REDEEMING THE RAINBOW

Model “Dale Clause” to Protect Pro-FamilyOrganizations in the United States from LitigationUnder the 5-4 Supreme Court decision in Boy Scouts of America v. Dale, private organizations, withintheir First Amendment right of “expressive association,” may refuse membership to open homosexuals.This right may only be upheld by a court, however, if the organization has clearly stated a policythat homosexual conduct is incompatible with the expressive activity of the organization. Themajority in Dale interpreted the Boy Scouts policy requiring scouts to remain “clean” and “morallystraight” to exclude homosexuals, but a strong dissent emphasized that the Boy Scouts’ policyregarding homosexuality was not specific enough to warrant a ruling in its favor.We believe, therefore, that every pro-family group that wishes to preserve its right to exclude openhomosexuals should immediately amend its by-laws to add a “Dale Clause” similar to the following:It is the official policy of this organization that homosexual conduct is incompatiblewith our operation, purpose and expressive message. We reject the notion that homosexualityis a legitimate form of behavior and we do so both on religious andnonreligious grounds. On religious grounds we oppose homosexuality as a sin thatviolates God’s standard for human sexual expression as defined in the Holy Bible.On nonreligious grounds we oppose homosexuality as objectively disordered andcontrary to the self-evident heterosexual design of the human body.While the Dale case unequivocally protects the right of private association regarding group membership,it is less clear whether Dale protects your rights as an employer to exclude homosexuals asemployees. It seems reasonable that the choice of whom to employ affects “expressive association” tothe same or greater extent as the choice of whom to allow as a member, but this may need to beclarified by litigation. Please consult with your regular legal counsel in this matter.Redeeming the Rainbow 183