The focus of this article is the erroneous ruling of the New Jersey Supreme Court in holding that the State of New Jersey had a "compelling interest in eliminating discrimination based on sexual orientation" sufficient to justify infringement of the Boy Scouts' right of "expressive association" as recognized by the Supreme Court in Roberts v. United States Jaycees. An analysis of how the New Jersey Supreme Court erred in its application of the statute against the Boy Scouts follows an observation of the background of the right of "expressive association" as it currently stands, as well as a brief examination of the facts in Dale v. Boy Scouts of America. The analysis will submit that not only did the Dale Courts unconstitutionally infringe the rights of expressive association belonging to the Boy Scouts, but the decisions infringed upon the Boy Scouts' free speech rights as well. In reaching their conclusions, the Dale Courts also misapplied the "compelling interest" analysis in finding that the state of New Jersey had sufficient justification for infringement of those rights. The article concludes with a brief forecast of what is to come should states seek to "overapply" public accommodation statutes to groups such as the Boy Scouts of America.
Shannon L. Doering,
Treading on the Constitution to Get a Foot in the Clubhouse Door,
78 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol78/iss3/6