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Legal Issues
Boys Scouts Discrimination Case
Civil Rights vs. Freedom of Speech
The Supreme Court has said that the freedom of speech protected by the First Amendment necessarily includes the right to associate with others who share the same viewpoints. State and Federal Civil Rights laws protect people from discrimination on the basis of various grounds such as race, sex, ethnicity and national origin. In New Jersey, there is a state law that prohibits discrimination based on sexual orientation in public accommodations. These two rights conflict when a group expresses its First Amendment right to express an opinion against one of the groups protected by state civil rights law, and a person from one of those groups wants to become a member of the group expressing an opinion against him or her. At some point, one right has to outweigh the other. The Supreme Court decided that the state's right to ban discrimination ends and a group's First Amendment Rights begin when that person's membership would "materially interfere" with the group's right to expressive association. Therefore, the Supreme Court held in Roberts v. United States Jaycees that the Jaycees had to allow women to join the group because the presence of women in the group would not place any serious burden on the male members' freedom of expressive association. But, in Boy Scouts of America v. Dale, the Supreme Court held that the Boy Scouts did not have to reinstate Dale because the presence of an openly gay scoutmaster would materially interfere with the Boy Scouts' right to expressive association.
Freedom of Speech vs. Public Accommodations
The Broward County School Board, as a government agency, may not interfere with people's First Amendment rights. If the State gave something to everyone except for citizens and groups who held a particular belief, the state would be encouraging people to have one set of beliefs in place of another. Therefore, the State cannot, for example, give off-hours access to public facilities to several different groups and then turn around and deny one particular organization the same privileges simply because it disagrees with that group's viewpoint. However, the State does not have to help a group spread its message or recruit members if the group's message is against public policy.
Hence, while the School Board is constitutionally required to provide the Boy Scouts with the same accommodations it provides everyone else, it does not have to endorse anything the Boy Scouts say. This means that is required to provide the Boy Scouts with the same accommodations it makes for everyone else, but it is not required to allow the Boy Scouts to solicit members as it once did under the agreement or take any steps to enhance the involvement of the Boy Scouts in the schools.
The Boy Scouts have a right to free speech and association and to use facilities that are available to the public, but the help the School Board had previously given them with recruitment was a special privilege. When the Boy Scouts sought to discriminate on the basis of sexual orientation against public policy, they kept their rights but lost their special privileges.
When analyzing these two cases together, it means that the Boy Scouts have a First Amendment right to have an opinion, even an unpopular opinion. In addition, they have the right to exclude members who would harm the Boy Scouts' ability to express that opinion, and to enjoy its associational rights. But, they do not have the right to demand that the government endorse their opinion or help them recruit members. On the other hand, it means that the School Board, i.e. the government, has the right to refrain from helping organizations recruit members. Also, the School Board does not have the right to allow the use of its facilities to everyone except for groups with which it disagrees. It may, however, have a legal obligation to allow the Boy Scouts to use public resources, as will be determined by a court of law in the Boy Scouts of America v. Till case discussed above.
