 |
 |
|
|
|
|
|
|
|
| | | |
|
|
|
|
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
1
.
BRIEFLAMDALEGALDEFENSE
|
EXTRACTED KEY WORDS
COURT SCOUTS EXPRESSIVE PURPOSES MEMBERSHIP LAW BSA ORG FIRST AMENDMENT JERSEY SCOUTING GAY UNITED STATES NATION GOVERNMENT EXPRESSIVE ASSOCIATION DISCRIMINATION HOMOSEXUALITY SEXUAL ORIENTATION ADULT MEMBERS SUPREME COURT SCOUTMASTERS EXCLUSION MORAL CODE LAD CIVIL RIGHTS MATERIALS PUBLIC ACCOMMODATIONS YORK STATE CLUB COMMUNICATE |
No. 99-699
I N T H E
Supreme Court of the United States
BO Y SC O U T S O F AM E R I C A and MO N M O U T H CO U N C I L,
BO Y SC O U T S O F AM E R I C A,
P e t i t i o n e r
- v. -
JA M E S DA L E,
R e s p o n d e n t.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF NEW JERSEY
BRIEF FOR RESPONDENT
Thomas J. Moloney Evan Wo l f s o n
Allyson W. Haynes (Counsel of Record )
Seth A. Stuhl Ruth E. Harlow
Kierith A. Jones David Buckel
CL E A RY, GO T T L I E B, ST E E N Jon W. Davidson
& HA M I LTO N Beatrice Dohrn
One Liberty Plaza Patricia M. Logue
New York, New York 10006 LA M B D A LE G A L DE F E N S E
(212) 225-2000 A N D ED U C AT I O N FU N D, IN C.
120 Wall Street, Suite 1500
Lewis H. Robertson New York, New York 10005
231 Maple Av e n u e (212) 809-8585
P.O. Box Y
Red Bank, New Jersey 17701
(732) 842-6660
Attorneys for Respondent
i
QUESTION PRESENTED
Whether a large unselective membership org a n i z a t i o n c a n
invoke the First Amendment to defeat application of an anti-
d i s c r i m i nation law and expel a long-standing exemplary
m e m b e r, when none of the expressive purposes that bring its
SNIPPETS:
|
|
2
.
BRIEF IN OPPOSITION
|
EXTRACTED KEY WORDS
SCOUTS MEMBERS PURPOSE JERSEY LAW MEMBERSHIP DALE FIRST AMENDMENT SUPREME COURT PETITION COUNCIL BSA SEXUAL ORIENTATION JAMES DALE EXPRESSIVE ASSOCIATION DISCRIMINATION UNITED STATES CERTIORARI APPELLATE DIVISION FALSE PREMISE PURE SPEECH YORK STATE CLUB SUPERIOR COURT LAD MONMOUTH COUNCIL CIVIL RIGHTS LAW LOWER COURTS ADULT MEMBERS HOMOSEXUALITY |
No. 99-699
ver
9
IN THE
Supreme Court of the United States
99
BOY SCOUTS OF AMERICA and MONMOUTH COUNCIL,
LS BOY SCOUTS OF AMERICA, Petitioners,
v.
JAMES DALE, Respondent.
On Petition for a Writ of Certiorari to the
Supreme Court of New Jersey
BRIEF IN OPPOSITION
Thomas J. Moloney Evan Wolfson
Allyson W. Haynes (Counsel of Record)
Seth A. Stuhl David Buckel
Kierith A. Jones Jon W. Davidson
CLEARY, GOTTLIEB, STEEN Beatrice Dohrn
& HAMILTON Ruth Harlow
One Liberty Plaza LAMBDA LEGAL DEFENSE AND
New York, New York 10006 EDUCATION FUND, INC.
(212) 225-2000 120 Wall Street, Suite 1500
New York, New York 10005
Lewis H. Robertson (212) 809-8585
231 Maple Avenue
P.O. Box Y
Red Bank, New Jersey 17701
(732) 842-6660
Attorneys for Respondent
i
QUESTION PRESENTED
Whether a large unselective membership organization can
invoke the First Amendment to defeat application of an anti-
discrimination law and expel a long-standing exemplary mem-
ber, when none of the purposes, messages, or values that
SNIPPETS:
|
|
8
.
AMICUSPFFLAG
|
EXTRACTED KEY WORDS
DISCRIMINATION SCOUTS GAY YOUTH ANTI-GAY DISCRIMINATION VIOLENCE AMERICA SUICIDE BSA SCHOOL HARMS SOCIETY SELF-DESTRUCTIVE BEHAVIOR AMICI CURIAE SOCIAL SCIENCE ADOLESCENTS COURT GOVERNMENT ERADICATING SEXUAL ORIENTATION WASHINGTON SOCIAL SCIENCE EVIDENCE COMMUNITY SOCIAL SCIENCE RESEARCH HARASSMENT EDUCATION GAY STUDENTS SCOUTMASTERS SCOUT TROOPS DETERMINATION |
No
No. 99-699
In The
Supreme Court of the United States
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL,
BOY SCOUTS OF AMERICA, Petitioners,
v.
