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BOY SCOUTS OF AMERICA ET AL. v. DALE by the forced inclusion of Dale. First, contrary to the state court's view, an association need not associate
for the purpose of disseminating a certain message in order to be protected, but must merely engage in
expressive activity that could be impaired. Second, even if the Boy Scouts discourages Scout leaders from
CERTIORARI TO THE SUPREME COURT OF NEW JERSEY No. 99-699. Argued April 26, 2000-Decided June
disseminating views on sexual issues, its method of expression is protected. Third, the First Amendment
28, 2000
does not require that every member of a group agree on every issue in order for the group's policy to be
"expressive association." Given that the Boy Scouts' expression would be burdened, the Court must
Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy inquire whether the application of New Jersey's public accommodations law here runs afoul of the
Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. Scouts' freedom of expressive association, and concludes that it does. Such a law is within a State's
It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose power to enact when the legislature has reason to believe that a given group is the target of
position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that discrimination and the law does not violate the First Amendment. See, e. g., id., at 572. The Court rejects
he is an avowed homosexual and gay rights activist. He filed suit in the New Jersey Superior Court, Dale's contention that the intermediate standard of review enunciated in United States v. O'Brien, 391 U.
alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the S. 367, should be applied here to evaluate the
basis of sexual orientation in places of public accommodation. That court's Chancery Division granted
summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and
remanded. The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the State's Syllabus
public accommodations law by revoking Dale's membership based on his avowed homosexuality. Among
other rulings, the court held that application of that law did not violate the Boy Scouts' First Amendment
competing interests of the Boy Scouts and the State. Rather, the Court applies an analysis similar to the
right of expressive association because Dale's inclusion would not significantly affect members' ability to
traditional First Amendment analysis it applied in Hurley. A state requirement that the Boy Scouts retain
carry out their purposes; determined that New Jersey has a compelling interest in eliminating the
Dale would significantly burden the organization's right to oppose or disfavor homosexual conduct. The
destructive consequences of discrimination from society, and that its public accommodations law
state interests embodied in New Jersey's public accommodations law do not justify such a severe
abridges no more speech than is necessary to accomplish its purpose; and
intrusion on the freedom of expressive association. In so ruling, the Court is not guided by its view of
distinguished Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, on
whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or
the ground that Dale's reinstatement did not compel the Boy Scouts to express any message.
judicial disapproval of an organization's expression does not justify the State's effort to compel the
organization to accept members in derogation of the organization's expressive message. While the law
Held: Applying New Jersey's public accommodations law to require the Boy Scouts to readmit Dale may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no
violates the Boy Scouts' First Amendment right of expressive association. Government actions that better reason than promoting an approved message or discouraging a disfavored one, however
unconstitutionally burden that right may take many forms, one of which is intrusion into a group's enlightened either purpose may seem. Hurley, supra, at 579. Pp. 647-661.
internal affairs by forcing it to accept a member it does not desire. Roberts v. United States Jaycees, 468
U. S. 609, 623. Such forced membership is unconstitutional if the person's presence affects in a
160 N. J. 562, 734 A. 2d 1196, reversed and remanded.
significant way the group's ability to advocate public or private viewpoints. New York State Club Assn.,
Inc. v. City of New York, 487 U. S. 1, 13. However, the freedom of expressive association is not absolute;
it can be overridden by regulations adopted to serve compelling REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and
THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER,
JJ., joined, post, p. 663. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ.,
state interests, unrelated to the suppression of ideas, that cannot be achieved through means
joined, post, p. 700.
significantly less restrictive of associational freedoms. Roberts, 468 U. S., at 623. To determine whether a
group is protected, this Court must determine whether the group engages in "expressive association."
The record clearly reveals that the Boy Scouts does so when its adult leaders inculcate its youth George A. Davidson argued the cause for petitioners.
members with its value system. See id., at 636. Thus, the Court must determine whether the forced
inclusion of Dale would significantly affect the Boy Scouts' ability to advocate public or private With him on the briefs were Carla A. Kerr, David K. Park, Michael W McConnell, and Sanford D. Brown.
viewpoints. The Court first must inquire, to a limited extent, into the nature of the Boy Scouts'
viewpoints. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in
the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and Evan Wolfson argued the cause for respondent. With him on the brief were Ruth E. Harlow, David
that the organization does not want to promote homosexual conduct as a legitimate form of behavior. Buckel, Jon W Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas J. Moloney, Allyson W Haynes, and
The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, Lewis H. Robertson.*
see Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 123-124. The Court
then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the *Briefs of amici curiae urging reversal were filed for Agudath Israel of America by David Zwiebel; for the
expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have American Center for Law and Justice et al. by Jay Alan Sekulow, Vincent McCarthy, John P.
become community leaders and are open and honest about their sexual orientation. His presence as an Tuskey, and Laura B. Hernandez; for the American Civil Rights Union by Peter J. Ferrara; for the Becket
assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary Fund for Religious Liberty by Kevin J. Hasson and Eric W Treene; for the California State Club Association
to its beliefs. See Hurley, 515 U. S., at 576-577. This Court disagrees with the New Jersey Supreme Court's et al. by William I. Edlund; for the Center for the Original Intent of the Constitution by Michael P.
determination that the Boy Scouts' ability to disseminate its message would not be significantly affected
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Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby and Carl H. Esbeck; for the First Amendment freedom of expressive association prevented the government from forcing the Boy
Claremont Institute Center Scouts to accept Dale as an adult leader.

The New Jersey Superior Court's Appellate Division affirmed the dismissal of Dale's common-law claim,
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
but otherwise reversed and remanded for further proceedings. 308 N. J. Super. 516, 706 A. 2d 270
(1998). It held that New Jersey's public accommodations law applied to the Boy Scouts and that the Boy
Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of Scouts violated it. The Appellate Division rejected the Boy Scouts' federal constitutional claims.
America (collectively, Boy Scouts). The Boy Scouts is a private, not-forprofit organization engaged in
instilling its system of values in young people. The Boy Scouts asserts that homosexual conduct is
The New Jersey Supreme Court affirmed the judgment of the Appellate Division. It held that the Boy
inconsistent with the values it seeks to instill. Respondent is James Dale, a former Eagle Scout whose
Scouts was a place of public accommodation subject to the public accommodations law, that the
adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an avowed
organization was not exempt from the law under any of its express exceptions, and that the Boy Scouts
homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey's public
violated the law by revoking Dale's membership based on his avowed homosexuality. After considering
accommodations law requires that the Boy Scouts readmit Dale. This case presents the question whether
the state-law issues, the court addressed the Boy Scouts' claims that application of the public
applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment
accommodations law in this case violated its federal constitutional rights "'to enter into and maintain ...
right of expressive association. We hold that it does.
intimate or private relationships ... [and] to associate for the purpose of engaging in protected speech.'"
160 N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board of Directors of Rotary lnt'l v. Rotary Club
I of Duarte, 481 U. S. 537, 544 (1987)). With respect to the right to intimate association, the court
concluded that the Boy Scouts' "large size, nonselectivity, inclusive rather than exclusive purpose, and
James Dale entered Scouting in 1978 at the age of eight by joining Monmouth Council's Cub Scout Pack practice of inviting or allowing nonmembers to attend meetings, establish that the organization is not
142. Dale became a Boy Scout in 1981 and remained a Scout until he turned 18. By all accounts, Dale was 'sufficiently personal or private to warrant constitutional protection' under the freedom of intimate
an exemplary Scout. In 1988, he achieved the rank of Eagle Scout, one of Scouting's highest honors. association." 160 N. J., at 608-609, 734 A. 2d, at 1221 (quoting Duarte, supra, at 546). With respect to the
right of expressive association, the court "agree[d] that Boy Scouts expresses a belief in moral values and
uses its activities to encourage the moral development of its members." 160 N. J., at 613, 734 A. 2d, at
Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his application 1223. But the court concluded that it was "not persuaded ... that a shared goal of Boy Scout members is
for the position of assistant scoutmaster of Troop 73. Around the same time, Dale left home to attend to associate in order to preserve the view that homosexuality is immoral." Ibid., 734 A. 2d, at 1223-1224
Rutgers University. After arriving at Rutgers, Dale first acknowledged to himself and others that he is gay. (internal quotation marks omitted). Accordingly, the court held "that Dale's membership does not violate
He quickly became involved with, and eventually became the copresident of, the Rutgers University the Boy Scouts' right of expressive association because his inclusion would not 'affect in any significant
Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing the psychological and health needs of way [the Boy Scouts'] existing members' ability to carry out their various purposes.'" Id., at 615, 734 A.
lesbian and gay teenagers. A newspaper covering the event interviewed Dale about his advocacy of 2d, at 1225 (quoting Duarte, supra, at 548). The court also determined that New Jersey has a compelling
homosexual teenagers' need for gay role models. In early July 1990, the newspaper published the interest in eliminating "the destructive consequences of discrimination from our society," and that its
interview and Dale's photograph over a caption identifying him as the copresident of the Lesbian/ Gay public accommodations law abridges no more speech than is necessary to accomplish its purpose. 160 N.
Alliance. J., at 619-620,734 A. 2d, at 1227-1228. Finally, the court addressed the Boy Scouts' reliance
on Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), in
Later that month, Dale received a letter from Monmouth Council Executive James Kay revoking his adult support of its claimed First Amendment right to exclude Dale. The court determined that Hurley did not
membership. Dale wrote to Kay requesting the reason for Monmouth Council's decision. Kay responded require deciding the case in favor of the Boy Scouts because "the reinstatement of Dale does not compel
by letter that the Boy Scouts "specifically forbid membership to homosexuals." App. 137. Boy Scouts to express any message." 160 N. J., at 624, 734 A. 2d, at 1229.

