Supreme Court of The United States
October Term, 1999
Boy Scouts of America and
Monmouth Council, Boy Scouts of America,
On Writ of Certiorari
To the Supreme Court of New Jersey
BRIEF OF PUBLIC ADVOCATE OF
UNITED STATES, LINCOLN INSTITUTE FOR
RESEARCH AND EDUCATION, COMMITTEE TO
PROTECT THE FAMILY FOUNDATION,
CONCERNED WOMEN FOR AMERICA, AND
NATIONAL CRIMINAL JUSTICE COUNCIL AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTEREST OF AMICI
SUMMARY OF ARGUMENT
I. THIS COURT'S DECISION IN HURLEY REQUIRES REVERSAL OF THE NEW JERSEY RULING
II. THE DECISION BELOW VIOLATES THE RIGHT TO ASSEMBLE PROTECTED BY THE FIRST AMENDMENT
THE DECISION BELOW ERRONEOUSLY EXPANDS THE CONSTITUTIONALLY- PERMISSIBLE LIMITS
ON FREEDOM OF ASSOCIATION
TABLE OF AUTHORITIES
Bell v. Maryland, 378 U.S. 226 (1964)
Board of Dir. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987)
Bowers v. Hardwick, 478 U.S. 186 (1986)
Burson v. Freeman, 504 U.S. 191 (1992)
Cox v. Louisiana, 379 U.S. 536 (1965)
Dale v. Boy Scouts of America, 160 N.J. 562, 734 A. 2d 1196 (1999)
DeJonge v. Oregon, 299 U.S. 353 (1937)
Edwards v. South Carolina, 372 U.S. 229 (1963)
Griffin v. Strong, 983 F. 2d 1544 (10th Cir. 1993)
Hague v. CIO, 307 U.S. 496 (1939)
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995)
L.P. v. Oubre, 547 So. 2d 1320 (La. 1989)
Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157 (1999)
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)
NAACP v. Alabama, 357 U.S. 449 (1958)
NAACP v. Button, 371 U.S. 415 (1963)
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)
New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988)
Palmer v. Thompson, 403 U.S. 217 (1971)
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Romer v. Evans, 517 U.S. 620 (1996)
Rosenberger v. University of Virginia, 515 U.S. 819 (1995)
Sanitation and Recycling Industry, Inc. v. City of New York, 107 F.3d 985 (2d Cir. 1997)
Shapiro v. Thompson, 394 U.S. 618 (1969)
Simon & Schuster, Inc. v. New York State Crime Victims Board, 502 U.S. 105 (1991)
Thomas v. Collins, 323 U.S. 516 (1945)
United States v. Cruikshank, 92 U.S. 542 (1876)
Winik-Nystrup v. Manufacturers Life Insurance Co., 8 F. Supp. 2d 1 (D. Conn. 1998)
Article XVI of the August 16, 1776 Constitution of Pennsylvania, reprinted in Sources of Our Liberties 331 (Perry, ed., American Bar Foundation, 1972)
Ashford, N., "Equal Rights, Not Gay Rights," Independent Gay Forum
Bell, A.P. and Weinberg, M.S., Homosexualities: A Study of Diversity Among Men and Women (New York: Simon & Shuster, 1978)
Bernstein, "Sex Discrimination Laws Versus Civil Liberties," 99 Univ. of Chi. L. Forum __
Blackstone, W., III Commentaries on the Laws of England, Ch. 9, Sec. 6 (1768)
Boyle, P., Scout's Honor (Rockland, Calif., Prima Publishing, 1994)
Gallup, G., "Attitudes Toward Homosexuals and Evolutionary Theory: The Role of Evidence," 17 Ethology and Sociobiology 281 (1996)
Gephard, . P. and Johnson, A.P., The Kinsey Data: Marginal Tabulations of the 1958-63 Interviews Conducted by the Institute for Sex Research (Indiana University Press: Bloomington, Ind., 1979)
Jay, K., and Young, A., The Gay Report (New York: Summit Books, 1979)
Masters, W., and Johnson, V., Human Sexual Inadequacy (Boston: Little, Brown and Company, 1970)
Reisman, J., "Partner Solicitation Language As A Reflection Of Male Sexual Orientation" (Collected Papers from the NARTH Annual Conference, Saturday, 29 July 1995)
Rueda, E., The Homosexual Network: Private Lives and Public Policy (Old Greeenwich, Conn.: The Derbin Adair Company, 1982)
Sincere, R. "New Jersey Supreme Court Ruling on Boy Scouts Threatens Freedom for All -- Including Gays," Wall Street Journal (August 11, 1999)
Supreme Court of The United States
October Term, 1999
Boy Scouts of America and
Monmouth Council, Boy Scouts of America,
On Writ of Certiorari
To the Supreme Court of New Jersey
BRIEF OF PUBLIC ADVOCATE OF
UNITED STATES, LINCOLN INSTITUTE FOR
RESEARCH AND EDUCATION, COMMITTEE TO
PROTECT THE FAMILY FOUNDATION,
CONCERNED WOMEN FOR AMERICA, AND
NATIONAL CRIMINAL JUSTICE COUNCIL AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
INTEREST OF AMICI CURIAE
The amici curiae, Public Advocate of the United States, Lincoln Institute for Research and Education, Committee to Protect the Family Foundation, Concerned Women for America, and National Criminal Justice Council (a project of Citizens United Foundation), are nonprofit educational organizations sharing a common interest in the proper construction of the Constitution and laws of the United States. (1) All of the amici were established within the past 25 years for public education purposes related to participation in the public policy process, and are tax-exempt under section 501(c)(3) of the Internal Revenue Code, except for Public Advocate of the United States, which is exempt under IRC section 501(c)(4).