JAMES DALE, Respondent.
On Writ of Certiorari to the Supreme Court of New Jersey
BRIEF OF AMICI CURIAE
PARENTS, FAMILIES, AND FRIENDS OF LESBIANS
AND GAYS, INC., NATIONAL 4-H COUNCIL,
NATIONAL EDUCATION ASSOCIATION, NATIONAL
YOUTH ADVOCACY COALITION, GAY, LESBIAN,
AND STRAIGHT EDUCATION NETWORK, NATIONAL
ASSOCIATION FOR MULTICULTURAL EDUCATION,
AND THE MATTHEW SHEPARD FOUNDATION
IN SUPPORT OF RESPONDENT
JOHN H. PICKERING
DANIEL H. SQUIRE
Counsel of Record
STUART F. DELERY
VAN W. ELLIS
CAROL J. BANTA WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000
Attorneys for Amici Curiae TABLE OF CONTENTS
TABLE OF AUTHORITIES.............. ii
INTEREST OF AMICI CURIAE .............. 1
SUMMARY OF ARGUMENT .............. 3
ARGUMENT .............. 5
I. NEW JERSEY'S COMPELLING INTEREST IN ERADICATING THE "CANCER OF
DISCRIMINATION" IS SUPPORTED BY EXTENSIVE SOCIAL SCIENCE RESEARCH
ESTABLISHING THE HARM TO YOUTH CAUSED BY ANTI-GAY DISCRIMINATION. ..............
file:///C|/Documents and Settings/user/Desktop/Le...cs/Boy Scouts of America v.
No
6
SNIPPETS:
|
|
10
.
AMICUSNEWYORK
|
EXTRACTED KEY WORDS
DISCRIMINATION MEMBERSHIP COURT FIRST AMENDMENT GOVERNMENT FREE ASSOCIATION SCOUTS RIGHTS PURE EXPRESSION AMERICA PROTECTION HURLEY AMICI JERSEY SUPPORT EXPRESSIVE PURPOSES SOVEREIGNTY COMMERCIAL ORGANIZATIONS MEMBERSHIP PRECEDENT BSA PETITIONER CONSTITUTION GOVERNMENT ENTANGLEMENTS PUBLIC ACCOMMODATIONS RESPONDENT ROTARY CLUB LITIGATION PROPERTY TAX OPEN MEMBERSHIP |
No
No. 99-699
In The
Supreme Court of the United States
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL,
BOY SCOUTS OF AMERICA, Petitioners,
v.
JAMES DALE, Respondent.
On Writ of Certiorari to the Supreme Court of New Jersey
BRIEF OF AMICUS CURIAE IN SUPPORT OF RESPONDENT
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE
SUMMARY OF ARGUMENT
ARGUMENT
I. APPLICATION OF STATE LAW DOES NOT VIOLATE BSA'S FIRST AMENDMENT RIGHTS.
A. BSA's Discrimination Is Not Protected By The First Amendment.
B. States Should Retain Their Sovereignty To Determine The Scope Of Their Compelling
Anti-Discrimination Interests.
II. THE STATES HAVE COMPELLING INTERESTS IN PROHIBITING ILLEGAL
DISCRIMINATION BY ORGANIZATIONS DEEPLY ENTWINED WITH GOVERNMENT.
A. An Organization With Extensive Government Entanglements Is Not Entitled To Special First
Amendment Protection.
B. The Application Of State Anti-Discrimination Laws Should Not Be Limited To Commercial
Organizations.
III. HURLEY DOES NOT UNDERMINE THE APPLICATION OF STATE ANTI-DISCRIMINATION
LAW TO OPEN MEMBERSHIP ORGANIZATIONS.
A. As A Pure Expression Case, Hurley Has No Bearing On This Case.
B.This Court's Separate Pure Expression and Free Association Doctrines Should Not Be Merged.
IV. UNDER PRINCIPLES OF STARE DECISIS, THIS COURT'S PRECEDENT SHOULD NOT BE
OVERRULED.
CONCLUSION
file:///C|/Documents and Settings/user/Desktop/Leg...cs/Boy Scouts of America v.
No
NOTES
The State of New York, joined by the states of California, Hawaii, Maryland, Massachusetts, New
SNIPPETS:
|
|
11
.
AMICUSNEWJERSEY
|
EXTRACTED KEY WORDS
JERSEY PUBLIC ACCOMMODATION DISCRIMINATION AMERICA LAW BSA FIRST AMENDMENT INTIMATE EXPRESSIVE ASSOCIATION GOVERNMENT CONSTITUTION COURT VIOLATE PETITIONERS LAD DALE SEXUAL ORIENTATION UNITED STATES CIVIL RIGHTS JERSEY SUPREME MEMBERSHIP PROTECTION ROTARY CLUB HOMOSEXUALS INCLUSIVENESS JAMES DALE MONMOUTH COUNCIL RELIGIOUS EDUCATIONAL FACILITIES ANTI-DISCRIMINATION LAW HIGHEST ORDER |
No
No. 99-699
In The
Supreme Court of the United States
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL,
BOY SCOUTS OF AMERICA, Petitioners,
v.
