On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Before Judges Havey, Landau and Newman.
The opinion of the court was delivered by: The opinion of the court was delivered by Havey, P.j.a.d.
Plaintiff James Dale was expelled from his position as an Assistant Scoutmaster with defendant Monmouth Council, Boy Scouts of America when he publicly declared he was a homosexual. He was expelled by the Boy Scouts of America (BSA) because of its policy excluding avowed homosexuals from membership in its organization. We conclude that: (1) the BSA is a place of public accommodation under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; (2) the BSA's expulsion of plaintiff from his position with the BSA violated the LAD by depriving him of a public accommodation; and (3) the LAD's prohibition of the BSA's policy of excluding gay members does not infringe upon defendants' freedom of expressive association. Accordingly, except to affirm the dismissal of plaintiff's common law claim, we reverse and remand for further proceedings.
The BSA charters local groups to maintain units including Cub Scout Packs (boys under eleven), Boy Scout Troops (boys eleven to eighteen), and Explorer Posts (young men and women fourteen through twenty). The troops are sponsored by religious, civic, fraternal or educational organizations, and other groups whose goals are compatible with those of the BSA.
As of December 1992, the BSA reported 3,453,315 youth members and 1,172,485 adults registered in 123,045 traditional Scout units. The national organization is headed by a National Council and divided into regional administrative units and subdivided into local councils. Monmouth Council has jurisdiction over the geographical area in which plaintiff served. There are approximately 400 local councils. Monmouth Council was incorporated in 1924. In 1991, Monmouth Council had 9,446 youth members and 2,781 adults registered in 215 units.
The BSA was chartered by an Act of Congress in 1915, with its stated purpose:
to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which are now in common use by Boy Scouts.
The BSA's bylaws provide: "In achieving this purpose, emphasis shall be placed upon its educational program and the oaths, promises, and codes of the Scouting program for character development, citizenship training, mental and physical fitness." The BSA Mission Statement provides:
It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential.
The values we strive to instill are based on those found in the Scout Oath and Law:
On my honor I will do my best To do my duty to God and my country and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong, mentally awake, and morally straight.
Trustworthy Loyal Helpful Friendly Courteous Kind
Obedient Cheerful Thrifty Brave Clean Reverent
According to the 1990 Boy Scout Handbook, understanding and agreeing to live by the Scout Oath and the Scout Law are among the joining requirements. According to the Declaration of Religious Principle in the BSA by laws, although scouting is nonsectarian, all members must recognize an obligation to God.
The Scout Law, set forth in the 1911 Official Handbook for Boys, has remained fundamental and unchanged. The 1936 Handbook for Scoutmasters described the Scout Law as "the foundation upon which the whole Scout Movement rests." It explained:
The genius of Scouting is most evident in the Law of the Movement. It was based upon the codes of old, transformed into a positive, living ideal for the modern boy, devised as a guide to his actions rather than as repressive of his faults. That is what makes the Scout Law outstanding.
The Scout Law neither commands nor prohibits, but positively states these desired qualities.
Plaintiff became a Cub Scout at the age of eight and remained an extremely active and successful youth member of the BSA, achieving the rank of Eagle Scout. In March 1989, seven months after his eighteenth birthday on August 2, 1988, he applied for adult membership and was approved. He then served as an Assistant Scoutmaster for Troop 73 in Matawan, during periods when he was not away at college.
Plaintiff has been a devoted and exemplary Boy Scout. He earned thirty merit badges, advanced to the highest rank, and held numerous trooper leadership positions, including Junior Assistant Scoutmaster. In addition, he was active in the Order of the Arrow, an affiliated honor camping association. In the Order of the Arrow, he was chosen for the highest possible honor, Vigil, and also held numerous offices. Plaintiff was also selected as a delegate to the 1985 National Boy Scout Jamboree, and was chosen to speak at Monmouth Council functions on more than one occasion.
On August 5, 1990, plaintiff, twenty years old at the time, received a letter dated July 19, 1990, from James W. Kay, Council Executive of Monmouth Council, informing him that his registration was revoked. Registration is a prerequisite for service as a volunteer adult leader. The letter said in part:
After careful review, we have decided that your registration with the Boy Scouts of America should be revoked. We are therefore compelled to request that you sever any relations that you may have with the Boy Scouts of America.
You should understand that BSA membership registration is a privilege and is not automatically granted to everyone who applies. We reserve the right to refuse registration whenever there is a concern that an individual may not meet the high standards of membership which the BSA seeks to provide for American youth.
Plaintiff answered by letter dated August 8, 1990, asking the grounds of the decision. In a letter dated August 10, 1990, Kay responded: "The grounds for this membership revocation are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals." Kay explained later in a deposition that he became aware that plaintiff was an affirmed homosexual through a newspaper article. The article, published on July 8, 1990, in the Newark Star Ledger, was entitled, "Seminar addresses needs of homosexual teens." It pictured plaintiff, a Rutgers student; identified him as co-president of the Rutgers University Lesbian/Gay Alliance; and quoted him as saying that he had pretended to be straight while in high school, "only admitting his homosexuality during his second year at Rutgers." According to Kay, plaintiff demonstrated his failure to live by the Scout Oath and Law by publicly avowing that he was a homosexual.
