Judges： Poritz, Handler
Filed Date： 8/4/1999
Status： Precedential
Modified Date： 11/11/2024
The opinion of the Court was delivered by
In 1991, the New Jersey Legislature amended the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, to include protections based on “affectional or sexual orientation.” This case requires us to decide whether that law prohibits Boy Scouts of America (BSA) from expelling a member solely because he is an avowed homosexual.
Defendants BSA and Monmouth Council (collectively Boy Scouts) seek review of a decision of the Appellate Division holding that: (1) Boy Scouts is a place of public accommodation as defined by the LAD; (2) Boy Scouts’ expulsion of plaintiff James Dale, an assistant scoutmaster, based solely on the club’s policy of exclud
I
FACTS
A. Boy Scouts of America
1. Organizational Structure and Programs
BSA, a federally chartered corporation, 36 U.S.C.A § 30901, operates four scout membership programs: Cub Scouts (for boys eight to eleven-and-a-half), Boy Scouts (for boys and young men eleven to seventeen), Varsity Scouts (for young men fourteen to seventeen), and Explorers (for young men and women fourteen to twenty). In addition to these well-known membership programs, BSA publishes Boys’ Life, Exploring and Scouting magazines, and offers an in-school scouting curriculum called Learning for Life that is taught in many schools throughout the country.
BSA membership is an American tradition. Since the program’s inception in 1910 through the beginning of this decade, over eighty-seven million youths and adults have joined BSA. As of December 1992, over four million youths and over one million adults were active BSA members. BSA’s success in attracting members is at least partly attributable to its long-standing commitment to a diverse and “representative” membership, as well as its aggressive recruitment through national television, radio, and magazine campaigns. BSA also organizes local membership
This vast network of members is managed through a complex of national, regional and local organizations. The National Council is the highest BSA governing body. Its primary functions include “developing] programs, set[ting] and maintaining] quality standards in training, leadership selection, uniform[s], registration records, literature development, and advancement requirements; and publishing] Boy’s Life and Scouting magazines.” BSA membership programs are also governed by regional committees that are further divided into area committees. Within each area, BSA accepts applications for the creation of local councils. Defendant, Monmouth Council, is one of sixteen local councils in New Jersey, and one of over four hundred local councils nationwide.
Each local council is made up of districts that are governed by district committees. BSA grants unit charters to individual sponsors in the districts consisting of “organizations and groups of citizens” that establish and “maintain units ... and ... issue certificates of membership ... to the officers and members thereof.” Unit charters allow the “organization to use the Scouting program under its own leadership to serve the youth and families for which it has concern, to help it accomplish its own objectives.” Individual units are based on age groupings and designated as Cub Scout Packs, Boy Scout Troops, Varsity Scout Teams, and Explorer Posts. In 1991, Monmouth Council chartered approximately 215 units comprised of nearly 8500 youth members and over 2700 adult members.
When deciding whether to grant an individual unit charter, BSA investigates “the general objectives, purpose, character, intent, and programs of the prospective chartered organization or community group and its compatibility with the aims and purposes of the Boy Scouts of America.” In respect of established groups, BSA also considers the group’s “history, length of service, and general reputation.” Generally, BSA prefers granting unit charters to sponsors that are “existing organizations,” ie., established
A unit charter is renewed annually, “upon application, provided a review of past activities, personnel, and plans for the future shows a satisfactory effort to carry out the scouting program, as set forth in the official handbooks, and [demonstrates compliance] with the Rules and Regulations of the Boy Scouts of America.”
According to BSA’s federal charter, BSA seeks “to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues.” BSA’s Mission Statement also describes BSA’s purpose: “It is the mission of the Boy Scouts of America to serve others by helping to instill values in young
Scout Oath
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong, mentally awake, and morally straight.
Scout Law
A Scout is TRUSTWORTHY. A Scout tells the truth. He keeps his promises. Honesty is a part of his code of conduct. People can always depend on him.
A Scout is LOYAL. A Scout is true to his family, friends, Scout leaders, school, nation, and world community.
A Scout is HELPFUL. A Scout is concerned about other people. He willingly volunteers to help others without expecting payment or reward.
A Scout is FRIENDLY. A Scout is a friend to all. He is a brother to other Scouts. He seeks to understand others. He respects those with ideas and customs that are different from his own.
A Scout is COURTEOUS. A Scout is polite to everyone regardless of age or position. He knows that good manners make it easier for people to get along together.
A Scout is KIND. A Scout understands there is strength in being gentle. He treats others as he wants to be treated. He does not harm or kill anything without reason.
A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop. He obeys the laws of his community and country. If he thinks these rules and laws are unfair, he tries to have them changed in an orderly manner rather than disobey them.
A Scout is CHEERFUL. A Scout looks for the bright side of life. He cheerfully does tasks that come his way. He tries to make others happy.
A Scout is THRIFTY. A Scout works to pay his way and to help others. He saves for the future. He protects and conserves natural resources. He carefully uses time and property.
A Scout is BRAVE. A Scout can face danger even if he is afraid. He has the courage to stand for what he thinks is right even if others laugh at him or threaten him.
A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He goes around with those who believe in living by these same ideals. He helps keep his home and community clean.
*575 A Scout is REVERENT. A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.
In its briefs below and to this Court, Boy Scouts claims that the language “morally straight” and “clean” in the Oath and Law, respectively, constitutes a rejection of homosexuality. The Boy Scout Handbook, supra, at 551, defines “morally straight” as follows:
To be a person of strong character, guide your life with honesty, purity, and justice. Respect and defend the rights of all people. Your relationships with others should be honest and open. Be clean in your speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help you become virtuous and self-reliant.
The Boy Scout Handbook also defines “clean”:
A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the company of those who live by these same ideals. He helps keep his home and community clean.
You never need to be ashamed of dirt that will wash off____
There’s another kind of dirt that won’t come off by washing. It is the kind that shows up in foul language and harmful thoughts.
Swear words, profanity, and dirty stories are weapons that ridicule other people and hurt their feelings. The same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He avoids it in his own words and deeds. He defends those who are the targets of insults.
[Id. at 561.]
Although one of BSA’s stated purposes is to encourage members’ ethical development, BSA does not endorse any specific set of moral beliefs. Instead, “moral fitness” is deemed an individual choice:
Morality ... concerns the “principles of right and wrong” in our behavior, and “what is sanctioned by our conscience or ethical judgment.” ...
In any consideration of moral fitness, a key word has to be “courage.” A boy’s courage to do what his head and his heart tell him is right. And the courage to refuse to do what his heart and his head say is wrong.
[Scoutmaster Handbook, supra, at 71 (emphasis added) (additional internal quotations omitted).]
BSA also does not espouse any one religion, explaining in the Scoutmaster Handbook that “[t]here is a close association between the Boy Scouts of America and virtually all religious bodies and denominations in the United States.” Id. at 227. Consistent with
A large and diverse group of religions that subscribe to many different and sometimes contradictory beliefs sponsor BSA units throughout the United States. Some of those sponsors have participated in this case as amici curiae, taking a variety of positions in respect of homosexuality, ie., that homosexuality is “immoral”; that “discrimination based upon sexual orientation” is to be “strongly condemn[ed].” BSA, however, encourages its leaders to refrain from talking about sexual topics. Although the Boy Scout Handbook, supra, at 528, contains a subchapter entitled “Sexual Responsibility” which states that “[f]or the followers of most religions, sex should take place only between married couples,” sexual topics are not formally discussed during Boy Scout activities. Rather, BSA “believes that boys should learn about sex and family life from their parents, consistent with their spiritual beliefs.”
2. Boy Scout Troops
In 1992, of the five million members of BSA, approximately one million youths and 420,000 adults were involved in the Boy Scout division. Those members belonged to over 44,000 Boy Scout troops throughout the country.
According to the Boy Scout Handbook, id. at 2, a boy may become a Boy Scout if he “has completed the fifth grade, or ... has earned the Arrow of Light Award, or [is at least] 11 years of age but not yet 18” and “[c]omplete[s] the Boy Scout joining requirements.” The Boy Scout joining requirements call for the applicant to:
*577 Submit a completed Boy Scout application and health history signed by [a] parent or guardian.
Repeat the Pledge of Allegiance.
Demonstrate the Scout salute, sign, and handclasp.
Show how to tie the square knot.
Understand and agree to live by the Scout Oath, the Scout Law, the Scout motto, the Scout slogan, and the Outdoor Code.
Describe the Scout badge.
With [a] parent or guardian, complete the exercises in the pamphlet How to Protect Your Children from Child Abuse and Drug Abuse.
Participate in a Scoutmaster conference.
[Id. at 4.]
Adult applicants are also subject to joining requirements. They must be recommended by the troop representative and approved by the local council, and they must subscribe to the Declaration of Religious Principle,
B. James Dale
James Dale first became a BSA member in 1978 when, at the age of eight, he joined Monmouth Council’s Cub Scout Pack 142. He remained a Cub Scout until 1981, when he became a member of Boy Scout Troop 220, also in Monmouth Council. He joined Monmouth Council’s Boy Scout Troop 128 in 1983, and Troop 73 in
Dale was an exemplary scout. Over the ten years of his membership, he earned more than twenty-five merit badges. In 1983, he was admitted into Boy Scouts’ Order of the Arrow, the organization’s honor camping society, and achieved the status of Virgil Honor. The pinnacle of Dale’s career as a youth member came in 1988, when BSA awarded him an Eagle Scout Badge, an honor achieved by only the top three percent of all scouts.