JAMES DALE, Respondent.
On Writ of Certiorari to the Supreme Court of New Jersey
BRIEF OF AMICUS CURIAE
STATE OF NEW JERSEY
IN SUPPORT OF RESPONDENT
John J. Farmer, Jr.
Attorney General of New Jersey
R.J. Hughes Justice Complex
Post Office Box 080
Trenton, New Jersey 08625
(609) 292-4925
Jeffrey Burstein
Senior Deputy Attorney General
Of Counsel
Charles S. Cohen
Deputy Attorney General
Counsel of Record and On the Brief
QUESTION PRESENTED
Whether application of the New Jersey Law Against Discrimination to Boy Scouts of America, a place
public accommodation as defined in New Jersey law, violates Petitioners' right of intimate or
association under the First Amendment to the United States Constitution.
TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICUS CURIAE................1
STATEMENT OF THE CASE................3
SUMMARY OF ARGUMENT................9
ARGUMENT
file:///C|/Documents and Settings/user/Desktop/Leg.../Boy Scouts of America v.
No
APPLICATION OF THE NEW JERSEY LAW AGAINST DISCRIMINATION TO BOY SCOUTS OF
AMERICA ("BSA") DOES NOT VIOLATE PETITIONERS' RIGHT OF INTIMATE OR
EXPRESSIVE ASSOCIATION UNDER THE FIRST AMENDMENT TO THE UNITED STATES
CONSTITUTION.................11
A. The State of New Jersey has a Compelling Interest in Eradicating Discrimination in Places of
Accommodation, Like BSA................11
B. Because BSA is Large, Nonselective and Inclusive, and its Members Do Not Gather for the Purpose
SNIPPETS:
|
|
16
.
AMICUSLAMDALEGALDEFENSE
|
EXTRACTED KEY WORDS
LAW DISCRIMINATION HOMOSEXUALITY DALE AMERICA HURLEY RIGHTS ANTI-DISCRIMINATION LAW NONDISCRIMINATION UNDERMINE INTIMATE ASSOCIATION GAY EXPRESSIVE PURPOSES MEMBERS COURT FIRST AMENDMENT ERADICATING INVIDIOUS DISCRIMINATION SUBSTANTIALLY UNDERMINE YORK STATE CLUB SEXUAL ORIENTATION LAD EXCLUSIONARY POLICY MEMBERSHIP PRIVATE SCHOOLS UNITED STATES JAYCEES ASSISTANT SCOUTMASTER JERSEY SUPREME COURT MONMOUTH COUNCIL OPPOSITION |
No
No. 99-699
In The
Supreme Court of the United States
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL,
BOY SCOUTS OF AMERICA, Petitioners,
v.
JAMES DALE, Respondent.
On Writ of Certiorari to the Supreme Court of New Jersey
BRIEF OF AMICUS CURIAE
IN SUPPORT OF RESPONDENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......... iii
STATEMENT OF INTEREST .......... 1
STATEMENT OF FACTS .......... 1
SUMMARY OF ARGUMENT .......... 3
ARGUMENT .......... 6
I. NEW JERSEY'S ANTI-DISCRIMINATION LAW DOES NOT COMPEL THE BOY SCOUTS TO
EXPRESS ANY VIEWS INIMICAL TO THEIR OWN. .......... 6
A. The Boy Scouts Expelled Dale for His Status, Not for His Views. .......... 7
B. Hurley Protects the Right to Speak, Not the Practice of Status-Based Discrimination. .......... 9
II. NEW JERSEY'S ANTI-DISCRIMINATION LAW DOES NOT VIOLATE THE BOY SCOUTS'
RIGHT OF ASSOCIATION. .......... 13
A. The Boy Scouts' Right of Expressive Association Does Not Encompass a Right to Discriminate Based
on Status. .......... 14
B. Opposition to Homosexuality is Not So Central to the Boy Scouts' Function That a
Requirement Will in Itself Substantially Undermine Their Expressive Purposes. .......... 17
C. The Boy Scouts Are Not an Intimate Association. .......... 21
D. Any Limitation on the Boy Scouts' Expressive Associational Rights Is Justified By New Jersey's
Compelling Interest in Eradicating Invidious Discrimination. .......... 22
CONCLUSION .......... 26
file:///C|/Documents and Settings/user/Desktop/Leg...uts of America v.
