Boy Scouts of America v. Dale Brief Amicus Curiae of the NAACP Legal Defense and Educational Fund et al. in Support of Respondent

    No. 99-699

IN THE

itprenie (Ernxri #f flie p la te s
October term , 1999

BOY SCOUTS OF AMERICA, et al.,
Petitioners,

JAMES DALE,
Respondent.

ON WRIT OF CERTIORARI 
TO THE SUPREME COURT OF NEW JERSEY

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL 
LIBERTIES UNION; THE AMERICAN FEDERATION OF 
TEACHERS; THE ANTI-DEFAMATION LEAGUE; THE 

CALIFORNIA WOMEN’S LAW CENTER; THE CENTER FOR 
WOMEN POLICY STUDIES; EQUAL RIGHTS ADVOCATES;

THE HUMAN RIGHTS CAMPAIGN; THE MEXICAN 
AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND; 
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, 

INC.; THE NATIONAL ASIAN PACIFIC LEGAL CONSORTIUM; 
THE NATIONAL COUNCIL OF JEWISH WOMEN; THE 

NATIONAL GAY AND LESBIAN TASK FORCE; THE NOW 
LEGAL DEFENSE AND EDUCATION FUND; THE NATIONAL 

PARTNERSHIP FOR WOMEN AND FAMILIES; THE 
NATIONAL WOMEN’S LAW CENTER; THE NORTHWEST 
WOMEN’S LAW CENTER; PEOPLE FOR THE AMERICAN 

WAY FOUNDATION; WOMEN EMPLOYED; AND THE 
WOMEN’S LAW PROJECT; IN SUPPORT OF RESPONDENT

Matthew A. Coles

Lenora M. Lapidus 
ACLU of New Jersey Foundation 
35 Halsey Street, Suite 4B 
Newark, New Jersey 07102 
(973) 642-2084

( Counsel o f Record)
Steven R. Shapiro 
Sara L. Mandelbaum 
American Civil Liberties Union

Foundation 
125 Broad Street 
New York, New York 10004 
(212) 549-2500



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................................................... iii

INTEREST OF AMICI . . . . ...................................................... 1

STATEMENT OF THE C A S E ........ .........................................1

SUMMARY OF ARGUM ENT................................................. 3

ARGUM ENT............................................................................. 5

I. A CLAIMED RIGHT TO FREEDOM
OF ASSOCIATION DOES NOT 
ENTITLE THE BOY SCOUTS TO 
DISCRIMINATE AGAINST A 
PROTECTED CLASS IN A PLACE 
OF PUBLIC ACCOM M ODATION.................5

A. The Boy Scouts Are Not An
Intimate A ssociation.......................... .. . 6

B. Any Rights of Expressive
Association That May Exist In 
This Case Are Not Unduly 
Infringed By The Challenged 
Nondiscrimination Order ....................... 9

l



Page

II. ANY INCIDENTAL BURDEN ON 
THE BOY SCOUTS’ EXPRESSION 
IS OUTWEIGHED IN THIS CASE 
BY NEW JERSEY’S OVERRIDING 
INTEREST IN ENSURING EQUAL 
OPPORTUNITY ON THE BASIS 
OF SEXUAL ORIENTATION........................ 16

A. New Jersey Has A Critically 
Important Interest In Ensuring 
Equality On The Basis Of
Sexual Orientation .  ............. ...............16

B. New Jersey’s Interest In 
Equality Is Unrelated To The 
S u p p re s s io n  O f F ree  
Expression, And Its Law 
Against Discrimination Limits 
Expression No More Than 
Necessary To Achieve Its
Stated G oal............................................... 20

CONCLUSION.........................................................................22

APPENDIX ..................................  la

li



TABLE OF AUTHORITIES

Page

Cases

420 E. 80th v. Chin,
115 Misc. 2d 195 (1982), a ff’d, 97 A.D.
2d 390 (N.Y.A.D. 1st Dep’t 1983) .........................................  19

Abood v. Detroit Board o f Education,
431 U.S. 209(1977) ..............................................................  12

Board o f Directors o f  Rotary International 
v. Rotary Club o f  Duarte,
481 U.S. 537(1987) ...................................................... 5 ,7 ,16

Bob Jones University v. United States,
461 U.S. 574(1983) ..........   5

Bradwell v. Illinois,
83 U.S. 130(1872) .................................................................... 9

Brand v. Finkel,
445 U.S. 507(1980) ............................................................... 12

Burton v. Cascade School District Union 
High School,
512 F.2d 850 (9th Cir.), cert, denied, 423
U.S. 839(1975) .......................................................................  19

Childers v. Dallas Police D ep’t,
513 F. Supp. 134 (N.D. Tex. 1981), a ff’d, 
669 F.2d 732 (5th Cir. 1982) ................... 19



Page

City o f  Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985) ........................................................  18,19

Coon v. Joseph,
192 Cal. App. 3d 1269 (1987) ..................... ....................... 20

Frontiero v. Richardson,
411 U.S. 677(1973) ..............................................................  17

Cousins v. Wigoda,
419 U.S. 477 (1975) ....................................................... . . . 1 1

Daniel v. Paul,
395 U.S. 298 (1969) ........................................................  11,18

DeSantis v. Pacific Telephone,
608 F.2d 327 (9th Cir. 1979) ........................................... .. . 19

Elrod v. Burns,
427 U.S. 347(1976) ............................................................... 12

Glover v. Williamsburg Local School Dist.,
20 F.Supp.2d 1160 (S.D.Ohio 1998) ................................  19

Grant v. Brown,
39 Ohio St. 2d 112 (1974), cert, denied sub
nom. Duggan v. Brown, 420 U.S. 916 (1 9 7 5 )...................... 20

Heart o f  Atlanta Motel v. United States,
379 U.S. 241 (1964) ..............................................................  18

Hishon v. King & Spalding,
467 U.S. 69 (1984) ......................................................... . . . . 5

iv



Page

Hubert v. Williams,
133 Cal. App. 3d Supp. 1 (1982) ........................ ................  19

Hurley v. Irish American Gay, Lesbian &
Bisexual Group o f  Boston,
515 U.S. 557 (1995) .......................................................... 4 ,10

Jones v. AlfredH. Mayer Co.,
392 U.S. 409 (1968) ..............................................................  17

Keller v. State Bar o f  California,
496 U.S. 1 (1990) ....................................................... .. 12

Loving v. Virginia,
388 U.S. 1 (1967) .................................................................... 9

McConnell v. Anderson,
451 F.2d 193 (8th Cir. 1971), cert, denied,
405 U.S. 1046(1972) ...................................................... 19,20

Meyer v. Nebraska,
262 U.S. 390(1923) ..................................................................6

Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974) ..............................................................  10

Moore v. City o f  East Cleveland,
431 U.S. 494 (1977) ...............................................  7

Morell v. Department o f  Alcoholic Beverage 
Control,
204 Cal. App. 2d 504 (1962) .......................... ..................... 19

v



Page

Naboszny v. Podlesney,
92 F.3d 446 (7th Cir. 1996) ..................................................  20

New York State Club Ass ’n v. New York,
487 U.S. 1 (1988) ................... ....................................  6 ,12 ,16

Norton v. Macy,
417 F.2d 1161 (D.C. Cir. 1969) .......................... ................. 19

Norwood v. Harrison,
413 U.S. 455 (1973) ............................................................  6,8

One Eleven Wines and Liquors Inc. v.
Division o f  Alcoholic Beverage Control,
235 A.2d 12 (N.J. 1967) ........................................................  19

Owles v. Lomenzo,
31 N.Y.2d 965 (1973) ............................................................. 20

