Chapter 3: The Right of Association
The Constitution does not expressly protect a right of association. The First Amendment does protect “the right of the people peaceably to assemble, and to petition the government for redress of grievances.” But these rights refer to specific actions; once a meeting is finished or a petition submitted, do the people who were together have any continuing rights as an association? And does an association have rights to protect its members?
These were issues that the Supreme Court did not fully consider until 1958, when the State of Alabama sought the membership records of the National Association for the Advancement of Colored People (NAACP). The organization was aware that these records would be shared with the public, and there had already been numerous assaults and even killings of its members in southern states. They appealed the decision in the Alabama state courts, but under Alabama law were prevented from having their case heard until they had paid a $100,000 fine for contempt, which would have bankrupted their organization. The Supreme Court granted cert at a time when there was extensive resistance against the Court’s mandate to desegregate public schools.
NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958)
The Supreme Court unanimously upheld the NAACP’s refusal to disclose its membership lists to the Alabama authorities on the grounds that it violated the members’ right of association. Justice Harlan held that this right is essential to the utilization of the First Amendment rights of speech and assembly, and found that it is part of the liberty guaranteed by the Fourteenth Amendment Due Process Clause, incorporating this right against state infringement. Furthermore, it held that the organization was entitled to assert its members’ rights since if they were forced to do so it would defeat their interest in not having their names publicized. The Court held that this right could only be overcome if the state presented a compelling interest, and found that it had failed to do so since the identity of members was not necessary to the adjudication of the restraining order on NAACP operations in Alabama. Therefore, the fine and contempt judgment were vacated.
Justice John Harlan:
We review from the standpoint of its validity under the Federal Constitution a judgment of civil contempt entered against petitioner, the National Association for the Advancement of Colored People, in the courts of Alabama. The question presented is whether Alabama, consistently with the Due Process Clause of the Fourteenth Amendment, can compel petitioner to reveal to the State’s Attorney General the names and addresses of all its Alabama members and agents, without regard to their positions or functions in the Association. The judgment of contempt was based upon petitioner’s refusal to comply fully with a court order requiring in part the production of membership lists. Petitioner’s claim is that the order, in the circumstances shown by this record, violated rights assured to petitioner and its members under the Constitution.
Alabama has a statute, similar to those of many other States, which requires a foreign corporation, except as exempted, to qualify before doing business by filing its corporate charter with the Secretary of State and designating a place of business and an agent to receive service of process. The statute imposes a fine on a corporation transacting intrastate business before qualifying, and provides for criminal prosecution of officers of such a corporation. The National Association for the Advancement of Colored People is a nonprofit membership corporation organized under the laws of New York. Its purposes, fostered on a nationwide basis, are those indicated by its name, and it operates through chartered affiliates which are independent unincorporated associations, with membership therein equivalent to membership in petitioner. The first Alabama affiliates were chartered in 1918. Since that time, the aims of the Association have been advanced through activities of its affiliates, and, in 1951, the Association itself opened a regional office in Alabama, at which it employed two supervisory persons and one clerical worker. The Association has never complied with the qualification statute, from which it considered itself exempt.
In 1956, the Attorney General of Alabama brought an equity suit in the State Circuit Court, Montgomery County, to enjoin the Association from conducting further activities within, and to oust it from, the State. . . . On the day the complaint was filed, the Circuit Court issued ex parte an order restraining the Association, pendente lite, from engaging in further activities within the State and forbidding it to take any steps to qualify itself to do business therein. . .
Before the date set for a hearing on this motion [to dissolve the restraining order], the State moved for the production of a large number of the Association’s records and papers, including bank statements, leases, deeds, and records containing the names and addresses of all Alabama “members” and “agents” of the Association. It alleged that all such documents were necessary for adequate preparation for the hearing, in view of petitioner’s denial of the conduct of intrastate business within the meaning of the qualification statute. Over petitioner’s objections, the court ordered the production of a substantial part of the requested records, including the membership lists, and postponed the hearing on the restraining order to a date later than the time ordered for production. . . .
[P]etitioner did not comply with the production order, and for this failure, was adjudged in civil contempt and fined $10,000. The contempt judgment provided that the fine would be subject to reduction or remission if compliance were forthcoming within five days, but otherwise would be increased to $100,000.
