676
Stevens, J., dissenting
Third, BSA never took any clear and unequivocal position on homosexuality. Though the 1991 and 1992 policies state one interpretation of "morally straight" and "clean," the group's published definitions appearing in the Boy Scout and Scoutmaster Handbooks take quite another view. And BSA's broad religious tolerance combined with its declaration that sexual matters are not its "proper area" render its views on the issue equivocal at best and incoherent at worst. We have never held, however, that a group can throw together any mixture of contradictory positions and then invoke the right to associate to defend any one of those views. At a minimum, a group seeking to prevail over an antidiscrimination law must adhere to a clear and unequivocal view.
Fourth, at most the 1991 and 1992 statements declare only that BSA believed "homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed." App. 457 (emphasis added). But New Jersey's law prohibits discrimination on the basis of sexual orientation. And when Dale was expelled from the Boy Scouts, BSA said it did so because of his sexual orientation, not because of his sexual conduct.8
It is clear, then, that nothing in these policy statements supports BSA's claim. The only policy written before the revocation of Dale's membership was an equivocal, undis-closed statement that evidences no connection between the group's discriminatory intentions and its expressive interests. The later policies demonstrate a brief—though ulticurred during any Scouting meeting or function . . . . Prior to September 1991, I never heard any mention whatsoever of homosexuality during any Scouting function").
8 At oral argument, BSA's counsel was asked: "[W]hat if someone is homosexual in the sense of having a sexual orientation in that direction but does not engage in any homosexual conduct?" Counsel answered: "[I]f that person also were to take the view that the reason they didn't engage in that conduct [was because] it would be morally wrong . . . that person would not be excluded." Tr. of Oral Arg. 8.
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