In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court. The complaint We granted the Boy Scouts' petition for certiorari to determine whether the application of New Jersey's
alleged that the Boy Scouts had violated New Jersey's public accommodations statute and its common public accommodations law violated the First Amendment. 528 U. S. 1109 (2000).
law by revoking Dale's membership based solely on his sexual orientation. New Jersey's public
accommodations statute prohibits, among other things, discrimination on the basis of sexual orientation II
in places of public accommodation.
In Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984), we observed that "implicit in the right to
The New Jersey Superior Court's Chancery Division granted summary judgment in favor of the Boy engage in activities protected by the First Amendment" is "a corresponding right to associate with others
Scouts. The court held that New Jersey's public accommodations law was inapplicable because the Boy in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." This
Scouts was not a place of public accommodation, and that, alternatively, the Boy Scouts is a distinctly right is crucial in preventing the majority from imposing its views on groups that would rather express
private group exempted from coverage under New Jersey's law. The court rejected Dale's common-law other, perhaps unpopular, ideas. See ibid. (stating that protection of the right to expressive association is
claim, holding that New Jersey's policy is embodied in the public accommodations law. The court also "especially important in preserving political and cultural diversity and in shielding dissident expression
concluded that the Boy Scouts' position in respect of active homosexuality was clear and held that the from suppression by the majority"). Government actions that may unconstitutionally burden this
freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an
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association" like a "regulation that forces the group to accept members it does not desire." Id., at 623. Thus, the general mission of the Boy Scouts is clear: "[T]o instill values in young people." Ibid. The Boy
Forcing a group to accept certain members may impair the ability of the group to express those views, Scouts seeks to instill these values by having its adult leaders spend time with the youth members,
and only those views, that it intends to express. Thus, "[f]reedom of association ... plainly presupposes a instructing and engaging them in activities like camping, archery, and fishing. During the time spent with
freedom not to associate." the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy Scouts'
values-both expressly and by example. It seems indisputable that an association that seeks to transmit
such a system of values engages in expressive activity. See Roberts, supra, at 636 (O'CONNOR, J.,
The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive
concurring) ("Even the training of outdoor survival skills or participation in community service might
association if the presence of that person affects in a significant way the group's ability to advocate
become expressive when the activity is intended to develop good morals, reverence, patriotism, and a
public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988).
desire for self-improvement").
But the freedom of expressive association, like many freedoms, is not absolute. We have held that the
freedom could be overridden "by regulations adopted to serve compelling state interests, unrelated to
the suppression of ideas, that cannot be achieved through means significantly less restrictive of Given that the Boy Scouts engages in expressive activity, we must determine whether the forced
associational freedoms." inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts' ability to advocate
public or private viewpoints. This inquiry necessarily requires us first to explore, to a limited extent, the
nature of the Boy Scouts' view of homosexuality.
To determine whether a group is protected by the First Amendment's expressive associational right, we
must determine whether the group engages in "expressive association." The First Amendment's
protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a The values the Boy Scouts seeks to instill are "based on" those listed in the Scout Oath and Law. App.
group must engage in some form of expression, whether it be public or private. 184. The Boy Scouts explains that the Scout Oath and Law provide "a positive moral code for living; they
are a list of 'do's' rather than 'don'ts.'" Brief for Petitioners 3. The Boy Scouts asserts that homosexual
conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values
Because this is a First Amendment case where the ultimate conclusions of law are virtually inseparable
represented by the terms "morally straight" and "clean."
from findings of fact, we are obligated to independently review the factual record to ensure that the
state court's judgment does not unlawfully intrude on free expression. See Hurley, supra, at 567-568.
The record reveals the following. The Boy Scouts is a private, nonprofit organization. According to its Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation.
mission statement: See supra, at 649. And the terms "morally straight" and "clean" are by no means self-defining. Different
people would attribute to those terms very different meanings. For example, some people may believe
that engaging in homosexual conduct is not at odds with being "morally straight" and "clean." And
"It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people
others may believe that engaging in homosexual conduct is contrary to being "morally straight" and
and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full
"clean." The Boy Scouts says it falls within the latter category.
potential.