Dale’s participation in Boy Scout leadership began at an early age. Throughout his years as a member, Dale was an assistant patrol leader, patrol leader, and bugler, and from 1985 to 1988, Dale served as a Junior Assistant Scoutmaster for Troop 73. He was also invited to speak at organized Boy Scout functions, such as the Joshua Huddy Distinguished Citizenship Award Dinner, and attended national events, including the National Boy Scout Jamboree. On March 21, 1989, Dale sought adult membership in Boy Scouts. Monmouth Council and BSA accepted and approved his application for the position of Assistant Scoutmaster of Troop 73 where he served for approximately sixteen months.
At about the same time that Dale applied for adult membership, he left home to attend Rutgers University. While at college, Dale first acknowledged to himself, and to his family and friends, that he was gay. Shortly thereafter, he became involved with, and eventually became the co-president of the Rutgers University Lesbian/Gay Alliance. Then, in July 1990, Dale attended a seminar that addressed the psychological and health needs of lesbian and gay teenagers. The Star-Ledger interviewed Dale and published an article on July 8, 1990 that discussed the seminar. The article included Dale’s photograph and a caption identifying him as “co-president of the Rutgers University Lesbian/Gay Alliance.” Kinga Borondy, Seminar Addresses Needs of Homosexual Teens, Star-Ledger (Newark), July 8, 1990, § 2, at 11.
Later that month, Dale received a letter from Monmouth Council Executive James W. Kay, revoking his BSA membership. The
Dale wrote to Kay on August 8, 1990, and requested the basis for the Monmouth Council’s decision. In a letter dated August 10, 1990, Kay notified Dale that the “grounds for [his] membership revocation” were “the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals.”
In another letter dated October 16,1990, Dale once again asked for a copy of the leadership standards and notice of the review date. On November 27,1990, Charles Ball, the Assistant Regional Director of the Northeast Region, notified Dale that the “Northeast Region, [BSA] Review Committee supports the decision of the Monmouth Council ... to deny your registration with [BSA],” and granted Dale thirty days to seek review by the National Council Review Committee. Three weeks later, through counsel, Dale wrote to the Chief Scout Executive of BSA and requested a rehearing and an opportunity to attend the review. BSA’s counsel informed Dale on December 21, 1990, that he had been denied the
II
PROCEDURAL HISTORY
On July 29, 1992, Dale filed a six-count complaint against BSA and Monmouth Council in the Superior Court of New Jersey. Dale alleged that Boy Scouts had violated the New Jersey Law Against Discrimination and common law by revoking his membership based solely on his sexual orientation. He sought declaratory, injunctive, compensatory and punitive monetary relief, as well as costs and attorney fees.
A. Chancery Division
Dale moved for partial summary judgment in September 1993, demanding immediate reinstatement based on his claim that defendants had violated the LAD and New Jersey’s public policy. Defendants, in response, cross-moved for summary judgment on all counts. The court denied Dale’s motion and granted Boy Scouts’ cross-motion. Dale v. Boy Scouts of Am., No. MON-C-330-92 (Ch. Div. Nov. 3, 1995). After concluding that Dale was “a sexually active homosexual,” the court found that Boy Scouts had always had a policy of excluding “active homosexuals].” Id. at 6, 38. The court opined that homosexual acts are immoral and attributed to Boy Scouts a longstanding antipathy toward such behavior. Id. at 39-40. In the judge’s view, “[i]t [was] unthinkable ... that the BSA could or would tolerate active homosexuality if discovered in any of its members.” Id. at 40.
B. Appellate Division
The Appellate Division affirmed the dismissal of Dale’s common law claim, but otherwise reversed and remanded for further proceedings. Dale v. Boy Scouts of Am., 308 N.J.Super. 516, 523, 706 A.2d 270 (App.Div.1998). In a separate opinion, Judge Landau concurred with the majority’s holding that Boy Scouts should restore Dale’s membership, but dissented from the majority “to the extent it would compel the Boy Scouts to accept ... Dale ... [in] any Scout leadership position.” Id. at 564, 706 A.2d 270.
The majority held that Boy Scouts, a “place of public accommodation,” had violated the LAD by denying Dale the “privilege” of serving as a volunteer assistant scoutmaster based solely on his sexual orientation. Boy Scouts was a “public accommodation” because it “invite[d] ‘the public at large,’ ” was “dependent upon the broad-based participation of members of the general public,” “engage[d] in advertising and public promotion,” shared “many attributes in common with” the places and activities enumerated in the LAD, and had “historic[ally] partner[ed] with various public entities and public service organizations.” Id. at 536, 539, 706 A.2d 270. “For the [same] reasons,” the court “summarily” rejected Boy Scouts’ argument that it was exempt from the LAD under the “distinctly private” exception. Id. at 540, 706 A.2d 270. The court dismissed Dale’s common law claim, finding Dale had
On Boy Scouts’ federal constitutional claims, the Appellate Division ruled that Boy Scouts was not protected by either the right to freedom of intimate association or to expressive association “inferred from other rights and protections guaranteed by the constitution” and found in the First Amendment. Id. at 544-45, 706 A2d 270. The court quickly disposed of Boy Scouts’ freedom of intimate association argument, observing that the organization “consists of nearly 5,000,000 members[,] ... is open to all boys[,] ... engages in aggressive advertising and undertakes a variety of special interest activities in schools and other public forums.” Id. at 546, 706 A2d 270. Based on those characteristics, the court held that Boy Scouts “lacks the distinctive qualities that might afford constitutional protections under this component of the First Amendment.” Ibid.
In respect of Boy Scouts’ freedom of expressive association claim, the majority “conclude[d] that enforcement of the LAD by granting plaintiff access to the accommodations afforded by scouting will not affect in ‘any significant way’ BSA’s ability to express [its] views and to carry out [its] activities.” Id. at 550, 706 A2d 270. Noting “the tension between the freedom to associate for the purpose of expressing fundamental views and the compelling state interest in eradicating discrimination,” the court found that the “organization or club asserting the freedom has a substantial burden of demonstrating a strong relationship between its expressive activities and its discriminatory practice.” Id. at 548, 706 A.2d 270. Although the court accepted the argument that the First Amendment protects Boy Scouts’ goals and activities, it determined that the relationship between Boy Scouts’ stated goals and Boy Scouts’ exclusionary practice was not significant enough to overcome the compelling state interest in eradicating invidious discrimination. Id. at 549-50, 706 A.2d 270.
The Appellate Division distinguished Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), a case that held parade organizers have “the autonomy to choose the content of [their] own message,” id. at 573, 115 S.Ct. at 2347, 132 L.Ed.2d at 503. The court pointed out that, unlike Hurley, Dale does not involve “pure forms of speech” or a “plaintiff [who] is ... asserting a right ... to alter the content of [Boy Scouts’] viewpoint.” Dale, supra, 308 N.J.Super. at 559, 560, 706 A.2d 270. The court refused to accept Boy Scouts’ allegation that Dale’s “public declaration that he is gay in and of itself constitutes ‘expressive activity’ sufficient to forfeit his entitlement to membership in the BSA.” Id. at 560, 706 A.2d 270. “In [the court’s] view, there is a patent inconsistency in the notion that a gay scout leader who keeps his ‘secret’
Judge Landau concurred with the majority’s determination that Dale’s adult membership could not be terminated, but dissented on whether Dale could be removed from his leadership position in the troop. Although Judge Landau refused to look behind Boy Scouts’ claim that its “fundamental” message would be altered if an avowed homosexual served as an assistant scoutmaster, id. at 563, 706 A.2d 270, in his view Boy Scouts’ message was ultimately irrelevant. According to Judge Landau, “Boy Scouts[’] ... right of unfettered advocacy” is violated when Dale is reinstated as a leader “whether or not the Boy Scouts’ stand on homosexuality is fundamental to that organization’s creation.” Id. at 564, 706 A.2d 270.
Ill
STATE LAW CLAIMS
A. The LAD
We first consider whether Boy Scouts is subject to the LAD, which provides that “[a]ll persons shall have the opportunity ... to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, ... without discrimination because of ... affeetional or sexual orientation.” N.J.S.A 10:5^4. Boy Scouts must therefore abide by the LAD if Boy Scouts is a place of public accommodation and does not meet any of the LAD exceptions. See, e.g., N.J.S.A. 10:5-5Z (exempting “distinctly private” entities, religious educational facilities, and parents or individuals acting “in loco parentis” in respect of “the education and upbringing of a child”).
1. Place of Public Accommodation
“[T]he overarching goal of the [LAD] is nothing less than the eradication ‘of the cancer of discrimination.’” Fuchilla v. Layman, 109 N.J. 319, 334, 537 A.2d 652 (quoting Jackson v.
