BOY SCOUTS OF AMERICA et al. v. DALE

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640 OCTOBER TERM, 1999
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BOY SCOUTS OF AMERICA et al. v. DALE
certiorari to the supreme court of new jersey
No. 99–699. Argued April 26, 2000—Decided June 28, 2000
Petitioners are the Boy Scouts of America and its Monmouth Council (col-
lectively, Boy Scouts). The Boy Scouts is a private, not-for-profit orga-
nization engaged in instilling its system of values in young people. It
asserts that homosexual conduct is inconsistent with those values. Re-
spondent Dale is an adult whose position as assistant scoutmaster of a
New Jersey troop was revoked when the Boy Scouts learned that he is
an avowed homosexual and gay rights activist. He filed suit in the New
Jersey Superior Court, alleging, inter alia, that the Boy Scouts had
violated the state statute prohibiting discrimination on the basis of sex-
ual orientation in places of public accommodation. That court’s Chan-
cery Division granted summary judgment for the Boy Scouts, but its
Appellate Division reversed in pertinent part and remanded. The
State Supreme Court affirmed, holding, inter alia, that the Boy Scouts
violated the State’s public accommodations law by revoking Dale’s mem-
bership based on his avowed homosexuality. Among other rulings, the
court held that application of that law did not violate the Boy Scouts’
First Amendment right of expressive association because Dale’s inclu-
sion would not significantly affect members’ ability to carry out their
purposes; determined that New Jersey has a compelling interest in elim-
inating the destructive consequences of discrimination from society, and
that its public accommodations law abridges no more speech than is
necessary to accomplish its purpose; and distinguished Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S.
557, on the ground that Dale’s reinstatement did not compel the Boy
Scouts to express any message.
Held: Applying New Jersey’s public accommodations law to require the
Boy Scouts to readmit Dale violates the Boy Scouts’ First Amendment
right of expressive association. Government actions that unconstitu-
tionally burden that right may take many forms, one of which is intru-
sion into a group’s internal affairs by forcing it to accept a member it
does not desire. Roberts v. United States Jaycees, 468 U. S. 609, 623.
Such forced membership is unconstitutional if the person’s presence af-
fects in a significant way the group’s ability to advocate public or private
viewpoints. New York State Club Assn., Inc. v. City of New York, 487
U. S. 1, 13. However, the freedom of expressive association is not abso-
lute; it can be overridden by regulations adopted to serve compelling

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state interests, unrelated to the suppression of ideas, that cannot be
achieved through means significantly less restrictive of associational
freedoms. Roberts, 468 U. S., at 623. To determine whether a group
is protected, this Court must determine whether the group engages in
“expressive association.” The record clearly reveals that the Boy
Scouts does so when its adult leaders inculcate its youth members with
its value system. See id., at 636. Thus, the Court must determine
whether the forced inclusion of Dale would significantly affect the Boy
Scouts’ ability to advocate public or private viewpoints. The Court
first must inquire, to a limited extent, into the nature of the Boy Scouts’
viewpoints. The Boy Scouts asserts that homosexual conduct is incon-
sistent with the values embodied in the Scout Oath and Law, particu-
larly those represented by the terms “morally straight” and “clean,” and
that the organization does not want to promote homosexual conduct as
a legitimate form of behavior. The Court gives deference to the Boy
Scouts’ assertions regarding the nature of its expression, see Demo-
cratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S.
107, 123–124. The Court then inquires whether Dale’s presence as an
assistant scoutmaster would significantly burden the expression of those
viewpoints. Dale, by his own admission, is one of a group of gay Scouts
who have become community leaders and are open and honest about
their sexual orientation. His presence as an assistant scoutmaster
would interfere with the Scouts’ choice not to propound a point of view
contrary to its beliefs. See Hurley, 515 U. S., at 576–577. This Court
disagrees with the New Jersey Supreme Court’s determination that the
Boy Scouts’ ability to disseminate its message would not be significantly
affected by the forced inclusion of Dale. First, contrary to the state
court’s view, an association need not associate for the purpose of dissem-
inating a certain message in order to be protected, but must merely
engage in expressive activity that could be impaired. Second, even if
the Boy Scouts discourages Scout leaders from disseminating views on
sexual issues, its method of expression is protected. Third, the First
Amendment does not require that every member of a group agree on
every issue in order for the group’s policy to be “expressive association.”
Given that the Boy Scouts’ expression would be burdened, the Court
must inquire whether the application of New Jersey’s public accommoda-
tions law here runs afoul of the Scouts’ freedom of expressive associa-
tion, and concludes that it does. Such a law is within a State’s power
to enact when the legislature has reason to believe that a given group
is the target of discrimination and the law does not violate the First
Amendment. See, e. g., id., at 572. The Court rejects Dale’s conten-
tion that the intermediate standard of review enunciated in United
States v. O’Brien, 391 U. S. 367, should be applied here to evaluate the

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competing interests of the Boy Scouts and the State. Rather, the Court
applies an analysis similar to the traditional First Amendment analysis
it applied in Hurley. A state requirement that the Boy Scouts retain
Dale would significantly burden the organization’s right to oppose or
disfavor homosexual conduct. The state interests embodied in New
Jersey’s public accommodations law do not justify such a severe intru-
sion on the freedom of expressive association. In so ruling, the Court
is not guided by its view of whether the Boy Scouts’ teachings with
respect to homosexual conduct are right or wrong; public or judicial
disapproval of an organization’s expression does not justify the State’s
effort to compel the organization to accept members in derogation of
the organization’s expressive message. While the law may promote all
sorts of conduct in place of harmful behavior, it may not interfere with
speech for no better reason than promoting an approved message or
discouraging a disfavored one, however enlightened either purpose may
seem. Hurley, supra, at 579. Pp. 647–661.
160 N. J. 562, 734 A. 2d 1196, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a
dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined,
post, p. 663. Souter, J., filed a dissenting opinion, in which Ginsburg
and Breyer, JJ., joined, post, p. 700.
George A. Davidson argued the cause for petitioners.
With him on the briefs were Carla A. Kerr, David K. Park,
Michael W. McConnell, and Sanford D. Brown.
Evan Wolfson argued the cause for respondent. With
him on the brief were Ruth E. Harlow, David Buckel, Jon
W. Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas
J. Moloney, Allyson W. Haynes, and Lewis H. Robertson.*
*Briefs of amici curiae urging reversal were filed for Agudath Israel of
America by David Zwiebel; for the American Center for Law and Justice
et al. by Jay Alan Sekulow, Vincent McCarthy, John P. Tuskey, and
Laura B. Hernandez; for the American Civil Rights Union by Peter J.
Ferrara; for the Becket Fund for Religious Liberty by Kevin J. Hasson
and Eric W. Treene; for the California State Club Association et al. by
William I. Edlund; for the Center for the Original Intent of the Constitu-
tion by Michael P. Farris; for the Christian Legal Society et al. by Kim-
berlee Wood Colby and Carl H. Esbeck; for the Claremont Institute Center

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Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
Petitioners are the Boy Scouts of America and the Mon-
mouth Council, a division of the Boy Scouts of America (col-
for Constitutional Jurisprudence by Edwin Meese III; for the Eagle Forum
Education & Legal Defense Fund et al. by Erik S. Jaffe; for the Family
Defense Council et al. by William E. Fay III; for the Family Research
Council by Janet M. LaRue; for Gays and Lesbians for Individual Liberty
by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the Individ-
ual Rights Foundation by Paul A. Hoffman and Patrick J. Manshardt;
for the Institute for Public Affairs of the Union of Orthodox Jewish Con-
gregations of America by Nathan J. Diament; for the Liberty Legal Insti-
tute by Kelly Shackelford and George B. Flint; for the National Catholic
Committee on Scouting et al. by Von G. Keetch; for the National Legal
Foundation by Barry C. Hodge; for the Pacific Legal Foundation by John
H. Findley; for Public Advocate of the United States et al. by William J.
Olson and John S. Miles; for the United States Catholic Conference et al.
by Mark E. Chopko and Jeffrey Hunter Moon; and for John J. Hurley
et al. by Chester Darling, Michael Williams, and Dwight G. Duncan.
Briefs of amici curiae urging affirmance were filed for the State of New
Jersey by John J. Farmer, Jr., Attorney General, Jeffrey Burstein, Senior
Deputy Attorney General, and Charles S. Cohen, Deputy Attorney Gen-
eral; for the State of New York et al. by Eliot Spitzer, Attorney General
of New York, Preeta D. Bansal, Solicitor General, and Adam L. Aronson,
Assistant Solicitor General, and by the Attorneys General for their respec-
tive States as follows: Bill Lockyer of California, Earl I. Anzai of Hawaii,
J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts,
Philip T. McLaughlin of New Hampshire, W. A. Drew Edmondson of
Oklahoma; Hardy Myers of Oregon, William H. Sorrell of Vermont, and
Christine O. Gregoire of Washington; for the city of Atlanta et al. by Peter
T. Barbur, Sara M. Darehshori, James K. Hahn, David I. Schulman,
Jeffrey L. Rogers, Madelyn F. Wessel, Thomas J. Berning, Lawrence E.
Rosenthal, Benna Ruth Solomon, Michael D. Hess, Leonard J. Koerner,
Florence A. Hutner, and Louise Renne; for the American Association of
School Administrators et al. by Mitchell A. Karlan; for the American Bar
Association by William G. Paul and Robert H. Murphy; for the American
Civil Liberties Union et al. by Matthew A. Coles, Steven R. Shapiro, Sara
L. Mandelbaum, and Lenora M. Lapidus; for the American Jewish Con-
gress by Marc D. Stern; for the American Psychological Association by
Paul M. Smith, Nory Miller, James L. McHugh, and Nathalie F. P. Gil-

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lectively, Boy Scouts). The Boy Scouts is a private, not-for-
profit organization engaged in instilling its system of values
in young people. The Boy Scouts asserts that homosexual
conduct is inconsistent with the values it seeks to instill.
Respondent is James Dale, a former Eagle Scout whose adult
membership in the Boy Scouts was revoked when the Boy
Scouts learned that he is an avowed homosexual and gay
rights activist. The New Jersey Supreme Court held that
New Jersey’s public accommodations law requires that the
Boy Scouts readmit Dale. This case presents the question
whether applying New Jersey’s public accommodations law
in this way violates the Boy Scouts’ First Amendment right
of expressive association. We hold that it does.
I
James Dale entered Scouting in 1978 at the age of eight
by joining Monmouth Council’s Cub Scout Pack 142. Dale
became a Boy Scout in 1981 and remained a Scout until he
turned 18. By all accounts, Dale was an exemplary Scout.
In 1988, he achieved the rank of Eagle Scout, one of Scout-
ing’s highest honors.
Dale applied for adult membership in the Boy Scouts in
1989. The Boy Scouts approved his application for the posi-
tion of assistant scoutmaster of Troop 73. Around the same
time, Dale left home to attend Rutgers University. After
arriving at Rutgers, Dale first acknowledged to himself and
foyle; for the American Public Health Association et al. by Marvin E.
Frankel, Jeffrey S. Trachtman, and Kerri Ann Law; for Bay Area Law-
yers for Individual Freedom et al. by Edward W. Swanson and Paula A.
Brantner; for Deans of Divinity Schools and Rabbinical Institutions by
David A. Schulz; for the National Association for the Advancement of
Colored People by Dennis C. Hayes and David T. Goldberg; for Parents,
Families, and Friends of Lesbians and Gays, Inc., et al. by John H. Picker-
ing, Daniel H. Squire, and Carol J. Banta; for the Society of American
Law Teachers by Nan D. Hunter and David Cole; and for Roland Pool
et al. by David M. Gische and Merril Hirsh.
Michael D. Silverman filed a brief for the General Board of Church and
Society of the United Methodist Church et al.

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others that he is gay. He quickly became involved with, and
eventually became the copresident of, the Rutgers Univer-
sity Lesbian/Gay Alliance. In 1990, Dale attended a semi-
nar addressing the psychological and health needs of lesbian
and gay teenagers. A newspaper covering the event inter-
viewed Dale about his advocacy of homosexual teenagers’
need for gay role models. In early July 1990, the news-
paper published the interview and Dale’s photograph over a
caption identifying him as the copresident of the Lesbian/
Gay Alliance.
Later that month, Dale received a letter from Monmouth
Council Executive James Kay revoking his adult member-
ship. Dale wrote to Kay requesting the reason for Mon-
mouth Council’s decision. Kay responded by letter that the
Boy Scouts “specifically forbid membership to homosexu-
als.” App. 137.
In 1992, Dale filed a complaint against the Boy Scouts
in the New Jersey Superior Court. The complaint alleged
that the Boy Scouts had violated New Jersey’s public accom-
modations statute and its common law by revoking Dale’s
membership based solely on his sexual orientation. New
Jersey’s public accommodations statute prohibits, among
other things, discrimination on the basis of sexual orienta-
tion in places of public accommodation. N. J. Stat. Ann.
§§ 10:5–4 and 10:5–5 (West Supp. 2000); see Appendix, infra,
at 661–663.
The New Jersey Superior Court’s Chancery Division
granted summary judgment in favor of the Boy Scouts. The
court held that New Jersey’s public accommodations law was
inapplicable because the Boy Scouts was not a place of public
accommodation, and that, alternatively, the Boy Scouts is a
distinctly private group exempted from coverage under New
Jersey’s law. The court rejected Dale’s common-law claim,
holding that New Jersey’s policy is embodied in the public
accommodations law. The court also concluded that the Boy
Scouts’ position in respect of active homosexuality was clear