For each of the amici, such purposes include programs to conduct research, and to inform and educate the public on important issues of national concern, including questions related to the original intent of the Founders and the correct interpretation of the United States Constitution. In the past, most of the amici have conducted research on other issues involving constitutional interpretation and filed amicus curiae briefs in other federal litigation, including matters before this Court, involving constitutional issues. Public Advocate of the United States and Lincoln Institute for Research and Education filed an amicus curiae brief in support of the Boy Scouts' Petition for Certiorari herein. (2)
SUMMARY OF ARGUMENT
The decision below is in conflict with this Court's unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995). It misapplies this Court's rulings in Roberts v. United States Jaycees, 468 U.S. 609 (1984), Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987), and New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988), and it also conflicts with this Court's rulings recognizing a constitutional right of association independent of "intimate" and "expressive" associations. Finally, it conflicts with this Court's rulings limiting governments to the imposition of content-neutral time, place and manner regulations upon the right of the people peaceably to assemble. If allowed to stand, the decision below will not only spawn confusion regarding the proper application of the First Amendment to claims of freedom of association, but will jeopardize fundamental constitutional principles long established by this Court.
In a dramatic departure from the common law principle laying at the
foundation of modern public accommodations laws, the Supreme Court of New Jersey
extended that state's public accommodation law to impose an unprecedented legal
obligation upon the Boy Scouts of America.
As this Court pointed out in Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U.S. 557, 571 (1995), modern public
accommodation laws have a "venerable history," stretching back to the common law
rule requiring an innkeeper to serve all travelers that come his way unless he
had "good reason" not to. See III W. Blackstone, Commentaries on the Laws of England,
Ch. 9, Sec. 6 (1768). Through the years, legislatures have extended this common
law rule to reach additional business entities besides
innkeepers, and to narrow the range of "good reasons"justifying refusal of
service to their customers. Hurley, supra, 515 U.S. at
571-72 (emphasis added).
Until now, this common law principle of equal treatment has been confined to
entities that are commercial in nature and purpose.
v. United States Jaycees,
468 U.S.609, 631-40 (1984) (O'Connor, J., concurring), and has been limited
to affording equal access to persons desirous of receiving the
entities' full range of goods and services to accomplish business purposes.
E.g., Bd. of Directors of
Rotary Int'l. v. Rotary
Club, 481 U.S. 537, 541-43 (1987). In this case, however, the
New Jersey Supreme Court has, first of all, stretched that state's public
accommodation law to "root out" discrimination in a faith-based community
service organization simply because its outreach is "broad," and also because it
has government relationships such as its historic involvement with the President
of the United States. See Dale v. Boy Scouts of America,160 N.J. 562,
734 A. 2d 1196 (1999) at 29a-30a.
The case below did not involve a boy scout who sought merely to
receive the benefits of scouting. The New Jersey Supreme Court
has imposed upon the Boy Scouts a duty to accept an avowed homosexual activist
who seeks to provide those benefits as an assistant
scoutmaster. By twisting the state's public accommodation law into the service
of a homosexual adult who would be a provider of the services of the Boy Scouts,
the New Jersey justices have transformed the state's public accommodation law
into a type of employment discrimination statute applicable to unpaid
volunteers. In doing so, they have demonstrated disregard for the kinds of
exceptions normally attached to employment discrimination laws, such as those
permitting bona fide occupational requirements, which would clearly be
appropriate in the case of the Boy Scouts, where adult scoutmasters are placed
in positions of authority and close contact with young boys.
If the ruling below were upheld, the Boy Scouts of America, their affiliates
and their volunteers would be unfairly and unreasonably exposed to increased
risks of liability, and the boy scouts, themselves, would be unnecessarily
exposed to risks of harm and injury. These heightened risks -- of injury and of
legal liability -- are especially noteworthy in this case. Forcing the Boy
Scouts to accept avowed homosexuals as adult leaders would increase the risk of
sexual molestation of young boys, given the fact that certain homosexual
activists encourage legalizing sex with all persons, including minors. E. Rueda,
The Homosexual Network: Private Lives and Public Policy, pp. 202-203
(Old Greeenwich, Conn.: The Derbin Adair Company, 1982). Additionally, there is
evidence that the proportion of homosexual pedophiles is considerably higher
than that of heterosexual pedophiles, and by one estimate, homosexual teachers
are 90 to 100 times more likely to become sexually involved with their students
than are heterosexuals. See, e.g., G. Gallup, "Attitudes
toward Homosexuals and Evolutionary Theory: The Role of Evidence," 17
Ethology and Sociobiology 281-84 (1996).
Indeed, the Boy Scout setting appears to be an ideal place for certain
pedophiles, especially male homosexual pedophiles, to pursue potential boy
victims, with overnight camp-outs in secluded locations providing ample time and
opportunity for intimate contact. See P. Boyle, Scout's Honor
70-71 (Rocklin, Calif., Prima Publishing: 1994). If such molestation were to
occur, the Boy Scouts would likely bear the risk of legal liability for such
conduct. See, e.g., L.P. v. Oubre, 547 So. 2d 1320 (La. 1989);
Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157
Having ignored both the common law principles underlying the public accommodation laws and the possible consequences of a ruling forcing the Boy Scouts to accept a homosexual activist as a scoutmaster, the New Jersey Supreme Court also erroneously disposed of the Boy Scout's constitutional claim of freedom of association. Indeed, that court paid no attention to the true legacy of freedom of association, neglecting even to address the relevant constitutional text establishing that freedom, and misapplying this Court's precedents upholding that freedom.
I. THIS COURT'S DECISION IN HURLEY REQUIRES REVERSAL OF THE NEW
The decision below directly conflicts with this Court's unanimous decision in
Hurley, supra, holding
that requiring private organizers of a parade to permit a gay rights group to
march in the parade violated the organizers' First Amendment rights. Ignoring
the balancing test applied in Roberts v. United States Jaycees, 468 U.S. 609
(1984), this Court determined that Massachusetts' public accommodation law, as
applied to South Boston's St. Patrick's Day Parade, "violates the fundamental
rule of protection under the First Amendment, that a speaker
has the autonomy to choose the content of his message." Hurley, supra, 515 U.S. at
573 (emphasis added).