No
TABLE OF AUTHORITIES
Cases
Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte,
481 U.S. 537 (1987) .......... 8, 14, 15, 22
Bob Jones Univ. v. United States - Goldsboro Christian Sch., Inc.,
461 U.S. 574 (1983) .......... 25
Boyd v. Harding Academy of Memphis, Inc.,
88 F.3d 410 (6th Cir. 1996) .......... 12
Brown v. Board of Education,
347 U.S. 483 (1954) .......... 14
SNIPPETS:
|
|
21
.
AMICUSDEANSOFDIVINITYSCHOOLSRABINNICALINST
|
EXTRACTED KEY WORDS
GAY SCOUTS INSTITUTIONS MORALS SCHOLARS MEMBERS SCHOOL RELIGION MORALLY STRAIGHT DEAN SUPRA NOTE AMICI CLEAN CHURCH LESBIANS PETITIONERS INCONSISTENT MORAL EDUCATION MEMBERSHIP RABBINICAL INSTITUTIONS VICE PRESIDENT UNITED METHODIST CHURCH SAME-SEX BEHAVIOR ACCEPTANCE PROPER BASIS SCOUT OATH SAME-SEX UNIONS DISCRIMINATION HETEROSEXUALITY |
No
No. 99-699
In The
Supreme Court of the United States
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL,
BOY SCOUTS OF AMERICA, Petitioners,
v.
JAMES DALE, Respondent.
On Writ of Certiorari to the Supreme Court of New Jers
BRIEF OF DEANS OF DIVINITY SCHOOLS AND
RABBINICAL INSTITUTIONS
AS AMICI CURIAE
IN SUPPORT OF RESPONDENT
INTERESTS OF AMICI CURIAE (1)
Amici are deans of accredited seminaries, theological schools, and rabbinical institutions, the
a school of religion and the vice president of a rabbinical school. Amici submit this brief to
critical, yet unfounded, assumption on which Petitioners' argument is built: that being a
been widely understood by the members and sponsors of Boy Scout troops to be inconsistent with the
mission of moral education embraced by the Boy Scouts of America. There is no clear consensus among
religious scholars or within religious organizations that a gay man or boy cannot be "morally
and "clean," and there is no proper basis to infer that these commitments contained in the Scout
Law are generally understood by those who participate in the Boy Scouts to preclude membership to
someone who is homosexual.
Amici are leaders of institutions that are engaged full-time in religious scholarship and
education. These institutions train priests, ministers and rabbis who provide moral leadership to
country and who run many of the religious organizations that sponsor the Scouts' programs. Amici are
familiar with the moral and religious issues surrounding homosexuality, and have well-considered
insights into the diverse religious traditions of this country - a number of which do not exclude
lesbians from their understanding of morality, as Petitioners' presume. The amici are: (2)
Dr. Susan E. Davies, Academic Dean and Jonathan Fisher Professor of Christian Education at Bangor
Theological Seminary in Bangor, Maine. Bangor Theological Seminary is an ecumenical theological
institution, affiliated with the United Church of Christ, which primarily serves Northern New
congregations.
Rabbi Kenneth E. Ehrlich, Dean of the Rabbinical School at the Cincinnati campus of the Hebrew Union
College-Jewish Institute of Religion. The College-Institute educates Reform Jewish leadership for
service in approximately nine hundred congregations in North America.
file:///C|/Documents and
No
Dr. Heather Elkins, Associate Dean of the Drew University Theological School in Madison, New Jersey.
Drew University Theological School is an ecumenical theological institution affiliated with the
Methodist Church.
SNIPPETS:
|
|
30
.
AMICUSAMERICANCTRLAWJUSTICE
|
EXTRACTED KEY WORDS
HOMOSEXUALS COURT UNITED STATES FIRST AMENDMENT SUPREME COURT LAW FIRST AMENDMENT RIGHTS DALE LEADERSHIP AMERICAN ETHICS RELIGIOUS LIBERTY COMMISSION AMICI CURIAE EXPRESSIVE ASSOCIATION JERSEY SUPREME SOUTHERN BAPTIST CONVENTION DISCRIMINATION HOMOSEXUAL ADVOCATE SUPPORTING PETITIONERS ROTARY CLUB SEXUAL MORALITY CONSTITUTION MONMOUTH COUNCIL JAMES DALE THOMAS JEFFERSON DEMOCRATIC PARTY FREE SPEECH PARADE ORGANIZERS AUTHORITIES |
No. 99-699
_________________________________________________
IN THE
Supreme Court of the United States
________
BOY SCOUTS OF AMERICA AND
MONMOUTH COUNCIL OF BOY SCOUTS OF
AMERICA, Petitioners
v.
JAMES DALE, Respondent.
________
BRIEF AMICI CURIAE OF THE AMERICAN
CENTER FOR LAW AND JUSTICE, THE
ETHICS & RELIGIOUS LIBERTY COMMISSION OF
THE SOUTHERN BAPTIST CONVENTION, AND
FOCUS ON THE FAMILY
SUPPORTING PETITIONERS
________
JAY ALAN SEKULOW JOHN P. TUSKEY
Counsel of Record LAURA B. HERNANDEZ
THE AMERICAN CENTER
VINCENT MCCARTHY FOR LAW AND JUSTICE
THE AMERICAN CENTER 1000 Regent University Dr.
