In the past decades, several challenges have been brought in federal court by certain groups who claim state civil rights laws place an unconstitutional burden on their First Amendment rights to private and/or expressive associations. In deciding Boy Scouts of America v. Dale 530 U.S. ___ (2000), however, the Court took an unreasoned turn from its past decisions when, in a 5-4 decision, it reversed the New Jersey Supreme Court and struck down an application of that state's Law Against Discrimination. The Boy Scouts of America succeeded in asserting that application of the LAD to its leadership selection placed an unconstitutional burden on its expressive association rights. The tortured method of interpretation used by the Court is unworkable and contradicts the entire line of state civil rights cases.

This essay begins by explaining the backbone of the Court�s opinions on expressive association claims in reference to antidiscrimination laws, which have become known as the Roberts trilogy. In Part II, the three primary so-called "gay rights" cases heard by the Court prior to Dale are examined and distinguished from it. Part III details five unique problems found in the Dale decision. The conclusion offers a workable "undue burden" standard for examining state civil rights First Amendment claims.

Beginning with Roberts v. United States Jaycees, 468 U.S. 609 (1984), and continuing throughout what has become known as the Roberts trilogy, the Supreme Court determined that in many cases public accommodation antidiscrimination laws did not "affect in any significant way" the Jaycees, Rotary Clubs, or dining clubs' abilities to carry out their expressive purposes. See Board of Directors of Rotary International v. Rotary Club of Duarte 481 U.S. 537 (1987) and New York State Club Assn. v. New York City 487 U.S. 1 (1988).

In these cases, as in earlier cases, the Court found that First Amendment rights of expressive association can be limited by laws or regulations which "serve a compelling state interest unrelated to the suppression of ideas." Buckley v. Valeo 424 U.S. 1 (1976).

When the Supreme Court examined these issues, it formulated what has become known as the Roberts test. The test involves three determinations. The Court first determines whether the organization is engaging in an expressive association and then whether enforcement of the state civil rights law will "significantly burden" members' abilities to carry out their expressive purposes. In the three cases of the Roberts trilogy, the Court ruled that while the groups were engaging in expressive associations, the expressive purposes of the organizations were not significantly affected by the application of the state civil rights laws in question.

In Roberts, the Court took great pains to analyze and determine both the Jaycees' status as an expressive association and the "significant burden" on such an association. The Jaycees claimed specific harms that would be caused by the admission of women as voting members into their organization. The Court reasoned, however, that these were not supported by the record and that "the Jaycees relies solely on unsupported generalizations about the relative interests and perspectives of men and women." Roberts, at 628. 1 Justice Brennan concludes this reasoning by stating:

There obviously was no deference given to the Jaycees in the determination of their expressive association by the Roberts Court.

In the third step of the Roberts test, the Court made a determination as to the interest served by the state antidiscrimination laws. The Court in the Roberts trilogy of cases ruled that state laws aimed at eliminating sex-based discrimination serve the compelling interest of eliminating discrimination. In Rotary, Justice Powell wrote for the Court, "[P]ublic accommodations laws 'plainly serv[e] compelling state interests of the highest order'[citing Roberts]." In these cases, the compelling state interest was eliminating discrimination -- not a specific type of discrimination.

This compelling interest was found in Roberts and Rotary despite the fact that the Court has never granted sex classifications strict scrutiny on a federal equal protection level. However, the Court, in Roberts, refers to "Minnesota's compelling interest in eradicating discrimination against its female citizens" and other similar phrases on several occasions. See Roberts, at 623.

The Roberts Court found it was not the group that resulted in the compelling state interest, but rather the following:

The Roberts Court found that "incidental abridgment of the Jaycees' protected speech" caused by the application of Minnesota's public accommodations law has an effect "no greater than is necessary to accomplish the State's legitimate purposes." See Roberts, at 628. 2

The Court also recognized that this test would be applied to other categories of protected classes when Justice Brennan wrote:

Throughout the past 15 years, the Supreme Court has heard three major so-called "gay rights" cases prior to Dale: Bowers v. Hardwick 478 U.S. 186 (1986); Romer v. Evans 517 U.S. 620 (1996); and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston 515 U.S. 557 (1995). Each of these cases can and should be distinguished from Dale.