Pickering v. Board o f  Education,
391 U.S. 563 (1968) ...............................................................  15

Police Department v. Mosley,
408 U.S. 92 (1972) ..................................................................... 9

Pruneyard Shopping Center v. Robins,
447 U.S. 74(1980) ........................................................... 10,15

Roberts v. United States Jaycees,
468 U.S. 609 (1984) ........................................................ passim

Rolon v. Kulwitzky,
153 Cal. App. 3d 289 (1984) ................................................ 19

vi



Page

Romer v. Evans,
517 U.S. 620(1996) ........................................................  18,20

Rowland v. Mad River Local School District,
730 F.2d 444 (6th Cir. 1984), cert, denied,
470 U.S. 1009(1985) ................................................... . . . . . 2 0

Runyon v. McCrary,
427 U.S. 160(1976) ........................................................passim

Rutan v. Republican Party o f Illinois,
497 U.S. 62(1990) ................................................................  12

S.A.G. v. R.A.G.,
735 S.W.2d 164 (Mo.App. 1987) ......................................... 19

School Board o f  Nassau County v. Arline,
480 U.S. 273 (1987) ..............................................................  17

Smith v. Fair Employment and Housing 
Commission,
30 Cal. Rptr. 2d 395 (Cal.App. 1994),
reversed on other grounds, 12 Cal. 4th 1143
(1996), cert, denied, 521 U.S. 1129 (1997) .......................  18

Smith v. Liberty Mutual Insurance,
569 F.2d 325 (5th Cir. 1978) .............................................  19

Stemler v. City o f  Florence,
126 F.3d 856 (6th Cir. 1997), cert, denied,
523 U.S. 1118 (1998) ............................................................  20

vii



Page

Texas v. Johnson,
491 U.S. 397(1989) ...........................................................  9,10

United States v. O'Brien,
391 U.S. 367 (1968) ............................................................... 16

Van Ooteghem v. Gray,
654 F.2d 304 (5th Cir. 1981), cert, denied,
455 U.S. 909 (1982) ............................................................... 20

Weaver v. Nebo School Dist.,
29 F.Supp.2d 1279 (D.Utah 1998) .......................................  19

Weigand v. Houghton,
730 So. 2d 581 (Miss. 1999) .................................................. 19

Westside Community Schools v. Mergens,
496 U.S. 226 (1990) ..............................................    15

Zablocki v. Redhail,
434 U.S. 374(1978) ...................................................................7

Statutes

42 U.S.C. § 2000e ..................................................................... 17

Legislative History

Cong. Globe, 39th Cong., 1st Sess. 95,
1160,1833(1866) ....................................................................  17

Report o f C. Schurz, S. Exec. Doc. No. 2, 
39th Cong., 1st Sess. (1866) ............... 17



Page

O ther Authorities

The Federalist Papers (Penguin Classics
Ed. 1987).................................................................................... 17

High am, STRANGERS IN THE LAND: PATTERNS
of America Nativism, 1860-1925 (Rutgers
University Press, 1992 ed.) ......................................................12

Hofstadter, The American Political
tradition (Vintage 1 9 7 4 )...................................................... 17
“Resolution on Racial Reconciliation on the
150th Anniversary of the Southern Baptist
Convention,” The Southern Baptist
Convention Annual (1995) ................................................... 9

Tribe, American Constitutional Law (2d ed. 1988) . .  7, 8

U.S. Dep’t of Education, National Center for 
Education Studies, “The Condition of
Education” (1998) .......................................................................8

IX



INTEREST OF AM ICI'

This brief is filed by the following amici:

The American Civil Liberties Union, the American 
Federation of Teachers, the Anti-Defamation League, the 
California Women’s Law Center, the Center for Women Policy 
Studies, Equal Rights Advocates, the Human Rights Campaign, 
the Mexican American Legal Defense and Educational Fund, the 
NAACP Legal Defense and Educational Fund, Inc., the National 
Asian Pacific Legal Consortium, the National Council of Jewish 
Women, the National Gay and Lesbian Task Force, the NOW 
Legal Defense and Education Fund, the National Partnership for 
Women and Families, the National Women’s Law Center, the 
Northwest Women’s Law Center, People for the American Way 
Foundation, Women Employed, and the Women’s Law Project.

The statements o f organizational interest are attached to 
this brief as an appendix.

STATEMENT OF THE CASE

The Boy Scouts of America is a federally chartered 
corporation with five million members, including one million 
youth members and 420,000 adult members in its Boy Scouts 
program. The organization is run by a National Council, which 
acts as its policymaking body. Dale v. Boy Scouts o f  America 
160 N J. 562, 571 (1999). The smallest unit in the organization 
is the troop, and the average troop consists of 15 to 30 boys. 
Pet.Br. at 40. The purpose o f the Boy Scouts is to promote the 
ability o f boys to do things for themselves and others, and to

1 Letters of consent to the filing of this brief have been lodged with the Clerk 
of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, counsel for amici 
states that no counsel for a party authored this brief in whole or in part and 
no person, other than amici, its members, or its counsel made a monetary 
contribution to the preparation or submission o f this brief.

1



teach patriotism, courage, self-reliance and kindred virtues. Its 
mission is to instill values in young people and prepare them to 
make ethical choices. 160 N.J. at 573-74.

The organization aggressively solicits new members 
through national advertising campaigns on television, in 
magazines, and through local recruiting drives at schools and 
elsewhere. “Any boy” is welcome to join the Boy Scouts. Id. at 
590-91,609.

James Dale became a cub scout at the age of 8 and 
remained in scouting until he reached the maximum age o f 18 in 
1988. He was an exemplary scout. He was accepted in the adult 
program as an Assistant Scoutmaster in 1989, and served for 16 
months. Id. at 577-78.

While attending Rutgers University, Dale became a 
member and eventually co-president of the Rutgers Lesbian/Gay 
Alliance. During a conference on the psychological and health 
needs of gay teens, he was interviewed by the Newark Star- 
Ledger. An article later published in the paper quoted Dale 
describing his second year at Rutgers. According to the Star- 
Ledger, he said: “I was looking for a role model, someone who 
was gay and accepting of me.” Dale was identified only as co­
president o f the Rutgers Alliance. The Boy Scouts were not 
mentioned in the article. Id. at 578; Joint Lodging Materials 10.

Within a month, Dale was told to sever his relations with 
the Boy Scouts. When he asked for an explanation, he was told 
that the Boy Scouts forbids membership to homosexuals. Five 
months later, a lawyer for the Boy Scouts told Dale the 
organization does not admit “avowed homosexuals.” 160 N.J. 
at 579-80.

Dale sued, charging his expulsion from the Boy Scouts 
violated New Jersey’s Law Against Discrimination, which 
forbids discrimination based on sexual orientation in public

2



accommodations. The trial court granted summary judgment to 
the Boy Scouts, holding that: (1) the organization was not a 
public accommodation under New Jersey law; (2) if it were, it 
would meet the law’s exception for organizations which are 
distinctly private; and (3) in any case, subjecting the Boy Scouts 
to New Jersey’s antidiscrimination law would violate the 
organization’s freedom of expressive association. Id. at 580.

The Appellate Division reversed on all three points, 
holding that the Boy Scouts is a public accommodation under 
the L.A.D. and is not distinctly private. It also rejected the 
Scouts’ freedom of intimate and expressive association claims. 
308 N.J.Super. 516 (1998). That decision was in all respects 
affirmed by the New Jersey Supreme Court. 160 N.J. 562.

