Dale v. Boy Scouts of America

Superior Court of New Jersey, Appellate Division · Property

PropertyPublic accommodationDiscriminationExpressive associationLADpublic accommodationsexual orientationBoy Scouts

Facts

James Dale had long been an active and successful Boy Scout, later becoming an adult member and serving as an Assistant Scoutmaster in Monmouth Council. After a newspaper article identified him as co-president of a Rutgers lesbian/gay alliance and quoted him as openly acknowledging that he was homosexual, the Boy Scouts revoked his registration. The stated ground for revocation was the Boy Scouts' policy forbidding membership to homosexuals, and registration was required to serve as a volunteer adult leader. Dale sued, alleging that his expulsion violated New Jersey's Law Against Discrimination and common law rights.

Issue

Whether the Boy Scouts of America is a place of public accommodation under New Jersey's Law Against Discrimination, whether revoking Dale's adult membership and Assistant Scoutmaster position because he was an avowed homosexual violated the LAD, and whether applying the LAD to prohibit that exclusion impermissibly infringed defendants' First Amendment freedom of expressive association.

Rule

Under the New Jersey LAD, a place of public accommodation is construed broadly and is not limited to a fixed physical site; organizations that invite the public at large to participate and depend on broad-based public participation may qualify. Denial of a volunteer leadership opportunity can be a denial of an accommodation, advantage, facility, or privilege under the LAD. Application of the LAD to such an organization is constitutional unless it significantly impairs the organization's ability to express its fundamental views or carry out its protected activities.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A statewide youth service organization in New Jersey recruits children through public-school flyers, radio spots, and community fairs in Newark, Trenton, and Camden. Its meetings rotate among borrowed church basements, school gyms, and municipal parks, and it expels Aaron Mills after learning he is openly gay.

If Aaron sues under the New Jersey LAD, the organization's strongest argument is that it is not a place of public accommodation because it has no fixed facility. How should a court rule?

Explanation. The majority rejected a narrow situs-based interpretation of "place of public accommodation." The LAD is construed liberally, and an organization may qualify even without a fixed site when it invites the public at large and depends on broad-based public participation. The rotating use of borrowed spaces does not remove the organization from the statute.