At the end of the five-day period, petitioner produced substantially all the data called for by the production order except its membership lists, as to which it contended that Alabama could not constitutionally compel disclosure, and moved to modify or vacate the contempt judgment, or stay its execution pending appellate review. This motion was denied. While a similar stay application, which was later denied, was pending before the Supreme Court of Alabama, the Circuit Court made a further order adjudging petitioner in continuing contempt and increasing the fine already imposed to $100,000. Under Alabama law, the effect of the contempt adjudication was to foreclose petitioner from obtaining a hearing on the merits of the underlying ouster action, or from taking any steps to dissolve the temporary restraining order which had been issued ex parte, until it purged itself of contempt.
The State Supreme Court thereafter twice dismissed petitions for certiorari to review this final contempt judgment. We granted certiorari because of the importance of the constitutional questions presented. . . .
The Association both urges that it is constitutionally entitled to resist official inquiry into its membership lists, and that it may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure by the State of their affiliation with the Association as revealed by the membership lists. We think that petitioner argues more appropriately the rights of its members, and that its nexus with them is sufficient to permit that it act as their representative before this Court. In so concluding, we reject respondent’s argument that the Association lacks standing to assert here constitutional rights pertaining to the members, who are not, of course, parties to the litigation.
To limit the breadth of issues which must be dealt with in particular litigation, this Court has generally insisted that parties rely only on constitutional rights which are personal to themselves. This rule is related to the broader doctrine that constitutional adjudication should where possible be avoided. The principle is not disrespected where constitutional rights of persons who are not immediately before the Court could not be effectively vindicated except through an appropriate representative before the Court.
If petitioner’s rank-and-file members are constitutionally entitled to withhold their connection with the Association despite the production order, it is manifest that this right is properly assertable by the Association. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion. Petitioner is the appropriate party to assert these rights, because it and its members are, in every practical sense, identical. The Association, which provides in its constitution that “[a]ny person who is in accordance with [its] principles and policies . . .” may become a member, is but the medium through which its individual members seek to make more effective the expression of their own views. The reasonable likelihood that the Association itself through diminished financial support and membership may be adversely affected if production is compelled is a further factor pointing towards our holding that petitioner has standing to complain of the production order on behalf of its members.
We thus reach petitioner’s claim that the production order in the state litigation trespasses upon fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment. Petitioner argues that, in view of the facts and circumstances shown in the record, the effect of compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs. It contends that governmental action which, although not directly suppressing association, nevertheless carries this consequence, can be justified only upon some overriding valid interest of the State.
Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. Oregon, 299 U. S. 353, 364; Thomas v. Collins, 323 U. S. 516, 530. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. See Gitlow v. New York, 268 U. S. 652, 666; Palko v. Connecticut, 302 U. S. 319, 324.
. . . The fact that Alabama, so far as is relevant to the validity of the contempt judgment presently under review, has taken no direct action to restrict the right of petitioner’s members to associate freely, does not end inquiry into the effect of the production order. See American Communications Assn. v. Douds, 339 U. S. 382, 402. In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action. Thus, in Douds, the Court stressed that the legislation there challenged, which, on its face, sought to regulate labor unions and to secure stability in interstate commerce, would have the practical effect “of discouraging” the exercise of constitutionally protected political rights, and it upheld the statute only after concluding that the reasons advanced for its enactment were constitutionally sufficient to justify its possible deterrent effect upon such freedoms. Similar recognition of possible unconstitutional intimidation of the free exercise of the right to advocate underlay this Court’s narrow construction of the authority of a congressional committee investigating lobbying and of an Act regulating lobbying, although in neither case was there an effort to suppress speech. United States v. Rumely, 345 U. S. 41, 46-47. The governmental action challenged may appear to be totally unrelated to protected liberties. Statutes imposing taxes upon, rather than prohibiting particular activity have been struck down when perceived to have the consequence of unduly curtailing the liberty of freedom of press assured under the Fourteenth Amendment. . . .
We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association. Petitioner has made an uncontroverted showing that, on past occasions, revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner’s members may have upon participation by Alabama citizens in petitioner’s activities follows not from state action, but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.
