ABSTRACT
Boy Scouts of America v. Dale, 530 US 640 (2000), raised issues of how the Constitution's First Amendment, protecting freedom of association, could be balanced against a state's effort to legislate nondiscrimination. The US Supreme Court agreed, five–four, that Boy Scouts of America (BSA) had a First Amendment right to exclude from its organization an openly gay scoutmaster. According to the majority opinion in Dale, New Jersey erred by failing to properly balance a private association's First Amendment free speech right to condemn homosexuality among its members as inconsistent with BSA's creed that a Boy Scout must be "morally straight" and "clean." One critic of Dale wrote that the Court's jurisprudence should have focused more on the state's purpose in prohibiting discrimination rather than elevating the private organization's interest in discriminating as a First Amendment right.