The rationale in Hurley
applies even more strongly to this case. As this Court observed in Hurley, by extending the state's
nondiscrimination law to marchers in a parade, the Massachusetts Supreme
Judicial Court had applied the state's public accommodation law "in a
peculiar way ... essentially requiring petitioners [the parade
organizers] to alter the expressive content of their parade." Id., 515
U.S. at 572 (emphasis added).
In this case, the Supreme Court of New Jersey has applied that state's public
accommodation law in an even more peculiar
way. Not merely requiring the Boy Scouts to admit a homosexual boy to scout
membership, without regard for its policy against open
homosexual expression, the New Jersey ruling requires the Boy Scouts to admit an
avowed homosexual activist to scouting leadership. N.J. Op.,
pp. 65a-67a. By analogy to Hurley, the New Jersey ruling is
tantamount to forcing an "assistant parade leader" upon the St. Patrick's Day
parade organizers, with authority to influence the whole
parade, not just a bunch of marchers with a message confined to one part of it.
Yet, this Court in Hurley found
the lesser intrusion upon "speaker autonomy" an impermissible encroachment upon
the parade organizers' First Amendment rights.
In an attempt to avoid the rule in Hurley, the New Jersey Supreme Court
distinguished "Boy Scout leadership" from a "parade," claiming that the latter
was a "form of 'pure speech,'" whereas the former was something deserving less
constitutional protection. N.J. Op., pp. 65a-66a. Just the opposite is true. A
parade, such as the one in Hurley, is a once-a-year event,
whereas Boy Scouting is a daily commitment with continuous speech. Indeed, the
person being excluded from the Boy Scouts in this case is not just another
participant in a single annual march down the streets of Boston, but rather a
dedicated adult who, by virtue of his role as scoutmaster, had "no other reason
to join apart from leadership in service to boys.'" N.J. Op., p. 11a.
In a further attempt to escape the shackles of Hurley, the New Jersey Supreme Court
fashioned a Houdini-like escape, disingenuously asserting that the respondent
had never promoted homosexuality as a Boy Scout leader, and that there was no
indication that respondent intended to "teach" anything whatsoever about
homosexuality as a scout leader." N.J. Op., pp. 65a-66a. This turns a blind eye
to the fact that respondent's homosexual lifestyle had been hidden, and that it
was his emergence as a publicly proclaimed homosexual activist and participant
in a seminar promoting homosexuality among teenagers that gave rise to his
dismissal from the Boy Scouts. It would be reasonable to infer, as the Boy Scout
authorities did, that he would use his assistant scoutmaster position to promote
the homosexual lifestyle to young boy scouts. Furthermore, under Hurley, respondent's very "coming out"
and publicized activity as a homosexual leader constitutes speech antithetical
to the Boy Scouts' message, compromising the Boy Scouts' right to autonomy over
that message. See Hurley, supra, 515 U.S. at
To this realistic concern for the welfare of young boys, the New Jersey court cast a callous glance, based, no doubt, in part on its disapproval of the Boy Scouts' message. See N.J. Op., pp. 58a-62a, 64a-67a. Clearly, the Supreme Court of New Jersey erred. In Hurley, for example, this Court scrupulously avoided a decision based on its approval or disapproval of either party's message, relying on the time-honored free speech principle that "shield[s] ... those choices of content that in someone's eyes are misguided, or even hurtful." Hurley, supra, 515 U.S. at 574.
The same standard of review and analysis employed by this Court in Hurley should obtain in this case. Not
only is respondent's avowed homosexual identity inconsistent with the Boy
Scouts' external message, his role as a Boy Scout leader would interfere with
the internal communication of that message. As this Court
observed in Hurley, marchers in
a "parade" make "some sort of collective point ... to each other" as well as "to
bystanders along the way." Id., 515 U.S. at 568. This is all the more
true with regard to organizers of the parade. After all, the right of "speaker
autonomy" does not turn on the existence of "a narrow succinctly articulable
message" to outsiders, but upon the absolute right to select the "contingents to
make a parade" (id., 515 U.S. at 569-70), as well as those who lead the
The New Jersey Supreme Court avoided this constitutional barrier as well,
denying to the Boy Scouts the right to select the "contingents" constituting a
Boy Scout troop, solely because, in the court's opinion, the Boy Scout Oath and
Law had failed to "disseminate" to outsiders a concrete and specific-enough
message "that homosexuality is immoral...." See N.J. Op., p. 64a.
According to Hurley, however, it
is not for the courts or any other government official to grant or deny First
Amendment rights just because, in their eyes, the Boy Scouts do not disseminate
a "particularized message" on homosexuality. It is enough that the Boy Scouts
have made it clear that they do not wish even to suggest that homosexuality is
moral. See Hurley,
supra, 515 U.S. at 574-75.
The New Jersey courts below undoubtedly misapplied Hurley, opting instead to apply an entirely different set of rules governing "freedom of association" purportedly derived from a trilogy of this Court's opinions: Roberts v. United States Jaycees, 468 U.S. 609 (1984); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987); and New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988). The court's reliance upon those cases also was error.
II. THE DECISION BELOW VIOLATES THE RIGHT TO
ASSEMBLE PROTECTED BY THE FIRST AMENDMENT.
Not once, in its analysis of First Amendment issues, did the New Jersey Supreme Court assess the constitutionality of the application of its state's public accommodation law in light of the text or history of that Amendment. To the contrary, the court below examined only certain substitute phrases such as the "freedom of intimate association" and the "freedom of expressive association" found in selected, recent decisions of this Court. Having failed to address the First Amendment issues according to the relevant constitutional text and history, and having limited its consideration to only three of this Court's precedents, all decided since 1984, and having even misapplied those three precedents, the court failed to address the First Amendment issues truly presented in this case.