A clear understanding of the phrase “place of public accommodation” is critical. That is because “place of public accommodation” is, in large measure, determinative of the LAD’s scope. Certainly, if the statute is broadly applicable, the antidiscriminato-ry impact of its provisions is greater. The Legislature’s finding that the effects of discrimination are pernicious, and its directive to liberally construe the LAD, have informed our cases interpreting the reach of “place of public accommodation.”
a. Place
In 1965, the Court held that places of public accommodation were not limited to those enumerated in the statute. Fraser v. Robin Dee Day Camp, 44 N.J. 480, 486, 210 A.2d 208 (1965) (then N.J.S.A 18:25-5(l)). At that time, the statutory definition used the word “include” to preface a list of specific “places” of public accommodation. See id. at 485, 210 A.2d 208. We reasoned that the Legislature’s choice of the word “include” indicated that the “places” expressly mentioned were “merely illustrative of the accommodations the Legislature intended to be within the scope of the statute. Other accommodations, similar in nature to those enumerated, were also intended to be covered.” Id. at 486, 210 A2d 208. Less than a year later, the Legislature amended the LAD to expressly state that “ ‘a place of public accommodation’
Later, the word “place” became a further source of legal dispute. In National Organization of Women v. Little League Baseball, Inc., 67 N.J. 320, 338 A.2d 198 (1974), we affirmed the decision of the Appellate Division holding that: “[t]he statutory noun ‘place’ ... is a term of convenience, not of limitation[,] ... employed to reflect the fact that public accommodations are commonly provided at fixed ‘places.’ ” 127 N.J.Super. 522, 531,
The “place” of public accommodation in the case of Little League is obviously the ball field at which tryouts are arranged, instructions given, practices held and games played. The statutory “accommodations, advantages, facilities and privileges” at the place of public accommodation is the entire agglomeration of the arrangements which Little League and its local chartered leagues make and the facilities they provide for the playing of baseball by the children.
[Id. at 531, 318 A.2d 33 (citations omitted).]
In New Jersey, “place” has been more than a fixed location since 1974.
As Boy Scouts correctly observes, other jurisdictions interpreting their antidiscrimination laws have found “place” to be a limiting factor encompassing only a fixed location. See, e.g., Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1269 (7th Cir.) (holding that Boy Scouts is not “place of public accommodation” under Title II of Civil Rights Act of 1964 because “Congress when enacting § 2000a(b) never intended to include membership organizations that do not maintain a close connection to a structural facility within the meaning of ‘place of public accommodation’ ”), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993); United States Jaycees v. Richardet, 666 P.2d 1008, 1011 (Alaska 1983) (stating that “the word ‘place’----would not encompass a service organization lacking a fixed geographical situs”); United States Jaycees v. Bloomfield, 434 A.2d 1379, 1381 (D.C.1981) (disagreeing with lower court’s conclusion that “it is not necessary that there be a building ... in order to categorize an existing entity as a place of public accommodation”); United States Jaycees v. Iowa Civil Rights Comm’n, 427 N.W.2d 450, 454 (Iowa 1988) (stating that “United States Jaycees is not a ‘place’ within
We observe that not all jurisdictions have interpreted “place” so narrowly. The New York Court of Appeals has held that a “place of public accommodation need not be a fixed location, it is the place where petitioners do what they do,” including “the place where petitioners’ meetings and activities occur.” United States Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 465 N.Y.S.2d 871, 452 N.E.2d 1199, 1204 (1983). The Supreme Court of Minnesota has also approved a flexible construction of the term “place.” In United States Jaycees v. McClure, 305 N.W.2d 764, 773 (Minn.1981), the Minnesota court agreed with the Little League premise that a “ ‘place of public accommodation’ ... is less a matter of whether the organization operates on a permanent site, and more a matter of whether the organization engages in activities in places to which an unselected public is given an open invitation.”
Despite numerous additions and modifications to the LAD in the twenty-four years since Little League was decided, the New Jersey Legislature has not enacted a limiting definition of place. See Massachusetts Mutual Life Ins. Co. v. Manzo, 122 N.J. 104, 116, 584 A.2d 190 (1991) (stating that “[t]he Legislature’s failure to modify a judicial determination, while not dispositive, is some evidence of legislative support for the judicial construction of a statute .... [especially when] the Legislature has amended [the] statute several times without altering the judicial construction”). We decline now to construe “place” so as to include only membership associations that are connected to a particular geographic location or facility. As the Appellate Division has so aptly pointed out, “[t]o have the LAD’s reach turn on the definition of ‘place’ is irrational because ‘places do not discriminate; people who own
b. Public Accommodation
Our case law identifies various factors that are helpful in determining whether Boy Scouts is a “public accommodation.” We ask, generally, whether the entity before us engages in broad public solicitation, whether it maintains close relationships with the government or other public accommodations, or whether it is similar to enumerated or other previously recognized public accommodations.
Broad public solicitation has consistently been a principal characteristic of public accommodations. Our courts have repeatedly held that when an entity invites the public to join, attend, or participate in some way, that entity is a public accommodation within the meaning of the LAD. See, e.g., Clover Hill Swimming Club, Inc. v. Goldsboro, 47 N.J. 25, 33, 219 A.2d 161 (1966) (stating that “[a]n establishment which by advertising or otherwise extends an invitation to the public generally is a place of public accommodation”); Sellers v. Philip’s Barber Shop, 46 N.J. 340, 345, 217 A.2d 121 (1966) (stating that “[a]n establishment which caters to the public or by advertising or other forms of invitation induces patronage generally is a place of public accommodation”); Fraser, supra, 44 N.J. at 488, 210 A.2d 208 (stating that “[i]n light of the nature of the facilities and activities offered to the general public by respondent’s day camp, we hold that it is a public accommodation”); Little League, supra, 127 N.J.Super. at 531, 318 A.2d 33 (stating that “Little League is a public accommodation because the invitation is open to children in the community at
BSA engages in broad public solicitation through various media. In 1989, for example, BSA spent more than $1 million on a national television advertising campaign. A New York Times article describes one of Boy Scouts’ “hip” television ads, quoting a BSA spokesman as stating, “scouting [is] a product and we’ve got to get the product into the hands of as many consumers as we can.”
On the facts before us, it cannot be controverted that Boy Scouts reaches out to the public in a myriad of ways designed to increase and sustain a broad membership base. Whether by advertising or active recruitment, or through the symbolism of a Boy Scout uniform, the intent is to send the invitation to as many members of the general public as possible. Once Boy Scouts has extended this invitation, the LAD requires that all members of the public must “have equal rights ... and not be subjected to the embarrassment and humiliation of being invited[,] ... only to find [the] doors barred to them.” Evans, supra, 57 N.J.Super. at 231, 154 A.2d 441.
Boy Scouts is a “public accommodation,” not simply because of its solicitation activities, but also because it maintains close relationships with federal and state governmental bodies and with other recognized public accommodations. Our cases have held that certain organizations that benefit from relationships with the government and other public accommodations are themselves places of public accommodation within the meaning of the LAD. In Little League, for example, the court concluded that Little League was “public in the added sense that local governmental bodies characteristically make the playing areas available to the local leagues, ordinarily without charge.” 127 N.J.Super. at 531, 318 A.2d 33, aff'd, 67 N.J. 320, 338 A.2d 198 (1974). More recently, in Frank v. Ivy Club, 120 N.J. 73, 79, 110, 576 A.2d 241 (1990), a
It is clear that Boy Scouts benefits from a close relationship with the federal government. Indeed, BSA was chartered by Congress in 1916, 36 U.S.C.A. § 30901, and has been the recipient of equipment, supplies, and services from the federal government, also by act of Congress, 10 U.S.C.A § 2544. Thus, the Secretary of Defense, 10 U.S.C.A. § 2544(a), and other departments of the federal government, 10 U.S.C.A. § 2544(h), have been authorized to
lend to the Boy Scouts of America, for the use and accommodation of Scouts, Scouters, and officials who attend any national or world Boy Scout Jamboree, such cots, blankets, commissary equipment, flags, refrigerators, and other equipment and without reimbursement, furnish services and expendable medical supplies, as may be necessary or useful to the extent that items are in stock and items or services are available.
[ 10 U.S.CA § 2544(a).]
Since its inception, BSA has maintained a special association with each successive President of the United States. According to a BSA public relations fact sheet:
One of the causes contributing to the success of the Boy Scouts of America has been the thoughtful, wholehearted way in which each President of the United States since William Howard Taft in 1910 has taken an active part in the work of the movement. Each served as Honorary President during his term in office.
Another fact sheet states that seventy-eight percent of the members of the 100th Congress participated in scouting.
Boy Scouts also maintains a close relationship with the military. According to a BSA pamphlet entitled Organizations That Use Scouting, “military personnel serve Scouting in many capacities.” “At many [Army, Navy, Air Force, and National Coast Guard] installations, facilities are available for Scouting shows, meetings, training activities,” and other “similar Scouting events.” Monmouth Council, in particular, has used the New Jersey military installation known as Fort Monmouth.
