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ChAPTER FOUR Speech out of Thin Air Boy Scouts of America v. Dale, 530 U.S. 640 (2000) Since age eight, James Dale had been a Scout in his home town of Monmouth, New Jersey. He began scouting as a Cub Scout, then advanced to Boy Scouts. By 1988, when he finished as a youth Scout on his eighteenth birthday, he had earned twenty-five merit badges and had become an Eagle Scout, one of the highest honors in Scouting. The next year he applied for and was accepted as an assistant scoutmaster of Troop 73 in Monmouth. About six months later he left for college at Rutgers University in New Jersey; he also remained an assistant scoutmaster for Troop 73. James Dale had been an exemplary Scout and was a fine assistant scoutmaster. He was also gay. He was gay as a Boy Scout and as an assistant scoutmaster. He had not been open about it, and it didn’t affect his stellar performance as a Boy Scout or his performance as an assistant scoutmaster. “I think what the scouting program teaches is self-reliance and leadership,” Dale said. “Giving your best to society. Leaving things better than you found them. Standing up for what’s right. That’s one of the tragic ironies of this whole story—that when they found out that I was gay, suddenly I wasn’t good enough anymore.” Dale had found the Boy Scouts “much less homophobic than the norm of society. I think the Boy Scouts allows for the human factor a lot more than other organizations. It was a more supportive environment.”1 Dale “came out” at 19, when he was attending Rutgers. He had met many other gay students—students who, like him, were positive role models—and he became comfortable with the idea of being publicly known to be gay. In his second year at Rutgers he became involved with the lesbian and gay organization at the university and shortly thereafter he was elected by the Lesbian and Gay Alliance to fill the open position of president. He became active in the gay community. “It was [in] the summer between my sophomore and junior years that I was speaking at a conference for social workers. Shortly thereafter a newspaper article ran [in the New Jersey Star Ledger].”2 The story was about the seminar and Dale. A photograph of Dale was prominently displayed, with the caption “Co-President of the Rutgers University Lesbian/ Gay Alliance.”3 “About a week later I got a letter from the Boy Scouts that said I no longer meet its standards for leadership. I didn’t even know what it was about. So I sent them a letter, and then I got a second letter back from them, and that said avowed homosexuals are not permitted in the Boy Scouts of America. When I heard that I felt really devastated and betrayed. This is a program that I spent my weekends and time after school focusing on, helping out at nursing homes and cleaning parks. I had given so much to the program so freely and happily.”4 Dale sought to appeal the decision, but to no avail. He was dismissed from his position as assistant scoutmaster, and his adult membership in the Scouts was revoked. Left with no further recourse within Scouting, he sued, claiming that the Scouts’ decision was illegal under the terms of the New Jersey public accommodations law, which prohibited discrimination on the basis of “affectional or sexual orientation” in any “place of public accommodation,” which included the Boy Scouts. Dale’s lawsuit was brought in the New Jersey courts, where he lost at the trial court level but ultimately prevailed in the New Jersey Supreme Court. The Boy Scouts then appealed the case to the United States Supreme Court. In order to get to the Supreme Court the Scouts had to argue that the New Jersey law could not constitutionally be applied to the Boy Scouts. The Scouts rested just such a claim on its First Amendment right of free speech, on the theory that a legal requirement that “avowed” or open homosexuals be free to serve as scoutmasters would interfere with the Scouting organization’s ability to express its own message that homosexuality was not “morally straight” or “clean,” as the terms are used in the Scout Oath and the Scout Law. If the Scouts’ free speech and associational speech (in other words, by and on behalf of...

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