A. Roberts, Rotary Club, and New York State Club Do Not Apply to
In its discussion of the Boy Scouts' First Amendment claim, the court below
relied exclusively upon the Roberts, Rotary Club, and New York State Club cases, cited
above. Not once, however, did the court acknowledge that those cases explicitly
apply to First Amendment claims made by organizations that have been found by
the courts to be commercial in nature and purpose. See Roberts, supra, 468 U.S. at
616 ("[T]he court ... concluded that the Jaycees organization is a
'business'..."); Rotary Club,
supra, 481 U.S. at 542 (The state courts found that both the
International Rotary and local Rotary Clubs were "business establishments"
within the meaning of state law.); New
York State Club, supra, 487 U.S. at 5 (The New York City Human
Rights Law private club exception limited to clubs unrelated to "the business
and professional life of the city"). Having failed to find that the Boy Scouts
are commercial in purpose and nature, the New Jersey Supreme Court misapplied
the Roberts, Rotary Club and New York State Club precedents.
B. Freedom of Association is Not Limited to Intimate and Expressive
Additionally, the court below failed to recognize the full scope of the
constitutional right of association, erroneously limiting its examination of
that right to the Roberts
trilogy of cases. The New Jersey justices placed primary reliance on this
Court's opinion in Roberts v.
United States Jaycees,
supra, 468 U.S. at 622, wherein this Court identified the First Amendment
"right of association" "as implicit in the right to engage in
activities protected by" that Amendment. (Emphasis added.) Thus, this Court, in
Roberts, treated "the right of
association" as "correlative" to such express rights as
"freedom to speak, to worship and to petition the government for redress of
grievances...." Id. (Emphasis added.) As a "correlative" right, some
lower courts, citing Roberts,
have insisted that any person who claims a First Amendment
constitutional right to associate must either claim and prove
his right to an "intimate association" or must demonstrate that
the association is for "expressive purposes." See, e.g., Sanitation and Recycling Industry,
Inc. v. City of New York,
107 F. 3d 985, 996 (2d Cir. 1997); Griffin v. Strong, 983 F. 2d 1544, 1546
(10th Cir. 1993); Winik-Nystrup v. Manufacturers Life Insurance Co., 8 F.
Supp. 2d 1, 10-23 (D. Conn. 1998). That is precisely what the New Jersey Supreme
Court did in this case.
In a section of the opinion below, labeled "Freedom of Expressive
Association," the New Jersey justices conducted their First Amendment analysis
of the Boy Scout policy with respect to open, avowed homosexuals
solely in relation of that policy to the "dissemination" of the Boy
We find that the LAD [Law Against Discrimination] does not violate Boy
Scouts' freedom of expressive association because the statute does not have a
significant impact on Boy Scout members' ability to associate with one another
in pursuit of shared views. The organization's ability to disseminate
its message is not significantly affected by Dale's exclusion because
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 in respect to homosexuality. [N.J. Op., p. 52a
Within this framework of analysis, the New Jersey court dismissed the
petitioners' claim that the Boy Scout Oath and Law require the exclusion of
avowed homosexual Scoutmasters because the Oath and Law do not "on their face,
express anything about sexuality, much less that homosexuality, in particular,
is immoral." N.J. Op., p. 56a. Finding that "no single view" on the "subject" of
sexual morality "functions as a unifying associational goal of the
organization," the court held that requiring the Boy Scouts to welcome an open,
avowed homosexual scoutmaster into its ranks "does not violate Boy Scouts' right
of expressive association because his inclusion would not 'affect in any
significant way [Boy Scouts] existing members' ability to carry out their
various purposes.' Rotary Club,
supra, 481 U.S. at 548...." N.J. Op., p. 56a.
Having limited its analysis of the Boy Scouts' claim of freedom of
association to its "correlative" roles recognized in the Roberts and Rotary Club cases, the New Jersey
court failed to abide by this Court's long line of cases recognizing a
constitutional right of freedom of association independently
rooted in "the right of the people peaceably to assemble," as expressed
in the First Amendment and understood by America's founders.
In the seminal case of DeJonge v. Oregon, 299 U.S. 353, 364 (1937), this
Court ruled that the right of the people peaceably to assemble was "a right
cognate to those of free speech and free press and is
equally fundamental." (Emphasis added.) As an "equal and
cognate" right, the Court affirmed its earlier observation in United States v. Cruikshank, 92 U.S. 542, 552 (1876),
that the right of the people to assemble was the right of "'citizens to meet
peaceably for consultation in respect to public affairs....'"
Id. (Emphasis added.) Thus, this Court embraced the historic
understanding that the foundational purpose of the right of the people peaceably
to assemble was to "consult for their common good." Article XVI
of the August 16, 1776 Constitution of Pennsylvania reprinted in Sources of Our Liberties 331 (Perry,
ed., American Bar Foundation, 1972) (emphasis added).
C. Freedom of Association Includes the Right of Like-Minded People to
Join in a Common Cause.
Two years after the DeJonge
decision, in Hague v. CIO, 307 U.S. 496 (1939), Justice Owen
Roberts, in an opinion concurred in by Justice Hugo Black, engaged in an
extensive review of the nature and application of the right of the people
peaceably to assemble. First, in posing the question before the Court, Justice
Roberts made clear that the issue of peaceable assembly related to
"dissemination [of] information [about] and discussion of the
[National Labor Relations] Act, and of the opportunities and advantages offered
by it...." Id., 307 U.S. at 512 (emphasis added). Second, relying on
Justice Roberts linked the labor act's policy of "freedom of association"
to the constitutional "right peaceably to assemble and to discuss
communicate...." Id., 307 U.S. at 512-13 (emphasis
added). Finally, Justice Roberts reached his conclusion, often referred to and
relied upon by this Court up to the present day:
Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between
citizens and discussing
public questions. [Id., 307 U.S. at 515 (emphasis added).]