We turn to the final question–whether Alabama has demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner’s members of their constitutionally protected right of association. See American Communications Assn. v. Douds, supra, at 339 U. S. 400. Such a “. . . subordinating interest of the State must be compelling.”
Whether there was “justification” in this instance turns solely on the substantiality of Alabama’s interest in obtaining the membership lists. During the course of a hearing before the Alabama Circuit Court on a motion of petitioner to set aside the production order, the State Attorney General presented at length, under examination by petitioner, the State’s reason for requesting the membership lists. The exclusive purpose was to determine whether petitioner was conducting intrastate business in violation of the Alabama foreign corporation registration statute, and the membership lists were expected to help resolve this question. The issues in the litigation commenced by Alabama by its bill in equity were whether the character of petitioner and its activities in Alabama had been such as to make petitioner subject to the registration statute, and whether the extent of petitioner’s activities without qualifying suggested its permanent ouster from the State. Without intimating the slightest view upon the merits of these issues, we are unable to perceive that the disclosure of the names of petitioner’s rank-and-file members has a substantial bearing on either of them. As matters stand in the state court, petitioner (1) has admitted its presence and conduct of activities in Alabama since 1918; (2) has offered to comply in all respects with the state qualification statute, although preserving its contention that the statute does not apply to it, and (3) has apparently complied satisfactorily with the production order, except for the membership lists, by furnishing the Attorney General with varied business records, its charter and statement of purposes, the names of all of its directors and officers, and with the total number of its Alabama members and the amount of their dues. . . . [W]hatever interest the State may have in obtaining names of ordinary members has not been shown to be sufficient to overcome petitioner’s constitutional objections to the production order. . . .
We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have. Accordingly, the judgment of civil contempt and the $100,000 fine which resulted from petitioner’s refusal to comply with the production order in this respect must fall.
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The Court’s recognition of a group right of association helped civil rights organizations protect their members from attacks by individuals who opposed their political views. However, after the passage of the 1964 Civil Rights Act, racially-discriminatory businesses claimed this right to exclude customers of other races. They transformed themselves into “private clubs,” charging a nominal membership and claiming an associational right to exclude those they did not want, i.e., members of racial minorities. However, in Daniel v. Paul, 395 U.S. 298 (1969), the Supreme Court saw through this subterfuge, finding that a private business that exercised no selectivity over its membership other than excluding customers from certain races was not a private club, merely a business that operated a public accommodation, albeit in a discriminatory way. However, legitimate private clubs retained the right to discriminate as to members since their association rights permitted them to define who belonged.
As more states passed anti-discrimination statutes, a clash loomed between non-selective organizations and equal access to membership. The Jaycees, a business-networking organization, were such a group. Officially the Junior Chamber of Commerce, they limited full membership to men under 35. But those were their only criteria, and while women could participate in networking they were barred from full membership. Could the Jaycees claim associational rights to protect their exclusion of women despite a state law barring discrimination in public accommodations? This issue reached the Court in 1984.
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
The Court voted unanimously to uphold Minnesota’s anti-discrimination law, which required that the Jaycees allow women to become full members. Justice Brennan’s opinion separated the right of association into two components: intimate association and expressive association. The former was not implicated in a large organization that imposed no requirements on members other than being male and under 35. The latter was minimally implicated since the Jaycees had not shown that allowing women as full rather than associate members would adversely affect their ability to take positions on political issues. Nevertheless, since association is a fundamental right, the Court applied strict scrutiny to the Minnesota law. It found that the State had a compelling interest in eradicating gender discrimination and that it had done so in the least restrictive way. However, Justice Brennan only obtained the support of four other justices; two recused, and two others concurred in the judgment. Justice O’Connor’s concurrence classified the Jaycees as a commercial organization that had limited free speech rights; therefore, strict scrutiny was not warranted and the law passed the minimally-restrictive rational relationship test. She objected to the Court’s evaluation of whether the composition of the membership affected its position on political issues as intruding on the Jaycees right of association. By classifying the Jaycees as primarily a commercial organization, she avoided this inquiry in a way that was analogous to Daniel v. Paul.