FOR LAW AND JUSTICE Virginia Beach, VA 23464
1000 Thomas Jefferson St., N.W. (757) 226-2489
Suite 520
Washington, D.C. 20007
(202) 337-2273
Attorneys for Amici Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . 4
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 4
SNIPPETS:
|
|
33
.
SUPERIORCOURTAPPELATENJ OPINION
|
EXTRACTED KEY WORDS
LAW COURT PLAINTIFF COUNCIL BSA DEFENDANTS PUBLIC ACCOMMODATION AMERICA HOMOSEXUALS JUDGE JERSEY MEMBERSHIP LAD MEMBERS DISCRIMINATION MONMOUTH COUNCIL JAMES DALE ASSISTANT SCOUTMASTER AMICI CURIAE EXPRESSIVE ASSOCIATION SEXUAL ORIENTATION FIRST AMENDMENT ADMITTED PRO HAC AMICI CURIAE AMERICAN SCOUT OATH AVOWED HOMOSEXUALS SUPERIOR COURT APPELLATE DIVISION COMMON LAW |
SUPERIOR COURT OF NEW JERSEY SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION A-2427-95T3 JAMES DALE, Plaintiff-Appellant, v. BOY SCOUTS OF AMERICA and MONMOUTH COUNCIL BOY SCOUTS OF AMERICA, Defendants-Respondents. Argued December 8, 1997 - Decided March 2, 1998 Before Judges Havey, Landau and Newman. On appeal from Superior Court of New Jersey, Law Division, Monmouth County. Lewis H. Robertson and Evan Wolfson, of the New York Bar, admitted pro hac vice, argued the cause for appellant (Lewis H. Robertson, attorney; Mr. Robertson, Thomas J. Moloney, Mr. Wolfson, Ayala Deutsch and Steven M. Knecht on the brief). Sanford D. Brown, George A. Davidson, of the New York Bar, admitted pro hac vice, and Carla A. Kerr, of the New York Bar, admitted pro hac vice, argued the cause for respondents (Cerrato, Dawes, Collins, Saker & Brown, attorneys; Mr. Brown, Mr. Davidson and Ms. Kerr, on the brief). David Rocah, attorney for amici curiae American Civil Liberties Union and ACLU of New Jersey (Ruth E. Harlow, Matthew A. Coles and James D. Esseks, of counsel and onSNIPPETS: |
|
34
.
AMICUSFAMILYRESEARCHCOUNCIL
|
EXTRACTED KEY WORDS
COURT BSA RIGHTS MEMBERS BELIEFS COUNCIL HOMOSEXUALITY JERSEY SUPREME SPEECH FUNDAMENTAL RIGHTS SUPREME COURT CONSTITUTION DALE GOVERNMENT BOYS AMICUS CURIAE SEXUAL ABUSE SCOUT LEADERS SCOUTMASTER UNITED STATES HOMOSEXUAL PEDOPHILES FAMILY RESEARCH COUNCIL INTIMATE ASSOCIATION PUBLIC ACCOMMODATIONS SUPRA NOTE MEMBERSHIP FIRST AMENDMENT CHILD SEX RINGS MORAL BELIEFS |
No. 99-699
In the
Supreme Court of the United States
Supreme Court of the United States
October Term, 1999
_______________
BOY SCOUTS OF AMERICA, et al.;Petitioners,
v.
JAMES DALE,
Respondent.
__________________
On Writ of Certiorari to the
Supreme Court of New Jersey
__________________
BRIEF OF FAMILY RESEARCH COUNCIL
AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS
___________________
Janet M. LaRue
Counsel of Record
Seth C. Leibsohn, Esq.
Miriam R. Moore, Esq.
Family Research Council
ii
Amicus Curiae
801 G Street, NW
Washington, D.C. 20001
(202) 393-2100
TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................... iii
INTEREST OF AMICUS CURIAE..................................1
SUMMARY OF ARGUMENT....................................... 1
SNIPPETS:
|
|
35
.