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and held that the First Amendment freedom of expressive
association prevented the government from forcing the Boy
Scouts to accept Dale as an adult leader.
The New Jersey Superior Court’s Appellate Division af-
firmed the dismissal of Dale’s common-law claim, but other-
wise reversed and remanded for further proceedings. 308
N. J. Super. 516, 706 A. 2d 270 (1998). It held that New
Jersey’s public accommodations law applied to the Boy
Scouts and that the Boy Scouts violated it. The Appellate
Division rejected the Boy Scouts’ federal constitutional
claims.
The New Jersey Supreme Court affirmed the judgment of
the Appellate Division. It held that the Boy Scouts was a
place of public accommodation subject to the public accom-
modations law, that the organization was not exempt from
the law under any of its express exceptions, and that the Boy
Scouts violated the law by revoking Dale’s membership
based on his avowed homosexuality. After considering the
state-law issues, the court addressed the Boy Scouts’ claims
that application of the public accommodations law in this case
violated its federal constitutional rights “ ‘to enter into and
maintain . . . intimate or private relationships . . . [and] to
associate for the purpose of engaging in protected speech.’ ”
160 N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board
of Directors of Rotary Int’l v. Rotary Club of Duarte, 481
U. S. 537, 544 (1987)). With respect to the right to intimate
association, the court concluded that the Boy Scouts’ “large
size, nonselectivity, inclusive rather than exclusive purpose,
and practice of inviting or allowing nonmembers to attend
meetings, establish that the organization is not ‘sufficiently
personal or private to warrant constitutional protection’
under the freedom of intimate association.” 160 N. J., at
608–609, 734 A. 2d, at 1221 (quoting Duarte, supra, at 546).
With respect to the right of expressive association, the court
“agree[d] that Boy Scouts expresses a belief in moral values
and uses its activities to encourage the moral development

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of its members.” 160 N. J., at 613, 734 A. 2d, at 1223. But
the court concluded that it was “not persuaded . . . that a
shared goal of Boy Scout members is to associate in order to
preserve the view that homosexuality is immoral.” Ibid.,
734 A. 2d, at 1223–1224 (internal quotation marks omitted).
Accordingly, the court held “that Dale’s membership does
not violate the Boy Scouts’ right of expressive association
because his inclusion would not ‘affect in any significant way
[the Boy Scouts’] existing members’ ability to carry out their
various purposes.’ ” Id., at 615, 734 A. 2d, at 1225 (quoting
Duarte, supra, at 548). The court also determined that
New Jersey has a compelling interest in eliminating “the de-
structive consequences of discrimination from our society,”
and that its public accommodations law abridges no more
speech than is necessary to accomplish its purpose. 160
N. J., at 619–620, 734 A. 2d, at 1227–1228. Finally, the court
addressed the Boy Scouts’ reliance on Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557 (1995), in support of its claimed First Amend-
ment right to exclude Dale. The court determined that
Hurley did not require deciding the case in favor of the Boy
Scouts because “the reinstatement of Dale does not compel
Boy Scouts to express any message.” 160 N. J., at 624, 734
A. 2d, at 1229.
We granted the Boy Scouts’ petition for certiorari to de-
termine whether the application of New Jersey’s public ac-
commodations law violated the First Amendment. 528 U. S.
1109 (2000).
II
In Roberts v. United States Jaycees, 468 U. S. 609, 622
(1984), we observed that “implicit in the right to engage in
activities protected by the First Amendment” is “a corre-
sponding right to associate with others in pursuit of a wide
variety of political, social, economic, educational, religious,
and cultural ends.” This right is crucial in preventing the
majority from imposing its views on groups that would

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rather express other, perhaps unpopular, ideas. See ibid.
(stating that protection of the right to expressive association
is “especially important in preserving political and cultural
diversity and in shielding dissident expression from suppres-
sion by the majority”). Government actions that may un-
constitutionally burden this freedom may take many forms,
one of which is “intrusion into the internal structure or af-
fairs of an association” like a “regulation that forces the
group to accept members it does not desire.” Id., at 623.
Forcing a group to accept certain members may impair the
ability of the group to express those views, and only those
views, that it intends to express. Thus, “[f]reedom of
association . . . plainly presupposes a freedom not to asso-
ciate.” Ibid.
The forced inclusion of an unwanted person in a group
infringes the group’s freedom of expressive association if
the presence of that person affects in a significant way
the group’s ability to advocate public or private viewpoints.
New York State Club Assn., Inc. v. City of New York, 487
U. S. 1, 13 (1988). But the freedom of expressive associa-
tion, like many freedoms, is not absolute. We have held that
the freedom could be overridden “by regulations adopted to
serve compelling state interests, unrelated to the suppres-
sion of ideas, that cannot be achieved through means signifi-
cantly less restrictive of associational freedoms.” Roberts,
supra, at 623.
To determine whether a group is protected by the First
Amendment’s expressive associational right, we must deter-
mine whether the group engages in “expressive association.”
The First Amendment’s protection of expressive association
is not reserved for advocacy groups. But to come within
its ambit, a group must engage in some form of expression,
whether it be public or private.
Because this is a First Amendment case where the ulti-
mate conclusions of law are virtually inseparable from find-
ings of fact, we are obligated to independently review the

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factual record to ensure that the state court’s judgment does
not unlawfully intrude on free expression. See Hurley,
supra, at 567–568. The record reveals the following. The
Boy Scouts is a private, nonprofit organization. According
to its mission statement:
“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:
“Scout Oath
“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.
“Scout Law
“A Scout is:
“Trustworthy Obedient
“Loyal Cheerful
“Helpful Thrifty
“Friendly Brave
“Courteous Clean
“Kind Reverent.” App. 184.
Thus, the general mission of the Boy Scouts is clear: “[T]o
instill values in young people.” Ibid. The Boy Scouts
seeks to instill these values by having its adult leaders spend
time with the youth members, instructing and engaging
them in activities like camping, archery, and fishing. During
the time spent with the youth members, the scoutmasters
and assistant scoutmasters inculcate them with the Boy

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Scouts’ values—both expressly and by example. It seems
indisputable that an association that seeks to transmit such
a system of values engages in expressive activity. See Rob-
erts, supra, at 636 (O’Connor, J., concurring) (“Even the
training of outdoor survival skills or participation in commu-
nity service might become expressive when the activity is
intended to develop good morals, reverence, patriotism, and
a desire for self-improvement”).
Given that the Boy Scouts engages in expressive activity,
we must determine whether the forced inclusion of Dale as
an assistant scoutmaster would significantly affect the Boy
Scouts’ ability to advocate public or private viewpoints.
This inquiry necessarily requires us first to explore, to
a limited extent, the nature of the Boy Scouts’ view of
homosexuality.
The values the Boy Scouts seeks to instill are “based on”
those listed in the Scout Oath and Law. App. 184. The Boy
Scouts explains that the Scout Oath and Law provide “a posi-
tive moral code for living; they are a list of ‘do’s’ rather than
‘don’ts.’ ” Brief for Petitioners 3. The Boy Scouts asserts
that homosexual conduct is inconsistent with the values em-
bodied in the Scout Oath and Law, particularly with the val-
ues represented by the terms “morally straight” and “clean.”
Obviously, the Scout Oath and Law do not expressly men-
tion sexuality or sexual orientation. See supra, at 649.
And the terms “morally straight” and “clean” are by no
means self-defining. Different people would attribute to
those terms very different meanings. For example, some
people may believe that engaging in homosexual conduct is
not at odds with being “morally straight” and “clean.” And
others may believe that engaging in homosexual conduct is
contrary to being “morally straight” and “clean.” The Boy
Scouts says it falls within the latter category.
The New Jersey Supreme Court analyzed the Boy Scouts’
beliefs and found that the “exclusion of members solely on
the basis of their sexual orientation is inconsistent with Boy

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Scouts’ commitment to a diverse and ‘representative’ mem-
bership . . . [and] contradicts Boy Scouts’ overarching objec-
tive to reach ‘all eligible youth.’ ” 160 N. J., at 618, 734
A. 2d, at 1226. The court concluded that the exclusion of
members like Dale “appears antithetical to the organization’s
goals and philosophy.” Ibid. But our cases reject this sort
of inquiry; it is not the role of the courts to reject a group’s
expressed values because they disagree with those values or
find them internally inconsistent. See Democratic Party of
United States v. Wisconsin ex rel. La Follette, 450 U. S. 107,
124 (1981) (“[A]s is true of all expressions of First Amend-
ment freedoms, the courts may not interfere on the ground
that they view a particular expression as unwise or irratio-
nal”); see also Thomas v. Review Bd. of Indiana Employ-
ment Security Div., 450 U. S. 707, 714 (1981) (“[R]eligious
beliefs need not be acceptable, logical, consistent, or com-
prehensible to others in order to merit First Amendment
protection”).
The Boy Scouts asserts that it “teach[es] that homosexual
conduct is not morally straight,” Brief for Petitioners 39, and
that it does “not want to promote homosexual conduct as a
legitimate form of behavior,” Reply Brief for Petitioners 5.
We accept the Boy Scouts’ assertion. We need not inquire
further to determine the nature of the Boy Scouts’ expres-
sion with respect to homosexuality. But because the record
before us contains written evidence of the Boy Scouts’ view-
point, we look to it as instructive, if only on the question of
the sincerity of the professed beliefs.
A 1978 position statement to the Boy Scouts’ Executive
Committee, signed by Downing B. Jenks, the President of
the Boy Scouts, and Harvey L. Price, the Chief Scout Execu-
tive, expresses the Boy Scouts’ “official position” with regard
to “homosexuality and Scouting”:
“Q. May an individual who openly declares himself to
be a homosexual be a volunteer Scout leader?

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“A. No. The Boy Scouts of America is a private,
membership organization and leadership therein is a
privilege and not a right. We do not believe that homo-
sexuality and leadership in Scouting are appropriate.
We will continue to select only those who in our judg-
ment meet our standards and qualifications for leader-
ship.” App. 453–454.
Thus, at least as of 1978—the year James Dale entered
Scouting—the official position of the Boy Scouts was that
avowed homosexuals were not to be Scout leaders.
A position statement promulgated by the Boy Scouts in
1991 (after Dale’s membership was revoked but before this
litigation was filed) also supports its current view:
“We believe that homosexual conduct is inconsistent
with the requirement in the Scout Oath that a Scout be
morally straight and in the Scout Law that a Scout be
clean in word and deed, and that homosexuals do not
provide a desirable role model for Scouts.” Id., at 457.
This position statement was redrafted numerous times but
its core message remained consistent. For example, a 1993
position statement, the most recent in the record, reads, in
part:
“The Boy Scouts of America has always reflected the
expectations that Scouting families have had for the
organization. We do not believe that homosexuals pro-
vide a role model consistent with these expectations.
Accordingly, we do not allow for the registration of
avowed homosexuals as members or as leaders of the
BSA.” Id., at 461.
The Boy Scouts publicly expressed its views with respect
to homosexual conduct by its assertions in prior litigation.
For example, throughout a California case with similar facts
filed in the early 1980’s, the Boy Scouts consistently asserted
the same position with respect to homosexuality that it as-
serts today. See Curran v. Mount Diablo Council of Boy

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Opinion of the Court
Scouts of America, No. C–365529 (Cal. Super. Ct., July 25,
1991); 48 Cal. App. 4th 670, 29 Cal. Rptr. 2d 580 (1994); 17
Cal. 4th 670, 952 P. 2d 218 (1998). We cannot doubt that the
Boy Scouts sincerely holds this view.
We must then determine whether Dale’s presence as an
assistant scoutmaster would significantly burden the Boy
Scouts’ desire to not “promote homosexual conduct as a legit-
imate form of behavior.” Reply Brief for Petitioners 5. As
we give deference to an association’s assertions regarding
the nature of its expression, we must also give deference to
an association’s view of what would impair its expression.
See, e. g., La Follette, supra, at 123–124 (considering whether
a Wisconsin law burdened the National Party’s associational
rights and stating that “a State, or a court, may not constitu-
tionally substitute its own judgment for that of the Party”).
That is not to say that an expressive association can erect a
shield against antidiscrimination laws simply by asserting
that mere acceptance of a member from a particular group
would impair its message. But here Dale, by his own admis-
sion, is one of a group of gay Scouts who have “become lead-
ers in their community and are open and honest about their
sexual orientation.” App. 11. Dale was the copresident of
a gay and lesbian organization at college and remains a gay
rights activist. Dale’s presence in the Boy Scouts would, at
the very least, force the organization to send a message, both
to the youth members and the world, that the Boy Scouts
accepts homosexual conduct as a legitimate form of behavior.
Hurley is illustrative on this point. There we considered
whether the application of Massachusetts’ public accommoda-
tions law to require the organizers of a private St. Patrick’s
Day parade to include among the marchers an Irish-
American gay, lesbian, and bisexual group, GLIB, violated
the parade organizers’ First Amendment rights. We noted
that the parade organizers did not wish to exclude the GLIB
members because of their sexual orientations, but because
they wanted to march behind a GLIB banner. We observed:

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“[A] contingent marching behind the organization’s ban-
ner would at least bear witness to the fact that some
Irish are gay, lesbian, or bisexual, and the presence of
the organized marchers would suggest their view that
people of their sexual orientations have as much claim
to unqualified social acceptance as heterosexuals . . . .
The parade’s organizers may not believe these facts
about Irish sexuality to be so, or they may object to
unqualified social acceptance of gays and lesbians or
have some other reason for wishing to keep GLIB’s mes-
sage out of the parade. But whatever the reason, it
boils down to the choice of a speaker not to propound a
particular point of view, and that choice is presumed to
lie beyond the government’s power to control.” 515
U. S., at 574–575.
Here, we have found that the Boy Scouts believes that homo-
sexual conduct is inconsistent with the values it seeks to
instill in its youth members; it will not “promote homosex-
ual conduct as a legitimate form of behavior.” Reply Brief
for Petitioners 5. As the presence of GLIB in Boston’s
St. Patrick’s Day parade would have interfered with the pa-
rade organizers’ choice not to propound a particular point of
view, the presence of Dale as an assistant scoutmaster would
just as surely interfere with the Boy Scout’s choice not to
propound a point of view contrary to its beliefs.
The New Jersey Supreme Court determined that the Boy
Scouts’ ability to disseminate its message was not signifi-
cantly affected by the forced inclusion of Dale as an assistant
scoutmaster because of the following findings:
“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