By letter dated November 27, 1990, Charles D. Ball, Assistant Regional Director, Northeast Region, BSA, informed plaintiff that the Northeast Region Review Committee supported the decision of Monmouth Council. After further correspondence, a December 21, 1990, letter from the BSA's legal counsel David K. Park to plaintiff's counsel explained: "As your client is apparently an avowed homosexual and the Boy Scouts of America does not admit avowed homosexuals to membership in the organization, no useful purpose would apparently be served by having Mr. Dale present at the regional review meeting."
According to plaintiff, he was "devastated" by the instruction to sever relations with scouting, which he interpreted to mean that he was not only removed from his position as Assistant Scoutmaster, but also stripped of all his scouting honors, including his Eagle Scout status. However, according to Kay, plaintiff was not stripped of any awards he had earned as a youth, including his attainment of Eagle Scout rank, and his membership revocation was kept confidential.
According to the BSA Rules and Regulations, to serve in an adult leadership position, an individual must be recommended by the scout executive, approved by the council executive board, and be at least twenty-one (eighteen for assistant leaders). All leaders must be commissioned annually. The BSA bylaws provide: "No person shall be approved as a leader unless, in the judgment of the Corporation, that person possesses the moral, educational, and emotional qualities deemed necessary for leadership and satisfies such other leadership qualifications as it may from time to time require." The 1990 Troop Committee Guidebook lists "igh moral standards" and "ommitment to the ideals of Scouting" as the top two characteristics sought in a Scoutmaster. It also suggests that the same standards used to choose a Scoutmaster should be used to qualify Assistant Scoutmasters (eighteen and up).
The 1972 Scoutmaster's Handbook emphasized the leaders' duty as role models, and advised:
You are providing a good example of what a man should be like. What you do and what you are may be worth a thousand lectures and sermons.
What you are speaks louder than what you say. This ranges from simple things like wearing a uniform to the matter of your behavior as an individual. Boys need a model to copy and you might be the only good example they know.
According to Parvin L. Bishop, National Director of Program of the BSA, the requirements that a scout be "morally straight" and "clean" are inconsistent with homosexuality, and therefore known or avowed homosexuals or those who advocate to scouting youth that homosexual conduct is morally straight or clean, will not be registered as adult leaders. The BSA literature does not detail prohibited sexual conduct, but the 1990 Boy Scout Handbook includes a section on "Sexual Responsibility," which summarizes responsibilities to women, to children, to the scout's beliefs, and to himself. It says in part:
For the followers of most religions, sex should take place only between married couples.
An understanding of wholesome sexual behavior can bring you lifelong happiness.
You owe it to yourself to enrich your life by learning what is right.
In a policy statement dated March 17, 1978, addressed to Executive Committee Members, the National Council asserted that an individual who openly declares himself to be a homosexual would not be selected to be a volunteer scout leader, be registered as a unit member, or be employed as a professional or nonprofessional. This was the earliest express statement concerning homosexual members that defendants produced. Later Position Statements affirmed that stance.
In a Position Statement dated January 1993, several years after the revocation of plaintiff's membership, the BSA stated in part:
The Boy Scouts of America does not ask prospective members about their sexual preference, nor do we check on the sexual orientation of boys who are already Scouts.
The reality is that Scouting serves children who have no knowledge of, or interest in, sexual preference. We allow youth to live as children and enjoy Scouting and its diversity without immersing them in the politics of the day.
Membership in Scouting is open to all youth who meet basic requirements for membership and who agree to live by the applicable oath and law.
It summarized the 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.
Plaintiff filed a six-count complaint in the Superior Court, Chancery Division, alleging that defendants' revocation of his membership and his expulsion as an Assistant Scoutmaster violated the LAD, as well as certain common law rights. In the complaint he seeks both reinstatement and damages. Plaintiff filed a notice of motion for partial summary judgment seeking a declaration that he had been deprived of an accommodation in violation of the LAD. He also demanded an immediate reinstatement to his position as Assistant Scoutmaster. Defendants filed a cross-motion for summary judgment on all counts.
In granting summary judgment to defendants, the trial Judge determined that the parties had stipulated that plaintiff was "a sexually active homosexual." The Judge found that the BSA had consistently excluded from youth and adult membership any self-declared homosexual and that the BSA considered homosexual conduct neither "morally straight" under the Scout Oath nor "clean" under the Scout Law. The Judge relied on the entrenched biblical and historical view of homosexuality as not only morally wrong, but criminal, as a basis for the presumption that, from its inception, the BSA implicitly subscribed to that historical view as well.
The Judge concluded that plaintiff had no cause of action under the LAD because the BSA was not a "place of public accommodation" as defined by the Act. The Judge also agreed with defendants that they qualified for the LAD exclusion in N.J.S.A. 10:5-5(l) for any "institution . . . which is in its nature distinctly private[.]" Finally, the Judge concluded that defendants' "First Amendment freedom of expressive association rights prevent government from forcing them to accept as an adult leader-member" in view of defendants' historical belief that homosexual conduct was morally wrong, and "he presence of a publicly avowed active homosexual as an adult leader of boy scouts is absolutely antithetical to the purpose of Scouting."
The parties agree that the there are no genuine issues of material fact. Accordingly, the issues raised by this appeal may be resolved as a matter of law.
Plaintiff contends that the BSA is a place of public accommodation under the LAD, prohibited from discriminating on the basis of affectional or sexual orientation. Plaintiff argues that his expulsion from the Boy Scouts and his position as an Assistant Scoutmaster violated the LAD by depriving him of the ...