The New Jersey Supreme Court analyzed the Boy Scouts' beliefs and found that the "exclusion of
"The values we strive to instill are based on those found in the Scout Oath and Law:
members solely on the basis of their sexual orientation is inconsistent with Boy Scouts' commitment to a
diverse and 'representative' membership ... [and] contradicts Boy Scouts' overarching objective to reach
"Scout Oath "On my honor I will do my best 'all eligible youth.'" 160 N. J., at 618, 734 A. 2d, at 1226. The court concluded that the exclusion of
members like Dale "appears antithetical to the organization's goals and philosophy." Ibid. But our cases
"To do my duty to God and my country "and to obey the Scout Law; reject this sort of inquiry; it is not the role of the courts to reject a group's expressed values because they
disagree with those values or find them internally inconsistent. See Democratic Party of United
States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981) ("[A]s is true of all expressions of First
"To help other people at all times; Amendment freedoms, the courts may not interfere on the ground that they view a particular expression
as unwise or irrational"); see also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S.
"To keep myself physically strong, "mentally awake, and morally straight. 707, 714 (1981) ("[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to
others in order to merit First Amendment protection").
"Scout Law
The Boy Scouts asserts that it "teach[es] that homosexual conduct is not morally straight," Brief for
Petitioners 39, and that it does "not want to promote homosexual conduct as a legitimate form of
"A Scout is: behavior," Reply Brief for Petitioners 5. We accept the Boy Scouts' assertion. We need not inquire
"Trustworthy Obedient further to determine the nature of the Boy Scouts' expression with respect to homosexuality. But
"Loyal Cheerful because the record before us contains written evidence of the Boy Scouts' viewpoint, we look to it as
"Helpful Thrifty instructive, if only on the question of the sincerity of the professed beliefs.
"Friendly Brave
"Courteous Clean
"Kind Reverent." App. 184.
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A 1978 position statement to the Boy Scouts' Executive Committee, signed by Downing B. Jenks, the message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as
President of the Boy Scouts, and Harvey L. Price, the Chief Scout Executive, expresses the Boy Scouts' a legitimate form of behavior.
"official position" with regard to "homosexuality and Scouting":
Hurley is illustrative on this point. There we considered whether the application of Massachusetts' public
"Q. Mayan individual who openly declares himself to be a homosexual be a volunteer Scout leader? accommodations law to require the organizers of a private St. Patrick's Day parade to include among the
marchers an IrishAmerican gay, lesbian, and bisexual group, GLIB, violated the parade organizers' First
Amendment rights. We noted that the parade organizers did not wish to exclude the GLIB members
"A. No. The Boy Scouts of America is a private, membership organization and leadership therein is a
because of their sexual orientations, but because they wanted to march behind a GLIB banner. We
privilege and not a right. We do not believe that homosexuality and leadership in Scouting are
observed:
appropriate. We will continue to select only those who in our judgment meet our standards and
qualifications for leadership." App.453-454.
"[A] contingent marching behind the organization's banner would at least bear witness to the fact that
some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their
Thus, at least as of 1978-the year James Dale entered Scouting-the official position of the Boy Scouts was
view that people of their sexual orientations have as much claim to unqualified social acceptance as
that avowed homosexuals were not to be Scout leaders.
heterosexuals .... The parade's organizers may not believe these facts about Irish sexuality to be so, or
they may object to unqualified social acceptance of gays and lesbians or have some other reason for
A position statement promulgated by the Boy Scouts in 1991 (after Dale's membership was revoked but wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice
before this litigation was filed) also supports its current view: of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the
government's power to control."
"We believe that 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, and that Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the
homosexuals do not provide a desirable role model for Scouts." values it seeks to instill in its youth members; it will not "promote homosexual conduct as a legitimate
form of behavior." Reply Brief for Petitioners 5. As the presence of GLIB in Boston's St. Patrick's Day
This position statement was redrafted numerous times but its core message remained consistent. For parade would have interfered with the parade organizers' choice not to propound a particular point of
example, a 1993 position statement, the most recent in the record, reads, in part: view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout's
choice not to propound a point of view contrary to its beliefs.

"The Boy Scouts of America has always reflected the expectations that Scouting families have had for the
organization. We do not believe that homosexuals provide a role model consistent with these The New Jersey Supreme Court determined that the Boy Scouts' ability to disseminate its message was
expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as not significantly affected by the forced inclusion of Dale as an assistant scoutmaster because of the
leaders of the BSA." following findings:

The Boy Scouts publicly expressed its views with respect to homosexual conduct by its assertions in prior "Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is
litigation. For example, throughout a California case with similar facts filed in the early 1980's, the Boy immoral; Boy Scouts discourages its leaders from disseminating any views on sexual issues; and Boy
Scouts consistently asserted the same position with respect to homosexuality that it asserts today. Scouts includes sponsors and members who subscribe to different views in respect of homosexuality."
See Curran v. Mount Diablo Council of Boy
We disagree with the New Jersey Supreme Court's conclusion drawn from these findings.
We cannot doubt that the Boy Scouts sincerely holds this view.
First, associations do not have to associate for the "purpose" of disseminating a certain message in order
We must then determine whether Dale's presence as an assistant scoutmaster would significantly to be entitled to the protections of the First Amendment. An association must merely engage in
burden the Boy Scouts' desire to not "promote homosexual conduct as a legitimate form of behavior." expressive activity that could be impaired in order to be entitled to protection. For example, the purpose
Reply Brief for Petitioners 5. As we give deference to an association's assertions regarding the nature of of the St. Patrick's Day parade in Hurley was not to espouse any views about sexual orientation, but we
its expression, we must also give deference to an association's view of what would impair its expression. held that the parade organizers had a right to exclude certain participants nonetheless.
See, e. g., La Follette, supra, at 123-124 (considering whether a Wisconsin law burdened the National
Party's associational rights and stating that "a State, or a court, may not constitutionally substitute its Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues-a
own judgment for that of the Party"). That is not to say that an expressive association can erect a shield fact that the Boy Scouts disputes with contrary evidence-the First Amendment protects the Boy Scouts'
against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of sexuality and teach
group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts only by example, this fact does not negate the sincerity of its belief discussed above.
who have "become leaders in their community and are open and honest about their sexual orientation."
App. 11. Dale was the copresident of a gay and lesbian organization at college and remains a gay rights
activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a
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Third, the First Amendment simply does not require that every member of a group agree on every issue In Hurley, we said that public accommodations laws "are well within the State's usual power to enact
in order for the group's policy to be "expressive association." The Boy Scouts takes an official position when a legislature has reason to believe that a given group is the target of discrimination, and they do
with respect to homosexual conduct, and that is sufficient for First Amendment purposes. In this same not, as a general matter, violate the First or Fourteenth Amendments." 515 U. S., at 572. But we went on
vein, Dale makes much of the claim that the Boy Scouts does not revoke the membership of to note that in that case "the Massachusetts [public accommodations] law has been applied in a peculiar
heterosexual Scout leaders that openly disagree with the Boy Scouts' policy on sexual orientation. But if way" because "any contingent of protected individuals with a message would have the right to
this is true, it is irrelevant.1 The presence of an avowed homosexual and gay rights activist in an assistant participate in petitioners' speech, so that the communication produced by the private organizers would
scoutmaster's uniform sends a distinctly different message from the presence of a heterosexual assistant be shaped by all those protected by the law who wished to join in with some expressive demonstration
scoutmaster who is on record as disagreeing with Boy Scouts policy. The Boy Scouts has a First of their own." Id., at 572-573. And in the associational freedom cases such as Roberts, Duarte, and New
Amendment right to choose to send one message but not the other. The fact that the organization does York State Club Assn., after finding a compelling state interest, the Court went on to examine whether or
not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean not the application of the state law would impose any "serious burden" on the organization's rights of
that its views receive no First Amendment protection. expressive association. So in these cases, the associational interest in freedom of expression has been set
on one side of the scale, and the State's interest on the other.
Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale
would significantly affect its expression, we inquire whether the application of New Jersey's public Dale contends that we should apply the intermediate standard of review enunciated in United
accommodations law to require that the Boy Scouts accept Dale as an assistant scoutmaster runs afoul States v. O'Brien, 391 U. S. 367 (1968), to evaluate the competing interests. There the Court enunciated a
of the Scouts' freedom of expressive association. We conclude that it does. four-part test for review of a governmental regulation that has only an incidental effect on protected
speech-in that case the symbolic burning of a draft card. A law prohibiting the destruction of draft cards
only incidentally affects the free speech rights of those who happen to use a violation of that law as a
State public accommodations laws were originally enacted to prevent discrimination in traditional places
symbol of protest. But New Jersey's public accommodations law directly and immediately affects
of public accommodation-like inns and trains. See, e. g., Hurley, supra, at 571-572 (explaining the history
associational rights, in this case associational rights that enjoy First Amendment protection.
of Massachusetts' public accommodations law); Romer v. Evans, 517 U. S. 620, 627-629 (1996)
Thus, O'Brien is inapplicable.
(describing the evolution of public accommodations laws). Over time, the public accommodations laws
have expanded to cover more places.2 New Jersey's statutory definition of" '[a] place of public
accommodation'" is extremely broad. The term is said to "include, but not be limited to," a list of over 50 In Hurley, we applied traditional First Amendment analysis to hold that the application of the
types of places. N. J. Stat. Ann. § 10:5-5(l) (West Supp. 2000); see Appendix, infra, at 661663. Many on Massachusetts public accommodations law to a parade violated the First Amendment rights of the
the list are what one would expect to be places where the public is invited. For example, the statute parade organizers. Although we did not explicitly deem the parade in Hurley an expressive association,
includes as places of public accommodation taverns, restaurants, retail shops, and public libraries. But the analysis we applied there is similar to the analysis we apply here. We have already concluded that a
the statute also includes places that often may not carry with them open invitations to the public, like state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden
summer camps and roof gardens. In this case, the New Jersey Supreme Court went a step further and the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New
applied its public accommodations law to a private entity without even attempting to tie the term Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to
"place" to a physical location.3 As the definition of "public accommodation" has expanded from clearly freedom of expressive association. That being the case, we hold that the First Amendment prohibits the
commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy State from imposing such a requirement through the application of its public accommodations law.
Scouts, the potential for conflict between state public accommodations laws and the First Amendment
rights of organizations has increased.
We anticipated this result in Hurley when we illustrated the reasons for our holding in that case by
likening the parade to a private membership organization. 515 U. S., at 580. We stated: "Assuming the
We recognized in cases such as Roberts and Duarte that States have a compelling interest in eliminating parade to be large enough and a source of benefits (apart from its expression) that would generally
discrimination against women in public accommodations. But in each of these cases we went on to justify a mandated access provision, GLIB could nonetheless be refused admission as an expressive
conclude that the enforcement of these statutes would not materially interfere with the ideas that the contingent with its own message just as readily as a private club could exclude an applicant whose
organization sought to express. In Roberts, we said "[i]ndeed, the Jaycees has failed to demonstrate any manifest views were at odds with a position taken by the club's existing members." Id., at 580-581.
serious burdens on the male members' freedom of expressive association." In Duarte, we said:

JUSTICE STEVENS' dissent makes much of its observation that the public perception of homosexuality in
"[I]mpediments to the exercise of one's right to choose one's associates can violate the right of
this country has changed. See post, at 699-700. Indeed, it appears that homosexuality has gained greater
association protected by the First Amendment. In this case, however, the evidence fails to demonstrate
societal acceptance. See ibid. But this is scarcely an argument for denying First Amendment protection to
that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to
those who refuse to accept these views. The First Amendment protects expression, be it of the popular
carry out their various purposes."
variety or not. See, e. g., Texas v. Johnson, 491 U. S. 397 (1989) (holding that Johnson's conviction for
burning the American flag violates the First Amendment); Brandenburg v. Ohio, 395 U. S. 444 (1969) (per
We thereupon concluded in each of these cases that the organizations' First Amendment rights were not curiam) (holding that a Ku Klux Klan leader's conviction for advocating unlawfulness as a means of
violated by the application of the States' public accommodations laws. political reform violates the First Amendment). And the fact that an idea may be embraced and
advocated by increasing numbers of people is all the more reason to protect the First Amendment rights
of those who wish to voice a different view.
6

JUSTICE STEVENS' extolling of Justice Brandeis' comments in New State Ice Co. v. Liebmann, 285 U. S. any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any
262, 311 (1932) (dissenting opinion); see post, at 664, 700, confuses two entirely different principles. place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or
In New State Ice, the Court struck down an Oklahoma regulation prohibiting the manufacture, sale, and confections, or where any beverages of any kind are retailed for consumption on the premises; any
distribution of ice without a license. Justice Brandeis, a champion of state experimentation in the garage, any public conveyance operated on land or water, or in the air, any stations and terminals
economic realm, dissented. But Justice Brandeis was never a champion of state experimentation in the thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall;
suppression of free speech. To the contrary, his First Amendment commentary provides compelling any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and
support for the Court's opinion in this case. In speaking of the Founders of this Nation, Justice Brandeis recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place
emphasized that they "believed that freedom to think as you will and to speak as you think are means of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any
indispensable to the discovery and spread of political truth." Whitney v. California, 274 U. S. 357, 375 kindergarten, primary and secondary school, trade or business school, high school, academy, college and
(1927) (concurring opinion). He continued: university, or any educational institution under the supervision of the State Board of Education, or the
Commissioner of Education of the State of New Jersey.
"Believing in the power of reason as applied through public discussion, they eschewed silence coerced by
law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or
majorities, they amended the Constitution so that free speech and assembly should be place of accommodation, which is in its nature distinctly private; nor shall anything herein contained
guaranteed." Id., at 375-376. apply to any educational facility operated or maintained by a bona fide religious or sectarian institution,
and the right of a natural parent or one in loco parentis to direct the education and upbringing of a child
under his control is hereby affirmed; nor shall anything herein contained be construed to bar any private
We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to
secondary or post secondary school from using in good faith criteria other than race, creed, color,
homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's
national origin, ancestry or affectional or sexual orientation in the admission of students."
expression does not justify the State's effort to compel the organization to accept members where such
acceptance would derogate from the organization's expressive message. "While the law is free to
promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
better reason than promoting an approved message or discouraging a disfavored one, however
enlightened either purpose may strike the government." Hurley, 515 U. S., at 579.
New Jersey "prides itself on judging each individual by his or her merits" and on being "in the vanguard
in the fight to eradicate the cancer of unlawful discrimination of all types from our
The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further society." Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80, 389 A. 2d 465,478 (1978). Since 1945, it
proceedings not inconsistent with this opinion. has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain
the advantages and privileges "of any place of public accommodation." N. J. Stat. Ann. § 10:5-4 (West
Supp. 2000). The New Jersey Supreme Court's construction of the statutory definition of a "place of
It is so ordered.
public accommodation" has given its statute a more expansive coverage than most similar state statutes.
And as amended in 1991, the law prohibits discrimination on the basis of nine different traits including
APPENDIX TO OPINION OF THE COURT an individual's "sexual orientation." 1 The question in this case is whether that expansive construction
trenches on the federal constitutional rights of the Boy Scouts of America (BSA).
N. J. Stat. Ann. § 10:5-4 (West Supp. 2000). "Obtaining employment, accommodations and privileges
without discrimination; civil right Because every state law prohibiting discrimination is designed to replace prejudice with principle, Justice
Brandeis' comment on the States' right to experiment with "things social" is directly applicable to this
"All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, case.
advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing
accommodation, and other real property without discrimination because of race, creed, color, national "To stay experimentation in things social and economic is a grave responsibility. Denial of the right to
origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of
to conditions and limitations applicable alike to all persons. This opportunity is recognized as and the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and
declared to be a civil right." try novel social and economic experiments without risk to the rest of the country. This Court has the
power to prevent an experiment. We may strike down the statute which embodies it on the ground that,
N. J. Stat. Ann. § 10:5-5 (West Supp. 2000). "Definitions "As used in this act, unless a different meaning in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because
clearly appears from the context: the due process clause has been held by the Court applicable to matters of substantive law as well as to
matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect
our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be
"l. 'A place of public accommodation' shall include, but not be limited to: any tavern, roadhouse, hotel, bold." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion).
motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment of transient
guests or accommodation of those seeking health, recreation or rest; any producer, manufacturer,
wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of
7

In its "exercise of this high power" today, the Court does not accord this "courageous State" the respect "A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop. He obeys the laws of his
that is its due. community and country. If he thinks these rules and laws are unfair, he tries to have them changed in an
orderly manner rather than disobey them."
The majority holds that New Jersey's law violates BSA's right to associate and its right to free speech. But
that law does not "impos[e] any serious burdens" on BSA's "collective effort on behalf of [its] shared To bolster its claim that its shared goals include teaching that homosexuality is wrong, BSA directs our
goals," Roberts v. United States Jaycees, 468 U. S. 609, 622, 626-627 (1984), nor does it force BSA to attention to two terms appearing in the Scout Oath and Law. The first is the phrase "morally straight,"
communicate any message that it does not wish to endorse. New Jersey's law, therefore, abridges no which appears in the Oath ("On my honor I will do my best ... To keep myself ... morally straight"); the
constitutional right of BSA. second term is the word "clean," which appears in a list of 12 characteristics together constituting the
Scout Law.
I
The Boy Scout Handbook defines "morally straight," as such:
James Dale joined BSA as a Cub Scout in 1978, when he was eight years old. Three years later he became
a Boy Scout, and he remained a member until his 18th birthday. Along the way, he earned 25 merit "To be a person of strong character, guide your life with honesty, purity, and justice. Respect and defend
badges, was admitted into the prestigious Order of the Arrow, and was awarded the rank of Eagle Scout- the rights of all people. Your relationships with others should be honest and open. Be clean in your
an honor given to only three percent of all Scouts. In 1989, BSA approved his application to be an speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help you
Assistant Scoutmaster. become virtuous and self-reliant."