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in respect of homosexuality.” 160 N. J., at 612, 734
A. 2d, at 1223.
We disagree with the New Jersey Supreme Court’s conclu-
sion drawn from these findings.
First, associations do not have to associate for the “pur-
pose” of disseminating a certain message in order to be enti-
tled to the protections of the First Amendment. An associa-
tion must merely engage in expressive activity that could be
impaired in order to be entitled to protection. For example,
the purpose of the St. Patrick’s Day parade in Hurley was
not to espouse any views about sexual orientation, but we
held that the parade organizers had a right to exclude certain
participants nonetheless.
Second, even if the Boy Scouts discourages Scout leaders
from disseminating views on sexual issues—a fact that the
Boy Scouts disputes with contrary evidence—the First
Amendment protects the Boy Scouts’ method of expression.
If the Boy Scouts wishes Scout leaders to avoid questions of
sexuality and teach only by example, this fact does not ne-
gate the sincerity of its belief discussed above.
Third, the First Amendment simply does not require that
every member of a group agree on every issue in order for
the group’s policy to be “expressive association.” The Boy
Scouts takes an official position with respect to homosexual
conduct, and that is sufficient for First Amendment pur-
poses. In this same vein, Dale makes much of the claim that
the Boy Scouts does not revoke the membership of hetero-
sexual Scout leaders that openly disagree with the Boy
Scouts’ policy on sexual orientation. But if this is true, it is
irrelevant.1 The presence of an avowed homosexual and gay
1 The record evidence sheds doubt on Dale’s assertion. For example,
the National Director of the Boy Scouts certified that “any persons who
advocate to Scouting youth that homosexual conduct is” consistent with
Scouting values will not be registered as adult leaders. App. 746 (empha-
sis added). And the Monmouth Council Scout Executive testified that the

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656 BOY SCOUTS OF AMERICA v. DALE
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rights activist in an assistant scoutmaster’s uniform sends a
distinctly different message from the presence of a hetero-
sexual assistant scoutmaster who is on record as disagreeing
with Boy Scouts policy. The Boy Scouts has a First Amend-
ment right to choose to send one message but not the other.
The fact that the organization does not trumpet its views
from the housetops, or that it tolerates dissent within its
ranks, does not mean that its views receive no First Amend-
ment protection.
Having determined that the Boy Scouts is an expressive
association and that the forced inclusion of Dale would sig-
nificantly affect its expression, we inquire whether the appli-
cation of New Jersey’s public accommodations law to require
that the Boy Scouts accept Dale as an assistant scoutmaster
runs afoul of the Scouts’ freedom of expressive association.
We conclude that it does.
State public accommodations laws were originally enacted
to prevent discrimination in traditional places of public
accommodation—like inns and trains. See, e. g., Hurley,
supra, at 571–572 (explaining the history of Massachusetts’
public accommodations law); Romer v. Evans, 517 U. S. 620,
627–629 (1996) (describing the evolution of public accommo-
dations laws). Over time, the public accommodations laws
have expanded to cover more places.2 New Jersey’s statu-
advocacy of the morality of homosexuality to youth members by any adult
member is grounds for revocation of the adult’s membership. Id., at 761.
2 Public accommodations laws have also broadened in scope to cover
more groups; they have expanded beyond those groups that have been
given heightened equal protection scrutiny under our cases. See Romer,
517 U. S., at 629. Some municipal ordinances have even expanded to
cover criteria such as prior criminal record, prior psychiatric treatment,
military status, personal appearance, source of income, place of residence,
and political ideology. See 1 Boston, Mass., Ordinance No. § 12–9.7
(1999) (ex-offender, prior psychiatric treatment, and military status); D. C.
Code Ann. § 1–2519 (1999) (personal appearance, source of income, place
of residence); Seattle, Wash., Municipal Code § 14.08.090 (1999) (political
ideology).

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tory definition of “ ‘[a] place of public accommodation’ ” is ex-
tremely broad. The term is said to “include, but not be lim-
ited to,” a list of over 50 types of places. N. J. Stat. Ann.
§ 10:5–5(l) (West Supp. 2000); see Appendix, infra, at 661–
663. Many on the list are what one would expect to be
places where the public is invited. For example, the statute
includes as places of public accommodation taverns, restau-
rants, retail shops, and public libraries. But the statute also
includes places that often may not carry with them open invi-
tations to the public, like summer camps and roof gardens.
In this case, the New Jersey Supreme Court went a step
further and applied its public accommodations law to a pri-
vate entity without even attempting to tie the term “place”
to a physical location.3 As the definition of “public accom-
modation” has expanded from clearly commercial entities,
such as restaurants, bars, and hotels, to membership orga-
nizations such as the Boy Scouts, the potential for conflict
between state public accommodations laws and the First
Amendment rights of organizations has increased.
We recognized in cases such as Roberts and Duarte that
States have a compelling interest in eliminating discrimina-
tion against women in public accommodations. But in each
of these cases we went on to conclude that the enforcement
of these statutes would not materially interfere with the
ideas that the organization sought to express. In Roberts,
we said “[i]ndeed, the Jaycees has failed to demonstrate . . .
3 Four State Supreme Courts and one United States Court of Appeals
have ruled that the Boy Scouts is not a place of public accommodation.
Welsh v. Boy Scouts of America, 993 F. 2d 1267 (CA7), cert. denied, 510
U. S. 1012 (1993); Curran v. Mount Diablo Council of the Boy Scouts of
America, 17 Cal. 4th 670, 952 P. 2d 218 (1998); Seabourn v. Coronado
Area Council, Boy Scouts of America, 257 Kan. 178, 891 P. 2d 385 (1995);
Quinnipiac Council, Boy Scouts of America, Inc. v. Comm’n on Human
Rights & Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987); Schwenk v.
Boy Scouts of America, 275 Ore. 327, 551 P. 2d 465 (1976). No federal
appellate court or state supreme court—except the New Jersey Supreme
Court in this case—has reached a contrary result.

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any serious burdens on the male members’ freedom of
expressive association.” 468 U. S., at 626. In Duarte, we
said:
“[I]mpediments to the exercise of one’s right to choose
one’s associates can violate the right of association pro-
tected by the First Amendment. In this case, however,
the evidence fails to demonstrate that admitting women
to Rotary Clubs will affect in any significant way the
existing members’ ability to carry out their various pur-
poses.” 481 U. S., at 548 (internal quotation marks and
citations omitted).
We thereupon concluded in each of these cases that the orga-
nizations’ First Amendment rights were not violated by the
application of the States’ public accommodations laws.
In Hurley, we said that public accommodations laws “are
well within the State’s usual power to enact when a legisla-
ture has reason to believe that a given group is the target of
discrimination, and they do not, as a general matter, violate
the First or Fourteenth Amendments.” 515 U. S., at 572.
But we went on to note that in that case “the Massachusetts
[public accommodations] law has been applied in a peculiar
way” because “any contingent of protected individuals with
a message would have the right to participate in petitioners’
speech, so that the communication produced by the private
organizers would be shaped by all those protected by the law
who wished to join in with some expressive demonstration
of their own.” Id., at 572–573. And in the associational
freedom cases such as Roberts, Duarte, and New York State
Club Assn., after finding a compelling state interest, the
Court went on to examine whether or not the application
of the state law would impose any “serious burden” on the
organization’s rights of expressive association. So in these
cases, the associational interest in freedom of expression has

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been set on one side of the scale, and the State’s interest on
the other.
Dale contends that we should apply the intermediate
standard of review enunciated in United States v. O’Brien,
391 U. S. 367 (1968), to evaluate the competing interests.
There the Court enunciated a four-part test for review of a
governmental regulation that has only an incidental effect
on protected speech—in that case the symbolic burning of a
draft card. A law prohibiting the destruction of draft cards
only incidentally affects the free speech rights of those who
happen to use a violation of that law as a symbol of protest.
But New Jersey’s public accommodations law directly and
immediately affects associational rights, in this case associa-
tional rights that enjoy First Amendment protection. Thus,
O’Brien is inapplicable.
In Hurley, we applied traditional First Amendment analy-
sis to hold that the application of the Massachusetts public
accommodations law to a parade violated the First Amend-
ment rights of the parade organizers. Although we did not
explicitly deem the parade in Hurley an expressive associa-
tion, the analysis we applied there is similar to the analysis
we apply here. We have already concluded that a state re-
quirement that the Boy Scouts retain Dale as an assistant
scoutmaster would significantly burden the organization’s
right to oppose or disfavor homosexual conduct. The state
interests embodied in New Jersey’s public accommodations
law do not justify such a severe intrusion on the Boy Scouts’
rights to freedom of expressive association. That being the
case, we hold that the First Amendment prohibits the State
from imposing such a requirement through the application of
its public accommodations law.4
4 We anticipated this result in Hurley when we illustrated the reasons
for our holding in that case by likening the parade to a private member-
ship organization. 515 U. S., at 580. We stated: “Assuming the parade

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660 BOY SCOUTS OF AMERICA v. DALE
Opinion of the Court
Justice Stevens’ dissent makes much of its observation
that the public perception of homosexuality in this country
has changed. See post, at 699–700. Indeed, it appears that
homosexuality has gained greater societal acceptance. See
ibid. But this is scarcely an argument for denying First
Amendment protection to those who refuse to accept these
views. The First Amendment protects expression, be it of
the popular variety or not. See, e. g., Texas v. Johnson, 491
U. S. 397 (1989) (holding that Johnson’s conviction for burn-
ing the American flag violates the First Amendment); Bran-
denburg v. Ohio, 395 U. S. 444 (1969) (per curiam) (holding
that a Ku Klux Klan leader’s conviction for advocating un-
lawfulness as a means of political reform violates the First
Amendment). And the fact that an idea may be embraced
and advocated by increasing numbers of people is all the
more reason to protect the First Amendment rights of those
who wish to voice a different view.
Justice Stevens’ extolling of Justice Brandeis’ comments
in New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932)
(dissenting opinion); see post, at 664, 700, confuses two en-
tirely different principles. In New State Ice, the Court
struck down an Oklahoma regulation prohibiting the manu-
facture, sale, and distribution of ice without a license. Jus-
tice Brandeis, a champion of state experimentation in the
economic realm, dissented. But Justice Brandeis was never
a champion of state experimentation in the suppression of
free speech. To the contrary, his First Amendment com-
mentary provides compelling support for the Court’s opinion
in this case. In speaking of the Founders of this Nation,
Justice Brandeis emphasized that they “believed that free-
to be large enough and a source of benefits (apart from its expression) that
would generally justify a mandated access provision, GLIB could none-
theless be refused admission as an expressive contingent with its own
message just as readily as a private club could exclude an applicant whose
manifest views were at odds with a position taken by the club’s existing
members.” Id., at 580–581.

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Appendix to opinion of the Court
dom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth.”
Whitney v. California, 274 U. S. 357, 375 (1927) (concurring
opinion). He continued:
“Believing in the power of reason as applied through
public discussion, they eschewed silence coerced by
law—the argument of force in its worst form. Recog-
nizing the occasional tyrannies of governing majorities,
they amended the Constitution so that free speech and
assembly should be guaranteed.” Id., at 375–376.
We are not, as we must not be, guided by our views of
whether the Boy Scouts’ teachings with respect to homosex-
ual conduct are right or wrong; public or judicial disapproval
of a tenet of an organization’s expression does not justify the
State’s effort to compel the organization to accept members
where such acceptance would derogate from the organiza-
tion’s expressive message. “While the law is free to pro-
mote all sorts of conduct in place of harmful behavior, it is
not free to interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored
one, however enlightened either purpose may strike the gov-
ernment.” Hurley, 515 U. S., at 579.
The judgment of the New Jersey Supreme Court is re-
versed, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
N. J. Stat. Ann. § 10:5–4 (West Supp. 2000). “Obtaining em-
ployment, accommodations and privileges without discrimi-
nation; civil right
“All persons shall have the opportunity to obtain employ-
ment, and to obtain all the accommodations, advantages,
facilities, and privileges of any place of public accommoda-

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662 BOY SCOUTS OF AMERICA v. DALE
Appendix to opinion of the Court
tion, publicly assisted housing accommodation, and other real
property without discrimination because of race, creed, color,
national origin, ancestry, age, marital status, affectional or
sexual orientation, familial status, or sex, subject only to con-
ditions and limitations applicable alike to all persons. This
opportunity is recognized as and declared to be a civil right.”
N. J. Stat. Ann. § 10:5–5 (West Supp. 2000). “Definitions
“As used in this act, unless a different meaning clearly
appears from the context:
. . . . .
“l. ‘A place of public accommodation’ shall include, but
not be limited to: any tavern, roadhouse, hotel, motel, trailer
camp, summer camp, day camp, or resort camp, whether for
entertainment of transient guests or accommodation of those
seeking health, recreation or rest; any producer, manufac-
turer, wholesaler, distributor, retail shop, store, establish-
ment, or concession dealing with goods or services of any
kind; any restaurant, eating house, or place where food is
sold for consumption on the premises; any place maintained
for the sale of ice cream, ice and fruit preparations or their
derivatives, soda water or confections, or where any bever-
ages of any kind are retailed for consumption on the prem-
ises; any garage, any public conveyance operated on land or
water, or in the air, any stations and terminals thereof; any
bathhouse, boardwalk, or seashore accommodation; any audi-
torium, meeting place, or hall; any theatre, motion-picture
house, music hall, roof garden, skating rink, swimming pool,
amusement and recreation park, fair, bowling alley, gymna-
sium, shooting gallery, billiard and pool parlor, or other place
of amusement; any comfort station; any dispensary, clinic or
hospital; any public library; any kindergarten, primary and
secondary school, trade or business school, high school, acad-
emy, college and university, or any educational institution
under the supervision of the State Board of Education, or
the Commissioner of Education of the State of New Jersey.