SUMMARY OF ARGUMENT

The Boy Scouts of America has more than a million 
young members and 420,000 adult members in its scouting 
program. It aggressively solicits new members and tells the 
public that “any boy” is welcome to join. It holds that moral 
fitness is a matter of what an individual’s own head and heart 
tell him is right, and it discourages its scoutmasters from 
discussing sexuality at all. Under these circumstances, the Boy 
Scouts has no more right to discriminate in violation o f state law 
than the Rotary Club or the Jaycees. Like those other 
organizations, whose earlier efforts to evade the civil rights laws 
were soundly rejected by this Court, the exclusionary anti-gay 
membership policy that the Boy Scouts now so vigorously 
defends falls outside the scope o f any associational or expressive 
freedom protected by the First Amendment.

1. A Boy Scout troop is not an intimate association. 
Lack o f selectivity alone disqualifies it. More fundamentally, its 
members do not choose each other; they make no decision about 
who shall or shall not be members of the troop.

3



2. New Jersey’s Law Against Discrimination does not 
affect any expressive activity undertaken by the Boy Scouts, or 
any message the Boy Scouts may wish to convey about gay 
people. For that reason, Hurley v. Irish American Gay, Lesbian 
& Bisexual Group o f  Boston 515 U.S. 557 (1995), does not 
control this case. State regulation of who takes part in an act of 
expression, like a parade or a demonstration, interferes directly 
with a speaker’s message. By contrast, insisting that an 
association not discriminate in its membership ordinarily does 
not interfere with the organization’s message because there is 
little risk that an association open to the public will be thought 
to be making a statement through the composition of its 
membership. The fact that James Dale is seeking to remain a 
scoutmaster does not alter that understanding since whatever 
leadership responsibilities Dale’s position entails have nothing 
at all to do with the basis on which Dale was excluded from the 
Boy Scouts.

3. Any incidental burden on the Boy Scouts’ freedom of 
expressive association is outweighed by the state’s compelling 
interest in ensuring equality. In banning sexual orientation 
discrimination, New Jersey sought to include in ordinary life a 
group of Americans unfairly excluded from much of it. That is 
an important interest, unrelated to the suppression of expression; 
the Law Against Discrimination is narrowly tailored to 
effectuate it.

To hold otherwise would be to allow every effort to halt 
discrimination to be checkmated by an assertion o f associational 
autonomy. The analysis this Court has used to keep equality 
and expression in balance has worked well for both. The Court 
should reaffirm it in this case.

4



ARGUMENT

I. A C LAIM ED  R IG H T TO FREEDOM  OF 
ASSOCIATION DOES NOT ENTITLE THE BOY 
SCOUTS TO DISCRIMINATE AGAINST A 
PROTECTED CLASS IN A PLACE OF PUBLIC 
ACCOMMODATION

This case does not involve a right to associate as much 
as an asserted right to disassociate. While those two rights are 
often opposite sides of the same coin, they are not identical. 
And when, as here, the desire to exclude is directed against a 
group that the state has chosen to protect from unequal 
treatment, the conflict with the state’s overriding interest in 
enforcing its civil rights laws becomes most acute. Over the past 
two decades, therefore, this Court has crafted a set of rules 
designed to preserve freedom of association without allowing it 
to become a subterfuge for discrimination based on animus or 
ignorance. In applying those rules, moreover, this Court has 
generally reacted with great skepticism to claims that important 
institutions in the social and economic life of the nation have a 
constitutional right to perpetuate discrimination.

Indeed, this Court has never struck down any civil rights 
law as a violation of the freedom to associate. Instead, the Court 
has consistently rejected such claims in a wide variety of 
contexts. E.g., Runyon v. McCrary, 427 U.S. 160 
(1976)(upholding civil rights claim against private school that 
discriminated on the basis of race); Bob Jones University v. 
United States, 461 U.S. 574 (1983)(upholding denial of tax- 
exempt status based on racial discrimination); Hishon v. King & 
Spalding, 467 U.S. 69 (1984) (upholding sex discrimination 
judgment against law firm partnership); Roberts v. United States 
Jaycees, 468 U.S. 609 (1984)(upholding state law requiring 
Jaycees to admit women as members); Board o f Directors o f  
Rotary In t’l v. Rotary Club o f Duarte, 481 U.S. 537

5



(1987)(upholding state law requiring Rotary Club to admit 
women as members); New York State Club Ass ’n v. New York, 
487 U.S. 1 (1988)(upholding application o f local civil rights law 
that prohibits discrimination by private clubs that solicit 
business from nonmembers).

Despite this extensive body of case law, the Boy Scouts 
claims that it is entitled to a constitutional exemption from New 
Jersey’s antidiscrimination law because, it contends, it violates 
the organization’s rights to both intimate association and 
expressive association. In fact, it violates neither. The Boy 
Scouts relies on a conception of those rights that is so potentially 
limitless it would enable virtually any group to evade the civil 
rights laws by proclaiming its discriminatory membership 
policies as evidence of selectivity and an ideological point of 
view. This Court, however, has consistently and correctly 
rejected that false syllogism. As the Court observed in Norwood 
v. Harrison, 413 U.S. 455, 470 (1973), “the Constitution places 
no value on discrimination.” Thus, while “[ijnvidious private 
discrimination may be characterized as a form of exercising 
freedom of association protected by the First Amendment. . .  it 
has never been accorded affirmative constitutional protection.” 
Id. at 470. See also Runyon v. McCrary, A l l  U.S. at 176. The 
New Jersey Supreme Court correctly applied those principles 
below, and its decision should be affirmed.

A. The Boy Scouts Is Not An Intimate Association

The Boy Scouts invokes two distinctly different aspects 
of the constitutionally protected right of intimate association: the 
right to form “highly personal relationships” in which people 
share an intense commitment to each other, Roberts, 468 U.S. at 
618, and the right o f parents to direct the upbringing o f their 
children, see, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923). 
Both rights enjoy very substantial protection against government 
interference in proper circumstances. This case, however, does

6



not present those circumstances.

The right of intimate association protects an individual’s 
decisions regarding those with whom she or he will form deep 
personal attachments, and with whom she or he will make 
intense personal commitments. Roberts 468 U.S. at 617, 619- 
20; see also, Zablocki v. Redhail, 434 U.S. 374 (1978); Moore 
v. City o f East Cleveland, 431 U.S. 494 (1977).

Under this Court’s jurisprudence, one of the 
distinguishing characteristics of an intimate association is “a 
high degree of selectivity in decisions to begin and maintain the 
affiliation.” Roberts, 468 U.S. at 620. By contrast, the record 
below demonstrates that the goal o f the Boy Scouts is to recruit 
as many members between the ages of eleven and seventeen as 
possible, with the hope o f attracting a broadly diverse 
membership. Dale, 160 N.J. at 609. Based on this record 
evidence, the New Jersey Supreme Court found that the Boy 
Scouts were “unselective” in their membership. Id. That 
finding, which is not questioned in this Court, see Pet.Br, at 39- 
41, is alone fatal to any claim o f intimate association. See 
Roberts, 468 U.S. at 621.2

There is an additional problem with any claim of 
intimate association on the facts of this case, however. The Boy 
Scouts does not actually grant its members the associational 
right that the organization now asserts as the basis for defying 
New Jersey’s antidiscrimination law. Unlike the Jaycees in 
Roberts, 468 U.S. at 540-41, and the Rotarians in Duarte, 481 
U.S. at 613-14, individual members of boy scout troops do not 
select their fellow scouts. Dale, 160 N.J. at 576-77. Rather, the

2 "The less intimate and more attenuated the association — and the more the 
association affects the public realm and access to the privileges and 
opportunities available in that realm -  the greater the state’s power to 
regulate an organization’s exclusionary practices.” TRIBE, AMERICAN 
Constitutional Law (2ded. 1988), §16-15 at 1480 n.37.