Bowers is distinguished from this case because Bowers was a privacy case aimed at expanding the scope of privacy rights to include homosexual consensual sodomy. The Court declined to do so, saying that there is no "fundamental right" grated by the Constitution to engage in consensual homosexual sodomy and that the Court was not "inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the due process clause." See Bowers.3

Romer, a case which involved a federal equal protection claim, does not apply to this case because the Court in Roberts clearly established that federal equal protection standards are not at issue in state civil rights laws. Thus, the level of equal protection analysis given to sexual orientation classifications is not important in Dale. 4

Hurley brought a "forced-speech-within-speech" claim to the Court, a case in which the Court found that parades were a form not merely of expressive association, but of speech. While this reasoning may appear, at first glance, to apply in the Dale case, several reasons immediately discredit this.

Most clearly, the application of Hurley to Dale is refuted by language in the Hurley decision itself. Justice Souter, writing for a unanimous Court, said the issue was not the admission of gay, lesbian, and bisexual people into the parade:

The issue was not association, but speech. As was discussed in Dale's oral arguments by Justice Souter, Dale did not "ask[] to carry a banner." Dale was not seeking to speak out on issues of gay rights, whereas that was the precise purpose of the marchers in Hurley. Souter skeptically asked the Boy Scouts' lawyer if such a distinction did not cause "a little difficulty with the Hurley analogy." Transcript of Oral Args. Also, in the Hurley opinion itself, Souter distinguishes New York Club Assn., and thus the Roberts test, from the decision and issues in Hurley. 5

Another problem with applying Hurley to Dale is that the Boy Scouts allow heterosexual leaders to actively oppose the policy and even promote homosexuality as a moral choice with no consequence:

This is the primary reason why the Boy Scouts hung their hopes on the expressive association claim, rather than a pure speech claim. The Court erroneously found a link between Hurley and Dale, however, stating that Dale's mere presence constituted speech -- to the same degree the marching contingent would have constituted speech in Hurley.

The logic is faulty at best and serves to further show the inconsistency of the Dale opinion. As was expressed by Dale in briefs, such a decision blurs the line between compelled speech and symbolic speech in a way that calls all antidiscrimination laws into question.

Chief Justice Rehnquist's majority opinion in Dale presents a uniquely inconsistent case in which the Court, while allegedly applying a past precedent, failed to use any of the past standards of that precedent.

• Expressive Association and Impairment Deference

In Roberts, the Court determined that organizations needed to explain any claimed impairment to their expressive association because of the application of a state civil rights law. In Dale, the Court ignored the Roberts precedent and gave complete deference to the Boy Scouts to define "the nature of its expression" and "view of what would impair its expression." See Dale, Id. Completely opposite principles determined this portion of these cases.

After stating that the Court was required to "independently review the factual record," the Dale Court concludes in five brief paragraphs that it is "indisputable" that the Boy Scouts constitute an expressive association. The Court then quickly determined the Boy Scouts view on homosexuality, taking the Boy Scouts' briefs in the case as the only necessary record to make such a determination. The Court announces it will "give deference to an association's view of what would impair its expression." See Dale, Id.

These are startling inconsistencies from the tough examination of the record taken up by the Roberts court, and they are made without explanation or justification.

This deference also was given to the Boy Scouts in spite of supported claims made by Dale in briefs that the Boy Scouts had a "total public and membership-wide silence on something so supposedly central as to require group-based exclusion." See Brief for Resp., at 26.

• The "Significant Affect" of the Impairment on Expressive Association

As the Court established in Roberts, an expressive association must have its expressive purposes significantly impaired by the application of any state antidiscrimination law before strict scrutiny is triggered. The Dale Court skips this "significance" determination when examining the "nature of the Boy Scouts view of homosexuality":

The Roberts precedent, if properly applied, would have led the Court in Dale to "determine the nature of the Boy Scouts' expression" in order to find whether it was significantly affected by Dale's inclusion as a Scout leader. As was discussed in a November 2000 Harvard Law Review essay, "[T]he flaw in the Court's reasoning was its failure to recognize that 'merely engaging in expressive activity' cannot be a sound basis for invoking the right of association when the burdened message relates only tangentially to an organization's broader purposes." 6 Again, the Chief Justice does not explain this inconsistency.