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Stevens, J., dissenting
Nothing herein contained shall be construed to include or to
apply to any institution, bona fide club, or place of accommo-
dation, which is in its nature distinctly private; nor shall any-
thing herein contained apply to any educational facility oper-
ated or maintained by a bona fide religious or sectarian
institution, and the right of a natural parent or one in loco
parentis to direct the education and upbringing of a child
under his control is hereby affirmed; nor shall anything
herein contained be construed to bar any private secondary
or post secondary school from using in good faith criteria
other than race, creed, color, national origin, ancestry or af-
fectional or sexual orientation in the admission of students.”
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
New Jersey “prides itself on judging each individual by
his or her merits” and on being “in the vanguard in the fight
to eradicate the cancer of unlawful discrimination of all types
from our society.” Peper v. Princeton Univ. Bd. of Trust-
ees, 77 N. J. 55, 80, 389 A. 2d 465, 478 (1978). Since 1945, it
has had a law against discrimination. The law broadly pro-
tects the opportunity of all persons to obtain the advantages
and privileges “of any place of public accommodation.”
N. J. Stat. Ann. § 10:5–4 (West Supp. 2000). The New Jersey
Supreme Court’s construction of the statutory definition of a
“place of public accommodation” has given its statute a more
expansive coverage than most similar state statutes. And
as amended in 1991, the law prohibits discrimination on the
basis of nine different traits including an individual’s “sexual
orientation.” 1 The question in this case is whether that ex-
1 In 1992, the statute was again amended to add “familial status” as a
tenth protected class. It now provides:
“10:5–4 Obtaining employment, accommodations and privileges without
discrimination; civil right
“All persons shall have the opportunity to obtain employment, and to ob-
tain all the accommodations, advantages, facilities, and privileges of any

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664 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
pansive construction trenches on the federal constitutional
rights of the Boy Scouts of America (BSA).
Because every state law prohibiting discrimination is de-
signed to replace prejudice with principle, Justice Brandeis’
comment on the States’ right to experiment with “things
social” is directly applicable to this case.
“To stay experimentation in things social and economic
is a grave responsibility. Denial of the right to experi-
ment may be fraught with serious consequences to the
Nation. It is one of the happy incidents of the federal
system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the
country. This Court has the power to prevent an exper-
iment. We may strike down the statute which embod-
ies it on the ground that, in our opinion, the measure is
arbitrary, capricious or unreasonable. We have power
to do this, because the due process clause has been held
by the Court applicable to matters of substantive law as
well as to matters of procedure. But in the exercise of
this high power, we must be ever on our guard, lest we
erect our prejudices into legal principles. If we would
guide by the light of reason, we must let our minds be
bold.” New State Ice Co. v. Liebmann, 285 U. S. 262,
311 (1932) (dissenting opinion).
In its “exercise of this high power” today, the Court does not
accord this “courageous State” the respect that is its due.
The majority holds that New Jersey’s law violates BSA’s
right to associate and its right to free speech. But that law
place of public accommodation, publicly assisted housing accommodation,
and other real property without discrimination because of race, creed,
color, national origin, ancestry, age, marital status, affectional or sexual
orientation, familial status, or sex, subject only to conditions and limita-
tions applicable alike to all persons. This opportunity is recognized as
and declared to be a civil right.”

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Stevens, J., dissenting
does not “impos[e] any serious burdens” on BSA’s “collective
effort on behalf of [its] shared goals,” Roberts v. United
States Jaycees, 468 U. S. 609, 622, 626–627 (1984), nor does it
force BSA to communicate any message that it does not wish
to endorse. New Jersey’s law, therefore, abridges no consti-
tutional right of BSA.
I
James Dale joined BSA as a Cub Scout in 1978, when he
was eight years old. Three years later he became a Boy
Scout, and he remained a member until his 18th birthday.
Along the way, he earned 25 merit badges, was admitted into
the prestigious Order of the Arrow, and was awarded the
rank of Eagle Scout—an honor given to only three percent
of all Scouts. In 1989, BSA approved his application to be
an Assistant Scoutmaster.
On July 19, 1990, after more than 12 years of active and
honored participation, the BSA sent Dale a letter advising
him of the revocation of his membership. The letter stated
that membership in BSA “is a privilege” that may be denied
“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.” App. 135. Express-
ing surprise at his sudden expulsion, Dale sent a letter
requesting an explanation of the decision. Id., at 136. In
response, BSA sent him a second letter stating that the
grounds for the decision “are the standards for leadership
established by the Boy Scouts of America, which specifically
forbid membership to homosexuals.” Id., at 137. At that
time, no such standard had been publicly expressed by BSA.
In this case, BSA contends that it teaches the young boys
who are Scouts that homosexuality is immoral. Conse-
quently, it argues, it would violate its right to associate to
force it to admit homosexuals as members, as doing so would
be at odds with its own shared goals and values. This con-
tention, quite plainly, requires us to look at what, exactly,
are the values that BSA actually teaches.

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666 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
BSA’s mission statement reads as follows: “It is the mis-
sion of the Boy Scouts of America to serve others by helping
to instill values in young people and, in other ways, to pre-
pare them to make ethical choices over their lifetime in
achieving their full potential.” Id., at 184. Its federal char-
ter declares its purpose is “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 kin-
dred values, using the methods which were in common use
by Boy Scouts on June 15, 1916.” 36 U. S. C. § 23; see also
App. 315–316. BSA describes itself as having a “repre-
sentative membership,” which it defines as “boy membership
[that] reflects proportionately the characteristics of the boy
population of its service area.” Id., at 65. In particular,
the group emphasizes that “[n]either the charter nor the by-
laws of the Boy Scouts of America permits the exclusion of
any boy. . . . To meet these responsibilities we have made a
commitment that our membership shall be representative of
all the population in every community, district, and council.”
Id., at 66–67 (emphasis in original).
To instill its shared values, BSA has adopted a “Scout
Oath” and a “Scout Law” setting forth its central tenets.
For example, the Scout Law requires a member to promise,
among other things, that he will be “obedient.” Accompa-
nying definitions for the terms found in the Oath and Law
are provided in the Boy Scout Handbook and the Scoutmas-
ter Handbook. For instance, the Boy Scout Handbook de-
fines “obedient” as follows:
“A Scout is OBEDIENT. A Scout follows the rules of
his family, school, and troop. He obeys the laws of his
community and country. If he thinks these rules and
laws are unfair, he tries to have them changed in an
orderly manner rather than disobey them.” Id., at 188
(emphasis deleted).

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Stevens, J., dissenting
To bolster its claim that its shared goals include teaching
that homosexuality is wrong, BSA directs our attention to
two terms appearing in the Scout Oath and Law. The first
is the phrase “morally straight,” which appears in the Oath
(“On my honor I will do my best . . . To keep myself . . .
morally straight”); the second term is the word “clean,”
which appears in a list of 12 characteristics together consti-
tuting the Scout Law.
The Boy Scout Handbook defines “morally straight,” as
such:
“To be a person of strong character, guide your life with
honesty, purity, and justice. Respect and defend the
rights of all people. Your relationships with others
should be honest and open. Be clean in your speech
and actions, and faithful in your religious beliefs. The
values you follow as a Scout will help you become virtu-
ous and self-reliant.” Id., at 218 (emphasis deleted).
The Scoutmaster Handbook emphasizes these points about
being “morally straight”:
“In any consideration of moral fitness, a key word has
to be ‘courage.’ A boy’s courage to do what his head
and his heart tell him is right. And the courage to re-
fuse to do what his heart and his head say is wrong.
Moral fitness, like emotional fitness, will clearly present
opportunities for wise guidance by an alert Scoutmas-
ter.” Id., at 239–240.
As for the term “clean,” the Boy Scout Handbook offers the
following:
“A Scout is CLEAN. A Scout keeps his body and mind
fit and clean. He chooses the company of those who
live by these same ideals. He helps keep his home and
community clean.
“You never need to be ashamed of dirt that will wash
off. If you play hard and work hard you can’t help get-

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ting dirty. But when the game is over or the work is
done, that kind of dirt disappears with soap and water.
“There’s another kind of dirt that won’t come off by
washing. It is the kind that shows up in foul language
and harmful thoughts.
“Swear words, profanity, and dirty stories are weapons
that ridicule other people and hurt their feelings. The
same is true of racial slurs and jokes making fun of eth-
nic groups or people with physical or mental limitations.
A Scout knows there is no kindness or honor in such
mean-spirited behavior. He avoids it in his own words
and deeds. He defends those who are targets of in-
sults.” Id., at 225–226 (emphasis in original); see also
id., at 189.2
It is plain as the light of day that neither one of these prin-
ciples—“morally straight” and “clean”—says the slightest
thing about homosexuality. Indeed, neither term in the Boy
2 Scoutmasters are instructed to teach what it means to be “clean” using
the following lesson:
“(Hold up two cooking pots, one shiny bright on the inside but sooty out-
side, the other shiny outside but dirty inside.) Scouts, which of these pots
would you rather have your food cooked in? Did I hear somebody say,
‘Neither one?’
“That’s not a bad answer. We wouldn’t have much confidence in a patrol
cook who didn’t have his pots shiny both inside and out.
“But if we had to make a choice, we would tell the cook to use the pot
that’s clean inside. The same idea applies to people.
“Most people keep themselves clean outside. But how about the inside?
Do we try to keep our minds and our language clean? I think that’s even
more important than keeping the outside clean.
“A Scout, of course, should be clean inside and out. Water, soap, and a
toothbrush tak[e] care of the outside. Only your determination will keep
the inside clean. You can do it by following the Scout Law and the exam-
ple of people you respect—your parents, your teachers, your clergyman,
or a good buddy who is trying to do the same thing.” App. 289–290.

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Scouts’ Law and Oath expresses any position whatsoever on
sexual matters.
BSA’s published guidance on that topic underscores this
point. Scouts, for example, are directed to receive their sex
education at home or in school, but not from the organization:
“Your parents or guardian or a sex education teacher should
give you the facts about sex that you must know.” Boy
Scout Handbook (1992) (reprinted in App. 211). To be sure,
Scouts are not forbidden from asking their Scoutmaster
about issues of a sexual nature, but Scoutmasters are, liter-
ally, the last person Scouts are encouraged to ask: “If you
have questions about growing up, about relationships,
sex, or making good decisions, ask. Talk with your parents,
religious leaders, teachers, or Scoutmaster.” Ibid. More-
over, Scoutmasters are specifically directed to steer curious
adolescents to other sources of information:
“If Scouts ask for information regarding . . . sexual activ-
ity, answer honestly and factually, but stay within your
realm of expertise and comfort. If a Scout has serious
concerns that you cannot answer, refer him to his family,
religious leader, doctor, or other professional.” Scout-
master Handbook (1990) (reprinted in App. 264).
More specifically, BSA has set forth a number of rules for
Scoutmasters when these types of issues come up:
“You may have boys asking you for information or ad-
vice about sexual matters. . . .
“How should you handle such matters?
“Rule number 1: You do not undertake to instruct
Scouts, in any formalized manner, in the subject of sex
and family life. The reasons are that it is not con-
strued to be Scouting’s proper area, and that you are
probably not well qualified to do this.
“Rule number 2: If Scouts come to you to ask questions
or to seek advice, you would give it within your compe-

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Stevens, J., dissenting
tence. A boy who appears to be asking about sexual
intercourse, however, may really only be worried about
his pimples, so it is well to find out just what information
is needed.
“Rule number 3: You should refer boys with sexual prob-
lems to persons better qualified than you [are] to handle
them. If the boy has a spiritual leader or a doctor who
can deal with them, he should go there. If such persons
are not available, you may just have to do the best you
can. But don’t try to play a highly professional role.
And at the other extreme, avoid passing the buck.”
Scoutmaster Handbook (1972) (reprinted in App. 546–
547) (emphasis added).
In light of BSA’s self-proclaimed ecumenism, furthermore,
it is even more difficult to discern any shared goals or com-
mon moral stance on homosexuality. Insofar as religious
matters are concerned, BSA’s bylaws state that it is “abso-
lutely nonsectarian in its attitude toward . . . religious train-
ing.” Id., at 362. “The BSA does not define what consti-
tutes duty to God or the practice of religion. This is the
responsibility of parents and religious leaders.” Id., at 76.
In fact, many diverse religious organizations sponsor local
Boy Scout troops. Brief for Petitioners 3. Because a
number of religious groups do not view homosexuality as
immoral or wrong and reject discrimination against homo-
sexuals,3 it is exceedingly difficult to believe that BSA none-
3 See, e. g., Brief for Deans of Divinity Schools and Rabbinical Institu-
tions as Amicus Curiae 8 (“The diverse religi[ous] traditions of this coun-
try present no coherent moral message that excludes gays and lesbians
from participating as full and equal members of those institutions. In-
deed, the movement among a number of the nation’s major religious insti-
tutions for many decades has been toward public recognition of gays and
lesbians as full members of moral communities, and acceptance of gays
and lesbians as religious leaders, elders and clergy”); Brief for General
Board of Church and Society of the United Methodist Church et al. as

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theless adopts a single particular religious or moral philoso-
phy when it comes to sexual orientation. This is especially
so in light of the fact that Scouts are advised to seek guid-
ance on sexual matters from their religious leaders (and
Scoutmasters are told to refer Scouts to them); 4 BSA surely
is aware that some religions do not teach that homosexuality
is wrong.
II
The Court seeks to fill the void by pointing to a statement
of “policies and procedures relating to homosexuality and
Scouting,” App. 453, signed by BSA’s President and Chief
Scout Executive in 1978 and addressed to the members of the
Executive Committee of the national organization. Ante, at
651–652. The letter says that the BSA does “not believe
that homosexuality and leadership in Scouting are appro-
priate.” App. 454. But when the entire 1978 letter is read,
BSA’s position is far more equivocal:
“4. Q. May an individual who openly declares himself
to be a homosexual be employed by the Boy Scouts of
America as a professional or non-professional?
“A. Boy Scouts of America does not knowingly em-
ploy homosexuals as professionals or non-professionals.
We are unaware of any present laws which would pro-
hibit this policy.
Amicus Curiae 3 (describing views of the United Methodist Church, the
Episcopal Church, the Religious Action Center of Reform Judaism, the
United Church Board for Homeland Ministries, and the Unitarian Univer-
salist Association, all of whom reject discrimination on the basis of sex-
ual orientation).
4 See supra, at 667 (“Be . . . faithful in your religious beliefs”); supra, at
668, n. 2 (“by following . . . the example of . . . your clergyman”); supra,
at 669 (“If you have questions about . . . sex, . . . [t]alk with your . . . re-
ligious leade[r]”); ibid. (“If Scouts ask for information regarding . . . sexual
activity . . . refer him to his . . . religious leader”); supra, at 670 (“You
should refer boys with sexual problems to [their] spiritual leader”).