SUPREMECOURTOFNEWJERSEYOPINION
|
EXTRACTED KEY WORDS
MEMBERS COURT DALE PUBLIC ACCOMMODATION MONMOUTH COUNCIL MEMBERSHIP JERSEY LAD APPELLATE DIVISION SUPER CLUB LAW AMERICA BSA SUPREME COURT UNITED STATES JAMES DALE DEFENDANTS GENUINE SELECTIVITY COMMON LAW CLAIM FIRST AMENDMENT HOMOSEXUALITY COMMON LAW LEADERSHIP INTIMATE ASSOCIATION DISCRIMINATION ASSISTANT SCOUTMASTER FACILITIES GOVERNMENT |
SUPREME COURT OF NEW JERSEY SUPREME COURT OF NEW JERSEY A-195/ 196 September Term 1997 JAMES DALE, Plaintiff-Respondent and Cross-Appellant, v. BOY SCOUTS OF AMERICA and MONMOUTH COUNCIL, BOY SCOUTS OF AMERICA, Defendants-Appellants and Cross-Respondents. Argued January 5, 1999 -- Decided August 4, 1999 On certification to the Superior Court, Appellate Division, whose opinion is reported at 308 N.J. Super. 516 (1998). George A. Davidson, a member of the New York bar, argued the cause for appellants and cross-respondents (Cerrato, Dawes, Collins, Saker & Brown; attorneys; Mr. Davidson, Sanford D. Brown and Carla A. Kerr, a member of the New York bar, on the briefs). Evan Wolfson, a member of the New York bar, argued the cause for respondent and cross appellant (Lewis H. Robertson, attorney; Mr. Wolfson, Mr. Robertson and Thomas J. Moloney, a member of the New York bar, on the briefs). David R. RocahSNIPPETS: |
|
36
.
DISSENTSTEVENS
|
EXTRACTED KEY WORDS
LAW DALE BSA DISCRIMINATION COURT JERSEY HOMOSEXUALITY PUBLIC ACCOMMODATION AMERICA PETITIONERS MEMBERSHIP POLICY JUSTICE UNITED STATES MEMBERS SCOUTMASTER SEXUAL ORIENTATION EXPRESSIVENESS FIRST AMENDMENT ROTARY CLUB DISSENTING CONSTITUTION JERSEY SUPREME COURT PRIVILEGES EXCLUSIONARY MEMBERSHIP POLICY SHARED GOALS SCOUTMASTER HANDBOOK MORALLY STRAIGHT EXPRESSIVE ACTIVITIES |
Stevens, J Stevens, J., dissenting SUPREME COURT OF THE UNITED STATES ---------------------------------------- No. 99 699 ---------------------------------------- BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al., PETITIONERS v. JAMES DALE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW JERSEY [June 28, 2000] Justice Stevens, with whom Justice Souter, Justice Ginsburg and Justice Breyer join, dissenting. New Jersey prides itself on judging each individual by his or her merits and on being in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society. Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80, 389 A. 2d 465, 478 (1978). Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges of any place of public accommodation. N. J. Stat. Ann. 10:5 4 (West Supp. 2000). The New Jersey Supreme Court s construction of the statutory definition of a place of public accommodation has given its statute a more expansive coverage than most similar state statutes. And as amended in 1991, the law prohibits discrimination on the basis of nine different traits including an individual s sexual orientation. 1 The question in this case is whether that expansive construction trenches on the federal constitutional rights of the Boy Scouts of America (BSA). Because every state law prohibiting discrimination is designed to replace prejudice with principle, Justice Brandeis comment on the States right to experiment with things social is directly applicable toSNIPPETS: |
|
37
.
DISSENTSOUTER
|
EXTRACTED KEY WORDS
JUSTICE STEVENS BSA ADVOCACY COURT PUBLIC ACCOMMODATIONS LAW ANTIDISCRIMINATION LAW SOUTER DISSENTING AMERICA JERSEY STEREOTYPICAL THINKING FIRST AMENDMENT STATUTE UNLIKE SUPREME UNITED STATES SCOUTS DALE OPINION GAY DECLINE PROTECTS SEXUAL ORIENTATION SOCIAL THINKING RIGHTS ESPOUSE FAILURE CHANNELS |
Souter, J Souter, J., dissenting SUPREME COURT OF THE UNITED STATES ---------------------------------------- No. 99 699 ---------------------------------------- BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al., PETITIONERS v. JAMES DALE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW JERSEY [June 28, 2000] Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting. I join Justice Stevens s dissent but add this further word on the significance of Part VI of his opinion. There, Justice Stevens describes the changing attitudes toward gay people and notes a parallel with the decline of stereotypical thinking about race and gender. The legitimacy of New Jersey s interest in forbidding discrimination on all these bases by those furnishing public accommodations is, as Justice Stevens indicates, acknowledged by many to be beyond question. The fact that we are cognizant of this laudable decline in stereotypical thinking on homosexuality should not, however, be taken to control the resolution of this case. Boy Scouts of America (BSA) is entitled, consistently with its own tenets and the open doors of American courts, to raise a federal constitutional basis for resisting the application of New Jersey s law. BSA has done that and has chosen to defend against enforcement of the state public accommodations law on the ground that the First Amendment protects expressive association: individuals have a right to join together to advocate opinions free from government interference. See Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). BSA has disclaimed any argument that Dale s past or future actions, as distinct from his unapologetic declaration of sexual orientation, wouldSNIPPETS: |
|
38
.
