

common understanding of the word business"). It is precisely this engagement in commerce that makes a private entity one which is "open to the public" and therefore within an area of traditional government

concern and regulation.

The Boy Scouts as an organization does not fit within the Blackstonian or the Curran commercial

framework for public accommodations. Unlike the innkeepers of old or their modern-day counterparts, the Boy Scouts is not engaged in a business or anything even resembling a business as far as its membership activities are concerned. See Curran, 952 P.2d at 238 (noting that although the Boy Scouts

"engages in business transactions Winl nonmembers on a regular basis," those "business transactions are distinct from the Scouts' core functions and do not demoilstrate that the organization has become a

commercial purveyor of the primary incidents and benefits of membership in the organization").

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Furtherl11ore, the Boy Scouts neither explicitly nor implicitly welcomes all comers. Rather, it offers



membership only to those boys and adult leaders who are willing to subscribe to its principles. This limitation on, and absolute requirement for, membership is specified in the membership application itself and consistently throughout the Boy Scouts' various programs. And unlike the innkeeper of old who

refused a place to a weary traveler, refusing membership to one who does not subscribe to the Boy

Scouts' views furthers rather than frustrates the ends for which the institution was established. Indeed,

adherence to the Scout Law and the Scout Oath are the cental organizing principles of the Boy Scouts and the guiding forces differentiating its'members from the general public.

Consistent with this historical view, numerous courts throughout the country have found that the



Boy Scouts is not covered by public accommodations laws. For example, in Welsh v. Boy Scouts of

America, 993 F.2d 1267 (7th Cir.), cer!. denied, 510 U.S. 1012 (1993), the Seventh Circuit held that

similar "place of public accommodation" language in Title II of the Federal Civil Rights Act of 1964,42 U.S.c. § 2000a, did not cover the Boy Scouts because the Boy Scouts is not a "place" and alternatively

because it is a "private" club expressly exempt from language in Title II coverage. Although the Welsh holding was based on federal statutory language, it nonetheless offers persuasive context for how this

Court should interpret New Jersey's public accommodations law. Furthermore, the Welsh court expressly acknowledged that the treatment of a membership organization like the Boy Scouts as an entity covered by the public accommodations law "obviously. . . impacts a constitutional right to Freedom of

Association." 993 F.2d at 1277.

Likewise in the recent Curran case, the California Supreme Court interpreted the Unruh Civil Rights Act to exclude the Boy Scouts from its strictures. The Court there held that, "given the organization's overall purpose and function, the Boy Scouts cannot reasonably be found to constitute a business establishment whose membership decisions are subject to the [Unruh] Act". 952 P. 2d at 236.

Other states have reached similar results under their own public accommodation laws. See, e.g.,

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Seabour/1 v. Coronado Area Council, The Boy Scouts, 891 P .2d 385 (Kans. Supr. Ct. 1995) (holding that the Boy Scouts is not covered by the Kansas public accommodations statute because "the Boy Scouts has no business purpose other than maintaining the objectives and programs to which the operation of

facilities is merely incidental"); Schwenk v. Boy Scouts of America, 551 P.2d 465, 469 (Ore. Supr. Ct.

1976) ("[T]he prima!)' concern and purpose of the Oregon legislature in its enactment of the Oregon Public Accommodation Act was to prohibit discrimination by Business or commercial enterprises which offer goods or services to the public. . . . [T]he term 'place of public accommodation,' as defined by [the Oregon statute], was not intended by the Oregon legislature to include the Boy Scouts of America").

Given the historical context of public accommodations law, and the interpretations given to other



public accommodations laws around the count!)', this Court should likewise interpret New Jersey's LAD to exclude private membership organizations such as the Boy Scouts. This Court's decision affirming the Appellate Division in National O'gani=atiol1 of Women v. Liffle League Baseball, Inc., 127 N.J. Super.

522, (App. Div. 1974), affd mem., 67 N.J. 320 (1974) CUffle League") d0es not require a contra!)'

conclusion. In Liffle League the organization's opposition to girls was not a moral one, but a strictly

functional one: The organizers wished to maintain a high level of play in the league and assumed that girls

could not play at such a level. Id, 127 N.J. Super. at 527. That reasoning, this Court held, was an

application of an invidious and discriminato!)' stereotype regarding the athletic abilities of girls. 127 N.J. Super. at 533. Thus, a girl who played as well as or better than many boys would still be excluded based

on a discriminato!)' stereotype, whereas a boy with little or no athletic ability was able to join the league.