• "Eradicating Discrimination" as a Compelling State Interest

In Dale, the Court implicitly rejects the notion, previously unquestioned by the Court, that state antidiscrimination laws constitute a compelling interest. Throughout Rehnquist's opinion, he torturously avoids using "compelling state interest" and "sexual orientation" in the same sentence, and implies, through his twisting of the Roberts standard, that state sexual orientation antidiscrimination laws do not constitute a compelling state interest. As Rehnquist writes:

Once the Court determined that the Boy Scouts were an expressive association and that Dale's presence would significantly burden their expressive purposes, the Court then should look at the interests embodied in New Jersey's L.A.D. First Amendment precedent holds that the interest must be compelling to overcome the presumed invalidity of a law that limits expressive association. In Roberts the Court found a state's attempt at "eradicating discrimination" in and of itself to be the compelling state interest. The Dale Court ignored this precedent and found, without any explanation, that sexual orientation antidiscrimination laws did not serve a compelling state interest.

• States' Rights?

The Court also chose to ignore the defense of states' rights it had used in Roberts. When New Jersey decided to add sexual orientation into its public accommodations law, it did exactly what Minnesota had done with sex-based classifications prior to Roberts. The Roberts opinion was clear that new categories constantly are being added to progressive states' civil rights laws and that the Court should respect such action. Rehnquist's vigilant states' rights Court, however, tossed out such reasoning and was unwilling to permit a state to define its own compelling interests. In Dale, the Court improperly and inconsistently substituted its own federal standard of what is or is not a compelling state interest in place of the standards established by New Jersey.

• The Federal "Sign-Off" for State Civil Rights Laws

The initial conclusion to the compelling state interest inconsistency could be that the Chief Justice was determined not to grant sexual orientation any level of heightened federal equal protection -- as the Court refused to do in Romer. Federal equal protection, however, is legally irrelevant. The compelling state interest in Dale would have been related not to the federal government or the equal protection clause of the Fourteenth Amendment, but rather to New Jersey's public accommodation law, which, through its text, already had granted heightened protection to classifications aimed at sexual orientation.

The Boy Scouts, however, successfully chipped away at antidiscrimination laws through the faulty application of federal equal protection analysis instead of the Roberts standard of "eradication of discrimination" as a compelling state interest. This is apparent both in oral arguments and in the Reply Brief for Petitioners. In the brief, the Boy Scouts' attorney, George A. Davidson writes,

During oral arguments, Justice Scalia picked up where Davidson left off, taking the Boy Scouts' logic to its next illogical step. He asked Evan Wolfson, Dale's attorney, "But wouldn't the State's interest be weaker if we're talking about, say, ex-convicts being discriminated against than it would about blacks being discriminated against?" Transcripts of Oral Arg.

The Court's answer to this question was that, yes, the Court now determines what does and what does not constitute a state's compelling interests, inconsistent with the Roberts standard.

Through Dale, the Court has declared that state and local antidiscrimination laws are only truly enforceable once the federal government or the Court itself has determined that a form of classification is deserving of strict scrutiny under federal equal protection analysis -- rendering the state or local law unnecessary for most practical effects.

In 1987, the Court espoused in Rotary that an expressive association had no claim against the compelling interest of a state civil rights law if the law did not "affect in any significant way" the expressive purposes of the organization. In Dale, two fatal problems arose with this test.

First, the expressive association and "significant burden" findings were not determined by the Court, but rather announced in court filings by the Boy Scouts. Second, the state interest in "eradicating discrimination" was not fully or properly examined by the Court.

In their Dale dissents, Justices Souter and Stevens urge the Court to clarify its expressive association standard. Souter presents a three-pronged test to prove a sufficient associational interest:

Such a clear standard, would do a more than adequate job of preventing what appears to be a gaping-wide loophole in antidiscrimination laws opened by the majority in Dale in regards to associational claims.