On July 19, 1990, after more than 12 years of active and honored participation, the BSA sent Dale a letter The Scoutmaster Handbook emphasizes these points about being "morally straight":
advising him of the revocation of his membership. The letter stated that membership in BSA "is a
privilege" that may be denied "whenever there is a concern that an individual may not meet the high
"In any consideration of moral fitness, a key word has to be 'courage.' A boy's courage to do what his
standards of membership which the BSA seeks to provide for American youth." App. 135. Expressing
head and his heart tell him is right. And the courage to refuse to do what his heart and his head say is
surprise at his sudden expulsion, Dale sent a letter requesting an explanation of the decision. Id., at 136.
wrong. Moral fitness, like emotional fitness, will clearly present opportunities for wise guidance by an
In response, BSA sent him a second letter stating that the grounds for the decision "are the standards for
alert Scoutmaster." Id., at 239-240.
leadership established by the Boy Scouts of America, which specifically forbid membership to
homosexuals." Id., at 137. At that time, no such standard had been publicly expressed by BSA.
As for the term "clean," the Boy Scout Handbook offers the following:
In this case, BSA contends that it teaches the young boys who are Scouts that homosexuality is immoral.
Consequently, it argues, it would violate its right to associate to force it to admit homosexuals as "A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the company of those who
members, as doing so would be at odds with its own shared goals and values. This contention, quite live by these same ideals. He helps keep his home and community clean.
plainly, requires us to look at what, exactly, are the values that BSA actually teaches.
"You never need to be ashamed of dirt that will wash off. If you play hard and work hard you can't help
BSA's mission statement reads as follows: "It is the mission of the Boy Scouts of America to serve others getting dirty. But when the game is over or the work is done, that kind of dirt disappears with soap and
by helping to instill values in young people and, in other ways, to prepare them to make ethical choices water.
over their lifetime in achieving their full potential." Id., at 184. Its federal charter declares its purpose is
"to promote, through organization, and cooperation with other agencies, the ability of boys to do things "There's another kind of dirt that won't come off by washing. It is the kind that shows up in foul language
for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self- and harmful thoughts.
reliance, and kindred values, using the methods which were in common use by Boy Scouts on June 15,
1916." 36 U. S. C. § 23; see also App. 315-316. BSA describes itself as having a "representative
membership," which it defines as "boy membership [that] reflects proportionately the characteristics of "Swear words, profanity, and dirty stories are weapons that ridicule other people and hurt their feelings.
the boy population of its service area." Id., at 65. In particular, the group emphasizes that "[n]either the The same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental
charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy .... To meet these limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He avoids it in
responsibilities we have made a commitment that our membership shall be representative of all the his own words and deeds. He defends those who are targets of insults."
population in every community, district, and council." Id., at 66-67 (emphasis in original).
It is plain as the light of day that neither one of these principles-"morally straight" and "clean"-says the
To instill its shared values, BSA has adopted a "Scout Oath" and a "Scout Law" setting forth its central slightest thing about homosexuality. Indeed, neither term in the Boy Scoutmasters are instructed to
tenets. For example, the Scout Law requires a member to promise, among other things, that he will be teach what it means to be "clean" using the following lesson:
"obedient." Accompanying definitions for the terms found in the Oath and Law are provided in the Boy
Scout Handbook and the Scoutmaster Handbook. For instance, the Boy Scout Handbook defines
"obedient" as follows:
8

"(Hold up two cooking pots, one shiny bright on the inside but sooty outside, the other shiny outside but "Rule number 2: If Scouts come to you to ask questions or to seek advice, you would give it within your
dirty inside.) Scouts, which of these pots would you rather have your food cooked in? Did I hear competence. A boy who appears to be asking about sexual intercourse, however, may really only be
somebody say, 'Neither one?' worried about his pimples, so it is well to find out just what information is needed.

"That's not a bad answer. We wouldn't have much confidence in a patrol cook who didn't have his pots "Rule number 3: You should refer boys with sexual problems to persons better qualified than you [are] to
shiny both inside and out. handle them. If the boy has a spiritual leader or a doctor who can deal with them, he should go there. If
such persons are not available, you may just have to do the best you can. But don't try to play a highly
professional role. And at the other extreme, avoid passing the buck."
"But if we had to make a choice, we would tell the cook to use the pot that's clean inside. The same idea
applies to people.
In light of BSA's self-proclaimed ecumenism, furthermore, it is even more difficult to discern any shared
goals or common moral stance on homosexuality. Insofar as religious matters are concerned, BSA's
"Most people keep themselves clean outside. But how about the inside? Do we try to keep our minds
bylaws state that it is "absolutely nonsectarian in its attitude toward ... religious training." Id., at 362.
and our language clean? I think that's even more important than keeping the outside clean.
"The BSA does not define what constitutes duty to God or the practice of religion. This is the
responsibility of parents and religious leaders." Id., at 76. In fact, many diverse religious organizations
"A Scout, of course, should be clean inside and out. Water, soap, and a toothbrush tak[e] care of the sponsor local Boy Scout troops. Brief for Petitioners 3. Because a number of religious groups do not view
outside. Only your determination will keep the inside clean. You can do it by following the Scout Law and homosexuality as immoral or wrong and reject discrimination against homosexuals,3 it is exceedingly
the example of people you respect-your parents, your teachers, your clergyman, or a good buddy who is difficult to believe that BSA nonetheless adopts a single particular religious or moral philosophy when it
trying to do the same thing." comes to sexual orientation. This is especially so in light of the fact that Scouts are advised to seek
guidance on sexual matters from their religious leaders (and Scoutmasters are told to refer Scouts to
Scouts' Law and Oath expresses any position whatsoever on sexual matters. them); 4 BSA surely is aware that some religions do not teach that homosexuality is wrong.

BSA's published guidance on that topic underscores this point. Scouts, for example, are directed to II
receive their sex education at home or in school, but not from the organization:
The Court seeks to fill the void by pointing to a statement of "policies and procedures relating to
"Your parents or guardian or a sex education teacher should give you the facts about sex that you must homosexuality and Scouting," App. 453, signed by BSA's President and Chief Scout Executive in 1978 and
know." Boy Scout Handbook (1992) (reprinted in App. 211). To be sure, Scouts are not forbidden from addressed to the members of the Executive Committee of the national organization. Ante, at 651-652.
asking their Scoutmaster about issues of a sexual nature, but Scoutmasters are, literally, the last person The letter says that the BSA does "not believe that homosexuality and leadership in Scouting are
Scouts are encouraged to ask: "If you have questions about growing up, about relationships, sex, or appropriate." App. 454. But when the entire 1978 letter is read, BSA's position is far more equivocal:
making good decisions, ask. Talk with your parents, religious leaders, teachers, or
Scoutmaster." Ibid. Moreover, Scoutmasters are specifically directed to steer curious adolescents to "4. Q. Mayan individual who openly declares himself to be a homosexual be employed by the Boy Scouts
other sources of information: of America as a professional or non-professional?