Perhaps Boy Scouts’ connection to public schools and school-affiliated groups constitutes its single most beneficial governmental relationship. Organizations That Use Scouting advises that “the education field holds our greatest potential.” Boy Scouts currently recruits many of its members through its presence in and use of school facilities. A large percentage of scouting units nationally, as well as in New Jersey, are chartered by public schools and affiliated organizations.
Moreover, public schools and community colleges often host scouting meetings, activities, and recruiting events such as “School Nights.” “School Night for Scouting [is a] recruiting plan operated by many councils in connection with the schools.” Under this plan, an open scout meeting is held at a school in order to encourage students to join scouting. Public schools not only aid Boy Scouts by allowing the organization to use their facilities after school, but also during the school day. According to Boy Scouts, “[mjore and more of our schools are becoming available for other than formal education____ In-school Scouting, where the pack,
Given Boy Scouts’ public solicitation activities, and considering its close relationship with governmental entities, it is not surprising that Boy Scouts resembles many of the recognized and enumerated places of public accommodation. Similarity to the places of public accommodation listed in the LAD has been a benchmark for determining whether the unlisted entity should be included. Cf. Board of Chosen Freeholders v. New Jersey, 159 N.J. 565, 576, 732 A.2d 1053 (1999) (stating that “[u]nder the ejusdem generis principle of statutory construction, when specific words follow more general words in a statutory enumeration, we can consider what additional items might also be included by asking whether those items are similar to those enumerated”). In Fraser v. Robin Dee Day Camp, for example, this Court held that a “day camp is the type of accommodation which the Legislature intended to reach” because a “day camp offers accommodations which have many attributes in common with swimming pools, recreation and amusement parks, motion picture houses, theatres, music halls, gymnasiums, kindergarten and primary schools, all of which are specifically enumerated” in the LAD. 44 N.J. at 487, 210 A.2d 208. The Appellate Division in Little League identified Little League’s “ ‘educational or recreational nature’ ” as a basis for the court’s conclusion that Little League was similar to the types of public accommodations listed in the statute. 127 N.J.Super. at 531, 318 A.2d 33 (quoting Fraser, supra, 44 N.J. at 487, 210 A..2d 208). Similarly, Boy Scouts’ educational and recreational nature, like the day camp in Fraser or the baseball teams in Little League, further supports our conclusion that Boy Scouts is a “place of public accommodation” under the LAD. See, e.g., Advancement Guidelines 4 (1992 ed.) (stating that “[e]ducation and fun are functions of the scouting movement”).
Boy Scouts claims that even if it is a place of public accommodation, it is nonetheless exempt from the LAD under three express exceptions: (1) the “distinctly private” exception; (2) the religious educational facility exception; and (3) the in loco parentis exception. N.J.S.A. 10:5-51. Because we determine that these exceptions do not apply to Boy Scouts, we hold that Boy Scouts is subject to the LAD.
“While this Court has been scrupulous in its insistence that the [LAD] be applied to the full extent of its facial coverage, it has never found such coverage to exist in the face of an unambiguous exclusion.” Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 68, 389 A.2d 465 (1978) (citations omitted). Nonetheless, despite our adherence to statutory exceptions expressly and unambiguously set forth by the Legislature, we are mindful that “[e]xemptions from remedial statutes should generally be narrowly construed.” Poff v. Caro, 228 N.J.Super. 370, 379, 549 A.2d 900 (Law Div.1987) (citing Service Armament Co. v. Hyland, 70 N.J. 550, 559, 362 A.2d 13 (1976)).
We begin with the “distinctly private” exception. The LAD provides that “[n]othing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private.” N.J.S.A. 10:5-5l. Boy Scouts’ status as a bona fide club has not been questioned. Our focus is, therefore, on the meaning of “distinctly private.” We agree with the New York Court of Appeals that this language, found in both the New York Human Rights Law, N.Y. Exec. Law § 292, and in the LAD, is intended as a narrowly drawn statutory exclusion. Power Squadrons, supra, 465 N.Y.S.2d 871, 452 N.E.2d at 1204 (stating that this exception “does not refer simply to private clubs or establishments closed to the public but uses more restrictive language excluding from the statute’s provisions only clubs which are ‘distinctly private’”). Boy Scouts bears the burden of proving that it fits within this narrow exception. Cf. Spragg v. Shore Care & Shore Mem’l
In deciding whether Boy Scouts is a place of public accommodation, we considered the organization’s public solicitation activities. Solicitation of a broad membership base is closely related to the issue of selectivity in membership, which may explain why various courts have considered both factors in their analyses of both “place of public accommodation” and the “distinctly private” exception. See, e.g., Kiwanis, supra, 806 F.2d at 476 (stating that “distinctly private” exception “represents the other side of the ‘public accommodation’ coin____because of the emphasis placed on ‘selectivity’ as the standard for determining ‘public accommodation,’ as well as for determining if a club is ‘distinctly private’ ”). We have reviewed the multiple ways in which Boy Scouts reaches out to the public and, therefore, will consider the selectivity issue as the principal determinant of “distinctly private” status. See Power Squadrons, supra, 465 N.Y.S.2d 871, 452 N.E.2d at 1204 (stating that “the essence of a private club is selectivity in its membership”).
Thirty-three years ago, in Clover Hill Swimming Club, Inc. v. Goldsboro, we said that “not every establishment using the ‘club’ label can be considered ‘distinctly private.’ Self-serving declarations by ... an accommodation are not determinative of its character.” 47 N.J. at 34, 219 A.2d 161. Although the swimming club had represented to the public that “all applications [for membership] would be subject to approval by club officials,” it appeared that Clover Hill was only selective when black families applied. Ibid. The Court refused to accept bogus representations concerning the “private” nature of the club when it was quite clear that membership was generally open and had to do with a family’s interest in recreation and not much else. Ibid. Little League, citing Clover Hill, primarily relied on the baseball league’s “open [invitation] to children in the community at large, with no restriction (other than sex) whatever” as a basis for the court’s finding
Kiwanis International v. Ridgewood Kiwanis Club is the only case to hold a club exempt under the “distinctly private” exception. 806 F.2d at 477. The Third Circuit, relying on Little League, applied a selectivity analysis to determine whether Kiwanis Ridgewood was a public accommodation and, therefore, not “distinctly private.” Id. at 476-77. The court found that the local club was selective based on its membership practices, which were described as follows:
The Ridgewood club is small, comprised of only twenty-eight members. Ten individuals have been members for over twenty years. Indeed, Kiwanis Ridgewood has admitted no more than twenty members over the course of the past decade. Each new member had to be sponsored by a current member, and formally voted in by the Ridgewood Board of Directors. The sponsorship of the existing member acted as a primary screening mechanism in the maintenance of the quality of membership. In addition to national membership requirements, Kiwanis Ridge-wood established several local membership requirements, which included, among others, the candidate’s willingness to pray at meetings and to recite the pledge of allegiance.
Although Kiwanis International has encouraged large-scale membership solicitation in the past, the suggested “membership roundup” mailings were sent only to those prospects already known by current members. These individuals would be invited to a Kiwanis meeting to determine their compatibility with the organization’s goals and members. The scope of these membership drives was limited. Not only did every solicited individual have to be known by an existing member, but every applicant out of that group of solicited individuals would have to be sponsored by an existing member.
[Id. at 475.]
Unlike Kiwanis Ridgewood, which used “sponsorship [by an] existing member ... as a primary screening mechanism in the maintenance of ... quality membership,” Boy Scouts does not require new members “to be sponsored by a current member.” Ibid. Nor does Boy Scouts limit its recruiting, or invitations to the public, to individuals who are “known by an existing member.” To the contrary, Boy Scout publications indicate that the organization
We have high hopes for our nation’s future. These hopes cannot flower if any part of our citizenry feels deprived of the opportunity to help shape the future. How can you persuade other Scouters to accept a commitment to a representative membership? Consider these facts:
1. Our federal charter sets forth our obligation to serve boys. Neither the charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy. The National Council and Executive Board have always taken the position that Scouting should be available for all boys who meet the entrance age requirements.
4. Another aim of Scouting is the development of leadership. Leadership in America is needed in all sections of the country and in all economic, cultural, and ethnic groups.
5. To meet these responsibilities we have made a commitment that our membership shall be representative of all the population in every community, district, and council.
[M at 2 (emphasis added).]
Boy Scouts’ large membership further undercuts its claim to selective membership. Nationally, over four million boys and one million adults were Boy Scout members in 1992.
Boy Scouts argues, however, that it is “distinctly private” because its Scout Oath and Scout Law constitute genuine selectivity criteria. In support of its position, Boy Scouts relies on Welsh v. Boy Scouts of America, wherein the Seventh Circuit stated:
Although the Scouts intentionally admit a large number of boys from diverse backgrounds, admission to membership is not without exercise of sound discretion and judgment. This is evident from the Constitution and By-laws as well as the Boy Scouts’ Oath and Scout Law.
... We hold therefore that the Scouts organization not only is selective, but that its very Constitution, By-laws and doctrine dictate that it remain selective.
[ 993 F.2d at 1276-77.]