Such a standard, however, would not address the problems of the "significant burden" or the level of state interest advanced by various state civil rights laws. One possible solution would be to replace the three-step test of Roberts with a balancing test that rejects "undue burdens" by the state placed upon expressive associations.

In 1992, the Supreme Court rejected another unworkable standard and replaced it with the "undue burden" test. In that case, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), Justices Kennedy, O'Connor, and Souter rejected "the rigid trimester framework" of Roe v. Wade, 410 U.S. 113 (1973), in favor of the "undue burden" standard as a more fitting way of "reconcili[ng] the liberty of the woman and the interest of the State in promoting prenatal life." Casey, at 873. 7 A balancing test considering undue or impermissible burdens, in fact, had been discussed in abortion cases as early as 1976 and 1977. See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 428 U.S. 132 (1976); and Maher v. Roe, 432 U.S. 464 (1977). 8

The Court also reworked the application of a "burden" standard in balancing First Amendment associational claims against state laws in several ballot access cases throughout the 1960s, '70s, and '80s. Beginning in 1968 with Williams v. Rhodes, 393 U.S. 23 (1968), the Court utilized a test similar to the Roberts test, invoking the requirement of a "compelling interest" to overcome "heavy burdens." 9 By 1983, however, a far more flexible -- and in the words of the Casey Court, "logical" -- balancing test had evolved. In Anderson v. Celebreeze, 460 U.S. 780 (1983), Justice Stevens, writing for the Court, rejected "any 'litmus-paper test' that will separate valid from invalid restrictions" and instead relied upon a more in-depth "weighing" of the "character and magnitude" of an individual or group's rights, the burdens placed upon those rights by state regulation, and the interest of the state in imposing those regulations. 10

Justice Souter's enunciated standard for gauging the legitimacy of an organization's expressive association could be successfully combined with the "undue burden" test, which allows for the reconciliation of the state's interest in eradicating discrimination with the burdens placed upon associational rights of groups' members. The use of these standards would fit with long-standing Court precedent, correct many of the egregious errors of the Dale Court, and minimize the flaws of the Roberts test. Such a demanding standard also would force a more complete discussion of the conflicting rights at stake in such cases when the Court considers them.

FOOTNOTES

1. Justice Brennan analyzes each claim as follows:

"While acknowledging that 'the specific content of most of the resolutions adopted over the years by the Jaycees has nothing to do with sex,' the Court of Appeals nonetheless entertained the hypothesis that women members might have a different view or agenda with respect to these matters so that, if they are allowed to vote, 'some change in the Jaycees' philosophical cast can reasonably be expected.' It is similarly arguable that, insofar as the Jaycees is organized to promote the views of young men whatever those views happen to be, admission of women as voting members will change the message communicated by the group's speech because of the gender-based assumptions of the audience. Neither supposition, however, is supported by the record. In claiming that women might have a different attitude about such issues as the federal budget, school prayer, voting rights, and foreign relations, or that the organization's public positions would have a different effect if the group were not 'a purely young men's association,' the Jaycees relies solely on unsupported generalizations about the relative interests and perspectives of men and women. Although such generalizations may or may not have a statistical basis in fact with respect to particular positions adopted by the Jaycees, we have repeatedly condemned legal decisionmaking that relies uncritically on such assumptions." Roberts, at 628.

2. The Court went on to clarify, generalize and broaden this standard as a test to be used in future similar cases when Justice Brennan wrote:

"[A]cts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent -- wholly apart from the point of view such conduct may transmit. � In prohibiting such practices, the Minnesota Act therefore responds precisely to the substantive problem which legitimately concerns the State and abridges no more speech or associational freedom than is necessary to accomplish that purpose." Roberts, at 628-629.

3. The Court of Appeals for the 11^th U.S. Circuit found a fundamental right to engage in homosexual activity as a private and intimate association in accordance with the Ninth Amendment and the due process clause of the Fourteenth Amendment. The court relied on Griswold v. Connecticut 381 U.S. 479 (1965); Eisenstadt v. Baird 405 U.S. 438 (1972); Stanley v. Georgia 394 U.S. 557 (1969); and Roe v. Wade 410 U.S. 113 (1973) in coming to its decision.

