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Eagles Disobey: The Case For Inc

An Oklahoma law that purported to be an ad valorem tax on the property of corporations, levied in the form of a three-percent gross receipts tax, and computed, in the case of express companies doing an interstate business, as a percentage of gross receipts from all sources, interstate as well as intrastate, which is equal to the proportion that its business in Oklahoma bears to its total business, was void as applied to such express companies. The tax burdened interstate commerce and was levied, contrary to due process, on property in the form of income from investments and bonds located outside the state.

Eagles Disobey: The Case For Inc

A South Dakota law that made railroads liable for double damages in case of failure to pay a claim, within 60 days after notice, or to offer to pay a sum equal to what a jury found the claimant entitled to, was arbitrary and deprived the carriers of property without due process of law.

A Wisconsin law that required a foreign corporation not doing business in Wisconsin, or having property there, other than that sought to be recovered in a suit, to send, as a condition precedent to maintaining such action, its officer with corporate records pertinent to the matter in controversy, and to submit to an adversary examination before answer, but which did not subject nonresident individuals to such examination, except when served with notice and subpoena within Wisconsin, and then only in the court where the service was had, and which limited such examinations, in the case of residents of Wisconsin, individual or corporate, to the county of their residence violated the Equal Protection Clause.

A Texas law that permitted a nonresident to prosecute a case which arose outside of Texas against a railroad corporation of another state, which was engaged in interstate commerce and neither owned nor operated facilities in Texas, was inoperative because it burdened interstate commerce.

An Illinois statute, itself no longer in code but held to be incorporated in the general juror challenge statute, that authorizes automatic challenge for cause of any potential juror scrupled against capital punishment in capital cases, is invalid.

A New York statute granting the trial judge in a nonjury criminal case the power to deny counsel the opportunity to make a summation of the evidence before the rendition of judgment violates the Sixth Amendment.

lectively, Boy Scouts). The Boy Scouts is a private, not-forprofit organization engaged in instilling its system of values in young people. The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent is James Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey's public accommodations law requires that the Boy Scouts readmit Dale. This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment right of expressive association. We hold that it does.

The New Jersey Supreme Court affirmed the judgment of the Appellate Division. It held that the Boy Scouts was a place of public accommodation subject to the public accommodations law, that the organization was not exempt from the law under any of its express exceptions, and that the Boy Scouts violated the law by revoking Dale's membership based on his avowed homosexuality. After considering the state-law issues, the court addressed the Boy Scouts' claims that application of the public accommodations law in this case violated its federal constitutional rights "'to enter into and maintain ... intimate or private relationships ... [and] to associate for the purpose of engaging in protected speech.'" 160 N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board of Directors of Rotary lnt'l v. Rotary Club of Duarte, 481 U. S. 537, 544 (1987)). With respect to the right to intimate association, the court concluded that the Boy Scouts' "large size, nonselectivity, inclusive rather than exclusive purpose, and practice of inviting or allowing nonmembers to attend meetings, establish that the organization is not 'sufficiently personal or private to warrant constitutional protection' under the freedom of intimate association." 160 N. J., at 608-609, 734 A. 2d, at 1221 (quoting Duarte, supra, at 546). With respect to the right of expressive association, the court "agree[d] that Boy Scouts expresses a belief in moral values and uses its activities to encourage the moral development

of its members." 160 N. J., at 613, 734 A. 2d, at 1223. But the court concluded that it was "not persuaded ... that a shared goal of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral." Ibid., 734 A. 2d, at 1223-1224 (internal quotation marks omitted). Accordingly, the court held "that Dale's membership does not violate the Boy Scouts' right of expressive association because his inclusion would not 'affect in any significant way [the Boy Scouts'] existing members' ability to carry out their various purposes.'" Id., at 615, 734 A. 2d, at 1225 (quoting Duarte, supra, at 548). The court also determined that New Jersey has a compelling interest in eliminating "the destructive consequences of discrimination from our society," and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose. 160 N. J., at 619-620,734 A. 2d, at 1227-1228. Finally, the court addressed the Boy Scouts' reliance on Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), in support of its claimed First Amendment right to exclude Dale. The court determined that Hurley did not require deciding the case in favor of the Boy Scouts because "the reinstatement of Dale does not compel Boy Scouts to express any message." 160 N. J., at 624, 734 A. 2d, at 1229.

Scouts' commitment to a diverse and 'representative' membership ... [and] contradicts Boy Scouts' overarching objective to reach 'all eligible youth.'" 160 N. J., at 618, 734 A. 2d, at 1226. The court concluded that the exclusion of members like Dale "appears antithetical to the organization's goals and philosophy." Ibid. But our cases reject this sort of inquiry; it is not the role of the courts to reject a group's expressed values because they disagree with those values or find them internally inconsistent. See Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981) ("[A]s is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational"); see also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 714 (1981) ("[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection").

The Boy Scouts publicly expressed its views with respect to homosexual conduct by its assertions in prior litigation. For example, throughout a California case with similar facts filed in the early 1980's, the Boy Scouts consistently asserted the same position with respect to homosexuality that it asserts today. See Curran v. Mount Diablo Council of Boy

2 Public accommodations laws have also broadened in scope to cover more groups; they have expanded beyond those groups that have been given heightened equal protection scrutiny under our cases. See Romer, 517 U. S., at 629. Some municipal ordinances have even expanded to cover criteria such as prior criminal record, prior psychiatric treatment, military status, personal appearance, source of income, place of residence, and political ideology. See 1 Boston, Mass., Ordinance No. 12-9.7 (1999) (ex-offender, prior psychiatric treatment, and military status); D. C. Code Ann. 1-2519 (1999) (personal appearance, source of income, place of residence); Seattle, Wash., Municipal Code 14.08.090 (1999) (political ideology).

tory definition of" '[a] place of public accommodation'" is extremely broad. The term is said to "include, but not be limited to," a list of over 50 types of places. N. J. Stat. Ann. 10:5-5(l) (West Supp. 2000); see Appendix, infra, at 661663. Many on the list are what one would expect to be places where the public is invited. For example, the statute includes as places of public accommodation taverns, restaurants, retail shops, and public libraries. But the statute also includes places that often may not carry with them open invitations to the public, like summer camps and roof gardens. In this case, the New Jersey Supreme Court went a step further and applied its public accommodations law to a private entity without even attempting to tie the term "place" to a physical location.3 As the definition of "public accommodation" has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.

We recognized in cases such as Roberts and Duarte that States have a compelling interest in eliminating discrimination against women in public accommodations. But in each of these cases we went on to conclude that the enforcement of these statutes would not materially interfere with the ideas that the organization sought to express. In Roberts, we said "[i]ndeed, the Jaycees has failed to demonstrate ...

3 Four State Supreme Courts and one United States Court of Appeals have ruled that the Boy Scouts is not a place of public accommodation. Welsh v. Boy Scouts of America, 993 F.2d 1267 (CA7), cert. denied, 510 U. S. 1012 (1993); Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal. 4th 670, 952 P. 2d 218 (1998); Seabourn v. Coronado Area Council, Boy Scouts of America, 257 Kan. 178, 891 P. 2d 385 (1995); Quinnipiac Council, Boy Scouts of America, Inc. v. Comm'n on Human Rights & Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987); Schwenk v. Boy Scouts of America, 275 Ore. 327, 551 P. 2d 465 (1976). No federal appellate court or state supreme court-except the New Jersey Supreme Court in this case-has reached a contrary result. 350c69d7ab


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