We acknowledge that Boy Scouts’ membership application requires members to comply with the Scout Oath and Law. We do not find, however, that the Oath and Law operate as genuine selectivity criteria. To the contrary, the record discloses few instances in which the Oath and Law have been used to exclude a prospective member; in practice, they present no real impediment to joining Boy Scouts. Joining requirements are insufficient to establish selectivity where they do not function as true limits on the admission of members. See Power Squadrons, supra, 465 N.Y.S.2d 871, 452 N.E.2d at 1204 (requiring examination for basic boating course was not “selective” where club “place[d] no subjective limits on the number of persons eligible for membership”). Here, there is no evidence that Boy Scouts does anything but accept at face value a scout’s affirmation of the Oath and Law. See Roberts v. United States Jaycees, 468 U.S. 609, 621,
Most important, it is clear that Boy Scouts does not limit its membership to individuals who belong to a particular religion or subscribe to a specific set of moral beliefs. Boy Scouts asserts that “[t]here is a close association between the Boy Scouts of America and virtually all religious bodies and denominations in the United States,” and that each member’s concept of “moral fitness” should be determined by his “courage to do what his head and heart tell him is right.” See supra at 575-76, 734 A.2d at 1203. Moreover, Boy Scouts encourages its members to “respect and defend the rights of others whose beliefs may differ.” Scoutmaster Handbook, supra, at 561. By its own teachings then, Boy Scouts is inclusive, not selective, in its membership practices.
Boy Scouts also argues that it is “distinctly private” because it is selective in its adult membership. In addition to the Scout Oath and Law requirements, adult members are bound by the Declaration of Religious Principle, and are subject to evaluation according to informal criteria designed to select only individuals capable of accepting responsibility for the moral education and care of other people’s children in accordance with scouting values. Several of the Troop 73 leaders who were involved in Dale’s adult membership approval have said that they would not have approved Dale’s application had they known that Dale was an “avowed” homosexual, thus lending support to BSA’s position.
The Appellate Division’s analysis of Boy Scouts’ adult membership selectivity dispels the notion that an open membership organization can claim the “distinctly private” exception because it is selective as to a small subset of the larger group:
We reject .the suggestion that the BSA organization as a whole is not a place of public accommodation because more stringent membership criteria are applied to a single component of the organization, its adult members. Such a result is clearly inconsistent with the remedial purposes of the LAD. Acceptance of the argument would mean that public clubs in Clover Hill and Fraser, are not places of public accommodation because their member-counselors or lifeguards are subject to more*601 stringent, enhanced training criteria. An extension of defendants’ argument would be that the BSA is not a place of public accommodation because of the demanding standards that must be met to become an Eagle Scout.
[Dale, supra, 308 N.J.Super. at 538, 706 A.2d 270 (citations omitted).]
See also Brounstein, supra, 839 F.Supp. at 1107-08 (stating that “[t]he fact that an organization is selective with respect to the privileges and benefits it accords to members does not exempt that organization from the proscriptions of the LAD if it is otherwise a ‘public place of accommodation’ ”).
Boy Scouts accepts boys who come from diverse cultures and who belong to different religions. It teaches tolerance and understanding of differences in others. It presents itself to its members and to the public generally as a nonsectarian organization “available to all boys who meet the entrance age requirements.” Its Charter and its Bylaws do not permit the exclusion of any boy. Boy Scouts is not “distinctly private” because it is not selective in its membership.
Boy Scouts claims, however, that it is exempt from the LAD because it is an “educational facility operated or maintained by a bona fide religious or sectarian institution.” N.J.S.A. 10:5-5l. This claim deserves little discussion. Boy Scouts repeatedly states that it is nonsectarian. Its Bylaws declare that no member shall be required “to take part in or observe a religious ceremony distinctly unique” to a church or other religious organization. Boy Scouts emphasizes that religious instruction is better reserved for “the home and the organization or group with which the member is connected.” Further, the Scoutmaster Handbook instructs its leaders that scouting “is identified with no particular faith, encourages no particular affiliation, nor assumes functions of religious bodies.” We cannot say that Boy Scouts is a “bona fide religious or sectarian institution” in the face of the organization’s clear pronouncements on this subject.
Our prior decisions indicate that the status of in loco parentis is reserved for individuals who function as a parent. See, e.g., Miller v. Miller, 97 N.J. 154, 162, 478 A.2d 351 (1984) (recognizing stepparent may have in loco parentis relationship); In re M.S., 73 N.J. 238, 243-44, 374 A.2d 445 (1977) (finding juvenile shelter for delinquents stands in loco parentis). Characteristics of that relationship include “the responsibility to maintain, rear and educate the child,” Miller, supra, 97 N.J. at 162, 478 A.2d 351, as well as the duties of “supervision, care and rehabilitation,” In re M.S., supra, 73 N.J. at 242, 374 A.2d 445; see also A.S., supra, 139 N.J.Super. at 369, 354 A.2d 100 (defining role as “one who means to put himself in the situation of the lawful father with reference to the father’s office and duty of making provision for the child”). Boy Scouts does not assume those responsibilities or those duties. It does not maintain or rear children. A Boy Scout leader may function as a supervisor of children for limited periods of time; he does not have “the responsibility to maintain, rear and educate” children such that he stands in the place of a parent.
We hold that Boy Scouts is a “place of public accommodation” and is not exempt from the LAD under any of the statute’s exceptions.
N.J.S.A 10:5-4 states that “[a]ll persons shall have the opportunity to obtain ... all the accommodations, advantages, facilities, and privileges of any place of public accommodation.” Because we hold that an assistant scoutmaster position is a “privilege” and an “advantage” of Boy Scout membership, and because Boy Scouts has “revoked” Dale’s registration based on his “avowed” homosexuality, a prohibited form of discrimination under the statute, we conclude that Boy Scouts has violated the LAD.
In Dale’s revocation letter, Boy Scouts expressly stated that “BSA membership registration is a privilege.” Boy Scouts has also taken the position that “adult membership” and “adult leadership” are “interchangeable” in the scouting world. See supra at 577, 734 A.2d at 1204. Boy Scouts’ statements raise the question whether the organization has waived its right to challenge Dale’s claim that he has been denied a “privilege” within the meaning of the LAD.
We find, nonetheless, that Boy Scout membership is both a “privilege” and “advantage.” The organization provides its members with numerous benefits, including opportunities to participate in group activities and to develop a variety of skills, e.g., camping, cooking, first aid, lifesaving. Boy Scout leaders are given the “advantage” of numerous training courses that teach valuable lessons in leadership and management. Scouting indirectly benefits its members through the “advantage” of a large influential network, including Air Force Academy, Annapolis and West Point graduates, Rhodes Scholars, astronauts, United States Presidents and Congressmen, as well as businessmen and community leaders. Indeed, Boy Scouts advertises the “privileges” and “advantages” of being a member in order to attract new members.
B. The Common Law
Dale asserts that Boy Scouts is also prohibited from discriminating against him by the common law. The Legislature did not intend to abrogate all common law causes of action with the enactment of the LAD. See N.J.S.A 10:5-27 (“Nothing herein contained shall bar, exclude or otherwise affect any right or action, civil or criminal, which may exist independently of any right to redress against or specific relief from any unlawful employment practice' or unlawful discrimination.”); see also N.J.S.A. 10:5-3 (“The Legislature intends that such damages be available to all persons protected by this act and that this act shall be liberally construed in combination with other protections available under the laws of this State.”) (emphasis added). In Shaner v. Horizon Bancorp., we recognized that “a plaintiff in appropriate circumstances could pursue an independent action ... to vindicate particular interests in addition to or aside from those sought to be protected by a LAD action.” 116 N.J. 433, 454, 561 A.2d 1130 (1989).
In many cases, however, a common law claim is merely duplicative of a LAD claim and “it might be unnecessary to recognize or create ... [an] action to vindicate substantially the same rights and provide similar relief.” Ibid; accord Erickson v. Marsh & McLennan Co., 117 N.J. 539, 562, 569 A.2d 793 (1990). We find that Dale’s common law claim, if pursued, would not protect an
IV
THE FIRST AMENDMENT
Our holding that New Jersey’s Law Against Discrimination applies to Boy Scouts requires that we reach Boy Scouts’ claim that its First Amendment rights are thereby violated. See U.S. Const, amend. I. Boy Scouts asserts the rights of its members “to enter into and maintain ... intimate or private relationships____ [and] to associate for the purpose of engaging in protected speech.” Board of Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537, 544, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474, 483-84 (1987).
The United States Supreme Court has referred to the constitutionally protected freedom of association in two distinct contexts. “In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” Roberts, supra, 468 U.S. at 617-18, 104 S.Ct. at 3249, 82 L.Ed.2d at 471. Those eases are typically referred to as “intimate association” eases. “In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” Id. at 618, 104 S.Ct. at 3249, 82 L.Ed.2d at 471. Those cases have been described as “expressive association” eases.
Boy Scouts’ First Amendment claim requires that we examine the analytical framework within which the United States Supreme Court has discussed this complex of assoeiational rights.