Justice William Brennan:
This case requires us to address a conflict between a State’s efforts to eliminate gender-based discrimination against its citizens and the constitutional freedom of association asserted by members of a private organization. In the decision under review, the Court of Appeals for the Eighth Circuit concluded that, by requiring the United States Jaycees to admit women as full voting members, the Minnesota Human Rights Act violates the First and Fourteenth Amendment rights of the organization’s members. . . .
The United States Jaycees (Jaycees), founded in 1920 as the Junior Chamber of Commerce, is a nonprofit membership corporation, incorporated in Missouri with national headquarters in Tulsa, Okla. The objective of the Jaycees, as set out in its bylaws, is to pursue “such educational and charitable purposes as will promote and foster the growth and development of young men’s civic organizations in the United States, designed to inculcate in the individual membership of such organization a spirit of genuine Americanism and civic interest, and as a supplementary education institution to provide them with opportunity for personal development and achievement and an avenue for intelligent participation by young men in the affairs of their community, state and nation, and to develop true friendship and understanding among young men of all nations.”. . .
Regular membership is limited to young men between the ages of 18 and 35, while associate membership is available to individuals or groups ineligible for regular membership, principally women and older men. An associate member, whose dues are somewhat lower than those charged regular members, may not vote, hold local or national office, or participate in certain leadership training and awards programs. . . .
At the time of trial in August, 1981, the Jaycees had approximately 295,000 members in 7,400 local chapters affiliated with 51 state organizations. There were at that time about 11,915 associate members. The national organization’s executive vice-president estimated at trial that women associate members make up about two percent of the Jaycees’ total membership. . . . In 1974 and 1975, respectively, the Minneapolis and St. Paul chapters of the Jaycees began admitting women as regular members. Currently, the memberships and boards of directors of both chapters include a substantial proportion of women. As a result, the two chapters have been in violation of the national organization’s bylaws for about 10 years. The national organization has imposed a number of sanctions on the Minneapolis and St. Paul chapters for violating the bylaws, including denying their members eligibility for state or national office or awards programs, and refusing to count their membership in computing votes at national conventions.
In December, 1978, the president of the national organization advised both chapters that a motion to revoke their charters would be considered at a forthcoming meeting of the national board of directors in Tulsa. Shortly after receiving this notification, members of both chapters filed charges of discrimination with the Minnesota Department of Human Rights. The complaints alleged that the exclusion of women from full membership required by the national organization’s bylaws violated the Minnesota Human Rights Act (Act), which provides in part: “It is an unfair discriminatory practice: To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex. . . .” Minn. Stat. § 363.03, subd. 3 (1982). The term “place of public accommodation” is defined in the Act as “a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” § 363.01, subd. 18.
After an investigation, the Commissioner of the Minnesota Department of Human Rights found probable cause to believe that the sanctions imposed on the local chapters by the national organization violated the statute, and ordered that an evidentiary hearing be held before a state hearing examiner. . . .
The proceeding before the Minnesota Human Rights Department hearing examiner then went forward and, upon its completion, the examiner filed findings of fact and conclusions of law. The examiner concluded that the Jaycees organization is a “place of public accommodation” within the Act, and that it had engaged in an unfair discriminatory practice by excluding women from regular membership. He ordered the national organization to cease and desist from discriminating against any member or applicant for membership on the basis of sex and from imposing sanctions on any Minnesota affiliate for admitting women. . . .
With the record of the administrative hearing before it, the Minnesota Supreme Court . . . determined that the statute is applicable to any “public business facility.” It then concluded that the Jaycees organization (a) is a “business” in that it sells goods and extends privileges in exchange for annual membership dues; (b) is a “public” business in that it solicits and recruits dues-paying members based on unselective criteria; and (c) is a public business “facility” in that it conducts its activities at fixed and mobile sites within the State of Minnesota. . . . The federal suit then proceeded to trial, after which the District Court entered judgment in favor of the state officials. On appeal, a divided Court of Appeals for the Eighth Circuit reversed.
Our decisions have referred to constitutionally protected “freedom of association” in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized 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. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties. The intrinsic and instrumental features of constitutionally protected association may, of course, coincide. In particular, when the State interferes with individuals’ selection of those with whom they wish to join in a common endeavor, freedom of association in both of its forms may be implicated. The Jaycees contend that this is such a case. Still, the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which one or the other aspect of the constitutionally protected liberty is at stake in a given case.
