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Model “Dale Clause” to Protect Pro-Family
Organizations in the United States from Litigation
Under the 5-4 Supreme Court decision in Boy Scouts of America v. Dale, private organizations, within
their First Amendment right of “expressive association,” may refuse membership to open homosexuals.
This right may only be upheld by a court, however, if the organization has clearly stated a policy
that homosexual conduct is incompatible with the expressive activity of the organization. The
majority in Dale interpreted the Boy Scouts policy requiring scouts to remain “clean” and “morally
straight” to exclude homosexuals, but a strong dissent emphasized that the Boy Scouts’ policy
regarding homosexuality was not specific enough to warrant a ruling in its favor.
We believe, therefore, that every pro-family group that wishes to preserve its right to exclude open
homosexuals should immediately amend its by-laws to add a “Dale Clause” similar to the following:
It is the official policy of this organization that homosexual conduct is incompatible
with our operation, purpose and expressive message. We reject the notion that homosexuality
is a legitimate form of behavior and we do so both on religious and
nonreligious grounds. On religious grounds we oppose homosexuality as a sin that
violates God’s standard for human sexual expression as defined in the Holy Bible.
On nonreligious grounds we oppose homosexuality as objectively disordered and
contrary to the self-evident heterosexual design of the human body.
While the Dale case unequivocally protects the right of private association regarding group membership,
it is less clear whether Dale protects your rights as an employer to exclude homosexuals as
employees. It seems reasonable that the choice of whom to employ affects “expressive association” to
the same or greater extent as the choice of whom to allow as a member, but this may need to be
clarified by litigation. Please consult with your regular legal counsel in this matter.
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