AMICUSAGUDATHISRAEL
|
EXTRACTED KEY WORDS
SCOUTS AMERICA HOMOSEXUALITY LAW EXEMPTION AGUDATH ISRAEL FREE EXERCISE STATUTORY AMICUS CURIAE RELIGIOUS PRACTITIONERS COURT ORTHODOX CONSTITUENT SECTARIAN INSTITUTION PROTECTION ANTI-DISCRIMINATION PROVISIONS CIVIL RIGHTS FAITH PETITION RELIGIOUS BODIES YOUTH PROGRAMS ROLE MODEL SMITH BURDENS FREEDOM SPEECH INDIRECT BURDENS CONFLICT LEGISLATION |
No
No. 99-699
IN THE
SUPREME COURT OF THE UNITED STATES
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL,
BOY SCOUTS OF AMERICA,
Petitioners,
v.
JAMES DALE,
Respondent.
On Petition for a Writ of Certiorari to the
Supreme Court of New Jersey
BRIEF OF AGUDATH ISRAEL OF AMERICA
AS AMICUS CURIAE
IN SUPPORT OF THE PETITION
INTEREST OF THE AMICUS CURIAE
Agudath Israel of America is a national Orthodox Jewish organization with constituents, and
religious bodies, across the United States. Many of Agudath Israel's constituent congregations and
Orthodox Jewish religious bodies, as well as Agudath Israel itself, sponsor youth programs. Some of
these programs are religious in nature, some are social, some educational, some recreational but
them are under control of a religious denomination whose attitude toward homosexual conduct is
by the biblical description of such conduct as "to'eivah", an abomination (Leviticus 20:13).
them would regard a homosexual activist as an inappropriate role model for children under his
and care.
Our interest in this case is substantial for while this particular dispute may not involve a
religious or sectarian institution," 734 A. 2d at 1217*,H it could well be that the long term
decision below, if it is allowed to stand, will be felt most acutely in traditional religious
ours. We respectfully make this amicus curiae presentation, upon the consent of the parties, to
upon why this is so.
The starting point of our concern is the current state of free exercise jurisprudence. In the
this Court's rulings in Employment Division, Department of Human Resources of Oregon v. Smith, 494
file:///C|/Documents and Settings/user/Desktop/Legal...oy Scouts of America v.
No
U.S. 872 (1990) (positing that a religious practice that is indirectly burdened by government
First Amendment free exercise protection), and City of Boerne v. Flores, 521 U.S. 507 (1997)
down the Religious Freedom Restoration Act, Congress' effort to respond to Smith by establishing a
statutory compelling interest standard for indirect burdens on religious exercise), religious
are especially vulnerable to anti-discrimination provisions that conflict with their religious
rights laws are, after all, laws of general applicability, and the burdens they may impose on
SNIPPETS:
|
|
39
.
OPINION
|
EXTRACTED KEY WORDS
COURT DALE JERSEY PRIVATE PUBLIC ACCOMMODATIONS PUBLIC ACCOMMODATIONS LAW SUPREME COURT HOMOSEXUALITY OPINION EXPRESSIVE ASSOCIATION FIRST AMENDMENT AMERICA PETITIONERS UNITED STATES MONMOUTH COUNCIL JAMES DALE FIRST AMENDMENT RIGHTS SEXUAL ORIENTATION MEMBERSHIP ASSISTANT SCOUTMASTER SCOUT LEADERS POSITION STATEMENT PARADE ORGANIZERS FIRST AMENDMENT PROTECTION SCOUT OATH MORALLY STRAIGHT FORMAL REVISION PRELIMINARY PRINT CERTIORARI |
Opinion of the Court Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES ---------------------------------------- No. 99 699 ---------------------------------------- BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al., PETITIONERS v. JAMES DALE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW JERSEY [June 28, 2000] Chief Justice Rehnquist delivered the opinion of the Court. Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of America (collectively, Boy Scouts). 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 admit 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.SNIPPETS: |
|
40
.
SYLLABUS
|
EXTRACTED KEY WORDS
COURT DALE LAW PUBLIC ACCOMMODATIONS EXPRESSIVE ASSOCIATION JERSEY HOMOSEXUALITY MEMBERS OPINION UNITED STATES VIOLATE FIRST AMENDMENT SYLLABUS SUPREME COURT SIGNIFICANTLY AFFECT ABILITY PURPOSE HURLEY VIEWPOINTS FREEDOM PRESENCE INQUIRE DISSEMINATING PRIVATE ASSERTS ASSISTANT SCOUTMASTER DISCRIMINATION SEXUAL ORIENTATION INCLUSION |
Syllabus Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES BOY SCOUTS OF AMERICA et al. v. DALE CERTIORARI TO THE SUPREME COURT OF NEW JERSEY ---------------------------------------- No. 99 699. Argued April 26, 2000 Decided June 28, 2000 ---------------------------------------- Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. He filed suit in the New Jersey Superior Court, alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. That court s Chancery Division granted summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and remanded. The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the State s public accommodations law by revoking Dale s membership based on his avowed homosexuality. Among other rulings, the court held that application of that law did not violate the Boy Scouts First Amendment right of expressive association because Dale s inclusion would not significantly affect members ability to carry out their purposes; determined that New Jersey has a compelling interest in eliminating theSNIPPETS: |
|
41
.