Justice Roberts' understanding of the consultative purpose of the people's
right of assembly not only conformed to this Court's "right of association"
cases in Cruikshank and DeJonge, but also was a focus of this
Court's freedom of association rationale in case after case prior to the
decision in Roberts v. United States Jaycees, supra.
Relying explicitly upon Justice Roberts' opinion in Hague, this Court ruled in Thomas v. Collins, 323 U.S. 516, 532 (1945),
that "[t]he right to discuss, and inform people
concerning the advantages and disadvantaged of unions and joining them is
protected ... as part of free assembly" (emphasis added). Later, the Court
returned to this theme, concluding that "the right either of workmen or of
unions ... to assemble and discuss their own affairs is as
fully protected by the Constitution as the right of businessmen, farmers,
educators, political party members or others to assemble and discuss their
affairs and enlist the support of others." Id., 323 U.S. at 539
In a series of cases involving the NAACP, this Court struck a similar note in
its assessment of the purpose of the right of association. In NAACP v. Alabama, 357 U.S. 449, 460, 466
(1958), this Court, emphasizing the importance of protecting "the rights of
[NAACP's] rank-and-file members to engage in lawful association in support of
their common beliefs," whether they be "political, economic, religious or
cultural," relied upon both the speech and the assembly clauses
for its ruling that "the right of the members to pursue their lawful
private interests privately and to associate with others in doing so
... come[s] within the protection of the Fourteenth Amendment" (emphasis added).
In NAACP v. Button, 371 U.S. 415, 428, 431, 437,
444-45 (1963), this Court repeatedly treated freedom of "association" as a
separate and distinct freedom from that of "expression." As for the former
freedom, the Court observed that the Virginia rule against lawyer solicitation
created "the gravest danger of smothering all discussion
looking to the eventual institution of litigation on behalf of the
rights of members of an unpopular minority." Id., 371 U.S. at 434-37
(emphasis added). Nineteen years later, in NAACP v. Claiborne Hardware Co., 458 U.S. 886,
909 (1982), this Court continued to recognize that the right to "assemble
peaceably" was distinct from the freedom of speech, the former primarily
protecting the right of the NAACP to "discuss among themselves
their grievances against governmental and business policy." (Emphasis added.)
D. Freedom of Association Protects the Right of the Boy Scouts to Set
Its Own Moral Standards.
To collapse this distinctive freedom of association into one of "expressive
association," as the New Jersey courts did below, disregards these venerable
authorities. By failing to utilize the traditional applications of the right to
associate, independently grounded in the right of the people peaceably to
assemble, the Roberts and Rotary Club opinions unwittingly
opened the door to the very government intrusions that the Assembly Clause was
designed to prohibit. Instead of the people deciding with whom they will
associate to discuss and advance common beliefs pertaining to "political,
economic, religious or cultural matters," governments have been given license to
impose their views of political, economic, religious and cultural orthodoxy, so
long as they purport to do so in the cause of eliminating "invidious
In his concurring opinion in Thomas v. Collins, supra, Justice
Robert Jackson warned that the government would invent all kinds of reasons to
intrude upon the right of the people to associate, but that the courts must
remain vigilant to insure that the right of the people to assemble does not
become a "hollow one." Id., 323 U.S. at 547.
The Supreme Court of New Jersey opinion below illustrates the "hollowness" of a constitutional right of association if limited to the "correlative" right of freedom of association, recognized in the Roberts/Rotary Club/New York State Club line of cases. By focusing exclusively upon the "expressive" aspect of Scouting, the New Jersey judges were enabled to disregard completely the internal camaraderie of the organization, and thus to discard the essential role that common beliefs and attitudes must play to ensure freedom of association. See NAACP v. Button, supra, 371 U.S. at 429-31.
III. THE DECISION BELOW ERRONEOUSLY
EXPANDS THE CONSTITUTIONALLY- PERMISSIBLE LIMITS ON FREEDOM OF
A. Freedom of Association May Be Limited Only by Laws Protecting the
According to the express language of the First Amendment's Assembly Clause,
the only constitutionally-permitted condition that governments
may impose upon the right of the people to assemble is that the assembly must be
"peaceable." In its decision in DeJonge v. Oregon, supra, this Court
overruled a criminal conviction under a state syndicalism act because there was
not a scintilla of evidence of an "incite[ment] to violence and crime." By so
ruling, this Court rejected the State's attempt to criminalize conduct simply
because it occurred under the auspices of an organization which taught and
advocated the violent overthrow of the government. As dangerous as such teaching
was to the stability of the government, this Court stood firm in favor of "the
need to preserve inviolate the constitutional rights of free speech, free press
and free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful means."
Id., 299 U.S. at 365.
Eight years after DeJonge,
this Court explained further that any regulation, criminal or civil, limiting
"orderly discussion and persuasion ... must have clear support in public
Only the gravest abuses, endangering paramount interests, give occasion for
permissible limitation. It is therefore in our tradition to allow widest
room for discussion, the narrowest range for its
restriction, particularly when this right is exercised in conjunction with
peaceable assembly.... [In this case], [t]he assembly was
entirely peaceable ... [and] involved no element of clear and present, grave
and immediate danger to the public welfare. [Thomas v. Collins, supra, 323 U.S. at
530, 536 (emphasis added).]
By demanding explicit proof of breach, or imminent threat of
breach, of the physical peace in DeJonge and Thomas v. Collins, this Court forged a legacy of
constitutional protection for the freedom of assembly and association that
prevailed throughout the civil rights movement of the 1960's. Thus, in Cox v. Louisiana, 379 U.S. 536, 538-52
(1965), this Court struck down a conviction under a "breach of the peace"
statute because there was no evidence of any threat to the
physical peace of the community. In the same case, this Court struck down a
conviction under an "Obstructing Public Passages" statute because of evidence
that it had been enforced in a discriminatory manner inconsistent with this
Court's insistence upon a viewpoint-neutral policy of "time, place and manner."