If a high level of play was the goal of the organization, they would have to achieve that goal through criteria that spoke to athletic ability directly, rather than through the application of invidious stereotypes.

The situation with the Boy Scouts is ve!)' different than that in Little League. The Boy Scouts'



objections to homosexual members and leaders is not functional or stereotypical, but rather is based on the Boy Scouts' moral views. Those views cannot be reduced to mere functional concerns and do not

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depend upon stereotypes that are predictive in nature. The Boy Scouts do not deny membership and leadership positions to homosexuals because of an inviduous stereotype about homosexuals' ability to comply with the Boy Scout's teaching on trustworthiness, for e:.;ample, or on bravery. Rather, the Boy Scouts deny membership to homosexuals because homosexuality itself is contrary to the Boy Scouts' teachings and beliefs. To put it in Blackstonian terms, the "end" of the institution is not to serve food, to

make money, or to play baseball, but rather, to impart a particular set of morals. Given that one of the

moral principles the Boy Scouts seek to impart is the view that homosexuality is wrong, forcing it to

admit homosexuals as members or adult leaders would in and of itself clash with that end.

In the view of amici, the historic content to the concept of a public accommodation, the consistent

rulings from other courts regarding other public accommodation statutes, and the significant differences

between this case and Liffle League, all heavily support the conclusion that the Boy Scouts is a "distinctly private" entity under the LAD and exempt from the statute. If this Court agrees, it need go r.o further to reverse the decision below.

But even if this Court is less than fully convinced on the statutory question, there are compelling

reasons for reaching the same result in the face of uncertainty regarding the scope of the LAD. First, it would have been passing strange for the New Jersey Legislature to make such a drastic break with the

historical and nationwide understanding without being clear that it was intending to do so. No party to this case, or the court below, has identified a single piece of language or legislative history demonstrating

an intent to take such a bold and novel step. This Court should be reluctant to impute casually to the

Legislature a radical departure from the historical and widespread meaning given to common phrases

such as public accommodation. As the Seventh Circuit noted in Welsh:

When the government, in this instance through the courts, seeks to regulate the

membership of an organization like the Boy Scouts in a way that scuttles its founding principles, we run the risk of undermining one of the seedbeds of virtue that cultivate the sorts of citizens our nation so desperately needs. Such a momentous and potentially costly decision should be made by the people's elected representatives. . . only after thoughtful deliberation, consideration and debate about its consequences. It is a decision to be made

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in the legislative halls and not by the judicial branch of government.



993 F.2d at 1278.

Second, the Court should also apply the well-established and valuable canon of construction

against fo:.cing the decision of a constitutional question unless necessitated by the plain meaning of the

statute. As Justice Kennard of the California Supreme Court noted in the rpcent Curran case, an

"ambiguous statutory term should be construed, if possible, to avoid constitutional difficulties." 952 P.2d

at 253 (Kennard, 1., concurring). Discussing the First Amendment problems with forcing the Boy Scouts to admit homosexuals, Justice Kennard observed that the United States Supreme Court decision in

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boslon, 515 U.S. 557 (1995), "raises

grave doubts whether California's Legislature could ever constitutionally enact, or this court enforce, a law requiring an organization like the Boy Scouts, whose missiqn is to instill in boys a certain philosophy

of moral behavior, to admit an individual who advances contrary views." 952 P.2d at 256. Justice

Kennard specifically rejected the reasoning of the New Jersey appellate court in the case at bar, id. at 256 n.l, and concluded by quoting the well-established rule that:

If a statute is susceptible of two constructions, one of which will render it corlstitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable. [Citations.] The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute within the scope of its constitutional powers.

Id. (citations omitted). Justice Kennard noted that the United States Supreme Court follows the same guiding principle. See id. (citing United States v. De/all'are & Hudson Co,. 213 U.S. 366,407-408 (1909) ("if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other va.lid, it is our plain duty to adopt that construction which will s~ve the statute from constitutional infirmity."); United States v. Security Industrial Bank, 459 U.S. 70, 78

(1982); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499 (1979». And this Court itself has

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likewise consistently applied this rule to avoid constitutional confrontations See, e.g.; Slale v. Brcilla,

127 N.J. 64, 67 (1992); Slale v. Profaci, 56 N.J. 346, 350, (1970); Slale v. Tachill, 92 N.lL. 269,274,

(1919). Regardless of how this Court might resolve such ambiguities in other cases, here lies a constitutional precipice in the direction taken by the court below. Merely recognizing the nearness of the

precipice is s..lfficient to trigger the constructive canon to steer clear of the issue. The Court thus need

not, and should not, decide such weighty and difficult constitutional questions unless clearly required to do so. Rather, the Court should presume that the Legislature did not intend to force such mattfrs with

ambiguous language.

