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Taking diversity seriously: Religious associations and work-related discrimination 93
[young members] in activities such as camping, archery and fishing',
thereby ‘inculcat[ing] them with the Boy Scouts' values – both expressly
and by example’. 82
A narrow majority of the Court held that the presence of an avowedly
gay assistant scout master would ‘significantly burden the organisation's
right to oppose or disfavour homosexual conduct’ 83 since his ‘presence in
the Boy Scouts would, at the very least, force the organisation to send a
message, both to the youth members and the world, that the Boy Scouts
accepts homosexual conduct as a legitimate form of behaviour’. 84 Forcing
the BSA to accept homosexual members would therefore ‘interfere with
the Boy Scouts’ choice not to propound a point of view contrary to its
beliefs’. 85 The majority held that this was true even if the BSA encouraged
scout leaders to ‘avoid questions of sexuality and teach only by example’. 86
The majority held that the BSA's associational right to discriminate against
homosexuals overrode New Jersey's interest, even if compelling, in
eliminating such discrimination.
Although Dale was not engaged in remunerative work for the BSA, he
was, like Strydom, an instructor of young people. The Supreme Court's
ruling in Dale seems to contradict the Equality Court's reasoning as
expressed in (6), (7) and (9) above. It says that the presence of an avowed
homosexual in a position of trust and authority in the BSA, even if he did
not advocate homosexual conduct in the organisation or seek to influence
those over whom he exercised authority, would send a message to his
charges and to the world that it regarded homosexual conduct as a
morally-legitimate form of behaviour. The Equality Court explicitly
denied as much. The majority in Dale also determined that to force the
BSA to retain Dale as a member would ‘significantly burden’ its ‘right to
oppose or disfavour homosexual conduct’. 87 The Equality Court denied
this too.
The outlook of the minority in Dale is much closer to the Equality
Court's view in Strydom, in as much as it held that forcing the BSA to retain
Dale as a member does not impose a serious burden on the BSA, ‘nor does
it wish to force the BSA to communicate any message that it does not wish
to endorse’. 88 As in Strydom, the minority held that there was no evidence
to suggest that Dale had sought to influence others concerning the morality
of active homosexuality or that he had any intention of doing so. Equally,
82 Dale (n 80 above) 649.
83 Dale (n 80 above) 659.
84
Dale (n 80 above) 653.
85 Dale (n 80 above) 641.
86 Dale (n 80 above) 655.
87
88
Dale (n 80 above) 659.
Dale (n 80 above) 665. An issue which divided the majority and minority was whether
the Boy Scouts had ever expressed a moral stance against homosexuality. In contrast
with the majority decision of Rehnquist CJ, who found that the BSA had indeed
expressed such a view, the dissenting opinion of Stevens J took the view that ‘BSA