4. An important point, however, is to be made that there is no clearly established equal protection analysis for sexual orientation classifications. A claim has never been heard by the Supreme Court in which the Court needed to decide the level of scrutiny afforded to such classifications.

In Romer, Justice Kennedy, writing for the Court, found that Colorado's Amendment 2, the law in question, did not meet rational basis scrutiny, and therefore, in accordance with the Court's practice of avoiding constitutional questions when possible, the Court did not need to address what level of protection sexual orientation classifications should be afforded:

"Amendment 2 fails, indeed defies, even this conventional inquiry [of rational basis] � [E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. � Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. � It is not within our constitutional tradition to enact laws of this sort."

5. Justice Souter writes in Hurley:

"New York State Club Association is also instructive by the contrast it provides. There, we turned back a facial challenge to a state antidiscrimination statute on the assumption that the expressive associational character of a dining club with over 400 members could be sufficiently attenuated to permit application of the law even to such a private organization, but we also recognized that the State did not prohibit exclusion of those whose views were at odds with positions espoused by the general club memberships. In other words, although the association provided public benefits to which a State could ensure equal access, it was also engaged in expressive activity; compelled access to the benefit, which was upheld, did not trespass on the organization's message itself. If we were to analyze this case strictly along those lines, GLIB would lose. Assuming the parade to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members."

6. "The Supreme Court, 1999 Term Leading Cases: I. Constitutional Law," Harvard Law Review. November 2000, 114 Harv. L. Rev. 179. This concept is discussed further in "Leading Cases":

"Under the Court's formulation, an organization that wishes to exclude members of a group protected by antidiscrimination laws can easily sidestep the substantiality prerequisite by adopting a formal policy of express hostility toward that group, thereby superficially demonstrating that compliance with the antidiscrimination laws would sabotage the organization's message. Thus, despite the strong normative appeal of extending equal legal protection to every idea that an organization expresses, the substantiality threshold must inquire into the relative importance of even a bona fide message to the organization's overall purpose. Because association enjoys protection as a de facto proxy for expression, the lack of a meaningful threshold inquiry before the otherwise automatic application of strict scrutiny threatens to transform 'the right of free speech [into] a limitless right to exclude for every organization' � For Dale's exclusion, in contrast to the exclusion of women in the first two cases of the Roberts trilogy, the proper analysis of the substantiality requirement crucially depended on the evaluation of BSA's message of specific disapproval in comparison to BSA's other organizational goals, because once BSA had established that it condemns homosexuality, it became clear that Dale's presence severely compromised that message. Justice Stevens's stubborn denials that BSA had any views on homosexuality whatsoever were therefore unsurprising; any admission to the contrary would have conceded defeat, unless the Roberts test itself were thoroughly challenged. Yet the record made quite plausible the argument that BSA does indeed disapprove of homosexuality and would rather avoid promoting its social acceptance. The evidence did not, however, necessarily support the assertion that this particular message was central in any significant degree to BSA's purpose as an organization -- the promotion of such moral qualities as trustworthiness, loyalty, and helpfulness and such outdoor survival skills as tying knots and catching squirrels."

7. Justices Kennedy, O'Connor and Souter go on in Casey to explain the valid constitutional reasons for allowing the incidental abridgment of rights:

"Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause." Casey, at 874.

8. Justice Powell writes for the Court in Maher:

"[W]e have held that a requirement for a lawful abortion 'is not unconstitutional unless it unduly burdens the right to seek an abortion.' Bellotti v. Baird, 428 U.S. 132, at 147 (1976)." Maher, at 473.

"In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), we held that the woman's written consent to an abortion was not an impermissible burden under Roe. We think that decision is controlling on the similar issue here." Maher, at 480.

9. In Rhodes, Justice Black wrote for the Court:

"In the present situation the state laws place burdens on two different, although overlapping, kinds of rights -- the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. The State has here failed to show any 'compelling interest' which justifies imposing such heavy burdens on the right to vote and to associate." Rhodes, at 31.

10. Justice Stevens wrote for the Court in Celebreeze:

"[The Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional." Celebreeze, at 789.