"If Scouts ask for information regarding ... sexual activity, answer honestly and factually, but stay within "A. Boy Scouts of America does not knowingly employ homosexuals as professionals or non-
your realm of expertise and comfort. If a Scout has serious concerns that you cannot answer, refer him professionals. We are unaware of any present laws which would prohibit this policy.
to his family, religious leader, doctor, or other professional."
"5. Q. Should a professional or non-professional individual who openly declares himself to be a
More specifically, BSA has set forth a number of rules for Scoutmasters when these types of issues come homosexual be terminated?
up:
"A. Yes, in the absence of any law to the contrary.
"You may have boys asking you for information or advice about sexual matters ....
At the present time we are unaware of any statute or ordinance in the United States which prohibits
"How should you handle such matters? discrimination against individual's employment upon the basis of homosexuality. In the event that such a
law was applicable, it would be necessary for the Boy Scouts of America to obey it, in this case as in
"Rule number 1: You do not undertake to instruct Scouts, in any formalized manner, in the subject of sex Paragraph J, above. It is our position, however, that homosexuality and professional or non-professional
and family life. The reasons are that it is not construed to be Scouting's proper area, and that you are employment in Scouting are not appropriate." Id., at 454-455 (emphasis added).
probably not well qualified to do this.
9

Four aspects of the 1978 policy statement are relevant to the proper disposition of this case. First, at had for the organization." Ibid. Instead of linking its policy to its central tenets or shared goals-to teach
most this letter simply adopts an exclusionary membership policy. But simply adopting such a policy has certain definitions of what it means to be "morally straight" and "clean"-BSA chose instead to justify its
never been considered sufficient, by itself, to prevail on a right to associate claim. See infra, at 678-685. policy on the "expectatio[n]" that its members preferred to exclude homosexuals. The 1993 policy
statement, in other words, was not based on any expressive activity or on any moral view about
homosexuality. It was simply an exclusionary membership policy, similar to those we have held
Second, the 1978 policy was never publicly expressed-unlike, for example, the Scout's duty to be
insufficient in the past. See infra, at 678-685.
"obedient." It was an internal memorandum, never circulated beyond the few members of BSA's
Executive Committee. It remained, in effect, a secret Boy Scouts policy. Far from claiming any intent to
express an idea that would be burdened by the presence of homosexuals, BSA's public posture-to the "The Boy Scouts of America has always reflected the expectations that Scouting families have had for the
world and to the Scouts themselves-remained what it had always been: one of tolerance, welcoming all organization.
classes of boys and young men. In this respect, BSA's claim is even weaker than those we have rejected
in the past. See ibid.
"We do not believe that homosexuals provide a role model consistent with these expectations.

Third, it is apparent that the draftsmen of the policy statement foresaw the possibility that laws against
"Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of
discrimination might one day be amended to protect homosexuals from employment discrimination.
the BSA." Id., at 461.
Their statement clearly provided that, in the event such a law conflicted with their policy, a Scout's duty
to be "obedient" and "obe[y] the laws," even if "he thinks [the laws] are unfair," would prevail in such a
contingency. See supra, at 666. In 1978, however, BSA apparently did not consider it to be a serious Aside from the fact that these statements were all issued after Dale's membership was revoked, there
possibility that a State might one day characterize the Scouts as a "place of public accommodation" with are four important points relevant to them. First, while the 1991 and 1992
a duty to open its membership to all qualified individuals. The portions of the statement dealing with
membership simply assume that membership in the Scouts is a "privilege" that BSA is free to grant or to "js"), but BSA never tells us to whom these initials belong. Nor do we know how widely these statements
withhold. The statement does not address the question whether the publicly proclaimed duty to obey were distributed. From the record evidence we have, it appears that they were not as readily available as
the law should prevail over the private discriminatory policy if, and when, a conflict between the two the Boy Scout and Scoutmaster Handbooks; indeed, they appear to be quite difficult to get a hold of. See
should arise-as it now has in New Jersey. At the very least, then, the statement reflects no unequivocal App. 662, 668-669.
view on homosexuality. Indeed, the statement suggests that an appropriate way for BSA to preserve its
unpublished exclusionary policy would include an open and forthright attempt to seek an amendment of
New Jersey's statute. ("If he thinks these rules and laws are unfair, he tries to have them changed in an 6 Dale's complaint requested three forms of relief: (1) a declaration that his rights under the New Jersey
orderly manner rather than disobey them.") statute had been violated when his membership was revoked; (2) an order reinstating his membership;
and (3) compensatory and punitive damages. Id., at 27. Nothing that BSA could have done after the
revocation of his membership could affect Dale's first request for relief, though perhaps some possible
Fourth, the 1978 statement simply says that homosexuality is not "appropriate." It makes no effort to postrevocation action could have influenced the other two requests for relief.
connect that statement to a shared goal or expressive activity of the Boy Scouts. Whatever values BSA
seeks to instill in Scouts, the idea that homosexuality is not "appropriate" appears entirely unconnected
to, and is mentioned nowhere in, the myriad of publicly declared values and creeds of the BSA. That idea Second, even during the brief period in 1991 and 1992, when BSA tried to connect its exclusion of
does not appear to be among any of the principles actually taught to Scouts. Rather, the 1978 policy homosexuals to its definition of terms found in the Oath and Law, there is no evidence that Scouts were
appears to be no more than a private statement of a few BSA executives that the organization wishes to actually taught anything about homosexuality's alleged inconsistency with those principles. Beyond the
exclude gays-and that wish has nothing to do with any expression BSA actually engages in. single sentence in these policy statements, there is no indication of any shared goal of teaching that
homosexuality is incompatible with being "morally straight" and "clean." Neither BSA's mission
statement nor its official membership policy was altered; no Boy Scout or Scoutmaster Handbook was
The majority also relies on four other policy statements that were issued between 1991 and 1993.5 All of amended to reflect the policy statement; no lessons were imparted to Scouts; no change was made to
them were written and issued after BSA revoked Dale's membership. Accordingly, they have little, if any, BSA's policy on limiting discussion of sexual matters; and no effort was made to restrict acceptable
relevance to the legal question before this Court.6 In any event, they do not bolster BSA's claim. religious affiliations to those that condemn homosexuality. In short, there is no evidence that this view
was part of any collective effort to foster beliefs about homosexuality.7
In 1991, BSA issued two statements both stating: "We believe that homosexual conduct is inconsistent
with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Indeed, the record evidence is to the contrary. See, e. g., App. 666-669 (affidavit of former Boy Scout
Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for whose young children were Scouts, and was himself an assistant scoutmaster and Merit Badge
Scouts." App. 457-458. A third statement issued in 1992 was substantially the same. Id., at 459. By 1993, counselor) ("I never heard and am not aware of any discussion about homosexuality that oc-
however, the policy had changed:

Third, BSA never took any clear and unequivocal position on homosexuality. Though the 1991 and 1992
"BSA Position statements tried to tie BSA's exclusionary policy to the meaning of the Scout Oath and policies state one interpretation of "morally straight" and "clean," the group's published definitions
Law, the 1993 statement abandoned that effort. Rather, BSA's 1993 homosexual exclusion policy was appearing in the Boy Scout and Scoutmaster Handbooks take quite another view. And BSA's broad
based on its view that including gays would be contrary to "the expectations that Scouting families have religious tolerance combined with its declaration that sexual matters are not its "proper area" render its
10

views on the issue equivocal at best and incoherent at worst. We have never held, however, that a group Inc. v. City of New York, 487 U. S. 1, 13 (1988). For example, we have routinely and easily rejected
can throw together any mixture of contradictory positions and then invoke the right to associate to assertions of this right by expressive organizations with discriminatory membership policies, such as
defend anyone of those views. At a minimum, a group seeking to prevail over an antidiscrimination law private schools,lO law firms,l1 and labor organizations.12 In fact, until today, we have never once found
must adhere to a clear and unequivocal view. a claimed right to associate in the selection of members to prevail in the face of a State's
antidiscrimination law. To the contrary, we have squarely held that a State's antidiscrimination law does
not violate a group's right to associate simply because the law conflicts with that group's exclusionary
Fourth, at most the 1991 and 1992 statements declare only that BSA believed "homosexual conduct is
membership policy.
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 In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we addressed just such a conflict. The Jaycees
said it did so because of his sexual orientation, not because of his sexual conduct. was a nonprofit membership organization "'designed to inculcate in the individual membership ... a spirit
of genuine Americanism and civic interest, and ... to provide ... an avenue for intelligent participation by
young men in the affairs of their community.'" Id., at 612-613. The organization was divided into local
It is clear, then, that nothing in these policy statements supports BSA's claim. The only policy written
chapters, described as "'young men's organization[s],'" in which regular membership was restricted to
before the revocation of Dale's membership was an equivocal, undisclosed statement that evidences no
males between the ages of 18 and 35. Id., at 613. But Minnesota's Human Rights Act, which applied to
connection between the group's discriminatory intentions and its expressive interests. The later policies
the Jaycees, made it unlawful to "'deny any person the full and equal enjoyment of ... a place of public
demonstrate a brief-though ultimately abandoned-attempt to tie BSA's exclusion to its expression, but
accommodation because of ... sex.'" Id., at 615. The Jaycees, however, claimed that applying the law to it
other than a single sentence, BSA fails to show that it ever taught Scouts that homosexuality is not
violated its right to associate-in particular its right to maintain its selective membership policy.
"morally straight" or "clean," or that such a view was part of the group's collective efforts to foster a
belief. Furthermore, BSA's policy statements fail to establish any clear, consistent, and unequivocal
position on homosexuality. Nor did BSA have any reason to think Dale's sexual conduct, as opposed to his We rejected that claim. Cautioning that the right to associate is not "absolute," we held that
orientation, was contrary to the group's values. "[i]nfringements on that right may be justified by regulations adopted to serve compelling state
interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less
restrictive of associational freedoms." Id., at 623. We found the State's purpose of eliminating
BSA's inability to make its position clear and its failure to connect its alleged policy to its expressive
discrimination is a compelling state interest that is unrelated to the suppression of ideas. Id., at 623-626.
activities is highly significant. By the time Dale was expelled from the Boy Scouts in 1990, BSA had
We also held that Minnesota's law is the least restrictive means of achieving that interest. The Jaycees
already been engaged in several suits under a variety of state antidiscrimination public accommodation
had "failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of
laws challenging various aspects of its membership policy.9 Indeed, BSA had filed amicus briefs before
expressive association." Id., at 626. Though the Jaycees had "taken public positions on a number of
this Court in two earlier right to associate cases (Roberts v. United States Jaycees, 468 U. S. 609 (1984),
diverse issues, [and] ... regularly engage in a variety of ... activities worthy of constitutional protection
and Board of Directors of Rotary lnt'l v. Rotary Club of Duarte, 481 U. S. 537 (1987)) pointing to these
under the First Amendment," there was "no basis in the record for concluding that admission of women
very cases; it was clearly on notice by 1990 that it might well be subjected to state public
as full voting members will impede the organization's ability to engage in these protected activities or to
accommodation antidiscrimination laws, and that a court might one day reject its claimed right to
disseminate its preferred views." Id., at 626-627. "The Act," we held, "requires no change in the Jaycees'
associate. Yet it took no steps prior to Dale's expulsion to clarify how its exclusivity was connected to its
creed of promoting the interest of young men, and it imposes no restrictions on the organization's ability
expression. It speaks volumes about the credibility of BSA's claim to a shared goal that homosexuality is
to exclude individuals with ideologies or philosophies different from those of its existing members."
incompatible with Scouting that since at least 1984 it had been aware of this issue-indeed, concerned
enough to twice file amicus briefs before this Court-yet it did nothing in the intervening six years (or
even in the years after Dale's explusion) to explain clearly and openly why the presence of homosexuals We took a similar approach in Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U. S.
would affect its expressive activities, or to make the view of "morally straight" and "clean" taken in its 537 (1987). Rotary International, a nonprofit corporation, was founded as "'an organization of business
1991 and 1992 policies a part of the values actually instilled in Scouts through the Handbook, lessons, or and professional men united worldwide who provide humanitarian service, encourage high ethical
otherwise. standards in all vocations, and help build goodwill and peace in the world.'" Id., at 539. It admitted a
cross section of worthy business and community leaders, id., at 540, but refused membership to women.
"[T]he exclusion of women," explained the group's General Secretary, "results in an 'aspect of fellowship
III
... that is enjoyed by the present male membership.'" Id., at 541. That policy also allowed the
organization "to operate effectively in foreign countries with varied cultures and social
BSA's claim finds no support in our cases. We have recognized "a right to associate for the purpose of mores." Ibid. Though California's Civil Rights Act, which applied to Rotary International, prohibited
engaging in those activities protected by the First Amendmentspeech, assembly, petition for the redress discrimination on the basis of sex, id., at 541-542, n. 2, the organization claimed a right to associate,
of grievances, and the exercise of religion." Roberts, 468 U. S., at 618. And we have acknowledged that including the right to select its members.
"when the State interferes with individuals' selection of those with whom they wish to join in a common
endeavor, freedom of association ... may be implicated." Ibid. But "[t]he right to associate for expressive
As in Jaycees, we rejected the claim, holding that "the evidence fails to demonstrate that admitting
purposes is not ... absolute"; rather, "the nature and degree of constitutional protection afforded
women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their
freedom of association may vary depending on the extent to which ... the constitutionally protected
various purposes." 481 U. S., at 548. "To be sure," we continued, "Rotary Clubs engage in a variety of
liberty is at stake in a given case." Id., at 623, 618. Indeed, the right to associate does not mean "that in
commendable service activities that are protected by the First Amendment. But [California's Civil Rights
every setting in which individuals exercise some discrimination in choosing associates, their selective
Act] does not require the clubs to abandon or alter any of these activities. It does not require them to
process of inclusion and exclusion is protected by the Constitution." New York State Club Assn.,
11