Id., 379 U.S. at 553-58.
This Court has required real evidence of a threat to the
community's physical well-being, not only in cases applying criminal statutes to
public assemblies, but also in civil statutes applied to
private associations. In NAACP
v. Alabama, supra, 357
U.S. at 465, the Court rejected Alabama's effort to obtain the membership list
of the Alabama chapter of the NAACP, distinguishing an earlier decision
approving a New York law requiring disclosure of membership in the Ku Klux Klan
on the ground that "the Klan's activities ... involv[ed] acts of unlawful
intimidation and violence."
Beginning in the 1960's, however, and continuing to the present day, this
Court has sometimes departed from this very narrow test of constitutional
permissibility, applying a broader, more flexible test, namely, whether "a
compelling state interest in the regulation of a subject within the State's
constitutional power to regulate can justify limiting First Amendment freedoms."
NAACP v. Button, supra, 371 U.S. at
B. The Compelling State Interest Test Should Have No Legitimate Role
in Deciding This Case.
Application of the "compelling state interest" test, first formulated and
applied by this Court in equal protection cases, has been, and continues to be
controversial. As early as 1969, Justice John Marshall Harlan cautioned this
Court to use the test only in cases involving race discrimination. Shapiro v. Thompson, 394 U.S. 618, 658-62 (1969)
(Harlan, J., dissenting).
More recently, Justice Anthony Kennedy has voiced concern about the
indiscriminate use of the compelling state interest test in First Amendment
cases. In his concurring opinion in Simon & Schuster, Inc. v. New York State Crime Victims Board,
502 U.S. 105 (1991), Justice Kennedy reminded the Court, as had Justice Harlan
before him, that the compelling state interest test "derives from our equal
protection jurisprudence ... and has no real or legitimate place when the Court
considers the straightforward question whether the State may enact a burdensome
restriction of speech based on content only, apart from considerations of time,
place, and manner of use of public forums." Id., at 124. In a case
decided upon the heels of Simon &
Schuster, Justice Kennedy reiterated his concern, this time expressing
his opinion that "our adoption of the compelling-interest test was accomplished
by accident ... and as a general matter produces a misunderstanding that has the
potential to encourage attempts to suppress legitimate expression." Burson v. Freeman, 504 U.S. 191, 212 (1992)
(Kennedy, J., concurring).
Justice Kennedy has not been the only voice expressing such concerns. In
Roberts v. United States Jaycees, supra,
468 U. S. at 633, Justice Sandra Day O'Connor questioned this Court's
"mechanical application of a 'compelling interest' test," and stated that the
"First Amendment is offended by direct state control of the membership of a
private organization engaged exclusively in protected expressive activity...."
Id., at 638. Referring to, inter alia, The Official Boy Scout
Handbook, Justice O'Connor noted that "[e]ven 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." Id., at 636. Freedom of association for such
expressive associations, like the freedom of speech, should only be governed by
"content-neutral state regulation of the time, place, and manner of any
organization's relations with its members or with the State," and only then when
such regulations are "'narrowly drawn' to serve a 'sufficiently strong,
subordinating interest' 'without unnecessarily interfering with First Amendment
freedoms.'" Id., 468 U.S. at 634.
Finally, as discussed above, this Court unanimously eschewed application of
the compelling state interest test in Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557 (1995), relying instead upon the absolute
principle of "speaker autonomy" to turn back an attempt to use the Massachusetts
public accommodation law to overlook the freedom of speech in the name of
"eradicating discrimination." In doing so, the Court deliberately refused to
follow the lead of the lower court, which had applied the compelling state
interest test on the authority of the Roberts case. Id., 515 U S.
Had this Court done otherwise in Hurley, it would have been drawn into
the kind of balancing of interests engaged in by the New Jersey Supreme Court
below. After finding that the petitioners enjoyed the constitutional right of
expressive association, the New Jersey justices opined that "[t]he right of
expressive association must ... be weighed against" the compelling interest of
the state to prevent "invidious discrimination" in each case. This probe led the
state court, in turn, to determine the purpose of the Boy Scouts and the meaning
of the Boy Scout Oath and Law, rather than to defend the right of the Boy Scouts
to determine those for itself, thereby trampling on the very constitutional
"autonomy" expressed and applied by this Court in Hurley.
C. The Compelling State Interest Test Was Used in This Case to
Enforce Viewpoint Discrimination.
The compelling state interest test also led the New Jersey justices into a
probing critique of the Boy Scouts' views on homosexuality, labeling them
"archaic," "stereotypical" and "bigoted." N.J. Op., p. 62a. In contrast, the
justices enthusiastically embraced the New Jersey legislature's views of
homosexuality, or other similar sexual or affectional orientation, as
enlightened and commendable -- a "recognition that discrimination based on
'archaic' and 'stereotypical notions' about homosexuals that bears no
relationship to reality...." N.J. Op., p. 62a.
Only by relying upon the compelling state interest test could the New Jersey
Supreme Court have justified a law that infringed upon the right of the Boy
Scouts to hold views contrary to a state-imposed orthodoxy. Such viewpoint
discrimination has been found by this Court to be per se a violation of
the First Amendment. See Rosenberger v. University of Virginia, 515 U.S. 819
(1995). Yet, the compelling state interest test inevitably leads to such
discrimination when applied to a law designed to prohibit certain acts of
discrimination by an organization dedicated to views considered anathema by the
This failure of the compelling interest test to protect legitimate
constitutional rights has led one astute observer to remark that "the ... test
permits courts to render decisions based upon vague ideological commitments that
have no basis in the Constitution." Bernstein, "Sex Discrimination Laws Versus
Civil Liberties," 99 The Univ. of Chi. L. Forum ___ (1999).
