734 A.2d 1196 (N.J. 1999), Dale v. Boy Scouts of America

Citation:734 A.2d 1196, 160 N.J. 562
Opinion Judge:[8] The opinion of the court was delivered by: Poritz, C.j.
Party Name:James DALE, Plaintiff-Respondent and Cross-Appellant, v. BOY SCOUTS OF AMERICA and Monmouth Council, Boy Scouts of America, Defendants-Appellants and Cross-Respondents.
Case Date:August 04, 1999
Court:Supreme Court of New Jersey

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734 A.2d 1196 (N.J. 1999)

160 N.J. 562

James DALE, Plaintiff-Respondent and Cross-Appellant,


BOY SCOUTS OF AMERICA and Monmouth Council, Boy Scouts of America, Defendants-Appellants and Cross-Respondents.

Supreme Court of New Jersey

August 4, 1999

Argued Jan. 5, 1999.

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[160 N.J. 569] George A. Davidson, a member of the New York bar, New York City, for defendants-appellants and cross-respondents (Cerrato, Dawes, Collins, Saker & Brown, attorneys, Freehold; Mr. Davidson, Sanford D. Brown, Freehold and Carla A. Kerr, a member of the New York bar, New York City, on the briefs).

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

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

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

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

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

Kathleen A. Mazzouccolo, Jersey City, submitted a letter in lieu of brief on behalf of amici curiae Diocesan Council of the Episcopal Diocese [160 N.J. 570] of Newark, Friends Committee on National Legislation, Jewish

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Reconstructionist Federation, Union of American Hebrew Congregations and Unitarian Universalist Association.

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

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

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

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

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

The opinion of the Court was delivered by


In 1991, the New Jersey Legislature amended the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, to include protections based on "affectional or sexual orientation." This case requires us to decide whether that law prohibits Boy Scouts of America (BSA) from expelling a member solely because he is an avowed homosexual.

Defendants BSA and Monmouth Council (collectively Boy Scouts) seek review of a decision of the Appellate Division holding that: (1) Boy Scouts is a place of public accommodation as defined by the LAD; (2) Boy Scouts' expulsion of plaintiff James Dale, an assistant scoutmaster, based solely on the club's policy of excluding[160 N.J. 571] avowed homosexuals from membership is prohibited by the LAD; and (3) the LAD prohibition does not violate Boy Scouts' First Amendment rights. Plaintiff, James Dale, seeks certification on his common law claim, dismissed by the Appellate Division. We granted both parties' petitions, 156 N.J. 381, 718 A.2d 1210, 156 N.J. 382, 718 A.2d 1210 (1998), and now affirm.



A. Boy Scouts of America

1. Organizational Structure and Programs 1

BSA, a federally chartered corporation, 36 U.S.C.A. § 30901, operates four scout membership programs: Cub Scouts (for boys eight to eleven-and-a-half), Boy Scouts (for boys and young men eleven to seventeen), Varsity Scouts (for young men fourteen to seventeen), and Explorers (for young men and women fourteen to twenty). In addition to these well-known membership programs, BSA publishes Boys' Life, Exploring and Scouting magazines, and offers an in-school scouting curriculum called Learning for Life that is taught in many schools throughout the country.

BSA membership is an American tradition. Since the program's inception in 1910 through the beginning of this decade, over eighty-seven million youths and adults have joined BSA. As of December 1992, over four million youths and over one million adults were active BSA members. BSA's success in attracting members is at least partly attributable to its long-standing commitment to a diverse

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and "representative" membership, as well as its aggressive recruitment through national television, radio, and magazine campaigns. BSA also organizes local membership [160 N.J. 572] drives, including "School Nights" conducted in cooperation with schools across the nation and held at school facilities.

This vast network of members is managed through a complex of national, regional and local organizations. The National Council is the highest BSA governing body. Its primary functions include "develop[ing] programs, set [ting] and maintain[ing] quality standards in training, leadership selection, uniform[s], registration records, literature development, and advancement requirements; and publish[ing] Boy's Life and Scouting magazines." BSA membership programs are also governed by regional committees that are further divided into area committees. Within each area, BSA accepts applications for the creation of local councils. Defendant, Monmouth Council, is one of sixteen local councils in New Jersey, and one of over four hundred local councils nationwide.

Each local council is made up of districts that are governed by district committees. BSA grants unit charters to individual sponsors in the districts consisting of "organizations and groups of citizens" that establish and "maintain units ... and ... issue certificates of membership ... to the officers and members thereof." Unit charters allow the "organization to use the Scouting program under its own leadership to serve the youth and families for which it has concern, to help it accomplish its own objectives." Individual units are based on age groupings and designated as Cub Scout Packs, Boy Scout Troops, Varsity Scout Teams, and Explorer Posts. In 1991, Monmouth Council chartered approximately 215 units comprised of nearly 8500 youth members and over 2700 adult members.

When deciding whether to grant an individual unit charter, BSA investigates "the general objectives, purpose, character, intent, and programs of the prospective chartered organization or community group and its compatibility with the aims and purposes of the Boy Scouts of America." In respect of established groups, BSA also considers the group's "history, length of service, and general reputation." Generally, BSA prefers granting unit charters to sponsors that are "existing organizations," i.e., established [160 N.J. 573] religious, civic, or educational groups. In New Jersey, for example, public schools and school-affiliated groups sponsor close to 500 scouting units, comprising approximately one-fifth of the chartering organizations in the State. Other governmental entities, such as law enforcement agencies, fire departments, city governments, and the military, sponsor approximately 250 scouting units in New Jersey. Sponsor approvals "obligate the organization to provide adequate facilities, supervision, and leadership for at least one year [,] and to make an effort to provide youth members with the opportunity for a quality program experience as set forth in the official literature of the Boy Scouts of America."

A unit charter is renewed annually, "upon application, provided a review of past activities, personnel, and plans for the future shows a satisfactory effort to carry out the scouting program, as set forth in the official handbooks, and [demonstrates compliance] with the Rules and Regulations of the Boy Scouts of America." 2 Each chartered unit is supervised by a "unit committee, consisting of three or more qualified adults, 21 years of age or over, selected by the organization with which the unit is connected, or in the case of a community unit[,] of those who make application for the unit charter, one of whom [is] designated as chairman." In Monmouth Council, the units are run by approximately 3000 volunteer leaders and

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four paid scouting professionals. Of the 3000 volunteers, some 340 are assistant scoutmasters.

According to BSA's federal charter, BSA seeks "to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues." BSA's Mission Statement also describes BSA's purpose: "It is the mission of the Boy Scouts of America to serve others by helping to instill values in young [160 N.J. 574] people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential." The Scout Oath and Scout Law set...

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