III. THE Boy SCOUTS Is A PRIVATE E!'\TITY WITH THE FREEDOMS OF BELIEF, EXPRESSION, AJII'D ASSOCIATION PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE -UNITED STATES CONSTITUTION

For the better part of this century the Supreme Court of the United States has recognized that the Freedom of Speech protected by the First Amendment against abridgmellt by Congress is also protected

by the Fourteenth Amendment against abridgment by the several States. See, e.g., Gillo)\! \'. New York, 268 U.S. 652, 666 (1925).1 First Amendment freedoms are protected against abridgment regardless of the popularity of the views held or expressed, and regardless of whether those views are shared by the

government. Indeed, it is precisely when the government disagrees with the views held and expressed by any given speaker that the Constitution plays its most essential role. And nobody has seriously disputed



that State interference with the Boy Scouts' membership decisions based upon its views of homosexuality

squarely raises a First Amendment issue and must be scrutinized according to FIrst Amendment

principles.

lThis is true whether the right to speak on matters of public concern is a liberty interest protected by the Fourteenth Amendment's Due Process Clause, as is the current understanding, or whether it is a fundamental right protected by the Fourteenth Amendment's Privileges and Immunities Clause, as was more likely the original understanding. See, e.g., Corfield v. Coryell, 6 Fed. Cas. 546, No. 3,230 (C.C.E.D.Pa. 1823); see also Michael McConnell, Original Understanding of the Fourteenth Amendment, 81 Va. L. Rev. 947 (May 1995).

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The Boy Scouts holds the view that homosexuality is wrong. Ii views homosexuality to be inconsistent with its fundamental documents and teachings, and it is not for this Court, or anyone else, to question the Boy Scouts' formal view of its own beliefs, or to engage in a debate over the wisdom of those beliefs. As with any membership organization-including, notably, the Gay and Lesbian Student Alliance of which Plaintiff is a member-the process of self-definition is a purely internal matter in which the State has no valid role.2 Regardless of whether this Court, the Legislature, or anyone else agrees with the Boy Scouts' beliefs, there can be little question that such beliefs fall within the protection of First Amendment principles, as do expression and association in furtherance of those beliefs.

A. FIRST AI\IENDJ\1El'iT PRINCIPLES PROTECT THE RICIH OF EXPRESSIVE ASSOCIATION

WITH OTHERS OF LIKE MIND



Derivative of the right to free speech, including the right to speak unpopular views, is the right to

associate with others oflike mind, as the Supreme Court has repeatedly held. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958) ("It is beyond debate that freedom to engage in association for the

advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the' Fourteenth Amendment"). And, there can be no more fundamental principle underlying this right to expressive association than the necessary corollary right not to associate with those of opposing



views. As Justice Brennan, writing for the Court, stated in Roberts v. United States Jaycees:

There can be no clearer example of an intrusion into the internal structure or affairs of an

2 Apparently conceding the force of this argument, the lower court goes to great lengths to rebut the Boy Scouts' claim that opposition to homosexuality and other behavior the Boy Scouts deems immoral is among the organization's stated purposes. The court notes, for example, that there have undoubtedly been homosexuals in the Boy Scouts during the near-century of the organization's existence. Even assuming the court's unsupported claim as fact, it is beside the point. The failure aggressively and intrusively to attack what the Boy Scouts oppose is vastly different than forcing the Boy Scouts operJy to accept and to advance as a role model a person whose views and behavior are contrary to what the Boy Scouts advocate. Nor is there anything in the constitutionally-protected right to association that would prevent the Boy Scouts from adopting its current position on homosexuality even if it had never held that position before. The Constitution does not require that a viewpoint be long held before it is afforded constitutional protection.

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a~sociation than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes afreedomnotto associate.

468 U.S. 609, 623 (1984) (emphasis added).

Similarly, in Nell' York State Club Ass 'II., Inc. \'. City of Nell' York, 487 U.S. 1,13 (1988), the

Court held that "[i]f a club seeks to exclude individuals who do .not share the views that the club's

members wish to promote, the Law erects no obstacles to this end." This is true even if, as Justice

O'Connor noted in a concurring opinion, the organization's purpose requires that membership be based-legitimately rather than stereotypically-on race, religion, or some other "suspect" classification.