We therefore find it useful to consider separately the effect of applying the Minnesota statute to the Jaycees on what could be called its members’ freedom of intimate association and their freedom of expressive association. The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. E.g., Pierce v. Society of Sisters 268 U. S. 510, 534-535 (1925); Meyer v. Nebraska,262 U. S. 390, 399 (1923). Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State. Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty.
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family–marriage, e.g., Zablocki v. Redhail; childbirth, e.g., Carey v. Population Services International; the raising and education of children, e.g., Smith v. Organization of Foster Families; and cohabitation with one’s relatives, e.g., Moore v. East Cleveland. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities–such as a large business enterprise–seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees.
Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual’s freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments. We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that, in a particular case, may be pertinent. In this case, however, several features of the Jaycees clearly place the organization outside of the category of relationships worthy of this kind of constitutional protection.
The undisputed facts reveal that the local chapters of the Jaycees are large and basically unselective groups. At the time of the state administrative hearing, the Minneapolis chapter had approximately 430 members, while the St. Paul chapter had about 400. Apart from age and sex, neither the national organization nor the local chapters employ any criteria for judging applicants for membership, and new members are routinely recruited and admitted with no inquiry into their backgrounds. In fact, a local officer testified that he could recall no instance in which an applicant had been denied membership on any basis other than age or sex. Cf. Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431, 438 (1973) (organization whose only selection criterion is race has “no plan or purpose of exclusiveness” that might make it a private club exempt from federal civil rights statute). Furthermore, despite their inability to vote, hold office, or receive certain awards, women affiliated with the Jaycees attend various meetings, participate in selected projects, and engage in many of the organization’s social functions. Indeed, numerous nonmembers of both genders regularly participate in a substantial portion of activities central to the decision of many members to associate with one another, including many of the organization’s various community programs, awards ceremonies, and recruitment meetings.
In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship. Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women. We turn therefore to consider the extent to which application of the Minnesota statute to compel the Jaycees to accept women infringes the group’s freedom of expressive association.
An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity, and in shielding dissident expression from suppression by the majority. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. In view of the various protected activities in which the Jaycees engages, that right is plainly implicated in this case.
Government actions that may unconstitutionally infringe upon this freedom can take a number of forms. Among other things, government may seek to impose penalties or withhold benefits from individuals because of their membership in a disfavored group; it may attempt to require disclosure of the fact of membership in a group seeking anonymity; and it may try to interfere with the internal organization or affairs of the group. By requiring the Jaycees to admit women as full voting members, the Minnesota Act works an infringement of the last type. There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate.
The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. We are persuaded that Minnesota’s compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members’ associational freedoms.
On its face, the Minnesota Act does not aim at the suppression of speech, does not distinguish between prohibited and permitted activity on the basis of viewpoint, and does not license enforcement authorities to administer the statute on the basis of such constitutionally impermissible criteria. Nor does the Jaycees contend that the Act has been applied in this case for the purpose of hampering the organization’s ability to express its views. Instead, as the Minnesota Supreme Court explained, the Act reflects the State’s strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services. That goal, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order.
The Minnesota Human Rights Act at issue here is an example of public accommodations laws that were adopted by some States beginning a decade before enactment of their federal counterpart, the Civil Rights Act of 1875. . . . These laws provided the primary means for protecting the civil rights of historically disadvantaged groups until the Federal Government reentered the field in 1957. Like many other States, Minnesota has progressively broadened the scope of its public accommodations law in the years since it was first enacted, both with respect to the number and type of covered facilities and with respect to the groups against whom discrimination is forbidden. In 1973, the Minnesota Legislature added discrimination on the basis of sex to the types of conduct prohibited by the statute.
By prohibiting gender discrimination in places of public accommodation, the Minnesota Act protects the State’s citizenry from a number of serious social and personal harms. In the context of reviewing state actions under the Equal Protection Clause, this Court has frequently noted that discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities. It thereby both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life. These concerns are strongly implicated with respect to gender discrimination in the allocation of publicly available goods and services. Thus, in upholding Title II of the Civil Rights Act of 1964, which forbids race discrimination in public accommodations, we emphasized that its “fundamental object . . . was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.'” Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 250 (1964). That stigmatizing injury, and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.