“[B]ecause the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” Id. at 618, 104 S.Ct. at 3250, 82 L.Ed.2d at 471. The freedom to maintain personal relationships or to engage in intimate associations is thus “a fundamental element of liberty protected by the Bill of Rights.” Rotary Club, supra, 481 U.S. at 545, 107 S.Ct. at 1945, 95 L.Ed.2d at 484. Although the Supreme Court has never set the “precise boundaries” of this freedom, “[t]he intimate relationships to which [it] has accorded constitutional protection include marriage, the begetting and bearing of children, child rearing and education, and cohabitation with relatives.” Id. at 545, 107 S.Ct. at 1945-46, 95 L.Ed.2d at 484 (citations omitted). The freedom of intimate association, however, is not restricted to family relationships; rather, the Court has “emphasized that the First Amendment protects those relationships ... that presuppose ‘deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts,. experiences and beliefs but also distinctly personal aspects of one’s life.’ ” Id. at 545, 107 S.Ct. at 1946, 95 L.Ed.2d at 484 (quoting Roberts, supra, 468 U.S. at 619-20, 104 S.Ct. at 3250, 82 L.Ed.2d at 472).
Two seminal eases have considered the claims of national membership organizations that the intimate association rights of their members had been abridged by the application of state laws similar to the LAD. In Roberts v. United States Jaycees, the Jaycees brought an action contending that application of Minnesota’s public accommodations law requiring the organization to admit women as regular members violated the male members’ intimate association rights. Under the Jaycees’ Bylaws, men between the ages of eighteen and thirty-five were eligible for regular membership, whereas only “associate membership” was available to women. Roberts, supra, 468 U.S. at 613, 104 S.Ct. at
Based on those facts, the Supreme Court concluded that “the Jaycees chapters lack[ed] the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women.” Id. at 621, 104 S.Ct. at 3251, 82 L.Ed.2d at 474. Specifically, the Court emphasized that “the local chapters of the Jaycees are neither small nor selective,” and that “much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship.” Ibid. At the time of trial, the local chapters involved in the suit had approximately 400 members, id. at 621, 104 S.Ct. at 3251, 82 L.Ed.2d at 473, and the organization had 295,000 members nationwide, id. at 613, 104 S.Ct. at 3246, 82 L.Ed.2d at 468. Furthermore, “[ajpart from age and sex, neither the national organization nor the local chapters employ[ed] any criteria for judging applicants for membership.” Ibid.
In Board of Directors of Rotary International v. Rotary Club of Duarte, the Court again considered a First Amendment challenge to a state antidiscrimination statute requiring a national membership organization to admit women. There, the charter of a local chapter of Rotary International was revoked by the national organization because it admitted women members. Rotary Club, supra, 481 U.S. at 541, 107 S.Ct. at 1943, 95 L.Ed.2d at 482. Under the Rotary constitution, women were excluded from membership, although “women [were] permitted to attend meetings, give speeches, and receive awards.” Id. at 541, 107 S.Ct. at 1943, 95 L.Ed.2d at 481. The local chapter and two of its female members brought an action challenging the national organization’s exclusionary policy under the California civil rights statute. Id. at
Once again the Court concluded that “the relationship among [the organization’s] members is not the kind of intimate or private relation that warrants constitutional protection.” Id. at 546, 107 S.Ct. at 1946, 95 L.Ed.2d at 484-85. The Court noted that local chapters ranged in size from “fewer than 20 [members] to more than 900,” and that the national organization did not set an “upper limit on the membership of any local Rotary Club.” Id. at 546, 107 S.Ct. at 1946, 95 L.Ed.2d at 485. The Court also emphasized Rotary International’s inclusive membership policy, pointing to the organization’s own declaration that “[t]he purpose of Rotary ‘is to produce an inclusive, not exclusive, membership.’ ” Ibid. In order to fulfill this purpose, “[t]he clubs ... [were] instructed to ‘keep a flow of prospects coming’ to make up for ... attrition and gradually to enlarge membership.” Ibid. Most important, Rotary International’s membership policy was designed to “ ‘enabl[e] the club to be a true cross section of the business and professional life of the community.’” Ibid. On these facts, the Court concluded that “[s]ueh an inclusive ‘fellowship for service based on diversity of interest,’ ... does not suggest the kind of private or personal relationship to which we have accorded protection under the First Amendment.” Id. at 546-47, 107 S.Ct. at 1946, 95 L.Ed.2d at 485.
Those cases teach us to consider, among other things, “size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship,” when we examine membership organizations to determine whether a protectable intimate association right is present. Id. at 546, 107 S.Ct. at 1946, 95 L.Ed.2d at 485; see also Roberts, supra, 468 U.S. at 620, 104 S.Ct. at 3251, 82 L.Ed.2d at 473 (stating that “factors ... relevant [to an intimate association analysis] include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent”). As applied to Boy Scouts, we find that its large size, nonselectivity, inclusive rather than exclusive purpose,
As a preliminary matter, contrary to Boy Scouts’ assertion, whether we evaluate the Boy Scout organization at the national or local troop level, the result would be the same. See supra at 598 n. 9, 734 A.2d at 1215 n. 9. Either way, Boy Scouts cannot claim the right of intimate association for its members. Because Boy Scouts’ argument is necessarily stronger at the smaller troop level, we will consider the intimate association factors as applied to local troops.
Boy Scouts informs us that a typical Boy Scout troop consists of between fifteen and thirty boys and several adult leaders. In Rotary Club, the Supreme Court specifically held that a local club with as few as twenty members did not qualify as “the kind of intimate or private relation that warrants constitutional protection.” 481 U.S. at 546, 107 S.Ct. at 1946, 95 L.Ed.2d at 484-85. Moreover, Boy Scout troops are unselective in their membership. See supra at 599-602, 734 A.2d at 1216-17. Any boy between the ages of eleven and seventeen can join; indeed, Boy Scouts has quite clearly said that “any boy” is welcome. See id. at 601, 734 A.2d at 1217. Boy Scouts also has not set an upper limit on the number of boys who can join, but instead, actively seeks to interest as many boys as possible through advertising and other outreach methods. See id. at 590, 734 A.2d at 1211. Even if Boy Scouts is more selective in choosing its leaders, leaders do not substitute for the boys’ parents, see id. at 602-03, 734 A.2d at 1218; nor do they have private or intimate relationships with troop members. Relationships within the troop are simply not the “kind of ... personal relationship^] to which [the Supreme Court has] accorded protection under the First Amendment.” Rotary Club, supra, 481 U.S. at 547, 107 S.Ct. at 1946, 95 L.Ed.2d at 485.
Boy Scouts’ practice of inviting or allowing nonmembers to attend certain troop meetings further persuades us that Boy Scouts cannot claim the right of intimate association. In Rotary Club, the Supreme Court observed that “[m]any of the Rotary Clubs’ central activities [were] carried on in the presence of strangers____[and that] clubs [were] encouraged to seek coverage of their meetings and activities in local newspapers.” Id. at 547, 107 S.Ct. at 1946-47, 95 L.Ed.2d at 485. In the Court’s view, this negated Rotary International’s claim that the California Civil Rights Act “interfere[d] unduly with the members’ freedom of private association.” Id. at 547, 107 S.Ct. at 1947, 95 L.Ed.2d at 485. Likewise, Boy Scouts’ practice of inviting nonmembers to “School Nights” and other similar activities undermines its intimate association claim. See supra at 572, 734 A.2d at 1201.
We conclude that Boy Scouts has not demonstrated a protecta-ble intimate association right under the First Amendment.
B. Freedom of Expressive Association
“An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Roberts, supra, 468 U.S. at 622, 104 S.Ct. at 3252, 82 L.Ed.2d at 474. Thus, “the right to engage in
When the government attempts “to interfere with the internal organization or affairs of the group,” id. at 623, 104 S.Ct. at 3252, 82 L.Ed. 2d at 474, the members’ freedom of expressive association may be curtailed. In this regard, the Supreme Court has said that “[t]here can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.” Id. at 623, 104 S.Ct. at 3252, 82 L.Ed.2d at 474-75. This does not mean, however, “that in every setting in which individuals exercise some discrimination in choosing associates, their selective process of inclusion and exclusion is protected by the Constitution.” New York State Club Ass’n v. City of New York, 487 U.S. 1, 13, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1, 16 (1988). Rather, the Court has found that a group member infringes upon an organization’s freedom of expressive association only if he or she “affect[s] ‘in any significant way” the [other members’] ability ... to ... advocate public or private viewpoints.” Ibid.; see also Rotary Club, supra, 481 U.S. at 548, 107 S.Ct. at 1947, 95 L.Ed.2d at 486 (holding that “the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members’ ability to carry out their various purposes”); Roberts, supra, 468 U.S. at 626-27, 104 S.Ct. at 3254, 82 L.Ed.2d at 477 (ruling that “the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members’ freedom of expressive association” because “[t]here is ... no basis in the record for concluding that admission of women ... will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views”).
We find that the LAD does not violate Boy Scouts’ freedom of expressive association because the statute does not have a significant impact on Boy Scout members’ ability to associate with one another in pursuit of shared views. 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 discourages its leaders from disseminating any views on sexual issues; and Boy Scouts includes sponsors and members who subscribe to different views in respect of homosexuality.