Id. at 19. It would not be unlawful "discrimination" if the Knights of Columbus limited membership to

Catholics, and this is true regardless whether persons of other religions share many though not all of the

same beliefs held by Catholics. Similarly, the NAACP would be entitled to limit its membership to blacks, and the Gay and Lesbian Students Alliance limit its membership to gays and lesbians. Nor is it unlawful

"discrimination" where, as here, the Boy Scouts limits membership to those who are willing to agree to and live by the Scout Law and Scout Oath as the Boy Scouts define and il11elpretthem. By limiting

membership to those who would subscribe to its views, the Boy Scouts have not infringed on Mr. Dale's

own First Amendment rights, as the lower court mistakenly held. As Justice Kennard noted in Curran,

"when an inidividual seeks to use state power to force a private organization to accept that individual as a

member, and the individual's views are diametrically opposed to those of the organization, the First Amendment rights at issue are those of the organization and its members, not those of the applicant."

952 P.2d at 256 n.l (Kennard, 1., concurring).

The Gay and Lesbian Student Alliance, of which Mr. Dale is a member, itself provides a striking



example of the dangers inherent in intruding upon a membership organization's associational rights. Suppose, as happened not too long ago at an Ivy League college, that a student opposed to homosexuality joined the homosexual students' organization with the specific though unspoken purpose

16


of "outing" its members or even the less nefarious purpose of trying to "cure" the homosexual students of their "disease." Surely our law must recognize the right of the organization nol to associate with such an individual, whose very presence would undermine one of the purposes of the organization. And surely

our law must so recognize even if the way in which the organization went about making that membership

decision was to "discriminate" against students who held such views on religious grounds, or perhaps to

exclude heterosexuals entirely.

What is prescriptive in this example as good policy is in fact constitutionally mandated. As the United States Supreme Court has repeatedly recognized, most recently in t!'e case of Hurley v. Jrish­

American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), "the choice of a speaker

not to propound a particular point of view [by exCluding others from participation in its expressive

activities] is presumed to lie beyond the government's power to control." Jd. at 575. As California's

Justice Kennard noted in Curran:

"The high court's unanimous decision in Hurley. . . , holding that an organization's right of free speech includes total control over the content of its message and that an organization's right of expressive association allows it to exclude applicants with "manifest views" at odds with those of the organization, is binding on this court.

952 P.2d at 255-56 (Kennard, 1., concurring).

The lower court's attempt to distinguish Hurley on the ground that Hurley was a Speech case, whereas this is an Association case, is flawed on two grounds. First, as alr~ady noted, the right to

expressive association recognized by the Supreme Court is a right derived from, and giving effect to, the

Freedom of Speech protected by the First Amendment. See NAACPv. Alabama, 357 U.S. 449 (1958). To contend that Hurley is only about speech and that it says nothing about the ability to associate with

others to further that speech is illogical and contrary to the entire Freedom of Expressive Association line

. .

of Supreme Court precedent.



But more fundamentally, this case is about speech. Among the points of view expressed in and

fostered by the Boy Scouts is the view that homosexuality is wrong. The Boy Scouts expressly

17


advocates that view, and it symbolically expresses that view by choosing as its leaders adults who advance-by word and deed-the Boy Scouts' moral views. Requiring the Boy Scouts to accept as a leader a homosexual who has vowed to change the Boy Scouts' teaching on homosexuality is much more

than forced association, therefore; it is compelled symbolic speech. Such compulsion forces the Boy Scouts to express the very opposite of the viewpoint it advocates. Dale and his amici would hardly tolerate a court order requiring the Gay and Lesbian Alliance to accept as a leader an evangelical

Christian who was committed to "curing" or converting all of the homosexual members of the

organization. Yet they seek to do much the same thing here-forcing the Boy Scouts to accept into its

organization a person who disagrees with one of the principles of the organization and would seek to

"cure" the organization of its supposed wrong-headedness. In amici's view, neither result is tolerable,

and each private entity should be free to set its own views and accept or reject members based on

agreement or disagreement with those views.

In sum, the Boy Scouts has a constitutionally protected right to believe, and to express its belief,

that homosexuality is wrong, and to associate only with others who share that view. If this Court adheres

to the interpretation of the LAD offered by the lower court, then the 3tatute is unconstitutional.

B. THE Boy SCOUTS IS A PRIVATE ENTITY PROTECTED BY THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT



In addition to the right of expressive association, the Boy Scouts and its members have a right to intimate or private association, which the Supreme Court has recognized is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment.