Nor is the state interest in assuring equal access limited to the provision of purely tangible goods and services. A State enjoys broad authority to create rights of public access on behalf of its citizens. Like many States and municipalities, Minnesota has adopted a functional definition of public accommodations that reaches various forms of public, quasi-commercial conduct. This expansive definition reflects a recognition of the changing nature of the American economy and of the importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women. . . .
In applying the Act to the Jaycees, the State has advanced those interests through the least restrictive means of achieving its ends. Indeed, the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members’ freedom of expressive association. . . . There is . . . 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 disseminate its preferred views.
Justice Sandra Day O’Connor, concurring in the judgment:
I agree with the Court that application of the Minnesota law to the Jaycees does not contravene the First Amendment, but I reach that conclusion for reasons distinct from those offered by the Court. I believe the Court has adopted a test that unadvisedly casts doubt on the power of States to pursue the profoundly important goal of ensuring nondiscriminatory access to commercial opportunities in our society. At the same time, the Court has adopted an approach to the general problem presented by this case that accords insufficient protection to expressive associations and places inappropriate burdens on groups claiming the protection of the First Amendment.
The Court analyzes Minnesota’s attempt to regulate the Jaycees’ membership using a test that I find both overprotective of activities undeserving of constitutional shelter and underprotective of important First Amendment concerns. The Court declares that the Jaycees’ right of association depends on the organization’s making a “substantial” showing that the admission of unwelcome members “will change the message communicated by the group’s speech.” I am not sure what showing the Court thinks would satisfy its requirement of proof of a membership-message connection, but whatever it means, the focus on such a connection is objectionable.
Imposing such a requirement, especially in the context of the balancing-of-interests test articulated by the Court, raises the possibility that certain commercial associations, by engaging occasionally in certain kinds of expressive activities, might improperly gain protection for discrimination. The Court’s focus raises other problems as well. How are we to analyze the First Amendment associational claims of an organization that invokes its right, settled by the Court in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460-466 (1958), to protect the privacy of its membership? And would the Court’s analysis of this case be different if, for example, the Jaycees membership had a steady history of opposing public issues thought (by the Court) to be favored by women? It might seem easy to conclude, in the latter case, that the admission of women to the Jaycees’ ranks would affect the content of the organization’s message, but I do not believe that should change the outcome of this case. Whether an association is or is not constitutionally protected in the selection of its membership should not depend on what the association says or why its members say it.
The Court’s readiness to inquire into the connection between membership and message reveals a more fundamental flaw in its analysis. The Court pursues this inquiry as part of its mechanical application of a “compelling interest” test, under which the Court weighs the interests of the State of Minnesota in ending gender discrimination against the Jaycees’ First Amendment right of association. The Court entirely neglects to establish at the threshold that the Jaycees is an association whose activities or purposes should engage the strong protections that the First Amendment extends to expressive associations.
On the one hand, an association engaged exclusively in protected expression enjoys First Amendment protection of both the content of its message and the choice of its members. Protection of the message itself is judged by the same standards as protection of speech by an individual. Protection of the association’s right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice. . . . A ban on specific group voices on public affairs violates the most basic guarantee of the First Amendment–that citizens, not the government, control the content of public discussion.
On the other hand, there is only minimal constitutional protection of the freedom of commercial association. There are, of course, some constitutional protections of commercial speech–speech intended and used to promote a commercial transaction with the speaker. But the State is free to impose any rational regulation on the commercial transaction itself. The Constitution does not guarantee a right to choose employees, customers, suppliers, or those with whom one engages in simple commercial transactions, without restraint from the State. A shopkeeper has no constitutional right to deal only with persons of one sex. . . .
In my view, an association should be characterized as commercial, and therefore subject to rationally related state regulation of its membership and other associational activities, when, and only when, the association’s activities are not predominantly of the type protected by the First Amendment. It is only when the association is predominantly engaged in protected expression that state regulation of its membership will necessarily affect, change, dilute, or silence one collective voice that would otherwise be heard. An association must choose its market. Once it enters the marketplace of commerce in any substantial degree, it loses the complete control over its membership that it would otherwise enjoy if it confined its affairs to the marketplace of ideas. . . .