Boy Scouts claims that its members’ views regarding homosexuality are evident from its Scout Law and Oath, which embody general moral principles. The Scout Law requires Boy Scout members to be “trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent,” whereas the Oath requires each scout to promise: “I will do my best to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake, and morally straight.” Boy Scouts as
As a Scout, you’ll hike and camp, learn how to live in the out-of-doors, and discover many ways to care for the land. You can cook your meals over a camp stove and identify all kinds of plants and animals that are part of our environment. No matter what happens, you’ll know how to take care of yourself. You’ll develop strength, confidence, and good judgment. And you can find out how it feels to be a leader.
[Ibid.]
We agree that Boy Scouts expresses a belief in moral values and uses its activities to encourage the moral development of its members. Cf. Roberts, supra, 468 U.S. at 636, 104 S.Ct. at 3259-60, 82 L.Ed.2d at 483-84, (O’Connor, J., concurring in part and concurring in judgment) (stating “protected expression may also take the form of quiet persuasion, inculcation of traditional values, instruction of the young, and community service .... [and e]ven the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement”). We are not persuaded, however, that a “shared goal[ ]” of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral. See id. at 622, 104 S.Ct. at 3252, 82 L.Ed.2d at 474 (recognizing that freedom of expressive association protects an association’s “collective effort on behalf of shared goals”).
Boy Scouts argues that the words “morally straight” and “clean” in the Scout Oath and Law explicitly or implicitly stand for the proposition that homosexuality is immoral.
Morally Straight
To be a person of strong character, guide your life with honesty, purity, and justice. Respect and defend the rights of all people. Your relationships with others should be honest and open. Be clean in your speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help you become virtuous and self-reliant.
Clean
A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the company of those who live by these same ideals. He helps keep his home and community clean.
You never need to be ashamed of dirt that will wash off____
There’s another kind of dirt that won’t come off by washing. It is the kind that shows up in foul language and harmful thoughts.
Swear words, profanity, and dirty stories are weapons that ridicule other people and hurt their feelings. The same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He avoids it in his own words and deeds. He defends those who are the targets of insults.
The words “morally straight” and “clean” do not, on their face, express anything about sexuality, much less that homosexuality, in particular, is immoral. We doubt that young boys would ascribe any meaning to these terms other than a commitment to be good.
Boy Scouts also argues that the immorality of homosexuality can be implied from the moral principles expressed by the Scout Oath and Law. Yet, Boy Scouts teaches that “moral fitness” is an individual choice and defers the ultimate definition to its members:
Morality ... concerns the “principles of right and wrong” in our behavior, and “what is sanctioned by our conscience or ethical judgment.” ...
*615 In any consideration of moral fitness, a key word has to be “courage.” A boy’s courage to do what Ms head and Ms heart tell him is right. And the courage to refuse to do what Ms heart and Ms head say is wrong.
[Scoutmaster Handbook, supra, at 71 (emphasis added).]
The Boy Scout Handbook, supra, at 551, also acknowledges that a member’s concept of morality is intertwined with his “religious beliefs.” The record in this case reveals that Boy Scouts’ religious sponsors differ in their views about homosexuality.
We hold, therefore, that Dale’s membership does not violate Boy Scouts’ right of expressive association because his inclusion would not “affect in any significant way [Boy Scouts] existing members’ ability to carry out their various purposes.” Rotary Club, supra, 481 U.S. at 548, 107 S.Ct. at 1947, 95 L.Ed.2d at 486.
That Boy Scout members do not associate to share the view that homosexuality is immoral suggests that Dale’s expulsion constituted discrimination based solely on his status as an openly gay man. The United States Supreme Court has not hesitated to uphold the enforcement of a state’s antidiscrimination statute against an expressive association claim based on assumptions in respect of status that are not a part of the group members’ shared expressive purpose. See Roberts, supra, 468 U.S. at 628, 104 S.Ct. at
Boy Scouts submits that it expelled Dale because he “was pictured and written-up in the Star-Ledger as Co-President of the Rutgers University and Gay Alliance.” See supra at 578, 734 A.2d at 1205. In the article, Dale states that he is gay. He does not identify himself as a Boy Scout leader or member, nor does he express an opinion about any of Boys Scouts’ policies, or suggest that Boy Scouts should allow him openly to advocate acceptance of homosexuality.
Scouting appealed to me for many reasons____ I admired the purposes for which BSA stands — teaching young people outdoor and camping skills, developing their leadership abilities and sense of community responsibility, and providing them with the tools to make moral choices over the course of their lives.
As a Scout, I promised to live by the Scout Oath.... I believed that the Scout Oath stood for my commitment to live an honorable life, to set high standards for myself, and to do my best to serve others. In my more than twelve years as a member of BSA, I strove never to do anything inconsistent with the values embodied in the Scout Oath____
... I understood the Scout Oath to represent the high ideals Scouting encouraged each of its members to achieve. In all my years in Scouting, I always tried to live in accordance with the Scout Law and to adhere to the values embodied in it.
*617 As I grew ... older, my commitment to Scouting deepened. Scouting ... taught me how to deal with the ethical choices I encountered as a teenager.
Nonetheless, despite Dale’s commitment, he was expelled from Boy Scouts shortly after the article was published.
The original termination letter Dale received indicates that Dale was expelled because of his status and not because his membership conflicted with Boy Scouts’ message. In it, Boy Scouts told Dale he was being terminated because of his sexual orientation: “The grounds for this membership revocation are the standards for leadership established by Boy Scouts of America, which specifically forbid membership to homosexuals.” In subsequent letters, Boy Scouts attempted to connect Dale’s termination with his “avowed” homosexuality and Boy Scouts’ “policy [to] exclud[e] adults whose views of the morality of homosexual conduct differ from the views held by Boy Scouts of America.” Those subsequent letters suggest that Boy Scouts perceived Dale’s membership as interfering with its views on “the morality of homosexual conduct”; they do not alter Boy Scouts’ original statement. The original termination letter expresses Boys Scouts’ real concern: Dale’s status as a homosexual.
Perhaps more revealing is the contradiction between Boy Scouts’ current litigation posture on homosexual members and the organization’s general philosophy on open membership. Boy Scouts has been firmly committed to a diverse and “representative” membership. It recognizes that the skills it teaches its members are needed “in all economic, cultural, and ethnic groups.” A Representative Membership, supra, at 2. Its objective is to see to it “that all eligible youth have the opportunity to affiliate with the Boy Scouts of America.” Id. at 1. As we observed earlier, consistent with this position, Boy Scouts does not seek to limit membership to individuals of a particular religious faith or moral persuasion. See supra at 575, 599, 734 A.2d at 1203, 1216. The result of this “all-inclusive” membership policy is the admission of four million boys and over one million adults. See id. at 598, 734 A.2d at 1215.
The invocation of stereotypes to justify discrimination is all too familiar. Indeed, the story of discrimination is the story of stereotypes that limit the potential of men, women, and children who belong to excluded groups. By way of example, we observe that certain claimed propensities of character were once invoked to advocate the subjugation of women. United States v. Virginia recites the prevailing view of women at the time of the writing of the Constitution: “ ‘Were our State a pure democracy ... there would yet be excluded from [our] deliberations ... women, who, to prevent depravation of morals and ambiguity of issue, should not mix promiscuously in the public meetings of men.’ ” 518 U.S. 515, 531 n. 5, 116 S.Ct. 2264, 2275 n. 5, 135 L.Ed.2d 735, 750 n. 5 (1996) (quoting Letter from Thomas Jefferson to Samuel Kereheval (Sept. 5, 1816)). Less than a century later, the exclusion of women from the Illinois State Bar was thought to be justified because
[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and function of womanhood. The harmony, not to say identity, of interests and views which belong to the family institution, is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.
[Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141, 21 L.Ed. 442, 446 (1873) (Bradley, J., concurring).]
The sad truth is that excluded groups and individuals have been prevented from full participation in the social, economic, and political life of our country.
New Jersey has long been a leader in this effort. See, e.g., Peper, supra, 77 N.J. at 80, 389 A.2d 465 (stating that “New Jersey has always been in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society”). In 1945, the New Jersey Legislature codified its commitment to equality by enacting the LAD, “some twenty years before the effective date of Title VII.” Ibid.; see 42 U.S.C.A §§ 2000a-2000h-6. The Legislature found that “because of discrimination, people suffer personal hardships, and the State suffers a grievous harm.” N.J.S.A. 10:5-3. In specific, the Legislature determined that victims of discrimination suffer
economic loss; time loss; physical and emotional stress; and in some cases severe emotional trauma, illness, homelessness or other irreparable harm resulting from the strain of employment controversies; relocation, search and moving difficulties; anxiety caused by lack of information, uncertainty, and resultant planning difficulty; career, education, family and social disruption; and adjustment problems.
[Ibid]
It is unquestionably a compelling interest of this State to eliminate the destructive consequences of discrimination from our society.
