Dale v. Boy Scouts of America

Citation308 N.J.Super. 516,706 A.2d 270
PartiesJames DALE, Plaintiff-Appellant, v. BOY SCOUTS OF AMERICA and Monmouth Council Boy Scouts of America, Defendants-Respondents.
Decision Date02 March 1998
CourtNew Jersey Superior Court — Appellate Division
Lewis H. Robertson, Ocean, and Evan Wolfson, of the New York Bar, New York City, admitted pro hac vice, for plaintiff-appellant (Lewis H. Robertson, attorney; Mr. Robertson, Thomas J. Moloney, Mr. Wolfson, Ayala Deutsch and Steven M. Knecht, New York City, on the brief)

Sanford D. Brown, Freehold, George A. Davidson, of the New York Bar, admitted pro hac vice, and Carla A. Kerr, of the New York Bar, New York City, admitted pro hac vice, for defendants-respondents (Cerrato, Dawes, Collins, Saker & Brown, attorneys; Mr. Brown, Mr. Davidson and Ms. Kerr, on the brief).

David Rocah, Dallas, TX, for amici curiae American Civil Liberties Union and ACLU of New Jersey (Ruth E. Harlow, New York City, Matthew A. Coles, San Francisco, CA, and James D. Esseks, New York City, of counsel and on the brief with Mr. Rocah).

Singer & Fedun, Belle Mead, for amici curiae American Public Health Association and Parents, Families and Friends of Lesbians and Gays (Marvin E. Frankel, Jeffrey S. Trachtman, New York City, Debora C. Fliegelman, Philadelphia, PA, and William S. Singer, of counsel and on the brief).

David H. Dugan, III, Moorestown, for amici curiae Claremont Institute for the Study of Statesmanship and Political Philosophy (Mr. Dugan, of counsel; Phillip J. Griego, San Jose, CA, on the brief).

Kathleen A. Mazzouccolo, Jersey City, for amici curiae Diocesan Council of the Episcopal Diocese of Newark, The Friends Committee of National Legislation, The Jewish Reconstructionist Federation, The Union of American Hebrew Congregations and The Warshaw & Barnes, Red Bank, for amici curiae Individual Rights Foundation (Bray Barnes, Brian Baker and Paul A. Hoffman, on the brief).

Unitarian Universalist Association (Ms. Mazzouccolo and Michael D. Silverman, New York City, on the brief).

James P.A. Cavanaugh, Marlton, for amicus curiae National Association of Social Workers and New Jersey Chapter of the National Association of Social Workers (Mr. Cavanaugh, on the brief).

Joshua D. Goodman, Newark, for amicus curiae New Jersey Lesbian and Gay Law Association (Theodore R. Bohn, New York City, and Mr. Goodman, of counsel; Mr. Goodman on the brief).

Before Judges HAVEY, LANDAU and NEWMAN.

The opinion of the court was delivered by


Plaintiff James Dale was expelled from his position as an Assistant Scoutmaster with defendant Monmouth Council, Boy Scouts of America when he publicly declared he was a homosexual. He was expelled by the Boy Scouts of America (BSA) because of its policy excluding avowed homosexuals from membership in its organization. We conclude that: (1) the BSA is a place of public accommodation under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; (2) the BSA's expulsion of plaintiff from his position with the BSA violated the LAD by depriving him of a public accommodation; and (3) the LAD's prohibition of the BSA's policy of excluding gay members does not infringe upon defendants' freedom of expressive association. Accordingly, except to affirm the dismissal of plaintiff's common law claim, we reverse and remand for further proceedings.

The BSA charters local groups to maintain units including Cub Scout Packs (boys under eleven), Boy Scout Troops (boys eleven to eighteen), and Explorer Posts (young men and women fourteen through twenty). The troops are sponsored by religious, civic As of December 1992, the BSA reported 3,453,315 youth members and 1,172,485 adults registered in 123,045 traditional Scout units. The national organization is headed by a National Council and divided into regional administrative units and subdivided into local councils. Monmouth Council has jurisdiction over the geographical area in which plaintiff served. There are approximately 400 local councils. Monmouth Council was incorporated in 1924. In 1991, Monmouth Council had 9,446 youth members and 2,781 adults registered in 215 units.

fraternal or educational organizations, and other groups whose goals are compatible with those of the BSA.