AMICUSUNIONOFORTHODOXJEWISHCONGREGATIONS
|
EXTRACTED KEY WORDS
ASSOCIATIONS SCOUTS LAW FIRST AMENDMENT SUPREME COURT JERSEY FIRST AMENDMENT RIGHTS FREEDOM ORTHODOX JEWISH AMICUS AMERICA PUBLIC AFFAIRS UNITED STATES PETITIONERS HOMOSEXUALITY GAY RIGHTS RELIGIOUS LIBERTY JEWISH CONGREGATIONS PRIVATE ASSOCIATIONS RELIGIOUS INSTITUTIONS FREE EXERCISE ROTARY CLUBS LEGISLATURES EXPRESSIVE ASSOCIATION CERTIORARI RESPONDENTS NATHAN DIAMENT WASHINGTON |
SUPREME COURT OF THE UNITED STATES SUPREME COURT OF THE UNITED STATES BOY SCOUTS OF AMERICA et al. v. DALE CERTIORARI TO THE SUPREME COURT OF NEW JERSEY ---------------------------------------- No. 99 699. Argued April 26, 2000 Decided June 28, 2000 ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES ---------------------------------------- BRIEF FOR THE INSTITUTE FOR PUBLIC AFFAIRS of the UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA AS AMICUS CURIAE, IN SUPPORT OF PETITIONERS Respondents. ---------------------------------------- NATHAN J. DIAMENT, (Counsel of Record INSTITUTE FOR PUBLIC AFFAIRS, UOJCA 1640 Rhode Island Avenue, NW Washington, DC 20036 (202)857-2770 [Attorneys for Amici] ---------------------------------------- INTRODUCTION AND INTEREST OF AMICUS This case raises the question of whether a state law compelling a Boy Scout troop to appoint an avowed homosexual and gay rights activist as an assistant scoutmaster abridges the First Amendment rights of freedom of speech and freedomSNIPPETS: |
|
42
.
AMICUSAMERPSYCHASSOC
|
EXTRACTED KEY WORDS
SEXUAL ORIENTATION PREJUDICE HOMOSEXUALITY PSYCHOLOGISTS ADULTS PARENTING SKILLS HETEROSEXUALS AMERICA LESBIAN GENDER MEMBERS SEXUAL ABUSE AMERICAN PSYCHOLOGICAL ASSOCIATION PARENTS ADVERSELY AFFECT GAY FATHERS LESBIAN MOTHERS DISCRIMINATION AMICUS CURIAE CARE MENTAL DISORDER SCIENTIFIC RESEARCH CONSISTENT HEIGHTENEDDANGER PHILOSOPHIES SOCIAL ADJUSTMENT ANTI-DISCRIMINATION LAWS ANTI-DISCRIMINATION LEGISLATION MONMOUTH COUNCIL |
No
No. 99-699
In The Supreme Court of the United States
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL,
BOY SCOUTS OF AMERICA, Petitioners,
v.
JAMES DALE, Respondent.
On Writ of Certiorari to the Supreme Court of New Jersey
BRIEF OF AMICUS CURIAE AMERICAN PSYCHOLOGICAL ASSOCIATION
IN SUPPORT OF RESPONDENT
JAMES L. McHUGH PAUL M. SMITH*
GENERAL COUNSEL NORY MILLER
NATHALIE F.P. GILFOYLE JENNER & BLOCK
AMERICAN PSYCHOLOGICAL 601 Thirteenth Street, NW
ASSOCIATION Washington, D.C. 20005
750 First Street, NE (202) 639-6000
Washington, D.C. 20002
(202) 336-5500
March 29, 2000 *Counsel of Record
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE
INTRODUCTION AND SUMMARY OF ARGUMENT
ARGUMENT
I. THE NATURE OF SEXUAL ORIENTATION
A. What Causes a Particular Sexual Orientation?
B. Can Sexual Orientation Be Changed?
II. THE SEXUAL ORIENTATION OF ADULTS DOES NOT ADVERSELY AFFECT THE
CHILDREN IN THEIR CARE OR THE CARE THEY PROVIDE
A. Homosexuality Is Not a Mental Disorder And Does Not Affect Someone's Ability To Be a Responsible
Member of Society
B. Gay Adults Do Not Present a HeightenedDanger of Sexual Abuse
C. Sexual Orientation Is Not a Predictive Factor For Parenting Skills or Children's Outcomes
file:///C|/Documents and Settings/user/Desktop/Leg...Scouts of America v.
No
1. Parenting skills and philosophies
SNIPPETS:
|
|
|
| | | |
|
|
