In Boy Scouts of America v. Dale, [1] the United States Supreme Court reversed the New Jersey Supreme Court's application of its state's public accommodations statute and held that a requiring the reinstatement of an openly gay scoutmaster to the Boy Scouts of America would violate the organization's First Amendment freedom to engage in expressive association. [2] The Court based this holding on evidence provided by the Boy Scouts that the terms "clean" and "morally straight," as used in the Scout Oath, mean "not homosexual." [3] Thus, the Court concluded that disapproving of homosexual activity is a specific, expressive message of the Boy Scouts and that such expressive message would be undermined by forcing the inclusion of a gay member into the organization. [4]
The evidence on which the Court based this decision was scant. Although the Boy Scouts introduced certain documents to support its assertion of an antigay message, the source and extent of circulation of those documents were questionable, allowing for a reasonable conclusion that the documents did not truly represent any expressive message of the Boy Scouts. On the contrary, there was evidence that the Boy Scouts, in fact, take no position on homosexuality and that the group's intention in excluding homosexuals was actually to discriminate based on nothing more than the individual's status, something prohibited by New Jersey's public accommodations statute. The Court was able to reach its decision because, rather than being required to look only at objective evidence, courts have broad discretion in determining what the expressive purpose, if any, of an organization is. [5] Such discretion allows courts to infuse their own biases and prejudices, either for or against the organization's asserted expressive message, into their decisions, as...