The primary unit of the Cub Scouts, the organizational division of the Boy Scouts for boys between the ages of 8 and 11, is the Den, consisting of between 6 and 10 boys. These boys meet weekly,

often at the home of one of the boys, for various activities. Similarly, the Boy Scouts itself is organized into Troops. of about 30 boys ages 11 to 17, and further organized into Patrols of about 8 boys. The very smallness of the groups in which the boys. interact and the location in people's homes demonstrate the



18

­


intimate nature of the organizational units. Because they are such intimate units, the Boy Scouts should have great control over who participated in those units.3

Not only are the rights of the Boy Scouts and its members threatened by the lower court's

decision, so too are the rights of parents. Three quarters of a century ago, the Supreme Court recognized

that among the liberties guaranteed by the Fourteenth Amendment was the right of parents to control the

education of their children. See Meyer \I. Nebraska, 262 US. 390 (1923); Pierce v. Society of Sisters, 268 US. 510 (1925). As the mission statement of the Boy Scouts makes clear, the primary purpose of

the organization is "to instill values in young people and, in other ways, to prepare them to make ethical

choices over their lifetime." Boy Scouts Mission Statement, quoted in opinion below, 308 N.J. Super.

516, 524 (App. Div. 1998). While the Boy Scouts does not provide the complete alternative to public

education that was at issue in Pierce, there is no question that i~ provides education and seeks to instill in its young members the moral principles it holds. The view hOlilosexuality is immoral has a long and

revered tradition in this and in most other countries and in most major religions. And it is still supported

by the criminal law in many States. The parents who participate with the Boy Scouts because they wish

to impart that and kindred morals to their children have a constitutionally protected right to do so.

3That the policies each of these units follow are set by a national organization does not in any way undermine the intimately private nature of the associations. As the Supreme Court stated io

Roberts v. United States Jaycees, 468 US. 609, 621 (1984), the relevant unit for purposes of address;ng the right to intimate association is not the entire organization, but the local unit only. See also Board of Directors of RotGlY International v. RutGlY Club of Duarte, 481 US.537 (1987) at 546; Kiwanis International v Ridge\l'ood Kiwanis Club, 806 F2d 468 (3d Cir. 1986).

19


CONCLUSION

The Boy Scouts is a private membership organization with the purpose of inculcating in boys and

young men an acknowledgment of and devotion to moral virtue. Groups like the Boy Scouts serve an important-indeed, indispensable-role in a democratic republic such as ours. As the Seventh Circuit

stated in Welsh:

A great deal is at stake in the interpretation of [public accommodations] statutes

The Founding Fathers recognized that a republic cannot endure without a virtuous

citizenry. Successful self-government requires that citizens willingly participate in public

affairs, make sacrifices for the common good, curb their selfishness, and join in taking responsibility for themselves and others. The central question for those concerned about maintaining the health of our republic must be, "how do individuals acquire the virtues necessary for self-government?" History provides only one answer: through the institutions of civil society, like the family, religious groups, and voluntary associations which inculcate a sense of moral values in the young.



993 F.2d at 1278. The Boy Scouts has, as an organization, been singularly successful in instilling in the nation's young men the sense of moral virtue that is necessary for a self-governing people. It has been

successful because it fosters an understanding of right and wrong, and included among its teaching is the

view that homosexuality is wrong.

But regardless of whether this Court, the State of New Jersey, or anyone else agrees with the Boy Scouts' views, the United States Constitution protects the Boy Scouts' right to hold those views, to

express them, and to associate with others to promulgate them. It also protects the rights of parents to impart particular moral principles to their children by associating with such organizations. The decision below interprets the New Jersey public accommodations law so broadly as to trample these fundamental, constitutionally protected rights. Such an interpretation is contrary to the history of public

accommodations laws, the interpretation of such laws by the federal courts and numerous other States,

and is not required by the language, history, or other clear indicia from'the New Jersey Legislature. Under such circumstances, prudence and a due respect for the constitutional issues involved should lead

this Court to construe New Jersey's LAD as not applying to the Boy Scouts. But if this Court felt

compelled to conclude otherwise on the statutory question, the constitutional protections afforded to private membership organizations would render the statute invalid as applied.

Dated: September 3, 1998

Respectfully submitted,

(~\ ;1 ; Ll r" 1. /1 ____

\." II \ v""\' ,:f'.V- ~

~

-"

v .

David H. Dugan, III \

Attorney for Amici Curiae

The Claremont Institute for the Study of Statesmanship and Political Philosophy



And United States Congressm~n, Christopher B. Cannon, Tom A. Coburn, M.D., John E. Peterson, John Shaoegg and Mark Souder

?1


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