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“5. Q. Should a professional or non-professional indi-
vidual who openly declares himself to be a homosexual
be terminated?
“A. Yes, in the absence of any law to the contrary.
At the present time we are unaware of any statute or
ordinance in the United States which prohibits discrimi-
nation against individual’s employment upon the basis of
homosexuality. In the event that such a law was appli-
cable, it would be necessary for the Boy Scouts of
America to obey it, in this case as in Paragraph 4 above.
It is our position, however, that homosexuality and pro-
fessional or non-professional employment in Scouting
are not appropriate.” Id., at 454–455 (emphasis added).
Four aspects of the 1978 policy statement are relevant to
the proper disposition of this case. First, at most this letter
simply adopts an exclusionary membership policy. But sim-
ply adopting such a policy has never been considered suffi-
cient, by itself, to prevail on a right to associate claim. See
infra, at 678–685.
Second, the 1978 policy was never publicly expressed—un-
like, for example, the Scout’s duty to be “obedient.” It was
an internal memorandum, never circulated beyond the few
members of BSA’s Executive Committee. It remained, in
effect, a secret Boy Scouts policy. Far from claiming any
intent to express an idea that would be burdened by the
presence of homosexuals, BSA’s public posture—to the
world and to the Scouts themselves—remained what it had
always been: one of tolerance, welcoming all classes of boys
and young men. In this respect, BSA’s claim is even weaker
than those we have rejected in the past. See ibid.
Third, it is apparent that the draftsmen of the policy state-
ment foresaw the possibility that laws against discrimination
might one day be amended to protect homosexuals from em-
ployment discrimination. Their statement clearly provided
that, in the event such a law conflicted with their policy, a
Scout’s duty to be “obedient” and “obe[y] the laws,” even if
“he thinks [the laws] are unfair,” would prevail in such a

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Stevens, J., dissenting
contingency. See supra, at 666. In 1978, however, BSA ap-
parently did not consider it to be a serious possibility that a
State might one day characterize the Scouts as a “place of
public accommodation” with a duty to open its membership
to all qualified individuals. The portions of the statement
dealing with membership simply assume that membership in
the Scouts is a “privilege” that BSA is free to grant or to
withhold. The statement does not address the question
whether the publicly proclaimed duty to obey the law should
prevail over the private discriminatory policy if, and when,
a conflict between the two should arise—as it now has in
New Jersey. At the very least, then, the statement reflects
no unequivocal view on homosexuality. Indeed, the state-
ment suggests that an appropriate way for BSA to preserve
its unpublished exclusionary policy would include an open
and forthright attempt to seek an amendment of New Jer-
sey’s statute. (“If he thinks these rules and laws are unfair,
he tries to have them changed in an orderly manner rather
than disobey them.”)
Fourth, the 1978 statement simply says that homosexual-
ity is not “appropriate.” It makes no effort to connect that
statement to a shared goal or expressive activity of the Boy
Scouts. Whatever values BSA seeks to instill in Scouts, the
idea that homosexuality is not “appropriate” appears entirely
unconnected to, and is mentioned nowhere in, the myriad of
publicly declared values and creeds of the BSA. That idea
does not appear to be among any of the principles actually
taught to Scouts. Rather, the 1978 policy appears to be no
more than a private statement of a few BSA executives that
the organization wishes to exclude gays—and that wish has
nothing to do with any expression BSA actually engages in.
The majority also relies on four other policy statements
that were issued between 1991 and 1993.5 All of them were
5 The authorship and distribution of these statements remain obscure.
Unlike the 1978 policy—which clearly identifies the authors as the Presi-
dent and the Chief Scout Executive of BSA—these later policies are un-
signed. Two of them are initialed (one is labeled “JCK”; the other says

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written and issued after BSA revoked Dale’s membership.
Accordingly, they have little, if any, relevance to the legal
question before this Court.6 In any event, they do not bol-
ster BSA’s claim.
In 1991, BSA issued two statements both stating: “We be-
lieve that homosexual conduct is inconsistent with the re-
quirement in the Scout Oath that a Scout be morally straight
and in the Scout Law that a Scout be clean in word and deed,
and that homosexuals do not provide a desirable role model
for Scouts.” App. 457–458. A third statement issued in
1992 was substantially the same. Id., at 459. By 1993,
however, the policy had changed:
“BSA Position
“The Boy Scouts of America has always reflected the
expectations that Scouting families have had for the
organization.
“We do not believe that homosexuals provide a role
model consistent with these expectations.
“Accordingly, we do not allow for the registration of
avowed homosexuals as members or as leaders of the
BSA.” Id., at 461.
Aside from the fact that these statements were all issued
after Dale’s membership was revoked, there are four impor-
tant points relevant to them. First, while the 1991 and 1992
“js”), but BSA never tells us to whom these initials belong. Nor do we
know how widely these statements were distributed. From the record
evidence we have, it appears that they were not as readily available as
the Boy Scout and Scoutmaster Handbooks; indeed, they appear to be
quite difficult to get a hold of. See App. 662, 668–669.
6 Dale’s complaint requested three forms of relief: (1) a declaration that
his rights under the New Jersey statute had been violated when his mem-
bership was revoked; (2) an order reinstating his membership; and (3)
compensatory and punitive damages. Id., at 27. Nothing that BSA could
have done after the revocation of his membership could affect Dale’s first
request for relief, though perhaps some possible postrevocation action
could have influenced the other two requests for relief.

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statements tried to tie BSA’s exclusionary policy to the
meaning of the Scout Oath and Law, the 1993 statement
abandoned that effort. Rather, BSA’s 1993 homosexual ex-
clusion policy was based on its view that including gays
would be contrary to “the expectations that Scouting fami-
lies have had for the organization.” Ibid. Instead of link-
ing its policy to its central tenets or shared goals—to teach
certain definitions of what it means to be “morally straight”
and “clean”—BSA chose instead to justify its policy on the
“expectatio[n]” that its members preferred to exclude homo-
sexuals. The 1993 policy statement, in other words, was not
based on any expressive activity or on any moral view about
homosexuality. It was simply an exclusionary membership
policy, similar to those we have held insufficient in the past.
See infra, at 678–685.
Second, even during the brief period in 1991 and 1992,
when BSA tried to connect its exclusion of homosexuals to
its definition of terms found in the Oath and Law, there is no
evidence that Scouts were actually taught anything about
homosexuality’s alleged inconsistency with those principles.
Beyond the single sentence in these policy statements, there
is no indication of any shared goal of teaching that homo-
sexuality is incompatible with being “morally straight” and
“clean.” Neither BSA’s mission statement nor its official
membership policy was altered; no Boy Scout or Scoutmaster
Handbook was amended to reflect the policy statement; no
lessons were imparted to Scouts; no change was made to
BSA’s policy on limiting discussion of sexual matters; and no
effort was made to restrict acceptable religious affiliations
to those that condemn homosexuality. In short, there is no
evidence that this view was part of any collective effort to
foster beliefs about homosexuality.7
7 Indeed, the record evidence is to the contrary. See, e. g., App. 666–669
(affidavit of former Boy Scout whose young children were Scouts, and was
himself an assistant scoutmaster and Merit Badge counselor) (“I never
heard and am not aware of any discussion about homosexuality that oc-

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676 BOY SCOUTS OF AMERICA v. DALE
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Third, BSA never took any clear and unequivocal position
on homosexuality. Though the 1991 and 1992 policies state
one interpretation of “morally straight” and “clean,” the
group’s published definitions appearing in the Boy Scout and
Scoutmaster Handbooks take quite another view. And
BSA’s broad religious tolerance combined with its declara-
tion that sexual matters are not its “proper area” render its
views on the issue equivocal at best and incoherent at worst.
We have never held, however, that a group can throw to-
gether any mixture of contradictory positions and then in-
voke the right to associate to defend any one of those views.
At a minimum, a group seeking to prevail over an antidis-
crimination law must adhere to a clear and unequivocal view.
Fourth, at most the 1991 and 1992 statements declare only
that BSA believed “homosexual conduct is inconsistent with
the requirement in the Scout Oath that a Scout be morally
straight and in the Scout Law that a Scout be clean in word
and deed.” App. 457 (emphasis added). But New Jersey’s
law prohibits discrimination on the basis of sexual orienta-
tion. And when Dale was expelled from the Boy Scouts,
BSA said it did so because of his sexual orientation, not be-
cause of his sexual conduct.8
It is clear, then, that nothing in these policy statements
supports BSA’s claim. The only policy written before the
revocation of Dale’s membership was an equivocal, undis-
closed statement that evidences no connection between the
group’s discriminatory intentions and its expressive inter-
ests. The later policies demonstrate a brief—though ulti-
curred during any Scouting meeting or function . . . . Prior to September
1991, I never heard any mention whatsoever of homosexuality during any
Scouting function”).
8 At oral argument, BSA’s counsel was asked: “[W]hat if someone is ho-
mosexual in the sense of having a sexual orientation in that direction but
does not engage in any homosexual conduct?” Counsel answered: “[I]f
that person also were to take the view that the reason they didn’t engage
in that conduct [was because] it would be morally wrong . . . that person
would not be excluded.” Tr. of Oral Arg. 8.

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mately abandoned—attempt to tie BSA’s exclusion to its
expression, but other than a single sentence, BSA fails to
show that it ever taught Scouts that homosexuality is not
“morally straight” or “clean,” or that such a view was part
of the group’s collective efforts to foster a belief. Further-
more, BSA’s policy statements fail to establish any clear, con-
sistent, and unequivocal position on homosexuality. Nor did
BSA have any reason to think Dale’s sexual conduct, as op-
posed to his orientation, was contrary to the group’s values.
BSA’s inability to make its position clear and its failure to
connect its alleged policy to its expressive activities is highly
significant. By the time Dale was expelled from the Boy
Scouts in 1990, BSA had already been engaged in several
suits under a variety of state antidiscrimination public ac-
commodation laws challenging various aspects of its mem-
bership policy.9 Indeed, BSA had filed amicus briefs before
this Court in two earlier right to associate cases (Roberts v.
United States Jaycees, 468 U. S. 609 (1984), and Board of
Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U. S.
537 (1987)) pointing to these very cases; it was clearly on
notice by 1990 that it might well be subjected to state public
accommodation antidiscrimination laws, and that a court
might one day reject its claimed right to associate. Yet it
took no steps prior to Dale’s expulsion to clarify how its
exclusivity was connected to its expression. It speaks
volumes about the credibility of BSA’s claim to a shared
goal that homosexuality is incompatible with Scouting that
since at least 1984 it had been aware of this issue—indeed,
concerned enough to twice file amicus briefs before this
9 See, e. g., Quinnipiac Council, Boy Scouts of America v. Commission
on Human Rights and Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987)
(challenge to BSA’s exclusion of girls); Curran v. Mount Diablo Council
of the Boy Scouts of America, 147 Cal. App. 3d 712, 195 Cal. Rptr. 325
(1983) (challenge to BSA’s denial of membership to homosexuals; rejecting
BSA’s claimed right of association), overruled on other grounds, 17 Cal.
4th 670, 952 P. 2d 218 (1998).

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678 BOY SCOUTS OF AMERICA v. DALE
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Court—yet it did nothing in the intervening six years (or
even in the years after Dale’s explusion) to explain clearly
and openly why the presence of homosexuals would affect its
expressive activities, or to make the view of “morally
straight” and “clean” taken in its 1991 and 1992 policies a
part of the values actually instilled in Scouts through the
Handbook, lessons, or otherwise.
III
BSA’s claim finds no support in our cases. We have rec-
ognized “a right to associate for the purpose of engaging
in those activities protected by the First Amendment—
speech, assembly, petition for the redress of grievances,
and the exercise of religion.” Roberts, 468 U. S., at
618. And we have acknowledged that “when the State
interferes with individuals’ selection of those with whom
they wish to join in a common endeavor, freedom of
association . . . may be implicated.” Ibid. But “[t]he right
to associate for expressive purposes is not . . . abso-
lute”; rather, “the nature and degree of constitutional pro-
tection afforded freedom of association may vary depending
on the extent to which . . . the constitutionally protected
liberty is at stake in a given case.” Id., at 623, 618. In-
deed, the right to associate does not mean “that in every
setting in which individuals exercise some discrimination in
choosing associates, their selective process of inclusion and
exclusion is protected by the Constitution.” New York State
Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988).
For example, we have routinely and easily rejected asser-
tions of this right by expressive organizations with discrimi-
natory membership policies, such as private schools,10 law
10 Runyon v. McCrary, 427 U. S. 160, 175–176 (1976) (“[T]he Court has
recognized a First Amendment right ‘to engage in association for the ad-
vancement of beliefs and ideas . . . .’ From this principle it may be as-
sumed that parents have a First Amendment right to send their children
to educational institutions that promote the belief that racial segregation
is desirable, and that the children have an equal right to attend such insti-

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firms,11 and labor organizations.12 In fact, until today, we
have never once found a claimed right to associate in the
selection of members to prevail in the face of a State’s anti-
discrimination law. To the contrary, we have squarely held
that a State’s antidiscrimination law does not violate a
group’s right to associate simply because the law conflicts
with that group’s exclusionary membership policy.
In Roberts v. United States Jaycees, 468 U. S. 609 (1984),
we addressed just such a conflict. The Jaycees was a non-
profit membership organization “ ‘designed to inculcate in
the individual membership . . . a spirit of genuine American-
ism and civic interest, and . . . to provide . . . an avenue for
intelligent participation by young men in the affairs of their
community.’ ” Id., at 612–613. The organization was di-
vided into local chapters, described as “ ‘young men’s organi-
zation[s],’ ” in which regular membership was restricted to
males between the ages of 18 and 35. Id., at 613. But Min-
nesota’s Human Rights Act, which applied to the Jaycees,
made it unlawful to “ ‘deny any person the full and equal
tutions. But it does not follow that the practice of excluding racial minor-
ities from such institutions is also protected by the same principle” (cita-
tion omitted)).
11 Hishon v. King & Spalding, 467 U. S. 69, 78 (1984) (“[R]espondent
argues that application of Title VII in this case would infringe constitu-
tional rights of . . . association. Although we have recognized that the
activities of lawyers may make a ‘distinctive contribution . . . to the ideas
and beliefs of our society,’ respondent has not shown how its ability to
fulfill such a function would be inhibited by a requirement that it consider
petitioner for partnership on her merits. Moreover, as we have held in
another context, ‘[i]nvidious private discrimination may be characterized
as a form of exercising freedom of association protected by the First
Amendment, but it has never been accorded affirmative constitutional pro-
tections’ ” (citations omitted)).
12 Railway Mail Assn. v. Corsi, 326 U. S. 88, 93–94 (1945) (“Appellant
first contends that [the law prohibiting racial discrimination by labor orga-
nizations] interfere[s] with its right of selection to membership . . . . We
see no constitutional basis for the contention that a state cannot protect
workers from exclusion solely on the basis of race”).