7



creation o f a scout troop is much more akin to student class 
assignments, which are usually determined without any 
significant input by the students themselves. See Tribe, § 16-15 
at 1479 (school may not rely on associational rights o f children 
when their choices are “obviously dominated” by adults). The 
average primary school class is about the same size as the 
average boy scout troop, it is similarly led by an adult, and it 
requires a substantial commitment of time and energy by the 
children involved.3 Whatever attenuated right of intimate 
association primary school students may have in the composition 
of their class, the power of the state to prohibit school officials 
from engaging in unlawful discrimination when they decide 
whom to admit is no longer open to serious question. See 
Runyon v. McCrary, 427 U.S. at 177-79. The same principle 
applies with equal force here and provides ample support for the 
decision below.

The Boy Scouts fares no better by alleging that New 
Jersey’s Law Against Discrimination somehow infringes the 
constitutional right of parents to direct the upbringing of their 
children. The right o f parental autonomy simply does not 
embrace the right to insist that a public accommodation indulge 
a parent’s discriminatory views by barring disfavored groups 
from goods and services that are otherwise available to the 
general public. Thus, while some parents may wish to send their 
children to an all-white school, that fact does not excuse the 
school from the need to comply with the state’s 
antidiscrimination laws. Runyon, 427 U.S. at 177, and 
Norwood, 413 U.S. at 461-63. Indeed, a working definition of 
unlawful discrimination is that it is the transformation o f private

3 U.S. Dep’t o f Education, National Center for Education Statistics, The 
Condition o f  Education, 1998, at 1 (average primary school class size is 24 
in public school, 22 in private school) and at “Indicator 38" (avg. hours spent 
in the classroom by a primary school teacher in a year is 958). Compare Pet. 
Br. at 40 (a typical boy scout troop consists o f 15 to 30 boys).

8



prejudices into market decisions.

Accordingly, there is no legal significance to the Boy 
Scouts’ claim that their decision to exclude James Dale from the 
Scouts solely because he is gay reflects what the organization 
perceives to be the moral disapproval of at least some of its 
scouting parents. Even if that perception is accurate, it cannot 
be controlling. Most forms o f discrimination that are now 
prohibited by our civil rights laws are or were justified on the 
basis of deeply held moral views. See, e.g., Loving v. Virginia, 
388 U.S. 1, 3 (1967)(trial judge’s finding that segregation was 
ordained by God); “Resolution on Racial Reconciliation on the 
150th Anniversary of the Southern Baptist Convention,” The 
Southern Baptist Convention Annual (1995) at 80-81 
(acknowledging denomination’s support of slavery and 
segregation and apologizing to African-Americans); Bradwell 
v. Illinois, 83 U.S. 130, 141 (Bradley, J., concurring) (1872) 
(natural unsuitability of women to work).

The right to direct the education of one’s children is not 
a right to decide who else may attend school or who may teach. 
Similarly, the right to provide one’s child with a scouting 
experience is not a right to decide that only members of favored 
groups may be permitted to join the troop or to lead it.

B. Any Rights of Expressive Association That May Exist
In This Case Are Not Unduly Infringed By The
Challenged Nondiscrimination Order

In Roberts, 468 U.S. at 618, this Court recognized that 
freedom of association serves an important “instrumental” value 
in promoting freedom of expression. Accordingly, the 
government has no more right to dictate the content of the 
message delivered by a group, see, e.g., Police D ep’t v. Mosley, 
408 U.S. 92 (1972), than it has to dictate the content of the 
message delivered by an individual, see, e.g., Texas v. Johnson,

9



491 U.S. 397 (1989). That principle does not assist the Boy 
Scouts in this case, however, because the nondiscrimination law 
that New Jersey is seeking to enforce is plainly content-neutral, 
and leaves the Boy Scouts free to advocate whatever position the 
organization chooses about gay people.

This case is thus fundamentally different from Hurley v. 
Irish-American Gay, Lesbian & Bisexual Group o f  Boston, 515 
U.S. 557, on which the Boy Scouts so heavily relies. That case 
arose out of a longstanding dispute about whether the private 
organizers of Boston’s St. Patrick’s Day Parade had to permit a 
gay and lesbian group to march under its own banner. In 
holding that they did not, this Court rejected the view that the 
parade could appropriately be characterized as a place of public 
accommodation in the ordinary sense of the term. Rather, the 
Court concluded, the parade represented a traditional form of 
expressive activity and the sponsors of the parade, no less than 
the publishers o f a newspaper, Miami Herald Publishing Co. v. 
Tornillo, 418 U.S. 241 (1974), were entitled to determine the 
message they wished to convey. Under the contrary rule 
proposed by the state, the Court explained, “any contingent of 
protected individuals with a message would have the right to 
participate in petitioners’ speech, so that the communication 
produced by the private organizers would be shaped by all those 
protected by the law who wished to join in with some expressive 
demonstration of their own.” Hurley, 515 U.S. at 573.

Had Massachusetts been allowed to insist that the lesbian 
and gay delegation be admitted to the parade in Hurley, 
observers along the way might well have assumed that the 
organizers included the lesbian and gay delegation in the parade, 
and made their message a part of its message. Id. at 575. By 
contrast, there is little risk that an association will be understood 
to be making a statement through the identity of its members, 
particularly if  the association has millions of members and is 
open to the public. See Pruneyard Shopping Center v. Robins,

10



447 U.S. 74, 87 (1980); accord Dale, 160 N.J. at 571. Our 
society is far too diverse for that.

The Boy Scouts would like to read Hurley for the 
proposition that the state can never enforce its civil rights laws 
over the opposition of any organization that purports to represent 
a set of values that conflicts with the state’s antidiscrimination 
goals. But the holding of Hurley clearly does not go so far. 
Certainly, nothing in the Court’s opinion purports to overrule 
Roberts or even to question it.

To be sure, the ACLU and other members o f the civil 
rights community are acutely aware that government, attempts 
to regulate the membership of an expressive association pose 
their own First Amendment dangers. Cf. Cousins v. Wigoda, 
419 U.S. 477 (1975). But this case does not involve a targeted 
or viewpoint-based effort to regulate an association’s 
membership; it involves instead the indirect effect of a neutrally 
applied public accommodations law designed to promote civil 
rights. On these facts, any impact of that law on First 
Amendment rights is incidental, at best, and must be balanced 
against the risk to civil rights enforcement if  an organization’s 
selective membership policies become their own justification for 
a claimed right to discriminate. Nor is that concern a fanciful 
one. In the 1950s and 1960s, many businesses in the deep South 
converted overnight into “private clubs” where every white 
patron was entitled to automatic membership and every potential 
black customer was barred at the door. See Daniel v. Paul, 395 
U.S. 298 (1969). With this history in mind, the Court has been 
appropriately wary o f any claim that the message of an 
association is inextricably tied to its membership policies, so that 
the latter cannot be regulated without abridging the former.4

4 Recognition of the fact that there is a “close nexus between the freedoms of 
speech and assembly” does not mean “that in every setting in which 
individuals exercise some discrimination in choosing associates, their

11



There may be rare situations where that is true, In New 
York State Club Ass ’n. v. New York, 487 U.S. at 13, this Court 
recognized the possibility that an association might show that it 
was organized for a specific expressive purpose that it could not 
effectively advocate unless it could limit its membership to be 
consistent with its message. For example, an organization 
founded to promote anti-Semitism and anti-Catholicism5 might 
well be right that simply having members who admit to being 
Jews or Catholics is so inconsistent with its core mission that the 
First Amendment allows it to exclude them. Given the 
competing interests at stake, however, amici do not believe it is 
possible to avoid the task of “carefully assess[ing]” the extent to 
which application o f the state’s antidiscrimination laws will 
actually interfere with the organization’s core purposes. 
Roberts, 468 U.S. at 620.6

selective process of inclusion and exclusion is protected by the Constitution.” 
New York State Club Ass ’n, Inc. v. City o f  New York, 487 U.S. at 13 (citations 
and internal quotations omitted).

