Boy Scouts of America v. Dale, 530 U.S. 640, 55 (2000)

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694

BOY SCOUTS OF AMERICA v. DALE

Stevens, J., dissenting

First, it was critical to our analysis that GLIB was actually conveying a message by participating in the parade—otherwise, the parade organizers could hardly claim that they were being forced to include any unwanted message at all. Our conclusion that GLIB was conveying a message was inextricably tied to the fact that GLIB wanted to march in a parade, as well as the manner in which it intended to march. We noted the "inherent expressiveness of marching [in a parade] to make a point," id., at 568, and in particular that GLIB was formed for the purpose of making a particular point about gay pride, id., at 561, 570. More specifically, GLIB "distributed a fact sheet describing the members' intentions" and, in a previous parade, had "marched behind a shamrock-strewn banner with the simple inscription 'Irish American Gay, Lesbian and Bisexual Group of Boston.' " Id., at 570. "[A] contingent marching behind the organization's banner," we said, would clearly convey a message. Id., at 574. Indeed, we expressly distinguished between the members of GLIB, who marched as a unit to express their views about their own sexual orientation, on the one hand, and homosexuals who might participate as individuals in the parade without intending to express anything about their sexuality by doing so. Id., at 572-573.

Second, we found it relevant that GLIB's message "would likely be perceived" as the parade organizers' own speech. Id., at 575. That was so because "[p]arades and demonstrations . . . are not understood to be so neutrally presented or selectively viewed" as, say, a broadcast by a cable operator, who is usually considered to be "merely 'a conduit' for the speech" produced by others. Id., at 575-576. Rather, parade organizers are usually understood to make the "customary determination about a unit admitted to the parade." Id., at 575.

Dale's inclusion in the Boy Scouts is nothing like the case in Hurley. His participation sends no cognizable message to the Scouts or to the world. Unlike GLIB, Dale did not

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