The unconstitutionality of the compelling interest test is revealed by New
Jersey Supreme Court Justice Handler's concurring opinion. Applying that test as
set forth in Roberts, Justice
Handler declared that the state had a compelling interest to prohibit
organizations from using "stereotypical assumptions about homosexuals" in
determining its standards for membership:
One particular stereotype that we renounce today is that homosexuals are
inherently immoral. That myth is repudiated by decades of social science
data that convincingly establish that being homosexual does not, in
itself, derogate from one's ability to participate in and contribute responsibly
and positively to society.... Accordingly ... there is no reason to view "a gay
scoutmaster, solely because he is a homosexual, [as lacking the] strength of
character necessary to properly care for [and] impart BSA humanitarian ideals to
the young boys in his charge." [N.J. Op., pp. 95a-96a (emphasis added).]
Armed with the compelling state interest broadax, Justice Handler chopped down 6,000 years of Judaeo-Christian tradition and moral teaching, tendentiously relying upon selected social science studies to support his revolutionary views which are out of step with the authoritative rulings of this Court.
Only 14 years ago, in Bowers
v. Hardwick, 478 U.S. 186
(1986), this Court upheld a Georgia state law criminalizing homosexual sodomy.
In his concurring opinion, Chief Justice Warren Burger observed that
"[c]ondemnation of [homosexual] practices is firmly rooted in Judaeo-Christian
moral and ethical standards."
(4) Id., 478 U.S. at 192-93. Moreover, the Chief Justice
observed that even pre-Christian Roman law made "[h]omosexual sodomy ... a
capital crime" and that Blackstone [in his Commentaries] had described
it as 'the infamous crime against nature....'" Id., 478 U.S. at
Invoking the compelling state interest test, the majority opinion dismissed
such views as "bigotry," not worthy of serious consideration. N.J. Op., p. 61a.
Justice Handler invoked social science literature to defend his legal ruling,
but in doing so he appears to have revealed his own prejudices, failing to cite
even one study that might cast doubt on the result he so desired to reach. In
reality, the literature reveals that the experts do not agree. Indeed, social
science data other than that cited by Justice Handler confirm the wisdom of a
content-neutral First Amendment test. Left out from his survey, for example, are
Dr. Judith Reisman's findings that adult homosexuals are far more likely than
adult heterosexuals to solicit teenaged sexual partners. "Partner Solicitation
Language As A Reflection Of Male Sexual Orientation." Collected Papers from the
NARTH Annual Conference, Saturday, 29 July 1995. In her analysis of "In Search
Of" ("ISO") advertisements placed by males in two magazines, the
Washingtonian, which is predominantly heterosexual in orientation, and
The Advocate, which is predominantly homosexual, Dr. Reisman found that
under 1 percent of Washingtonian ISO advertisers as against 53 percent
of Advocate ISO advertisers sought teens. She also found that on
average only once a month did advertisers in Washingtonian seek a
teenage girl, while 15 percent of the advertisers in The Advocate
sought an average of 130 boys per month. Id.
Dr. Reisman's findings are supported by studies conducted by the homosexual
community. In The Gay Report, a survey of homosexual attitudes and
behavior, homosexual researchers Jay and Young found that 73 percent of
homosexuals surveyed had at some time had sex with boys 16 to 19 years of age or
younger. K. Jay and A. Young, The Gay Report (New York: Summit Books,
1979), p. 275. Approximately one out of four homosexuals admitted to sex with
children and younger teens. Jay and Young, p. 275; A.P. Bell and M.S. Weinberg,
Homosexualities: A Study of Diversity Among Men and Women (New York:
Simon & Schuster, 1978), p. 85.
Pedophilia plays a key role in the development of future homosexuals. Noted
sex researchers Masters and Johnson observed:
In most instances, homophile interests developed in the early to midteens....
There was no history of overt heterosexual experience prior to homophile
orientation. Recruitment usually was accomplished by an older male, frequently
in his twenties, but occasionally men in their thirties were the initiators.
When the homosexual commitment was terminated, in most instances, the
relationship was broken by the elder partner. With termination, the teenager was
left with the concept that whether or not he continued as an active homosexual,
he would always be homophile-oriented. [W. Masters and V. Johnson, Human
Sexual Inadequacy (Boston: Little, Brown and Company, 1970), pp.
In one study (Bell and Weinberg, supra, p. 87), over 60 percent of
the respondents identified their first homosexual partner as someone older; in
another (P. Gephard and A.P. Johnson, The Kinsey Data: Marginal Tabulations
of the 1958-63 Interviews Conducted by the Institute for Sex Research
(Indiana University Press: Bloomington, Ind., 1979), p. 495, over 64 percent of
the respondents identified their first homosexual partner as having initiated
the sexual experience.
While Justice Handler and his New Jersey colleagues may have assumed that the
homosexual lifestyle is "moral," it is difficult to know what standard was used.
The promiscuous, reported behavior of many homosexuals could hardly be
considered moral. In a 1978 study by Bell and Weinberg, supra, 83
percent of active homosexuals had 50-plus partners, 73 percent had 100-plus
partners, 58 percent had 250-plus partners, 41 percent had 500-plus partners and
26 percent had 1000-plus partners. Seventy percent of white homosexuals claimed
that a majority of their sexual contacts were one-time encounters.
Gallup reported one study showing that more than 80 percent of promiscuous homosexual males admitted to having had sex with minors. Additionally, he reported that proportionally there are more homosexual pedophiles than heterosexual. G. Gallup, "Attitudes, etc." Ethology and Sociobiology, supra, at 281-84. Patrick Boyle has documented stories of numerous men whose first sexual encounter was with an adult male and who, having reached adulthood, in turn enticed a young boy into having sex with him. P. Boyle, Scout's Honor, supra, at 28.