The BSA was chartered by an Act of Congress in 1915, with its stated purpose:

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, using the methods which are now in common use by Boy Scouts.

The BSA's bylaws provide: "In achieving this purpose, emphasis shall be placed upon its educational program and the oaths, promises, and codes of the Scouting program for character development, citizenship training, mental and physical fitness." The BSA Mission Statement provides:

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:


On my honor I will do my best To do my duty to God and my country and to obey the Scout Law;

To help other people at all times;

To keep myself physically strong, mentally awake, and morally straight.


A Scout is:

                Trustworthy        Obedient
                Loyal                Cheerful
                Helpful               Thrifty
                Friendly              Brave
                Courteous            Clean
                Kind                 Reverent

According to the 1990 Boy Scout Handbook, understanding and agreeing to live by the Scout Oath and the Scout Law are among the joining requirements. According to the Declaration of Religious Principle in the BSA bylaws, although scouting is nonsectarian, all members must recognize an obligation to God.

The Scout Law, set forth in the 1911 Official Handbook for Boys, has remained fundamental and unchanged. The 1936 Handbook for Scoutmasters described the Scout Law as "the foundation upon which the whole Scout Movement rests." It explained:

The genius of Scouting is most evident in the Law of the Movement. It was based upon the codes of old, transformed into a positive, living ideal for the modern boy, devised as a guide to his actions rather than as repressive of his faults. That is what makes the Scout Law outstanding.

The Scout Law neither commands nor prohibits, but positively states these desired qualities.

Plaintiff became a Cub Scout at the age of eight and remained an extremely active and successful youth member of the BSA, achieving the rank of Eagle Scout. In March 1989, seven months after his eighteenth birthday on August 2, 1988, he applied for adult membership and was approved. He then served as an Assistant Scoutmaster for Troop 73 in Matawan, during periods when he was not away at college.

Plaintiff has been a devoted and exemplary Boy Scout. He earned thirty merit badges, advanced to the highest rank, and held numerous trooper leadership positions, including Junior Assistant Scoutmaster. In addition, he was active in the Order of the Arrow, an affiliated honor camping association. In the Order of the Arrow, he was chosen for the highest possible honor, Vigil, and also held numerous offices. Plaintiff was also selected as a delegate to the 1985 National Boy Scout Jamboree, and was chosen to speak at Monmouth Council functions on more than one occasion.

On August 5, 1990, plaintiff, twenty years old at the time, received a letter dated July 19, 1990, from James W. Kay, Council Executive of Monmouth Council, informing him that his registration was revoked. Registration is a prerequisite for service as a volunteer adult leader. The letter said in part:

After careful review, we have decided that your registration with the Boy Scouts of America should be revoked. We are therefore compelled to request that you sever any relations that you may have with the Boy Scouts of America.

You should understand that BSA membership registration is a privilege and is not automatically granted to everyone who applies. We reserve the right to refuse registration 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.

Plaintiff answered by letter dated August 8, 1990, asking the grounds of the decision. In a letter dated August 10, 1990, Kay responded: "The grounds for this membership revocation are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals." Kay explained later in a deposition that he became aware that plaintiff was an affirmed homosexual through a newspaper article. The article, published on July 8, 1990, in the Newark Star Ledger, was entitled, "Seminar addresses needs of homosexual teens." It pictured plaintiff, a Rutgers student; identified him as co-president of the Rutgers University Lesbian/Gay Alliance; and quoted him as saying that he had pretended to be straight while in high school, "only admitting his homosexuality during his second year at Rutgers." According to Kay, plaintiff demonstrated his failure to live by the Scout Oath and Law by publicly avowing that he was a homosexual.

By letter dated November 27, 1990, Charles D. Ball, Assistant Regional Director, Northeast Region, BSA, informed plaintiff that the Northeast Region Review Committee supported the decision of Monmouth Council. After further correspondence, a December 21, 1990, letter from the BSA's legal counsel David K. Park to plaintiff's counsel explained: "As your client is apparently an avowed homosexual and the Boy Scouts of America does not admit avowed homosexuals to membership in the organization, no useful purpose would apparently be served by having Mr. Dale present at the regional review...

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