In summary, this Court’s case law recognizes radically different constitutional protections for expressive and nonexpressive associations. The First Amendment is offended by direct state control of the membership of a private organization engaged exclusively in protected expressive activity, but no First Amendment interest stands in the way of a State’s rational regulation of economic transactions by or within a commercial association. The proper approach to analysis of First Amendment claims of associational freedom is, therefore, to distinguish nonexpressive from expressive associations, and to recognize that the former lack the full constitutional protections possessed by the latter.
Minnesota’s attempt to regulate the membership of the Jaycees chapters operating in that State presents a relatively easy case for application of the expressive-commercial dichotomy. . . .
There is no reason to question the accuracy of this characterization. Notwithstanding its protected expressive activities, the Jaycees–otherwise known as the Junior Chamber of Commerce–is, first and foremost, an organization that, at both the national and local levels, promotes and practices the art of solicitation and management. The organization claims that the training it offers its members gives them an advantage in business, and business firms do indeed sometimes pay the dues of individual memberships for their employees. Jaycees members hone their solicitation and management skills, under the direction and supervision of the organization, primarily through their active recruitment of new members.
Recruitment and selling are commercial activities, even when conducted for training, rather than for profit. The “not insubstantial” volume of protected Jaycees activity found by the Court of Appeals is simply not enough to preclude state regulation of the Jaycees’ commercial activities. The State of Minnesota has a legitimate interest in ensuring nondiscriminatory access to the commercial opportunity presented by membership in the Jaycees. The members of the Jaycees may not claim constitutional immunity from Minnesota’s antidiscrimination law by seeking to exercise their First Amendment rights through this commercial organization. . . .
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In two subsequent decisions, Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987), and New York Club Association v. City of New York, 487 U.S. 1 (1988), the Supreme Court relied on the lack of membership selectivity in finding that social clubs’ rights of association were not significantly impaired by the enforcement of anti-discrimination laws because they did not prevent these clubs from engaging in constitutionally-protected speech. This encouraged other efforts to apply anti-discrimination laws to organizations other than private clubs. In Boston, a gay and lesbian group sued a private organization that excluded it from marching in its St. Patrick’s Day parade, alleging that its lax criteria for participation and absence of a unified message meant that it could constitutionally be subjected to the City’s anti-discrimination ordinance. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., included in unit five, chapter 4, the Court unanimously held that a group that presents a parade has a right of association that prevents government from compelling it to include a group whose views they disagree with. The Court noted that the objection was not to the participation of homosexuals in the parade, but to the presentation of a banner reflecting their organization. Since the City of Boston had no compelling interest to force the inclusion of a group in a parade, the Court upheld the right of association over the enforcement of Boston’s anti-discrimination statute.
The Boy Scouts of America were another group that was targeted for reform through anti-discrimination laws. Its moral code barred homosexuals from participation. When the Boy Scouts expelled an adult leader for his admitted homosexuality, he sued on the grounds that the organization was a public accommodation subject to New Jersey’s law barring discrimination on the grounds of homosexuality. The Court divided 5-4 on whether the organization was more like a social club or a parade.
Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
The Boy Scouts argued that their values discourage homosexuality, and thus having a prominent gay rights spokesman as a scoutmaster contradicted their organizational mission. As in Hurley, the Scouts did not appear to have a consistent policy on discouraging homosexuality, but their leaders stated that it was contrary to their mission and this was sufficient for the five justices in the majority to exempt the Scouts from compliance with the anti-discrimination law. Chief Justice Rehnquist’s opinion concluded that the right of expressive association protected the Scouts from being forced to include someone whose personal speech conflicted with their group beliefs. Justice Stevens’ dissent, joined by three other justices, pointed out that the Scouts’ policies disdain teaching about sexuality, which they believe should be taught by persons outside the organization. Stevens chastised the Scouts for not having a more fully-developed explanation as to why homosexual members would impair their organizational values.
Chief Justice William Rehnquist:
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.
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 Scouting’s highest honors. Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his application for the position 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 others that he is gay. He quickly became involved with, and eventually became the copresident of, the Rutgers University Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing the psychological and health needs of lesbian and gay teenagers. A newspaper covering the event interviewed Dale about his advocacy of homosexual teenagers’ need for gay role models. In early July 1990, the newspaper 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 membership. Dale wrote to Kay requesting the reason for Monmouth Council’s decision. Kay responded by letter that the Boy Scouts “specifically forbid membership to homosexuals.”