5 Higham, Strangers in the Land: Patterns of American Nativism, 
1860-1925 (Rutgers University Press, 1992 ed.), at 286-299 (“The Klan 
Rides”).

6 This approach is also consistent with the methodology that the Court has 
employed in other association contexts. In the political patronage cases, the 
Court has asked whether party affiliation has any relevance to job 
performance, which is simply another way o f asking whether the ability of 
the prevailing political party to deliver its message will be impeded if it is 
forced to associate with members of the opposing party by hiring (or 
retaining) them to fill certain critical positions. See Rutan v. Republican 
Party o f  Illinois, 497 U.S. 62 (1990); Branti v. Finkel, 445 U.S. 507 (1980); 
Elrod v. Bums, 427 U.S. 347 (1976). In the compelled dues cases, the Court 
has focused on whether the organizational dues are being spent for a purpose 
that is “germane” to the reason that the dues were collected in the first place, 
which is simply another way of asking whether the challenged expenditure 
is in furtherance o f  the organization’s central purpose. See, e.g., Abood v. 
Detroit Board o f Education, 431 U.S. 209 (1977); Keller v. State Bar o f

12



That is precisely the inquiry' that this Court undertook in 
Roberts, when it determined that any impact on the expressive 
message of the Jaycees was incidental at best. Id, at 627.7 It is 
also precisely the inquiry undertaken by the New Jersey courts 
in this case, which is what led them to conclude that:

The organization’s ability to disseminate its 
message is not significantly affected by Dale’s 
inclusion because: Boy Scout members do not 
associate for the purpose of disseminating the 
belief that homosexuality is immoral; Boy 
Scouts discourage its leaders from disseminating 
any views on sexual issues; and Boy Scouts 
include sponsors and members who subscribe to 
different views in respect of homosexuality.

160 N.J. 2d at 612.

These conclusions could be challenged only if  the Boy 
Scouts were now to demonstrate that the organization is in fact 
defined by its view that homosexuality is immoral, that this view 
is integral to who the Boy Scouts are, and that its members 
decided to join the organization because o f its intolerant views

California, 496 U.S. 1 (1990).

7 Justice O ’Connor’s concurring opinion in Roberts suggests that the 
constitutionally relevant line is between expressive associations and 
commercial associations. 468 U.S. at 632-35. That line, however, would not 
account for the result in Runyon v. McCrary. A school is the quintessential 
expressive association, Roberts, 468 U.S. at 636 (O ’Connor, J.). Yet the 
Runyon Court unequivocally held that while the private school defendants in 
that case could advocate segregation, they could not express that view by- 
segregating their student body. That was not, we believe, because the schools 
charged tuition, but rather because the core purpose o f the schools was to 
educate, and because the Constitution places so little (if any) value on 
discrimination as a means of expression. Runyon, 427 U.S. at 176. The 
same analysis applies here.

13



about homosexuality. Even in its submissions to this Court, 
however, the Boy Scouts has stopped well short of that claim. 
Instead, the Boy Scouts has tried to shift the focus o f its 
argument from a question o f membership to a question of 
leadership. The theory, apparently, is that an organization’s 
leadership choices are entitled to deference by the state — even 
when they conflict with the state’s antidiscrimination laws — 
because those choices represent an organizational statement of 
some sort.

That argument is flawed on the facts of this case for 
several critical reasons. First, any act o f intentional 
discrimination can be said to represent an organizational 
statement but that cannot be a sufficient justification forignoring 
the civil rights laws or those laws would quickly become a dead 
letter. See Runyon v. McCrary, 427 U.S. 160. Second, as this 
Court made clear in the patronage cases, leadership is not a 
matter of title but a matter of job responsibility. See n.6, supra. 
Here, James Dale is seeking to remain an assistant scoutmaster, 
which is not a policymaking position within the Boy Scouts. 
Dale, 160 N.J. at 572-73, 577. Third, the fact that Dale is gay 
does not conflict with his non-policymaking responsibilities. 
While it may be fair to characterize scoutmasters as teachers in 
some sense, they are specifically instructed by the Boy Scouts to 
avoid any teaching on issues o f sexuality and religion. If  the 
subject comes up, the prescribed answer is that such matters are 
better discussed at home. Id. at 160 N.J. at 575, 614-15.

This would be a different case if  Dale were actively 
seeking to undermine a message about homosexuality that the 
Boy Scouts were actively seeking to promote, but the record 
does not support either proposition. As the New Jersey Supreme 
Court noted: “[Tjhere is no indication that Dale intends to 
‘teach’ anything whatsoever about homosexuality as a scout 
leader, or that he will do other than the Boy Scouts instructs him 
to do — refer boys to their parents on matters o f religion and

14



sex.” Id. at 623.

In the final analysis, the position o f the Boy Scouts 
appears to be that it is prepared to accept gay members and even 
gay scoutmasters as long as they remain safely closeted, but it 
will not accept the presence of anyone who is openly gay. That 
attitude would not be tolerated for a moment if the Boy Scouts 
were claiming that it would accept Jewish or Catholic scouts as 
long as they kept their faith hidden. The price of equal 
opportunity in this country should not be a requirement to 
disguise one’s identity. To the contrary, the entire goal of the 
antidiscrimination laws is that people should be judged on what 
they can do and not on who they are.

It is true that since Dale is openly gay, the better he is at 
his job as a scoutmaster, the more some may think that being 
gay is “acceptable.” That is a “danger” with anyone who is open 
about his or her ethnicity or religion. But the Boy Scouts’ fear 
that this will be seen as its message is simply without much 
basis in reality. What a teacher says outside of school is usually 
not fairly attributable to the school, see Pickering v. Board o f  
Education, 391 U.S. 563, 572 (1968); Westside Community 
Schools v. Mergens, 496 U.S. 226,250 (1990), particularly if the 
school makes its wish not to take a position clear. See 
Pruneyard Shopping Center v. Robins, 447 U.S. 74, 87 (1980). 
Any danger o f attribution here is virtually nonexistent because, 
as the New Jersey Supreme Court found, the Boy Scouts tells the 
public that all boys are welcome to join. 160 N.J. at 609. All 
that an organization can really be understood to have “said” by 
retaining someone protected against discrimination by the civil 
rights laws is that the organization obeys the law. If anything, 
that is a message that the Boy Scouts presumably endorses.

15



II. ANY INCIDENTAL BURDEN ON THE BOY 
SCOUTS’ EXPRESSION IS OUTWEIGHED IN 
THIS CASE BY NEW JERSEY’S OVERRIDING 
I N T E R E S T  IN E N S U R I N G  E Q U A L  
OPPORTUNITY ON THE BASIS OF SEXUAL 
ORIENTATION

In Roberts v. United States Jaycees, 468 U.S. 609, Board 
o f Directors o f Rotary, In t’l v. Duarte, 481 U.S. 537, and. New 
York State Club A ss’n v. City o f  New York, 487 U.S. 1, this 
Court essentially applied the analysis it first developed in United 
States v. O ’Brien, 391 U.S. 367 (1968), for evaluating 
government actions which, while not aimed at a speaker’s 
message, limit the means one can use to express it. That test 
requires that the government show: (1) that it is acting in pursuit 
of an “important” interest;8 (2) that the interest is unrelated to the 
suppression of free expression; and (3) that the approach it has 
adopted is “narrowly tailored” to achieve the government’s goal. 
Each o f those requirements was easily satisfied in the 1980s 
trilogy; each of those requirements is also easily satisfied here.