By amendment to N.J.S.A. 10:5-4 in 1991 (L. 1991, c. 519, § 2), the Legislature expanded the categories of persons protected to include discrimination based on “affectional or sexual orientation.” This was an implicit recognition that discrimination based on “archaic” and “stereotypical notions” about homosexuals that bears no relationship to reality cannot be countenanced. Roberts, supra, 468 U.S. at 625, 104 S.Ct. at 3253, 82 L.Ed.2.d at 476. It is also a recognition that the “stigmatizing injury” and denial of equal opportunities that accompanies it is felt no less strongly by this protected group than others who suffer personal hardship because of discriminatory practice. Ibid.
[Dale, supra, 308 N.J.Super. at 549, 706 A.2d 270.]
With the amendment of the LAD, the Legislature declared that discrimination in places of public accommodation on the basis of “affectional or sexual orientation ... [is] a matter of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A 10:5-3. Our courts have recognized the arbitrariness of discriminating against individuals solely because of their sexual orientation. See, e.g., One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Beverage Control, 50 N.J. 329, 340-41, 235 A.2d 12 (1967) (rejecting argument that permitting “apparent homosexuals” to congregate at bar threatens public welfare); Poff, supra, 228 N.J.Super. at 381, 549 A.2d 900 (stating that “refus[al] to extend ... [LAD’s] protection to homosexuals because they may be more susceptible to a dread disease would mark a return to a past of judging individuals on the basis of ignorance and prejudice”); In re J.S. & C., 129 N.J.Super. 486, 489, 324 A.2d 90 (Ch.Div.1974) (stating that “ [fundamental rights of parents may not be denied, limited or restricted on the basis of sexual orientation, per se ”), aff'd, 142 N.J.Super. 499, 362 A.2d 54 (App.Div.1976).
Boy Scouts is an American institution committed to bringing a diverse group of young boys and men together — wealthy and underprivileged, urban and rural, from different cultures and from different religions — to play and to learn. Boy Scouts’ activities are designed to build character and instill moral principles. Nothing before us, however, suggests that one of Boy Scouts’ purposes is to promote the view that homosexuality is immoral. Accordingly, application of the LAD does not infringe upon Boy Scouts’ right of expressive association.
C. Freedom of Speech
Boy Scouts relies on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston in support of its alleged
The Hurley Court held that inclusion of the group in the parade would violate the Council’s First Amendment rights. The Court observed that the state public accommodations statute had “been applied in a peculiar way,” because “[i]ts enforcement [did] not address any dispute about the participation of openly gay, lesbian, or bisexual individuals in various units admitted to the parade ____ [but rather] the admission of GLIB as its own parade unit carrying its own banner.” Id. at 572, 115 S.Ct. at 2347, 132 L.Ed.2d at 503. The Court explained that forcing the Council to include GLIB would “essentially requir[e] [the members] to alter the expressive content of their parade,” id. at 572-73, 115 S.Ct. at 2347, 132 L.Ed.2d at 503, because “in the context of an expressive parade, as with a protest march, the parade’s overall message is distilled from the individual presentations along the way, and each unit’s expression is perceived by spectators as part of the whole,” id. at 577, 115 S.Ct. at 2349, 132 L.Ed.2d at 506. Application of the statute in that context was held to “violate[ ] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573, 115 S.Ct. at 2347, 132 L.Ed.2d at 503. Indeed, application of the statute “had the effect of declaring the sponsors’ speech itself to be the public accommodation.” Ibid.
Nor is Boy Scout leadership a form of “pure speech” akin to a parade. As the Hurley Court explained, “the word ‘parade’ [is used] to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way.” 515 U.S. at 568, 115 S.Ct. at 2345, 132 L.Ed.2d at 500. Unlike a marcher in a parade, Dale does not participate in Boy Scouts “to make a point” about sexuality, but rather because of his respect for and belief in the organization. And unlike a parade, where the “speech itself ... [is] the public accommodation,” id. at 573, 115 S.Ct. at 2347, 132 L.Ed.2d at 503, permitting Dale to remain in a leadership position in no way prevents Boy Scouts from “invok[ing] its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another,” id. at 574, 115 S.Ct. at 2348, 132 L.Ed.2d at 504. We reject the notion that Dale’s presence in the organization is symbolic of Boy Scouts’ endorsement of homosexuality. On these facts, we do not find forced speech. See id. at 573, 115 S.Ct. at 2347, 132 L.Ed.2d at 503 (declaring that right to free speech includes right to “decide ‘what not to say5 ”) (quoting Pacific Gas
In short, the reinstatement of Dale does not compel Boy Scouts to express any message. To recognize Boy Scouts’ First Amendment claim would be tantamount to tolerating the expulsion of an individual solely because of his status as a homosexual — an act of discrimination unprotected by the First Amendment freedom of speech.
Y
CONCLUSION
Today, we hold that Boy Scouts is a “place of public accommodation” and is, therefore, subject to the provisions of the LAD. As a “place of public accommodation” it cannot deny any person “accommodations, advantages, facilities, and privileges ... because of ... sexual orientation.” N.J.S.A 10:5-4. For the reasons set forth in this opinion, application of the LAD does not infringe on Boy Scouts’ First Amendment rights.
The judgment of the Appellate Division is affirmed. We remand to the Chancery Division for further proceedings consistent with this opinion.
Although not always specifically designated in the text, our description of Boy Scouts is derived primarily from the BSA Charter, Bylaws, and Rules and Regulations; the Boy Scout Handbook (10th ed.1990); and the Scoutmaster Handbook (1990). These publications, taken together, provide a comprehensive view of the organization's structure, programs and missions.
Although a relatively small percentage of New Jersey unit charters are not renewed each year, we are unaware of applicants having been rejected because of their expressed views on any subject.
BSA's Declaration of Religious Principle states:
The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God.... No matter what the religious faith of the members may be, this fundamental need of good citizenship should be kept before them. The Boy Scouts of America, therefore, recognizes the religious element in the training of the member, but it is absolutely nonsectarian in its attitude toward that religious training. Its policy is that the home and the organization or group with which the member is connected shall give definite attention to religious life.
Dale subsequently learned that in 1978 BSA had prepared a position paper stating that "an individual who openly declares himself to be a homosexual [may not] be a volunteer scout leader [or] ... a registered unit member[.]” The position paper "was never distributed.” Statements were also written in 1991 and 1993 expressing similar positions. These statements were written after the onset of litigation in other states charging the organization with discrimination against members on the basis of sexual orientation.
NJ.S.A. 10:5-5l now reads:
“A place of public accommodation" shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall; any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed; nor shall anything herein contained be construed to bar any private secondary or post secondary school from using in good faith criteria other than race, creed, color, national origin, ancestry or affectional or sexual orientation in the admission of students.
Boy Scouts expresses concern that this article is not properly part of the record before us. Although the quoted statement has not been authenticated, we find it descriptive of material in the record respecting BSA's public solicitation and membership recruitment efforts.
New Jersey governmental entities are, of course, bound by the LAD. Their sponsorship of, or conferring of special benefits on, an organization that practices discrimination would be prohibited.
Boy Scouts also questions whether this booklet is properly before us. See supra at 590 n. 6, 734 A.2d at 1211 n. 6). The booklet on its face states that it is a BSA publication prepared for national, council, district, and local board/committee members, and Boy Scouts has not indicated otherwise.
Boy Scouts argues that this Court should follow Kiwanis, supra, 806 F.2d at 476 n. 14, and limit review of Boy Scouts' membership selection practices to the local, rather than the national level. We decline to follow Kiwanis in this case. Boy Scouts' local units, unlike Kiwanis Ridgewood, are not authorized to establish additional “local membership requirements,” id. at 475, nor are they empowered generally to change BSA's policies. We find that the various levels of scouting are interrelated such that a review of the national organization's membership selection practices — as opposed to the local unit — is most appropriate.
That Boy Scouts' oath expresses a belief in God does not make it a religious institution. Nor does Boy Scouts' commitment to “[ejducation and fun/' see
In Quinnipiac Council Boy Scouts of America v. Commission on Human Rights and Opportunities, 204 Conn. 287, 528 A.2d 352 (1987), the Connecticut Supreme Court held that Boy Scouts had not denied a woman an "accommodation," which it interpreted to mean "access to goods and services," when it
Boy Scouts also points to a 1978 position paper in support of its argument that it associates for the expressive purpose of advocating the immorality of
In addition, Boy Scouts refers to four other position papers, all written after Dale's expulsion. The self-serving nature of these papers is apparent.
We note in passing that Boy Scouts has renewed the charters of sponsors whose positions differ from that alleged by Boy Scouts.
Boy Scouts argues that Dale's recent public statements about the policy of excluding avowed homosexuals indicate that he has a "moral viewpoint in opposition to that of Boy Scouts and [has] expressed that viewpoint to all who will listen." We have no evidence, however, that when Dale refers to this "policy,” he is talking about anything other than the decision to expel him because of his status as co-president of the Rutgers University Lesbian/Gay Alliance.
The LAD prohibits discrimination on the basis of "race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex____” NJ.S.A. 10:5-4. The scope of the statute is reflective of the breadth of the underlying problems we face as a society.