During the period 1971 through November 1991, the Boy Scouts banned 1,871
individuals from Scouting for sexual abuse. P. Boyle, Scout's Honor,
supra, at 315. (Not all of these cases involved male scout leaders
abusing male Scouts.) At least 2,071 Scouts reported being abused by leaders,
with another 2,737 victims who may or may not have been Scouts. Id., at
316. It could be said that based on their experience as well as the social
science literature, the Boy Scouts would be violating the trust conferred on
them by the parents of countless young boys if they allowed avowed homosexuals
to continue in leadership roles, modeling their lifestyle to those
impressionable boys, resulting in behavior by those boys which the Boy Scout
Oath and Law seek to avoid.
D. Only a Narrowly and Precisely Drawn Time, Place and Manner Test Protects Associational Rights.
With such scientific literature as this, it is not for judges, much less
state legislatures, to survey the sociological studies on homosexuality and
then, in pursuit of some ideal society without discrimination, force people to
associate with each other only in conformity with the views endorsed by the
civil authorities. Nor is it meet for judges to dismiss as "bigotry" or
"prejudice" any view of homosexuality that does not square with their own.
Civilly-enforced associational conformity is the very evil that the Assembly
Clause was designed to prevent, guaranteeing to the people the right to decide
with whom they will associate so long as they conduct themselves in a manner
that is consistent with the physical peace of the community.
During the 1950's and 1960's, this Court was called upon again and again to
declare and apply the First Amendment to speeches, assemblies and petitions of
people who actively opposed the racial views held by civil authorities in the
South. During those tumultuous times, this Court applied content-neutral
constitutional principles that did not permit it or any other court to take
sides in the ongoing political debate. Rather, as in Edwards v. South Carolina, 372 U.S. 229, 235
(1963), it held the constitutional line protecting "free speech, free assembly
and freedom to petition for redress of ... grievances ... in their most pristine
and classic form." This Court did so because it adhered to the original
principles of content neutrality unencumbered by the compelling state interest
test that invites an open-ended balancing of governmental interests against
those of the individual.
This case presents to this Court an excellent opportunity to reject the
compelling state interest test as having no permanent place in its First
Amendment jurisprudence, and to replace it with time-honored, content-neutral
principles permitting the state to regulate people's assemblies only on the
basis of precisely and narrowly drawn time, place and manner restrictions.
E. Laws Against Discrimination Must Not Be Allowed to Trump Civil Liberties.
At the height of the civil rights movement in the 1960's and into the 1970's,
when this Court was faced with constitutionally-based claims of right to be
served in restaurants without regard to race, liberal-minded Justices of this
Court, including William O. Douglas, Arthur Goldberg, Hugo L. Black, and
Thurgood Marshall rejected the notion that it was for government to forcibly
conform America in the name of eliminating racial prejudice . See Bell v. Maryland, 378 U.S. 226, 313, 345
(1964) (Goldberg, J., concurring and Black, J., dissenting); Palmer v. Thompson, 403 U.S. 217, 238 (1971)
(Douglas, J., dissenting); and Moose
Lodge No. 107 v. Irvis,
407 U.S. 163, 180 (1972) (Marshall, J., joining Justice Douglas dissent). Since
those heady days, the path of equal protection has led the nation to the
exaltation of a utopian egalitarianism that threatens to "trump ... civil
liberties." Bernstein, "Sex Discrimination Laws Versus Civil Liberties,"
supra, 99 Univ. of Chi. L. Forum at ___.
Even the homosexual community has recognized that if the New Jersey court
opinion is upheld, it will threaten their right to set their standards for their
own organizations which discriminate against "straights." See R.
Sincere, "New Jersey Supreme Court Ruling on Boy Scouts Threatens Freedom for
All -- Including Gays," Wall Street Journal (August 11, 1999)
Independent Gay Forum, www.indegayforum.org/ articles/
sincere1.html. See also N. Ashford, "Equal Rights, Not Gay
Rights," Independent Gay Forum, www.indegayforum.org/
By upholding the right of the Boy Scouts of America to set its own moral
standards, this Court will insure that all groups of
like-minded Americans may freely associate with one another without government
intrusions based upon a state-imposed orthodoxy of opinion.
For the reasons set forth above, Public Advocate of the United States, Lincoln Institute for Research and Education, Committee to Protect the Family Foundation, Concerned Women for America, and National Criminal Justice Council respectfully urge this Court to reverse the decision of the Supreme Court of New Jersey.
1. Pursuant to Supreme Court Rule 37.6, it is hereby certified that no counsel for a party authored this brief in whole or in part, and that no person or entity other than these amici curiae made a monetary contribution to the preparation or submission of this brief.
2. Amici requested and received the written consents of the parties to the filing of this brief amicus curiae. Such written consents, in the form of letters from counsel of record for the various parties, have been submitted for filing to the Clerk of Court.
3. The opinion of the Supreme Court of New Jersey on review herein is included at pages 1a-101a of Appendix A to the Petition for a Writ of Certiorari herein. Further references to that opinion in this brief will be designated, with the appropriate appendix page reference, as "N.J. Op."
4. The Scriptural condemnation of homosexuality is extensive. Both the Old and the New Testaments condemn it. "Thou shalt not lie with mankind, as with womankind; it is abomination." Leviticus 18:22. "But the men of Sodom were wicked and sinners before the Lord exceedingly." Genesis 13:13. "And turning the cities of Sodom and Gomorrah into ashes condemned them with an overthrow, making them an ensample unto those that after should live ungodly." II Peter 2:6. "[F]or even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly...." Romans 1:26-27.
5. Even in Romer v. Evans, 517 U.S. 620 (1996), in which this Court struck down a Colorado constitutional initiative against the enactment of laws prohibiting discrimination against homosexuals, this Court carefully refrained from invoking its moral judgment in substitution for that of the people of Colorado, limiting its ruling to a narrow finding that the initiative had been the product of an unconstitutional "animus" against homosexuals as a class. Id., 517 U.S. at 665-66.