A. New Jersey Has A Critically Important 
Interest in Ensuring Equality On The Basis of 
Sexual Orientation

One of the central visions on which this nation was 
founded was that ours would be a society in which talent, skill 
and hard work would be what mattered. It is an idea that runs 
through American thought, from James Madison’s Federalist

8 Roberts described the necessary government interest as “compelling” but, 
as the O ’Brien Court pointed out, there is no magic in the terminology used 
to describe what must be a very significant government interest. See Roberts, 
468 U.S. at 623; O ’Brien, 391 U.S. at 376-77.

16



No. 10, 9 through the debates on the adoption o f the civil war 
amendments,10 to the opinions of this Court.11

That vision has never been realized. Despite our 
aspirations, we have a long, sad history o f judging people not by 
what they are capable of doing, but by such extraneous things as 
race, religion, national origin, sex, disability and sexual 
orientation.

Civil rights laws are enacted to bring our nation closer to 
a society that does not function on the basis of group stereotype. 
The Civil Rights Act of 1866 was designed to end “private 
injustices”against African-Americans who, in the wake o f the 
Civil War, were still unable to find work or housing in large 
parts of the country. Jones v. Alfred H. Mayer Co., 392 U.S. 
409, 422-36 (1968). The Rehabilitation Act of 1973 was aimed 
at overcoming “prejudice,” “insensitivity,” and “ignorance” so 
that people with disabilities would not be denied “jobs or other 
benefits.” School Board o f  Nassau County v. Arline, 480 U.S. 
273, 279 , 284 (1987). The caption o f Title VII of the 1964 
Civil Rights Act plainly expresses its goal of “equal 
opportunity.” 42 U.S.C. § 2000e.

Thinking in economic terms, as law often does, it is easy 
to see that the chance to have and hold a job or an apartment on 
equal terms has to be an essential element of any society that 
treats people fairly. But the somewhat more intangible value of

9 The federalist Papers (Penguin Classics Ed. 1987), at 124.

10 Cong. Globe, 39th Cong., l a Sess.,95, 1160,1833 (1866); see also Report 
o f C. Schurz, S. Exec. Doc. No. 2, 39th Cong., 1st Sess. (1866).

11 Frontiero v. Richardson, 411 U.S. 677,686-87 (1973)(relegating an entire 
class o f citizens to an inferior status “without regard to actual capabilities” 
violates a “basic concept o f our system”); see also Hofstadter, The 
American Political Tradition (Vintage 1974), at 3-21.

17



not being shut out o f lunch counters, theaters, businesses and 
associations that say they are open to the public is every bit as 
essential. Indeed, when President Kennedy proposed what 
became the Civil Rights Act o f 1964, he noted that no action 
could be “more contrary to the spirit o f our democracy,” and 
none “more rightfully resented,” than being barred from public 
accommodations. See Daniel v. Paul, 395 U.S. at 306. Thus, 
the overriding purpose of civil rights legislation, as this Court 
explained just a few years ago, is to make it possible for those 
protected by the law to participate in the “almost limitless 
number of transactions and endeavors that constitute ordinary 
civic life in a free society.” Romer v. Evans, 517 U.S. 620, 631 
(1996). Stated more broadly, the purpose of the civil rights law 
is to protect basic human dignity. See Heart o f Atlanta Motel 
v. United States, 379 U.S. 241, 250 (1964).

This Court has said that laws designed to ensure equal 
opportunity and equal access to goods and services serve 
“compelling state interests of the highest order.” Roberts, 468 
U.S. at 624.12 Given the central place of fair treatment and

12 It has occasionally been suggested that the government has an overriding 
interest in forbidding only those forms of discrimination that it would need 
a compelling justification to practice; or, to put it another way, that the 
government only has an overriding interest in ending discrimination against 
those defined by “suspect classifications.” See Smith v. Fair Employment and 
Housing Commission, 30 Cal. Rptr.2d 395,404 (Cal.App. 1994), reversed on 
other grounds, 12 Cal.4th 1143 (1996), cert, denied, 521 U.S. 1129 (1997). 
But apart from using similar terminology, there is no necessary connection 
between the two ideas, no reason why the Court’s analysis of when ensuring 
equality is overriding should depend on when a reason to treat people 
unequally is deemed compelling. Indeed, in City o f Cleburne v. Cleburne 
Living Center, 473 U.S. 432 (1985), this Court held that discrimination 
against the mentally disabled was not suspect at least in part because of 
significant government efforts to end discrimination. The Court speculated 
that those efforts might withstand heightened scrutiny even as it mled that 
discrimination against the mentally disabled does not require it. Id. at 443-45.

18



personal initiative in the American vision o f society, it may be 
that virtually any law truly designed to ensure equal opportunity 
serves government interests o f the highest order. The Court 
need not decide that in this case, however. At a minimum, there 
can be no doubt that lesbians and gay men have historically been 
denied equal opportunity to participate in American life. Gay 
people have been denied employment as everything from 
telephone operators to librarians to budget analysts to teachers 
to police officers to mail room clerks.13 Gay people have lost 
their homes (as have heterosexuals who lived with gay people), 
and been told not to dance with each other, not to eat together in 
booths, and not to “hang out” together in bars and clubs.14 Gay 
people have had their families tom apart and their children left 
in peril.15 Lesbians and gay men have been subjected to

13 See, e.g., DeSantis v. Pacific Telephone, 608 F.2d 327 (9th Cir. 1979); 
McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1977); Norton v. Macy, A ll  
F.2d 1161 (D.C. Cir. 1969); Gloverv. Williamsburg Local School Dist., 20 
F.Supp.2d 1160 (S.D.Ohio 1998); Weaver v. Nebo School Dist., 29 
F.Supp.2d 1279 (D.Utah 1998); Burton v. Cascade School District Union 
High School, 512 F.2d 850 (9th Cir.), cert, denied, 423 U.S. 839 (1975); 
Childers v. Dallas Police D ep’t, 513F.Supp. 134(N.D.Tex. \9%\) off’d, 669 
F.2d 732 (5th Cir. 1982); Smith v. Liberty Mutual Insurance, 569 F.2d 325 
(5th Cir. 1978).

14 See, e.g., 420 E.80th v. Chin, 115 Misc.2d 195 (1982), aff’d , 97 A.D. 2d 
390 (N.Y.A.D. 1st Dep’t 1983); Hubert v. Williams, 133 Cal.App.3d Supp. 
1(1982); Morell v. Dept, o f Alcoholic Beverage Control, 204 Cal.App.2d 504 
(1962); Rolon v. Kulwitzky, 153 Cal.App.3d 289 (1984); One Eleven Wines 
and Liquors Inc. v. Div. o f  Alcoholic Beverage Control, 235 A.2d 12 (N.J. 
1967).

15 See, e.g., Weigand v. Houghton, 730 So.2d 581, 588 (Miss. 1999)(McRae, 
J., dissenting)(child placed in home with convicted felon and wife abuser 
because father was gay); S.A.G. v. R.A.G., 735 S.W.2d 164 (Mo.App. 
1987)(mother denied custody in favor of alcoholic father because mother was 
a lesbian).