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 accommodations 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 orientation in places of public accommodation. N. J. Stat. Ann. §§ 10:5-4 and 10:5-5.
The New Jersey Superior Court’s Chancery Division granted summary judgment in favor of the Boy Scouts. . . . The New Jersey Superior Court’s Appellate Division . . . 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. . . .
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 corresponding 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 rather express other, perhaps unpopular, ideas. Government actions that may unconstitutionally burden this freedom may take many forms, one of which is “intrusion into the internal structure or affairs of an association” like a “regulation that forces the group to accept members it does not desire.” 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 associate.”
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 association, 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 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 by the First Amendment’s expressive associational right, we must determine 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. . . .
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.'”
Thus, the general mission of the Boy Scouts is clear: “[T]o instill values in young people.” 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 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.
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. The Boy Scouts explains that the Scout Oath and Law provide “a positive moral code for living; they are a list of ‘do’s’ rather than ‘don’ts.'” The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values represented by the terms “morally straight” and “clean.”
Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation. 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 Scouts’ commitment to a diverse and ‘representative’ membership … [and] contradicts Boy Scouts’ overarching objective to reach ‘all eligible youth.'” The court concluded that the exclusion of members like Dale “appears antithetical to the organization’s goals and philosophy.” 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. The Boy Scouts asserts that it “teach[es] that homosexual conduct is not morally straight,” and that it does “not want to promote homosexual conduct as a legitimate form of behavior.” We accept the Boy Scouts’ assertion. We need not inquire further to determine the nature of the Boy Scouts’ expression with respect to homosexuality. . . .
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 legitimate form of behavior.” 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. . . . 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 accommodations 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. . . .
Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not “promote homosexual conduct as a legitimate form of behavior.” As the presence of GLIB in Boston’s St. Patrick’s Day parade would have interfered with the parade 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 Boy Scouts has a First Amendment 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 Amendment protection.
Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, we inquire whether the application 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. . . .
In Hurley, we applied traditional First Amendment analysis to hold that the application of the Massachusetts public accommodations law to a parade violated the First Amendment rights of the parade organizers. Although we did not explicitly deem the parade in Hurley an expressive association, the analysis we applied there is similar to the analysis we apply here. We have already concluded that a state requirement 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.
Justice John Paul Stevens, joined by Justices Souter, Ginsburg and Breyer, dissenting:
The majority holds that New Jersey’s law violates BSA’s right to associate and its right to free speech. But that law 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 constitutional right of BSA.
. . . BSA’s mission statement reads as follows: “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.” Its federal charter 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 kindred values, using the methods which were in common use by Boy Scouts on June 15, 1916.” 36 U. S. C. § 23. BSA describes itself as having a “representative membership,” which it defines as “boy membership [that] reflects proportionately the characteristics of the boy population of its service area.” In particular, the group emphasizes that “[n]either the charter nor the bylaws 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.”. . .
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 constituting the Scout Law. . . .
It is plain as the light of day that neither one of these principles-“morally straight” and “clean”-says the slightest thing about homosexuality. Indeed, neither term in the Boy 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). To be sure, Scouts are not forbidden from asking their Scoutmaster about issues of a sexual nature, but Scoutmasters are, literally, 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.” Moreover, Scoutmasters are specifically directed to steer curious adolescents to other sources of information: “If Scouts ask for information regarding . . . sexual activity, 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.” Scoutmaster Handbook (1990) . . .
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 accommodation laws challenging various aspects of its membership policy. 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 lnt’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 Court–yet it did nothing in the intervening six years (or even in the years after Dale’s expulsion) 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. . . .
[U]ntil 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 antidiscrimination 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. . . .
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 admitting homosexuals.
As in Jaycees, there is “no basis in the record for concluding 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 “requires no change in [BSA’s] creed.” Roberts, 468 U. S., at 626-627. . . .
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The Supreme Court’s decision in Boy Scouts of America v. Dale remains good law as of 2024, but the Boy Scouts have changed dramatically. They dropped their ban on homosexuals, changed their name, and welcomed girls and transgender persons. All youth may now participate in Scouting USA.