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enjoyment of . . . a place of public accommodation because
of . . . sex.’ ” Id., at 615. The Jaycees, however, claimed
that applying the law to it violated its right to associate—in
particular its right to maintain its selective membership
policy.
We rejected that claim. Cautioning that the right to asso-
ciate is not “absolute,” we held that “[i]nfringements on that
right may be justified by regulations adopted to serve com-
pelling state interests, unrelated to the suppression of ideas,
that cannot be achieved through means significantly less re-
strictive of associational freedoms.” Id., at 623. We found
the State’s purpose of eliminating discrimination is a compel-
ling state interest that is unrelated to the suppression of
ideas. Id., at 623–626. We also held that Minnesota’s law is
the least restrictive means of achieving that interest. The
Jaycees had “failed to demonstrate that the Act imposes any
serious burdens on the male members’ freedom of expressive
association.” Id., at 626. Though the Jaycees had “taken
public positions on a number of diverse issues, [and] . . . regu-
larly engage in a variety of . . . activities worthy of constitu-
tional protection under the First Amendment,” there was
“no basis in the record for concluding that admission of
women as full voting members will impede the organization’s
ability to engage in these protected activities or to dissemi-
nate its preferred views.” Id., at 626–627. “The Act,” we
held, “requires no change in the Jaycees’ creed of promoting
the interest of young men, and it imposes no restrictions on
the organization’s ability to exclude individuals with ideolo-
gies or philosophies different from those of its existing mem-
bers.” Id., at 627.
We took a similar approach in Board of Directors of Ro-
tary Int’l v. Rotary Club of Duarte, 481 U. S. 537 (1987).
Rotary International, a nonprofit corporation, was founded
as “ ‘an organization of business and professional men united
worldwide who provide humanitarian service, encourage
high ethical standards in all vocations, and help build good-

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will and peace in the world.’ ” Id., at 539. It admitted a
cross section of worthy business and community leaders, id.,
at 540, but refused membership to women. “[T]he exclusion
of women,” explained the group’s General Secretary, “results
in an ‘aspect of fellowship . . . that is enjoyed by the present
male membership.’ ” Id., at 541. That policy also allowed
the organization “to operate effectively in foreign countries
with varied cultures and social mores.” Ibid. Though Cal-
ifornia’s Civil Rights Act, which applied to Rotary Interna-
tional, prohibited discrimination on the basis of sex, id., at
541–542, n. 2, the organization claimed a right to associate,
including the right to select its members.
As in Jaycees, we rejected the claim, holding that “the
evidence fails to demonstrate that admitting women to Ro-
tary Clubs will affect in any significant way the existing
members’ ability to carry out their various purposes.” 481
U. S., at 548. “To be sure,” we continued, “Rotary Clubs
engage in a variety of commendable service activities that
are protected by the First Amendment. But [California’s
Civil Rights Act] does not require the clubs to abandon or
alter any of these activities. It does not require them to
abandon their basic goals of humanitarian service, high ethi-
cal standards in all vocations, good will, and peace. Nor
does it require them to abandon their classification system
or admit members who do not reflect a cross section of the
community.” Ibid. Finally, even if California’s law worked
a “slight infringement on Rotary members’ right of expres-
sive association, that infringement is justified because it
serves the State’s compelling interest in eliminating discrim-
ination against women.” Id., at 549. 13
13 BSA urged on brief that under the New Jersey Supreme Court’s read-
ing of the State’s antidiscrimination law, “Boy Scout Troops would be
forced to admit girls as members” and “Girl Scout Troops would be forced
to admit boys.” Brief for Petitioners 37. The New Jersey Supreme
Court had no occasion to address that question, and no such issue is ten-
dered for our decision. I note, however, the State of New Jersey’s obser-

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682 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
Several principles are made perfectly clear by Jaycees and
Rotary Club. First, to prevail on a claim of expressive asso-
ciation in the face of a State’s antidiscrimination law, it is not
enough simply to engage in some kind of expressive activity.
Both the Jaycees and the Rotary Club engaged in expressive
activity protected by the First Amendment,14 yet that fact
was not dispositive. Second, it is not enough to adopt an
openly avowed exclusionary membership policy. Both the
Jaycees and the Rotary Club did that as well.15 Third, it is
not sufficient merely to articulate some connection between
the group’s expressive activities and its exclusionary policy.
The Rotary Club, for example, justified its male-only mem-
bership policy by pointing to the “ ‘aspect of fellowship . . .
that is enjoyed by the [exclusively] male membership’ ” and
by claiming that only with an exclusively male membership
vation that BSA ignores the exemption contained in New Jersey’s law
for “ ‘any place of public accommodation which is in its nature reasonably
restricted exclusively to one sex,’ ” including, but not limited to, “ ‘any
summer camp, day camp, or resort camp, bathhouse, dressing room, swim-
ming pool, gymnasium, comfort station, dispensary, clinic or hospital, or
school or educational institution which is restricted exclusively to individu-
als of one sex.’ ” See Brief for State of New Jersey as Amicus Curiae
12–13, n. 2 (citing N. J. Stat. Ann. § 10:5–12(f) (West 1993)).
14 See Roberts v. United States Jaycees, 468 U. S. 609, 626–627 (1984)
(“[T]he organization [has] taken public positions on a number of diverse
issues . . . worthy of constitutional protection under the First Amendment”
(citations omitted)); Board of Directors of Rotary Int’l v. Rotary Club of
Duarte, 481 U. S. 537, 548 (1987) (“To be sure, Rotary Clubs engage in a
variety of commendable service activities that are protected by the First
Amendment”).
15 The Jaycees openly stated that it was an organization designed to
serve the interests of “young men”; its local chapters were described as
“ ‘young men’s organization[s]’ ”; and its membership policy contained an
express provision reserving regular membership to young men. Jaycees,
468 U. S., at 612–613. Likewise, Rotary International expressed its pref-
erence for male-only membership: It proclaimed that it was “ ‘an organiza-
tion of business and professional men’ ” and its membership policy ex-
pressly excluded women. Rotary Club, 481 U. S., at 539, 541 (emphasis
added).

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Stevens, J., dissenting
could it “operate effectively” in foreign countries. Rotary
Club, 481 U. S., at 541.
Rather, in Jaycees, we asked whether Minnesota’s Human
Rights Law requiring the admission of women “impose[d]
any serious burdens” on the group’s “collective effort on be-
half of [its] shared goals.” 468 U. S., at 622, 626–627 (empha-
ses added). Notwithstanding the group’s obvious publicly
stated exclusionary policy, we did not view the inclusion of
women as a “serious burden” on the Jaycees’ ability to en-
gage in the protected speech of its choice. Similarly, in Ro-
tary Club, we asked whether California’s law would “affect
in any significant way the existing members’ ability” to en-
gage in their protected speech, or whether the law would
require the clubs “to abandon their basic goals.” 481 U. S.,
at 548 (emphases added); see also Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S.
557, 581 (1995) (“[A] private club could exclude an applicant
whose manifest views were at odds with a position taken by
the club’s existing members”); New York State Club Assn.,
487 U. S., at 13 (to prevail on a right to associate claim, the
group must “be able to show that it is organized for specific
expressive purposes and that it will not be able to advocate
its desired viewpoints nearly as effectively if it cannot con-
fine its membership to those who share the same sex, for
example, or the same religion”); NAACP v. Alabama ex rel.
Patterson, 357 U. S. 449, 462–463 (1958) (asking whether law
“entail[ed] the likelihood of a substantial restraint upon the
exercise by petitioner’s members of their right to freedom of
association” and whether law is “likely to affect adversely
the ability of petitioner and its members to pursue their col-
lective effort to foster beliefs”). The relevant question is
whether the mere inclusion of the person at issue would “im-
pose any serious burden,” “affect in any significant way,” or
be “a substantial restraint upon” the organization’s “shared
goals,” “basic goals,” or “collective effort to foster beliefs.”
Accordingly, it is necessary to examine what, exactly, are

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684 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
BSA’s shared goals and the degree to which its expressive
activities would be burdened, affected, or restrained by in-
cluding homosexuals.
The evidence before this Court makes it exceptionally
clear that BSA has, at most, simply adopted an exclusionary
membership policy and has no shared goal of disapproving
of homosexuality. BSA’s mission statement and federal
charter say nothing on the matter; its official membership
policy is silent; its Scout Oath and Law—and accompanying
definitions—are devoid of any view on the topic; its guidance
for Scouts and Scoutmasters on sexuality declare that such
matters are “not construed to be Scouting’s proper area,”
but are the province of a Scout’s parents and pastor; and
BSA’s posture respecting religion tolerates a wide variety of
views on the issue of homosexuality. Moreover, there is
simply no evidence that BSA otherwise teaches anything in
this area, or that it instructs Scouts on matters involving
homosexuality in ways not conveyed in the Boy Scout or
Scoutmaster Handbooks. In short, Boy Scouts of America
is simply silent on homosexuality. There is no shared goal
or collective effort to foster a belief about homosexuality at
all—let alone one that is significantly burdened by admit-
ting homosexuals.
As in Jaycees, there is “no basis in the record for conclud-
ing that admission of [homosexuals] will impede the [Boy
Scouts’] ability to engage in [its] protected activities or to
disseminate its preferred views” and New Jersey’s law “re-
quires no change in [BSA’s] creed.” 468 U. S., at 626–627.
And like Rotary Club, New Jersey’s law “does not require
[BSA] to abandon or alter any of ” its activities. 481 U. S.,
at 548. The evidence relied on by the Court is not to the
contrary. The undisclosed 1978 policy certainly adds noth-
ing to the actual views disseminated to the Scouts. It sim-
ply says that homosexuality is not “appropriate.” There is
no reason to give that policy statement more weight than
Rotary International’s assertion that all-male membership

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685 Cite as: 530 U. S. 640 (2000)
Stevens, J., dissenting
fosters the group’s “fellowship” and was the only way it could
“operate effectively.” As for BSA’s postrevocation state-
ments, at most they simply adopt a policy of discrimination,
which is no more dispositive than the openly discriminatory
policies held insufficient in Jaycees and Rotary Club; there
is no evidence here that BSA’s policy was necessary to—
or even a part of—BSA’s expressive activities or was ever
taught to Scouts.
Equally important is BSA’s failure to adopt any clear posi-
tion on homosexuality. BSA’s temporary, though ultimately
abandoned, view that homosexuality is incompatible with
being “morally straight” and “clean” is a far cry from the
clear, unequivocal statement necessary to prevail on its
claim. Despite the solitary sentences in the 1991 and 1992
policies, the group continued to disclaim any single religious
or moral position as a general matter and actively eschewed
teaching any lesson on sexuality. It also continued to define
“morally straight” and “clean” in the Boy Scout and Scout-
master Handbooks without any reference to homosexuality.
As noted earlier, nothing in our cases suggests that a group
can prevail on a right to expressive association if it, effec-
tively, speaks out of both sides of its mouth. A State’s anti-
discrimination law does not impose a “serious burden” or a
“substantial restraint” upon the group’s “shared goals” if the
group itself is unable to identify its own stance with any
clarity.
IV
The majority pretermits this entire analysis. It finds that
BSA in fact “ ‘teach[es] that homosexual conduct is not mor-
ally straight.’ ” Ante, at 651. This conclusion, remarkably,
rests entirely on statements in BSA’s briefs. See ibid. (cit-
ing Brief for Petitioners 39; Reply Brief for Petitioners 5).
Moreover, the majority insists that we must “give deference
to an association’s assertions regarding the nature of its ex-
pression” and “we must also give deference to an associa-
tion’s view of what would impair its expression.” Ante, at

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686 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
653. So long as the record “contains written evidence” to
support a group’s bare assertion, “[w]e need not inquire fur-
ther.” Ante, at 651. Once the organization “asserts” that
it engages in particular expression, ibid., “[w]e cannot doubt”
the truth of that assertion, ante, at 653.
This is an astounding view of the law. I am unaware of
any previous instance in which our analysis of the scope of a
constitutional right was determined by looking at what a liti-
gant asserts in his or her brief and inquiring no further. It
is even more astonishing in the First Amendment area, be-
cause, as the majority itself acknowledges, “we are obligated
to independently review the factual record.” Ante, at 648–
649. It is an odd form of independent review that consists
of deferring entirely to whatever a litigant claims. But the
majority insists that our inquiry must be “limited,” ante, at
650, because “it is not the role of the courts to reject a
group’s expressed values because they disagree with those
values or find them internally inconsistent,” ante, at 651.
See also Brief for Petitioners 25 (“[T]he Constitution pro-
tects [BSA’s] ability to control its own message”).
But nothing in our cases calls for this Court to do any such
thing. An organization can adopt the message of its choice,
and it is not this Court’s place to disagree with it. But we
must inquire whether the group is, in fact, expressing a mes-
sage (whatever it may be) and whether that message (if one
is expressed) is significantly affected by a State’s antidis-
crimination law. More critically, that inquiry requires our
independent analysis, rather than deference to a group’s liti-
gating posture. Reflection on the subject dictates that such
an inquiry is required.
Surely there are instances in which an organization that
truly aims to foster a belief at odds with the purposes of a
State’s antidiscrimination laws will have a First Amendment
right to association that precludes forced compliance with
those laws. But that right is not a freedom to discriminate
at will, nor is it a right to maintain an exclusionary member-

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687 Cite as: 530 U. S. 640 (2000)
Stevens, J., dissenting
ship policy simply out of fear of what the public reaction
would be if the group’s membership were opened up. It is
an implicit right designed to protect the enumerated rights
of the First Amendment, not a license to act on any discrimi-
natory impulse. To prevail in asserting a right of expres-
sive association as a defense to a charge of violating an anti-
discrimination law, the organization must at least show it has
adopted and advocated an unequivocal position inconsistent
with a position advocated or epitomized by the person whom
the organization seeks to exclude. If this Court were to
defer to whatever position an organization is prepared to as-
sert in its briefs, there would be no way to mark the proper
boundary between genuine exercises of the right to associ-
ate, on the one hand, and sham claims that are simply at-
tempts to insulate nonexpressive private discrimination, on
the other hand. Shielding a litigant’s claim from judicial
scrutiny would, in turn, render civil rights legislation a nul-
lity, and turn this important constitutional right into a farce.
Accordingly, the Court’s prescription of total deference will
not do. In this respect, Justice Frankfurter’s words seem
particularly apt:
“Elaborately to argue against this contention is to
dignify a claim devoid of constitutional substance. Of
course a State may leave abstention from such discrimi-
nations to the conscience of individuals. On the other
hand, a State may choose to put its authority behind one
of the cherished aims of American feeling by forbidding
indulgence in racial or religious prejudice to another’s
hurt. To use the Fourteenth Amendment as a sword
against such State power would stultify that Amend-
ment. Certainly the insistence by individuals on their
private prejudices as to race, color or creed, in relations
like those now before us, ought not to have a higher
constitutional sanction than the determination of a
State to extend the area of nondiscrimination beyond
that which the Constitution itself exacts.” Railway