19



unspeakable violence for being gay.16

The history of gay people in America is in large measure 
a history of being forced underground,17 away from the easy 
participation in “ordinary civic life” that most Americans take 
for granted. See Romer, 517 U.S. at 631. New Jersey 
committed itself to creating equal opportunity for a group of 
Americans who truly have been excluded from equal 
participation in ordinary life when it added sexual orientation to 
its Law Against Discrimination. That is a government interest 
of the highest order. See Roberts, 468 U.S. at 624.

B. New Jersey’s Interest in Equality Is Unrelated
To The Suppression Of Free Expression, And 
Its Law Against Discrimination Limits 
Expression No More Than Necessary To 
Achieve Its Stated Goal

New Jersey ’ s interest in ensuring that the gay people who 
live there have an equal opportunity to participate in society is 
unrelated to the suppression of free expression. See, e.g., 
Roberts, 468 U.S. at 623. Like the Minnesota public

16 See, e.g., Naboszny v. Podlesney, 92 F.3d 446 (7th Cir. 1996); Stemler v. 
City o f  Florence, 126 F.3d 856 (6th Cir.1997), cert, denied, 523 U.S. 1118 
(1998); Coon v. Joseph, 192 Cal.App.3d 1269 (1987).

17 See Katz, Gay American History; see also State ex.rel. Grant v. Brown, 39 
Ohio St. 2d 112 (1974), cert, denied sub nom. Duggan v. Brown; 420 U.S. 
916 (1975)(Greater Cincinnati Gay Society not permitted to incorporate); 
Owles v. Lomenzo, 31 N.Y.2d 965(1973)(overruling a similar decision by the 
New York Secretary o f State); Rowland v. Mad River Local School Dist., 730 
F.2d 444, 446 (6th Cir. 1984), cert, denied, 470 U.S. 1009 (1985)(guidance 
counselor fired in part because she told coworkers she was bisexual); Van 
Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981), cert, denied, 455 U.S. 909 
(1982)(overtuming discharge o f gay man who spoke in favor of civil rights 
at county commission); McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971), 
cert, denied, 405 U.S. 1046 (1972)(same).

20



accommodations law in Roberts, New Jersey’s Law Against 
Discrimination does not distinguish on the basis of viewpoint or 
content. Id. While the Boy Scouts claim that the application of 
New Jersey’s law to it is motivated by a desire to hamper its 
ability to express its views, the criteria applied by the New 
Jersey Supreme Court to determine that the organization is a 
public accommodation covered by the Law Against 
Discrimination are undeniably neutral, and have been applied to 
similar organizations with different views. Dale, 160 N.J. at 
589-602. Finally, the central purpose of ensuring equality in 
organizations that open themselves to the general public can be 
achieved only by forbidding identity-based discrimination. See 
Roberts, 468 U.S. at 626, 628. The Constitution does not 
disable the government from prohibiting discrimination in places 
of public accommodation. See Runyon, 427 U.S. at 176.

21



CONCLUSION

For the foregoing reasons, the judgment of the New 
Jersey Supreme Court should be affirmed.

Respectfully submitted,

Matthew A. Coles 
('Counsel o f  Record)

Steven R. Shapiro 
Sara L. Mandelbaum 
American Civil Liberties Union 

Foundation 
125 Broad Street 
New York, New York 10004 
(212) 549-2500

Lenora M. Lapidus 
ACLU of New Jersey Foundation 
35 Halsey Street, Suite 4B 
Newark, New Jersey 07102 
(973) 642-2084

Dated: March 29, 2000

22



A P P E N D I X



The American Civil Liberties Union (ACLU) is a
nationwide, nonprofit, nonpartisan organization with nearly 
300,000 members dedicated to the principles o f liberty and 
equality embodied in the Constitution and our nation’s civil 
rights laws. The ACLU of New Jersey is one o f its statewide 
affiliates. Since its founding in 1920, the ACLU has frequently 
advocated in support of the right to freedom of association, both 
on its own behalf and on behalf of other groups. See, e.g., 
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of 
Boston, 515 U.S. 557 (1995). The ACLU has also frequently 
argued in favor of the state's constitutional authority to eliminate 
discrimination in places of public accommodation, see, e.g., 
Roberts v. United States Jaycees, 468 U.S. 609 (1984), in part 
through the work of both its Lesbian and Gay Rights Project, 
and its Women's Rights Project. Because this case once again 
requires the Court to consider when protected association 
crosses the line into forbidden discrimination, its proper 
resolution is a matter of significant concern to the ACLU and its 
members.

The American Federation of Teachers (AFT) is a 
national labor union that represents over one million members, 
who work in public schools, community colleges, universities, 
state government, and health care. The vast majority of AFT 
members are employed as teachers and teaching assistants in 
public primary and secondary schools. AFT has a long-standing 
interest in First Amendment and civil rights issues that have an 
impact on AFT's membership, and this interest has resulted in 
AFT participating in a number o f amicus briefs before the 
Supreme Court.

The Anti-Defamation League (ADL), one of the
nation’s oldest civil rights organizations, was founded in 1913 
to promote good will among all races, ethnic groups, and 
religions. As set out in its charter, ADL’s “ultimate purpose is 
to secure justice and fair treatment to all citizens alike and to put

la



an end forever to unjust and unfair discrimination against and 
ridicule of any sect or body of citizens.” To this end, ADL is 
committed to eradicating discrimination in public 
accommodations. ADL filed amicus briefs with this court in 
Robert v. United States Jaycees, 468 U.S. 609 (1984), New York 
State Club Assn. v. New York, 487 U.S. 1 (1988) and Board o f  
Directors o f  Rotary Int 7 v. Rotary Club o f  Duarte, 481 U.S. 537 
(1987), among other relevant cases.

The California Women's Law Center (CWLC) is a
private, nonprofit public interest law center specializing in the 
civil rights of women and girls. Established in 1989, the CWLC 
places a strong emphasis on advancing the rights of women and 
girls in employment and education. CWLC has authored 
numerous amicus briefs, articles, and legal education materials 
on discrimination, and litigates discrimination cases. This case 
raises questions with an enormous impact on the issues which 
concern the California Women's Law Center.

The Center for Women Policy Studies is an
independent, national, multiethnic and multicultural feminist 
policy research and advocacy institution, founded in 1972. We 
currently are working with a network of state legislators to 
ensure that lesbians and gay men have full and equal legal 
protection from violence and discrimination. The Court’s 
decision in this case will have a significant impact on legislators’ 
ability to enact comprehensive laws to eliminate discrimination 
against sexual orientation, and to include sexual orientation in 
state hate crimes statutes.

Equal Rights Advocates (ERA) is a San Francisco- 
based, public interest law firm focused on ending discrimination 
against women and girls. ERA works to achieve women’s 
equality and economic security through litigation, education, 
legislative advocacy and practical advice and counseling. Since, 
its inception ERA has worked tirelessly to end gender

2a



discrimination and establish gender equality. ERA believes in 
the value of coalitions and alliances, and works closely with 
groups in the women’s, civil rights, and immigrant rights 
communities to achieve social justice and equal opportunity.

The Human Rights Campaign (HRC) is the nation's 
largest gay and lesbian civil rights organization, with over 
360,000 members nationwide. HRC is devoted to fighting and 
ending discrimination on the basis of sexual orientation, and to 
protecting the basic civil and human rights of gay, lesbian, and 
bisexual Americans. To this end, HRC has provided federal and 
state legislative, regulatory and judicial advocacy, media and 
grassroots support on a range of initiatives affecting gay, lesbian 
and bisexual individuals who suffer discrimination on the basis 
o f their sexual orientation, including the Employment Non- 
Discrimination Act.

