Introduction
The Boy Scouts of America (BSA) v. Dale 530 U. S. 640 (2000) is a significant precedent of the U.S. Supreme Court in terms of interpreting the First Amendment, particularly the interplay between public accommodations law and expressive associations. One party of the disagreement, Dale, claimed that he was being discriminated against in places of public accommodation on the basis of his sexual orientation. On the other hand, however, the BSA argued that, as a private and expressive organization, it aims to instill certain moral values in young people, and that homosexuality is against those values, so under the First Amendment it has a right to exclude. In my view, by holding in favor of the BSA’s argument, the Supreme Court implies that one can enjoy the freedom of speech as a trump card against the prohibition of discrimination, and associations have a broad discretion to identifying the group’s inclusion as well. The Supreme Court’s legal reasoning in this case is not only still valid but also has been extended when assessing the scrutiny of the First Amendment.
“On My Honor”: Public Accommodations vs. Expressive Associations
James Dale was an assistant scoutmaster. In college, Dale came out as gay and became the co-president of a LGBTI+ community, and a gay rights activist. The BSA, of which Dale had been a member since the age of eight, dismissed him as scoutmaster and revoked his membership after learning that he was homosexual. The BSA sent a letter saying that membership of the organization is a privilege that if an individual doesn’t have capacity to meet those high standards, his membership may be denied. The association claimed that Dale’s presence in scouting, which had been a meaningful part of his life, was not consistent with its mission that promoting or cultivating decent values on young people.
Dale argued that he had never heard of any such policy that homosexual individuals must not be included in the BSA and therefore sued it on the ground of New Jersey anti-discrimination law. The statute recognizes a civil right that “all persons shall have the opportunity to obtain privileges of any place of public accommodation […] without discrimination because of […] sexual orientation.” However, the BSA objected that the public accommodations law’s requirements cannot be applied to the organization as it is a distinctly private group which has a right to exclude through the benefits of freedom of association. Drawing upon the First Amendment, the BSA argue that, as an expressive association, they emphasize, in their Scout Oath and Law, only the morally straight and clean person can involve this community, and homosexuality has historically always been a cause for avoidance.
Even though The New Jersey Supreme Court held that public accommodations law requires that the BSA readmit Dale and his presence would not significantly affect to convey the group’s message, The Federal Supreme Court reversed the claim of discrimination and decided that the State cannot force the BSA to accept or reject whose involvement should be revoke or what kind of behaviors ought to stamp out as morally wrong. According to the 5-4 majority of the Court, applying public accommodations law in this case violates the BSA’s First Amendment right of expressive association.
Chief Justice William Rehnquist who delivered the majority opinion, identified that associations do not merely have to associate for the “purpose” of spreading a specific message to be entitled to the protections of the First Amendment. If such an association endorses an expression through its activities, it would also be within the scope of the First Amendment to impose obligations that would prevent it from adhering to that expression.
Although Justice Stevens, in the dissenting opinion, contended that the states should have a broad discretion to interpret its interest arising from the public accommodations law and that intermediate scrutiny could therefore be invoked, the Supreme Court held that the state’s interest in terms of anti-discrimination law fails to justify a severe intrusion on the freedom of expressive association. The First Amendment’s strict scrutiny standards prohibit the state from imposing requirements at stake through the application of the public accommodations law.
The Court applies double judicial deference that one is identifying of the meaning of the immoral behavior and the other is Dale’s presence’s impact on the organization’s message that would send both their members and the world. The Court’s argument, facially, morally skeptic. The terms “morally straight” and “clean” should not be defined by the Court but rather be respect to the association’s own agency. Even if it is argued that neither Scouts be “morally straight” and “clean” don’t say the slightest thing about homosexuality nor Dale’s involvement would not affect the impersonality of the association, the Court finds the examination of such arguments to be an interference with the association’s freedom of speech.
Public Accommodations Law is Getting Looser: 303 Creative
The BSA v. Dale holding has been crucial in a number of judgements in which the Court has interpreted freedom of speech in the context of public accommodations law. In a very recent case, 303 Creative LLC v. Elenis 600 U. S. ____ (2023), the Supreme Court made an analogy with the BSA that freedom of speech is applicable not only in the case of pure speech but also expressive associations. Accordingly, the government is not permitted to interfere with the message it intends to convey to anyone, even if it considers that “message to be reasonable and well-intentioned or deeply ‘misguided’”. If the group accepted “propound a point of view according to its beliefs” to prerequisites of membership, the government should not compel to speech anyone consistent with the Constitution.
In 303 Creative, the dissent justices objected to apply Dale precedent because private and non-profit organization’s freedom of speech protections should be distinguished with “clearly commercial entities”. No company can declare that it rejects selling services or goods to any member of the public because of sexual orientation. However, in the majority’s view, the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit such as website designers. In this way, the prohibition of discrimination is withdrawn not only by private associations but also by commercial entities in favor of the freedom of speech argument since one cannot force to disseminate a message that is not to be believed.
Conclusion
Freedom of speech is an essential value of modern plural democratic societies. Yet, another fundamental principle is the right to equal citizenship that is institutionalized through the prohibition of discrimination. The Supreme Court tends to limit the active action of the states or governments by recognizing that compelling a person to speak in accordance with the guarantee of equal citizenship would conflict with freedom of speech. Indeed, it has held that not only pure speech, but also associations in which a message is disseminated as well as entities selling commercial goods or services can benefit the supremacy of the freedom of speech. Likewise, the Court grants primacy to the approach of the speaker without examining how a statement is to be interpreted and who is to be excluded.
Team 303 Non-creative