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688 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
Mail Assn. v. Corsi, 326 U. S. 88, 98 (1945) (concurring
opinion).
There is, of course, a valid concern that a court’s independ-
ent review may run the risk of paying too little heed to an
organization’s sincerely held views. But unless one is pre-
pared to turn the right to associate into a free pass out of
antidiscrimination laws, an independent inquiry is a neces-
sity. Though the group must show that its expressive activ-
ities will be substantially burdened by the State’s law, if that
law truly has a significant effect on a group’s speech, even
the subtle speaker will be able to identify that impact.
In this case, no such concern is warranted. It is entirely
clear that BSA in fact expresses no clear, unequivocal mes-
sage burdened by New Jersey’s law.
V
Even if BSA’s right to associate argument fails, it nonethe-
less might have a First Amendment right to refrain from
including debate and dialogue about homosexuality as part
of its mission to instill values in Scouts. It can, for example,
advise Scouts who are entering adulthood and have ques-
tions about sex to talk “with your parents, religious leaders,
teachers, or Scoutmaster,” and, in turn, it can direct Scout-
masters who are asked such questions “not undertake to in-
struct Scouts, in any formalized manner, in the subject of
sex and family life” because “it is not construed to be Scout-
ing’s proper area.” See supra, at 669–670. Dale’s right to
advocate certain beliefs in a public forum or in a private
debate does not include a right to advocate these ideas when
he is working as a Scoutmaster. And BSA cannot be com-
pelled to include a message about homosexuality among the
values it actually chooses to teach its Scouts, if it would pre-
fer to remain silent on that subject.
In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624
(1943), we recognized that the government may not “re-
quir[e] affirmation of a belief and an attitude of mind,” nor

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689 Cite as: 530 U. S. 640 (2000)
Stevens, J., dissenting
“force an American citizen publicly to profess any statement
of belief,” even if doing so does not require the person to
“forego any contrary convictions of their own.” Id., at 633–
634. “[O]ne important manifestation of the principle of free
speech is that one who chooses to speak may also decide
‘what not to say.’ ” Hurley, 515 U. S., at 573. Though the
majority mistakenly treats this statement as going to the
right to associate, it actually refers to a free speech claim.
See id., at 564–565, 580–581 (noting distinction between free
speech and right to associate claims). As with the right to
associate claim, though, the court is obligated to engage in
an independent inquiry into whether the mere inclusion of
homosexuals would actually force BSA to proclaim a mes-
sage it does not want to send. Id., at 567.
In its briefs, BSA implies, even if it does not directly
argue, that Dale would use his Scoutmaster position as a
“bully pulpit” to convey immoral messages to his troop, and
therefore his inclusion in the group would compel BSA to
include a message it does not want to impart. Brief for Peti-
tioners 21–22. Even though the majority does not endorse
that argument, I think it is important to explain why it lacks
merit, before considering the argument the majority does
accept.
BSA has not contended, nor does the record support, that
Dale had ever advocated a view on homosexuality to his
troop before his membership was revoked. Accordingly,
BSA’s revocation could only have been based on an assump-
tion that he would do so in the future. But the only informa-
tion BSA had at the time it revoked Dale’s membership was
a newspaper article describing a seminar at Rutgers Univer-
sity on the topic of homosexual teenagers that Dale attended.
The relevant passage reads:
“James Dale, 19, co-president of the Rutgers University
Lesbian Gay Alliance with Sharice Richardson, also 19,
said he lived a double life while in high school, pretend-
ing to be straight while attending a military academy.

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Stevens, J., dissenting
“He remembers dating girls and even laughing at homo-
phobic jokes while at school, only admitting his homo-
sexuality during his second year at Rutgers.
“ ‘I was looking for a role model, someone who was gay
and accepting of me,’ Dale said, adding he wasn’t just
seeking sexual experiences, but a community that would
take him in and provide him with a support network and
friends.” App. 517.
Nothing in that article, however, even remotely suggests
that Dale would advocate any views on homosexuality to his
troop. The Scoutmaster Handbook instructs Dale, like all
Scoutmasters, that sexual issues are not their “proper area,”
and there is no evidence that Dale had any intention of vio-
lating this rule. Indeed, from all accounts Dale was a model
Boy Scout and Assistant Scoutmaster up until the day his
membership was revoked, and there is no reason to believe
that he would suddenly disobey the directives of BSA be-
cause of anything he said in the newspaper article.
To be sure, the article did say that Dale was co-president
of the Lesbian/Gay Alliance at Rutgers University, and that
group presumably engages in advocacy regarding homosex-
ual issues. But surely many members of BSA engage in ex-
pressive activities outside of their troop, and surely BSA
does not want all of that expression to be carried on inside
the troop. For example, a Scoutmaster may be a member
of a religious group that encourages its followers to convert
others to its faith. Or a Scoutmaster may belong to a politi-
cal party that encourages its members to advance its views
among family and friends.16 Yet BSA does not think it is
appropriate for Scoutmasters to proselytize a particular faith
to unwilling Scouts or to attempt to convert them from one
16 Scoutmaster Handbook (1990) (reprinted in App. 273) (“Scouts and
Scouters are encouraged to take active part in political matters as individ-
uals” (emphasis added)).

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Stevens, J., dissenting
religion to another.17 Nor does BSA think it appropriate
for Scouts or Scoutmasters to bring politics into the troop.18
From all accounts, then, BSA does not discourage or forbid
outside expressive activity, but relies on compliance with its
policies and trusts Scouts and Scoutmasters alike not to
bring unwanted views into the organization. Of course, a
disobedient member who flouts BSA’s policy may be ex-
pelled. But there is no basis for BSA to presume that a
homosexual will be unable to comply with BSA’s policy not
to discuss sexual matters any more than it would presume
that politically or religiously active members could not resist
the urge to proselytize or politicize during troop meetings.19
As BSA itself puts it, its rights are “not implicated unless a
prospective leader presents himself as a role model incon-
17 Bylaws of the Boy Scouts of America, Art. IX, § 1, cl. 3 (reprinted in
App. 363) (“In no case where a unit is connected with a church or other
distinctively religious organization shall members of other denominations
or faith be required, because of their membership in the unit, to take part
in or observe a religious ceremony distinctly unique to that organization
or church”).
18 Rules and Regulations of the Boy Scouts of America, Art. IX, § 2, cl. 6
(reprinted in App. 407) (“The Boy Scouts of America shall not, through its
governing body or through any of its officers, its chartered councils, or
members, involve the Scouting movement in any question of a political
character”).
19 Consider, in this regard, that a heterosexual, as well as a homosexual,
could advocate to the Scouts the view that homosexuality is not immoral.
BSA acknowledges as much by stating that a heterosexual who advocates
that view to Scouts would be expelled as well. Id., at 746 (“[A]ny persons
who advocate to Scouting youth that homosexual conduct is ‘morally
straight’ under the Scout Oath, or ‘clean’ under the Scout Law will not be
registered as adult leaders” (emphasis added)) (certification of BSA’s Na-
tional Director of Program). But BSA does not expel heterosexual mem-
bers who take that view outside of their participation in Scouting, as long
as they do not advocate that position to the Scouts. Tr. of Oral Arg. 6.
And if there is no reason to presume that such a heterosexual will openly
violate BSA’s desire to express no view on the subject, what reason—
other than blatant stereotyping—could justify a contrary presumption
for homosexuals?

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692 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
sistent with Boy Scouting’s understanding of the Scout Oath
and Law.” Brief for Petitioners 6 (emphases added).20
The majority, though, does not rest its conclusion on
the claim that Dale will use his position as a bully pulpit.
Rather, it contends that Dale’s mere presence among the Boy
Scouts will itself force the group to convey a message about
homosexuality—even if Dale has no intention of doing so.
The majority holds that “[t]he presence of an avowed homo-
sexual and gay rights activist in an assistant scoutmaster’s
uniform sends a distinc[t] . . . message,” and, accordingly,
BSA is entitled to exclude that message. Ante, at 655–656.
In particular, “Dale’s presence in the Boy Scouts would, at
the very least, force the organization to send a message, both
to the youth members and the world, that the Boy Scouts
accepts homosexual conduct as a legitimate form of be-
20 BSA cites three media interviews and Dale’s affidavit to argue that he
will openly advance a pro-gay agenda while being a Scoutmaster. None of
those statements even remotely supports that conclusion. And all of
them were made after Dale’s membership was revoked and after this liti-
gation commenced; therefore, they could not have affected BSA’s revoca-
tion decision.
In a New York Times interview, Dale said “ ‘I owe it to the organization
to point out to them how bad and wrong this policy is.’ ” App. 513 (empha-
ses added). This statement merely demonstrates that Dale wants to use
this litigation—not his Assistant Scoutmaster position—to make a point,
and that he wants to make the point to the BSA organization, not to the
boys in his troop. At oral argument, BSA conceded that would not be
grounds for membership revocation. Tr. of Oral Arg. 13. In a Seattle
Times interview, Dale said Scouting is “ ‘about giving adolescent boys a
role model.’ ” App. 549. He did not say it was about giving them a role
model who advocated a position on homosexuality. In a television inter-
view, Dale also said “I am gay, and I’m very proud of who I am . . . . I
stand up for what I believe in . . . . I’m not hiding anything.” Id., at 470.
Nothing in that statement says anything about an intention to stand up
for homosexual rights in any context other than in this litigation. Lastly,
Dale said in his affidavit that he is “open and honest about [his] sexual
orientation.” Id., at 133. Once again, like someone who is open and hon-
est about his political affiliation, there is no evidence in that statement
that Dale will not comply with BSA’s policy when acting as a Scoutmaster.

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Stevens, J., dissenting
havior.” Ante, at 653; see also Brief for Petitioners 24 (“By
donning the uniform of an adult leader in Scouting, he would
‘celebrate [his] identity’ as an openly gay Scout leader”).
The majority’s argument relies exclusively on Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Bos-
ton, Inc., 515 U. S. 557 (1995). In that case, petitioners John
Hurley and the South Boston Allied War Veterans Council
ran a privately operated St. Patrick’s Day parade. Re-
spondent, an organization known as “GLIB,” represented a
contingent of gays, lesbians, and bisexuals who sought to
march in the petitioners’ parade “as a way to express pride
in their Irish heritage as openly gay, lesbian, and bisexual
individuals.” Id., at 561. When the parade organizers re-
fused GLIB’s admission, GLIB brought suit under Massachu-
setts’ antidiscrimination law. That statute, like New Jer-
sey’s law, prohibited discrimination on account of sexual
orientation in any place of public accommodation, which the
state courts interpreted to include the parade. Petitioners
argued that forcing them to include GLIB in their parade
would violate their free speech rights.
We agreed. We first pointed out that the St. Patrick’s Day
parade—like most every parade—is an inherently expressive
undertaking. Id., at 568–570. Next, we reaffirmed that
the government may not compel anyone to proclaim a belief
with which he or she disagrees. Id., at 573–574. We then
found that GLIB’s marching in the parade would be an ex-
pressive act suggesting the view “that people of their sexual
orientations have as much claim to unqualified social accept-
ance as heterosexuals.” Id., at 574. Finally, we held that
GLIB’s participation in the parade “would likely be per-
ceived” as the parade organizers’ own speech—or at least as
a view which they approved—because of a parade organizer’s
customary control over who marches in the parade. Id., at
575. Though Hurley has a superficial similarity to the pres-
ent case, a close inspection reveals a wide gulf between that
case and the one before us today.

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Stevens, J., dissenting
First, it was critical to our analysis that GLIB was actually
conveying a message by participating in the parade—other-
wise, the parade organizers could hardly claim that they
were being forced to include any unwanted message at all.
Our conclusion that GLIB was conveying a message was in-
extricably tied to the fact that GLIB wanted to march in a
parade, as well as the manner in which it intended to march.
We noted the “inherent expressiveness of marching [in a pa-
rade] to make a point,” id., at 568, and in particular that
GLIB was formed for the purpose of making a particular
point about gay pride, id., at 561, 570. More specifically,
GLIB “distributed a fact sheet describing the members’ in-
tentions” and, in a previous parade, had “marched behind a
shamrock-strewn banner with the simple inscription ‘Irish
American Gay, Lesbian and Bisexual Group of Boston.’ ”
Id., at 570. “[A] contingent marching behind the organiza-
tion’s banner,” we said, would clearly convey a message.
Id., at 574. Indeed, we expressly distinguished between the
members of GLIB, who marched as a unit to express their
views about their own sexual orientation, on the one hand,
and homosexuals who might participate as individuals in the
parade without intending to express anything about their
sexuality by doing so. Id., at 572–573.
Second, we found it relevant that GLIB’s message “would
likely be perceived” as the parade organizers’ own speech.
Id., at 575. That was so because “[p]arades and demonstra-
tions . . . are not understood to be so neutrally presented or
selectively viewed” as, say, a broadcast by a cable operator,
who is usually considered to be “merely ‘a conduit’ for the
speech” produced by others. Id., at 575–576. Rather, pa-
rade organizers are usually understood to make the “custom-
ary determination about a unit admitted to the parade.”
Id., at 575.
Dale’s inclusion in the Boy Scouts is nothing like the case
in Hurley. His participation sends no cognizable message
to the Scouts or to the world. Unlike GLIB, Dale did not

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695 Cite as: 530 U. S. 640 (2000)
Stevens, J., dissenting
carry a banner or a sign; he did not distribute any factsheet;
and he expressed no intent to send any message. If there
is any kind of message being sent, then, it is by the mere act
of joining the Boy Scouts. Such an act does not constitute
an instance of symbolic speech under the First Amendment.21
It is true, of course, that some acts are so imbued with
symbolic meaning that they qualify as “speech” under the
First Amendment. See United States v. O’Brien, 391 U. S.
367, 376 (1968). At the same time, however, “[w]e cannot
accept the view that an apparently limitless variety of con-
duct can be labeled ‘speech’ whenever the person engaging
in the conduct intends thereby to express an idea.” Ibid.
Though participating in the Scouts could itself conceivably
send a message on some level, it is not the kind of act that
we have recognized as speech. See Dallas v. Stanglin, 490
U. S. 19, 24–25 (1989).22 Indeed, if merely joining a group
did constitute symbolic speech; and such speech were attrib-
utable to the group being joined; and that group has the right
to exclude that speech (and hence, the right to exclude that
person from joining), then the right of free speech effectively
becomes a limitless right to exclude for every organization,
whether or not it engages in any expressive activities. That
cannot be, and never has been, the law.
21 The majority might have argued (but it did not) that Dale had become
so publicly and pervasively identified with a position advocating the moral
legitimacy of homosexuality (as opposed to just being an individual who
openly stated he is gay) that his leadership position in BSA would neces-
sarily amount to using the organization as a conduit for publicizing his
position. But as already noted, when BSA expelled Dale, it had nothing
to go on beyond the one newspaper article quoted above, and one newspa-
per article does not convert Dale into a public symbol for a message. BSA
simply has not provided a record that establishes the factual premise for
this argument.
22 This is not to say that Scouts do not engage in expressive activity. It
is only to say that the simple act of joining the Scouts—unlike joining a
parade—is not inherently expressive.