The Mexican American Legal Defense and
Educational Fund (MALDEF) is a national not-for-profit 
organization that protects and promotes the civil rights of more 
than 29 million Latinos living in the United States. MALDEF 
is particularly dedicated to securing such rights in the areas of 
employment, education, immigration, political access, and 
public resource equity. The question presented by this case is of 
great interest to MALDEF because it implicates the availability 
o f civil rights protections for Latinos in this country.

The National Asian Pacific American Legal 
Consortium (the Consortium) is a national non-profit, non­
partisan organization whose mission is to advance the legal and 
civil rights of Asian Pacific Americans. Collectively, the 
Consortium and its Affiliates, the Asian American Legal 
Defense and Education Fund, the Asian Law Caucus and the 
Asian Pacific American Legal Center o f Southern California, 
have over 50 years of experience in providing legal services,

3a



community education and advocacy on discrimination issues.

The NAACP Legal Defense and Educational Fund, 
Inc. (LDF) is a public interest law firm founded in 1940, 
dedicated to combating bias and securing equal opportunity for 
all Americans through public education, antidiscrimination 
legislation and full and effective enforcement of the civil rights 
laws. LDF has participated as counsel of record or amicus 
curiae in important cases before this Court involving 
discrimination on a variety of levels, including race, Borwn v. 
Board o f  Education, 347 U.S. 483 (1954), ethnicity, St. Francis 
v. Al-Khazraji, 481 U.S. 604 (1987), gender, Phillips v. Martin 
Amrietta Co., 400 U.S. 542 (1971), age, McKennon v. Nashville 
Banner Publishing Co., 513 U.S. 353,115 S. Ct. 4a897 (1995), 
and sexual orientation, Romer v. Evans, 517 U.S. 620 (1996), 
consistently urging the Court to recognize the real and 
destructive effects o f prejudice.

The National Council of Jewish Women, Inc. (NC JW)
is a volunteer organization, inspired by Jewish values, that works 
through research, education, advocacy and community service 
to improve the quality of life for women, children and families 
and strives to ensure individual rights and freedoms for all. 
Founded in 1893, the Council has 90,000 members in over 500 
communities nationwide. NCJW’s National Principles state that 
“Public laws, benefits and programs must be developed, enacted, 
and administered and provided without discrimination on the 
basis of race, gender, national origin, ethnicity, religion, age, 
disability, marital status or sexual orientation.”

Founded in 1973, the National Gay and Lesbian Task 
Force has worked to eliminate prejudice, violence and injustice 
against gay, lesbian, bisexual and transgendered people at the 
local, state and national level. As part of a broader social justice

4a



movement for freedom, justice and equality, NGLTF works to 
create a world that respects and celebrates the diversity of human 
expression and identity where all people may fully participate in 
society.

NOW Legal Defense and Education Fund (NOW 
LDEF) is a leading national non-profit civil rights organization 
that performs a broad range of legal and educational services in 
support ofwomen’s efforts to eliminate sex-based discrimination 
and secure equal rights. NOW LDEF has frequently appeared as 
counsel before this Court. See, e.g., Brzonkala v. Virginia 
Polytechnic Institute, 169 F.3d 820 (4th Cir. 1999) (en banc), 
cert, granted, 1999 U.S. LEXIS 4745 (U.S. Sept. 28, 1999) 
(No. 99-29) (argued Jan. 11, 2000); Faragher v. City o f  Boca 
Raton, 118 S. Ct. 2275 (1998); Schenck v. Pro-Choice 
Network, 117 S. Ct. 855 (1997); Bray v. Alexandria Women’s 
Health Clinic, 113 S. Ct. 753(1993). NOW LDEF has a long­
standing commitment to elimination discrimination in places of 
public accommodation and has litigated extensively in this area. 
See, e.g., New York State Club Ass ’n v. City o f  New York, 487 
U.S. 1 (1988); Board o f  Directors o f  Rotary Int 7 v. Rotary 
Club, 481 U.S. 537 (1987); Roberts v. United States Jaycees, 
468 U.S. 609 (1984).

The National Partnership for Women & Families is a
nonprofit, nonpartisan organization that promotes fairness, 
quality health care, and policies that help women and men meet 
the dual demands of work and family. Since its founding in 
1971 as the Women's Legal Defense Fund, the National 
Partnership has participated as amicus curiae in many major 
cases before this Court involving sex discrimination or 
principles of discrimination law that affect sex discrimination, 
including-Roberts v. United States Jaycees, 468 U.S. 609 (1984) 
and Board o f  Directors o f  Rotary International v. Rotary Club 
o f Duarte, 481 U.S. 537 (1987). Because discrimination on the 
basis o f sexual orientation is intricately connected to gender-

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based discrimination, the National Partnership has often 
participated as amicus curiae in cases asserting equal 
opportunity for lesbians and gay men.

The National Women’s Law Center (NWLC) is a non­
profit legal advocacy organization dedicated to the advancement 
and protection o f women’s rights and the corresponding 
elimination o f sex discrimination from all facets o f American 
life. Since 1972, NWLC has worked to secure equal opportunity 
for women in education, the workplace, and other settings, 
including through litigation of cases brought under national, 
state, and local antidiscrimination laws. The Center has a deep 
and abiding interest in ensuring that these laws are fully 
implemented and enforced.

The Northwest Women’s Law Center (NWLC) is a
non-profit public interest organization that works to advance the 
legal rights o f all women through litigation, education, 
legislation and the provision of legal information and referral 
services. Since its founding in 1978, the NWLC has been 
dedicated to protecting and securing equal rights for lesbian and 
their families, and has long focused on threats to equality based 
on sexual orientation. Toward that end, the NWLC has 
participated as counsel and as amicus curiae in cases throughout 
the Northwest, and the country and is currently involved in 
numerous legislative and litigation efforts. The NWLC 
continues to serve as a regional expert and leading advocate in 
lesbian and gay issues.

People for the American Way Foundation (People 
For) is a nonpartisan citizens’ organization established to 
promote and protect civil and constitutional rights. Founded in 
1980 by a group of religious, civic, and educational leaders 
devoted to our nation’s heritage of tolerance, pluralism, and 
liberty, People For now has more than 300,000 members 
nationwide. People for has frequently represented parties and

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filed amicus curiae briefs in litigation seeking to defend First 
Amendment freedoms, and has also been actively involved in 
efforts nationwide, including litigation, to combat discrimination 
and promote equal rights. People For believes society’s 
compelling interest in eradicating invidious discrimination with 
an organization’s First Amendment rights of free speech and 
association, and has joined in filing this amicus brief in order to 
urge the Court not to disturb those precedents.

Women Employed is a national membership association 
of working women based in Chicago, with a membership of 
2000. Since 1973, the organization has assisted thousands of 
working women with problems o f sex discrimination, monitored 
the performance of equal opportunity enforcement agencies, 
analyzed equal opportunity policies, and developed specific, 
detailed proposals for improving enforcement efforts.

The Women’s Law Project (WLP) is a non-profit 
public interest legal advocacy organization located in 
Philadelphia, Pennsylvania. Founded in 1974, WLP works to 
abolish discrimination and injustice in our laws and institutions 
and to advance the legal and economic status of women and their 
families through litigation, public policy development, public 
education, and individual counseling. The Law Project has 
worked on both a local and national basis to eliminate 
discrimination on the basis of gender and sexual orientation in 
a wide variety of contexts, including employment, education, 
insurance, family matters and places of public accommodations, 
the area at issue in this case. WLP has a strong interest in 
defending our civil rights laws from threats which seek to limit 
the rights of all citizens to be free of prohibited discrimination.

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