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696 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
The only apparent explanation for the majority’s holding,
then, is that homosexuals are simply so different from the
rest of society that their presence alone—unlike any other
individual’s—should be singled out for special First Amend-
ment treatment. Under the majority’s reasoning, an openly
gay male is irreversibly affixed with the label “homosexual.”
That label, even though unseen, communicates a message
that permits his exclusion wherever he goes. His openness
is the sole and sufficient justification for his ostracism.
Though unintended, reliance on such a justification is tanta-
mount to a constitutionally prescribed symbol of inferiority.23
As counsel for BSA remarked, Dale “put a banner around
his neck when he . . . got himself into the newspaper. . . . He
created a reputation. . . . He can’t take that banner off. He
put it on himself and, indeed, he has continued to put it on
himself.” See Tr. of Oral Arg. 25.
Another difference between this case and Hurley lies in
the fact that Hurley involved the parade organizers’ claim to
determine the content of the message they wish to give at a
particular time and place. The standards governing such a
claim are simply different from the standards that govern
BSA’s claim of a right of expressive association. Generally,
a private person or a private organization has a right to re-
fuse to broadcast a message with which it disagrees, and a
right to refuse to contradict or garble its own specific state-
ment at any given place or time by including the messages of
others. An expressive association claim, however, normally
involves the avowal and advocacy of a consistent position on
some issue over time. This is why a different kind of scru-
tiny must be given to an expressive association claim, lest
the right of expressive association simply turn into a right
to discriminate whenever some group can think of an expres-
sive object that would seem to be inconsistent with the ad-
23 See Yoshino, Suspect Symbols: The Literary Argument for Height-
ened Scrutiny for Gays, 96 Colum. L. Rev. 1753, 1781–1783 (1996).

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697 Cite as: 530 U. S. 640 (2000)
Stevens, J., dissenting
mission of some person as a member or at odds with the
appointment of a person to a leadership position in the group.
Furthermore, it is not likely that BSA would be under-
stood to send any message, either to Scouts or to the world,
simply by admitting someone as a member. Over the years,
BSA has generously welcomed over 87 million young Ameri-
cans into its ranks. In 1992 over one million adults were
active BSA members. 160 N. J. 562, 571, 734 A. 2d 1196,
1200 (1999). The notion that an organization of that size and
enormous prestige implicitly endorses the views that each of
those adults may express in a non-Scouting context is simply
mind boggling. Indeed, in this case there is no evidence
that the young Scouts in Dale’s troop, or members of their
families, were even aware of his sexual orientation, either
before or after his public statements at Rutgers University.24
It is equally farfetched to assert that Dale’s open declaration
of his homosexuality, reported in a local newspaper, will ef-
fectively force BSA to send a message to anyone simply be-
cause it allows Dale to be an Assistant Scoutmaster. For an
Olympic gold medal winner or a Wimbledon tennis champion,
being “openly gay” perhaps communicates a message—for
example, that openness about one’s sexual orientation is
more virtuous than concealment; that a homosexual person
can be a capable and virtuous person who should be judged
like anyone else; and that homosexuality is not immoral—
but it certainly does not follow that they necessarily send a
message on behalf of the organizations that sponsor the ac-
tivities in which they excel. The fact that such persons par-
ticipate in these organizations is not usually construed to
convey a message on behalf of those organizations any more
than does the inclusion of women, African-Americans, reli-
24 For John Doe to make a public statement of his sexual orientation to
the newspapers may, of course, be a matter of great importance to John
Doe. Richard Roe, however, may be much more interested in the week-
end weather forecast. Before Dale made his statement at Rutgers, the
Scoutmaster of his troop did not know that he was gay. App. 465.

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698 BOY SCOUTS OF AMERICA v. DALE
Stevens, J., dissenting
gious minorities, or any other discrete group.25 Surely the
organizations are not forced by antidiscrimination laws to
take any position on the legitimacy of any individual’s pri-
vate beliefs or private conduct.
The State of New Jersey has decided that people who are
open and frank about their sexual orientation are entitled to
equal access to employment as schoolteachers, police officers,
librarians, athletic coaches, and a host of other jobs filled by
citizens who serve as role models for children and adults
alike. Dozens of Scout units throughout the State are spon-
sored by public agencies, such as schools and fire depart-
ments, that employ such role models. BSA’s affiliation with
numerous public agencies that comply with New Jersey’s law
against discrimination cannot be understood to convey any
particular message endorsing or condoning the activities of
all these people.26
25 The majority simply announces, without analysis, that Dale’s partici-
pation alone would “force the organization to send a message.” Ante, at
653. “But . . . these are merely conclusory words, barren of analysis. . . .
For First Amendment principles to be implicated, the State must place
the citizen in the position of either apparently or actually ‘asserting as
true’ the message.” Wooley v. Maynard, 430 U. S. 705, 721 (1977) (Rehn-
quist, J., dissenting).
26 BSA also argues that New Jersey’s law violates its right to “intimate
association.” Brief for Petitioners 39–47. Our cases recognize a sub-
stantive due process right “to enter into and carry on certain intimate or
private relationships.” Rotary Club, 481 U. S., at 545. As with the First
Amendment right to associate, the State may not interfere with the selec-
tion of individuals in such relationships. Jaycees, 468 U. S., at 618.
Though the precise scope of the right to intimate association is unclear,
“we consider factors such as size, purpose, selectivity, and whether others
are excluded from critical aspects of the relationship” to determine
whether a group is sufficiently personal to warrant this type of constitu-
tional protection. Rotary Club, 481 U. S., at 546. Considering BSA’s
size, see supra, at 697, its broad purposes, and its nonselectivity, see
supra, at 666, it is impossible to conclude that being a member of the Boy
Scouts ranks among those intimate relationships falling within this right,
such as marriage, bearing children, rearing children, and cohabitation with
relatives. Rotary Club, 481 U. S., at 545.

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Stevens, J., dissenting
VI
Unfavorable opinions about homosexuals “have ancient
roots.” Bowers v. Hardwick, 478 U. S. 186, 192 (1986).
Like equally atavistic opinions about certain racial groups,
those roots have been nourished by sectarian doctrine. Id.,
at 196–197 (Burger, C. J., concurring); Loving v. Virginia,
388 U. S. 1, 3 (1967).27 See also Mathews v. Lucas, 427 U. S.
495, 520 (1976) (Stevens, J., dissenting) (“Habit, rather than
analysis, makes it seem acceptable and natural to distinguish
between male and female, alien and citizen, legitimate and
illegitimate; for too much of our history there was the same
inertia in distinguishing between black and white”). Over
the years, however, interaction with real people, rather than
mere adherence to traditional ways of thinking about mem-
bers of unfamiliar classes, have modified those opinions. A
few examples: The American Psychiatric Association’s and
the American Psychological Association’s removal of “homo-
sexuality” from their lists of mental disorders; 28 a move
toward greater understanding within some religious com-
munities; 29 Justice Blackmun’s classic opinion in Bowers; 30
27 In Loving, the trial judge gave this explanation of the rationale for
Virginia’s antimiscegenation statute: “ ‘Almighty God created the races
white, black, yellow, malay and red, and he placed them on separate conti-
nents. And but for the interference with his arrangement there would
be no cause for such marriages. The fact that he separated the races
shows that he did not intend for the races to mix.’ ” 388 U. S., at 3.
28 Brief for American Psychological Association as Amicus Curiae 8.
29 See n. 3, supra.
30 The significance of that opinion is magnified by comparing it with Jus-
tice Blackmun’s vote 10 years earlier in Doe v. Commonwealth’s Attorney
for City of Richmond, 425 U. S. 901 (1976). In that case, six Justices—
including Justice Blackmun—voted to summarily affirm the District
Court’s rejection of the same due process argument that was later re-
jected in Bowers. Two years later, furthermore, Justice Blackmun joined
in a dissent in University of Missouri v. Gay Lib, 434 U. S. 1080 (1978).
In that case, the university had denied recognition to a student gay rights
organization. The student group argued that in doing so, the university
had violated its free speech and free association rights. The Court of

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700 BOY SCOUTS OF AMERICA v. DALE
Souter, J., dissenting
Georgia’s invalidation of the statute upheld in Bowers; 31 and
New Jersey’s enactment of the provision at issue in this case.
Indeed, the past month alone has witnessed some remark-
able changes in attitudes about homosexuals.32
That such prejudices are still prevalent and that they have
caused serious and tangible harm to countless members of
the class New Jersey seeks to protect are established mat-
ters of fact that neither the Boy Scouts nor the Court dis-
putes. That harm can only be aggravated by the creation
of a constitutional shield for a policy that is itself the product
of a habitual way of thinking about strangers. As Justice
Brandeis so wisely advised, “we must be ever on our guard,
lest we erect our prejudices into legal principles.”
If we would guide by the light of reason, we must let our
minds be bold. I respectfully dissent.
Justice Souter, with whom Justice Ginsburg and
Justice Breyer join, dissenting.
I join Justice Stevens’s dissent but add this further
word on the significance of Part VI of his opinion. There,
Justice Stevens describes the changing attitudes toward
gay people and notes a parallel with the decline of stereotyp-
ical thinking about race and gender. The legitimacy of New
Appeals agreed with that argument. A dissent from denial of certiorari,
citing the university’s argument, suggested that the proper analysis might
well be as follows:
“[T]he question is more akin to whether those suffering from measles have
a constitutional right, in violation of quarantine regulations, to associate
together and with others who do not presently have measles, in order to
urge repeal of a state law providing that measle sufferers be quarantined.”
Id., at 1084 (Rehnquist, J., dissenting).
31 Powell v. State, 270 Ga. 327, 510 S. E. 2d 18 (1998).
32 See, e. g., Bradsher, Big Carmakers Extend Benefits to Gay Couples,
New York Times, June 9, 2000, p. C1; Marquis, Gay Pride Day is Observed
by About 60 C. I. A. Workers, New York Times, June 9, 2000, p. A26;
Zernike, Gay Couples are Accepted as Role Models at Exeter, New York
Times, June 12, 2000, p. A18.

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Souter, J., dissenting
Jersey’s interest in forbidding discrimination on all these
bases by those furnishing public accommodations is, as
Justice Stevens indicates, acknowledged by many to be
beyond question. The fact that we are cognizant of this
laudable decline in stereotypical thinking on homosexuality
should not, however, be taken to control the resolution of
this case.
Boy Scouts of America (BSA) is entitled, consistently with
its own tenets and the open doors of American courts, to
raise a federal constitutional basis for resisting the applica-
tion of New Jersey’s law. BSA has done that and has chosen
to defend against enforcement of the state public accommo-
dations law on the ground that the First Amendment pro-
tects expressive association: individuals have a right to join
together to advocate opinions free from government inter-
ference. See Roberts v. United States Jaycees, 468 U. S. 609,
622 (1984). BSA has disclaimed any argument that Dale’s
past or future actions, as distinct from his unapologetic decla-
ration of sexual orientation, would justify his exclusion from
BSA. See Tr. of Oral Arg. 12–13.
The right of expressive association does not, of course,
turn on the popularity of the views advanced by a group that
claims protection. Whether the group appears to this Court
to be in the vanguard or rearguard of social thinking is irrel-
evant to the group’s rights. I conclude that BSA has not
made out an expressive association claim, therefore, not be-
cause of what BSA may espouse, but because of its failure
to make sexual orientation the subject of any unequivocal
advocacy, using the channels it customarily employs to state
its message. As Justice Stevens explains, no group can
claim a right of expressive association without identifying a
clear position to be advocated over time in an unequivocal
way. To require less, and to allow exemption from a public
accommodations statute based on any individual’s difference
from an alleged group ideal, however expressed and however
inconsistently claimed, would convert the right of expres-

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702 BOY SCOUTS OF AMERICA v. DALE
Souter, J., dissenting
sive association into an easy trump of any antidiscrimina-
tion law.*
If, on the other hand, an expressive association claim has
met the conditions Justice Stevens describes as necessary,
there may well be circumstances in which the antidiscrimina-
tion law must yield, as he says. It is certainly possible for
an individual to become so identified with a position as to
epitomize it publicly. When that position is at odds with
a group’s advocated position, applying an antidiscrimination
statute to require the group’s acceptance of the individual in
a position of group leadership could so modify or muddle or
frustrate the group’s advocacy as to violate the expressive
associational right. While it is not our business here to rule
on any such hypothetical, it is at least clear that our estimate
of the progressive character of the group’s position will be
irrelevant to the First Amendment analysis if such a case
comes to us for decision.
*An expressive association claim is in this respect unlike a basic free
speech claim, as Justice Stevens points out; the latter claim, i. e., the
right to convey an individual’s or group’s position, if bona fide, may be
taken at face value in applying the First Amendment. This case is thus
unlike Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, Inc., 515 U. S. 557 (1995).