abandon their basic goals of humanitarian service, high ethical standards in all vocations, good will, and Oath and Law-and accompanying definitions-are devoid of any view on the topic; its guidance for Scouts
peace. Nor does it require them to abandon their classification system or admit members who do not and Scoutmasters on sexuality declare that such matters are "not construed to be Scouting's proper
reflect a cross section of the community." Ibid. Finally, even if California's law worked a "slight area," but are the province of a Scout's parents and pastor; and BSA's posture respecting religion
infringement on Rotary members' right of expressive association, that infringement is justified because it tolerates a wide variety of views on the issue of homosexuality. Moreover, there is simply no evidence
serves the State's compelling interest in eliminating discrimination against women." Id., at 549.13 that BSA otherwise teaches anything in this area, or that it instructs Scouts on matters involving
homosexuality in ways not conveyed in the Boy Scout or Scoutmaster Handbooks. In short, Boy Scouts of
America is simply silent on homosexuality. There is no shared goal or collective effort to foster a belief
13 BSA urged on brief that under the New Jersey Supreme Court's reading of the State's
about homosexuality at all-let alone one that is significantly burdened by admitting homosexuals.
antidiscrimination law, "Boy Scout Troops would be forced to admit girls as members" and "Girl Scout
Troops would be forced to admit boys." Brief for Petitioners 37. The New Jersey Supreme Court had no
occasion to address that question, and no such issue is tendered for our decision. I note, however, the As in Jaycees, there is "no basis in the record for concluding that admission of [homosexuals] will impede
State of New Jersey's observation that BSA ignores the exemption contained in New Jersey's law for" the [Boy Scouts'] ability to engage in [its] protected activities or to disseminate its preferred views" and
'any place of public accommodation which is in its nature reasonably restricted exclusively to one sex,'" New Jersey's law "requires no change in [BSA's] creed." 468 U. S., at 626-627. And like Rotary Club, New
including, but not limited to, "'any summer camp, day camp, or resort camp, bathhouse, dressing room, Jersey's law "does not require [BSA] to abandon or alter any of" its activities. 481 U. S., at 548. The
swimming pool, gymnasium, comfort station, dispensary, clinic or hospital, or school or educational evidence relied on by the Court is not to the contrary. The undisclosed 1978 policy certainly adds nothing
institution which is restricted exclusively to individuals of one sex.''' See Brief for State of New Jersey to the actual views disseminated to the Scouts. It simply says that homosexuality is not "appropriate."
as Amicus Curiae 12-13, n. 2 (citing N. J. Stat. Ann. § 10:5-12(f) (West 1993)). There is no reason to give that policy statement more weight than Rotary International's assertion that
all-male membership fosters the group's "fellowship" and was the only way it could "operate
effectively." As for BSA's postrevocation statements, at most they simply adopt a policy of
15The Jaycees openly stated that it was an organization designed to serve the interests of "young men";
discrimination, which is no more dispositive than the openly discriminatory policies held insufficient
its local chapters were described as "'young men's organization[s]"'; and its membership policy
in Jaycees and Rotary Club; there is no evidence here that BSA's policy was necessary toor even a part of-
contained an express provision reserving regular membership to young men. Jaycees, 468 U. S., at 612-
BSA's expressive activities or was ever taught to Scouts.
613. Likewise, Rotary International expressed its preference for male-only membership: It proclaimed
that it was" 'an organization of business and professional men'" and its membership policy expressly
excluded women. Rotary Club, 481 U. S., at 539, 541 (emphasis added). Equally important is BSA's failure to adopt any clear position on homosexuality. BSA's temporary, though
ultimately abandoned, view that homosexuality is incompatible with being "morally straight" and "clean"
is a far cry from the clear, unequivocal statement necessary to prevail on its claim. Despite the solitary
Rather, in Jaycees, we asked whether Minnesota's Human Rights Law requiring the admission of women
sentences in the 1991 and 1992 policies, the group continued to disclaim any single religious or moral
"impose[d] any serious burdens" on the group's "collective effort on behalf of [its] shared goals." 468 U.
position as a general matter and actively eschewed teaching any lesson on sexuality. It also continued to
S., at 622,626-627 (emphases added). Notwithstanding the group's obvious publicly stated exclusionary
define "morally straight" and "clean" in the Boy Scout and Scoutmaster Handbooks without any
policy, we did not view the inclusion of women as a "serious burden" on the Jaycees' ability to engage in
reference to homosexuality. As noted earlier, nothing in our cases suggests that a group can prevail on a
the protected speech of its choice. Similarly, in Rotary Club, we asked whether California's law would
right to expressive association if it, effectively, speaks out of both sides of its mouth. A State's
"affect in any significant way the existing members' ability" to engage in their protected speech, or
antidiscrimination law does not impose a "serious burden" or a "substantial restraint" upon the group's
whether the law would require the clubs "to abandon their basic goals." 481 U. S., at 548 (emphases
"shared goals" if the group itself is unable to identify its own stance with any clarity.
added); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557,
581 (1995) ("[A] private club could exclude an applicant whose manifest views were at odds with a
position taken by the club's existing members"); New York State Club Assn., 487 U. S., at 13 (to prevail on IV
a right to associate claim, the group must "be able to show that it is organized for specific expressive
purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot
The majority pretermits this entire analysis. It finds that BSA in fact" 'teach[es] that homosexual conduct
confine its membership to those who share the same sex, for example, or the same
is not morally straight.'" Ante, at 651. This conclusion, remarkably, rests entirely on statements in BSA's
religion"); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462-463 (1958) (asking whether law
briefs. See ibid. (citing Brief for Petitioners 39; Reply Brief for Petitioners 5). Moreover, the majority
"entail[ed] the likelihood of a substantial restraint upon the exercise by petitioner's members of their
insists that we must "give deference to an association's assertions regarding the nature of its expression"
right to freedom of association" and whether law is "likely to affect adversely the ability of petitioner and
and "we must also give deference to an association's view of what would impair its expression." Ante, at
its members to pursue their collective effort to foster beliefs"). The relevant question is whether the
mere inclusion of the person at issue would "impose any serious burden," "affect in any significant way,"
or be "a substantial restraint upon" the organization's "shared goals," "basic goals," or "collective effort So long as the record "contains written evidence" to support a group's bare assertion, "[w]e need not
to foster beliefs." Accordingly, it is necessary to examine what, exactly, are BSA's shared goals and the inquire further." Ante, at 651. Once the organization "asserts" that it engages in particular
degree to which its expressive activities would be burdened, affected, or restrained by including expression, ibid., "[w]e cannot doubt" the truth of that assertion, ante, at 653.
homosexuals.

This is an astounding view of the law. I am unaware of any previous instance in which our analysis of the
The evidence before this Court makes it exceptionally clear that BSA has, at most, simply adopted an scope of a constitutional right was determined by looking at what a litigant asserts in his or her brief and
exclusionary membership policy and has no shared goal of disapproving of homosexuality. BSA's mission inquiring no further. It is even more astonishing in the First Amendment area, because, as the majority
statement and federal charter say nothing on the matter; its official membership policy is silent; its Scout itself acknowledges, "we are obligated to independently review the factual record." Ante, at 648649. It is
12

an odd form of independent review that consists of deferring entirely to whatever a litigant claims. But V
the majority insists that our inquiry must be "limited," ante, at 650, because "it is not the role of the
courts to reject a group's expressed values because they disagree with those values or find them
Even if BSA's right to associate argument fails, it nonetheless might have a First Amendment right to
internally inconsistent," ante, at 651. See also Brief for Petitioners 25 ("[T]he Constitution protects
refrain from including debate and dialogue about homosexuality as part of its mission to instill values in
[BSA's] ability to control its own message").
Scouts. It can, for example, advise Scouts who are entering adulthood and have questions about sex to
talk "with your parents, religious leaders, teachers, or Scoutmaster," and, in turn, it can direct
But nothing in our cases calls for this Court to do any such thing. An organization can adopt the message Scoutmasters who are asked such questions "not undertake to instruct Scouts, in any formalized
of its choice, and it is not this Court's place to disagree with it. But we must inquire whether the group is, manner, in the subject of sex and family life" because "it is not construed to be Scouting's proper area."
in fact, expressing a message (whatever it may be) and whether that message (if one is expressed) is See supra, at 669-670. Dale's right to advocate certain beliefs in a public forum or in a private debate
significantly affected by a State's antidiscrimination law. More critically, that inquiry requires does not include a right to advocate these ideas when he is working as a Scoutmaster. And BSA cannot
our independent analysis, rather than deference to a group's litigating posture. Reflection on the subject be compelled to include a message about homosexuality among the values it actually chooses to teach
dictates that such an inquiry is required. its Scouts, if it would prefer to remain silent on that subject.

Surely there are instances in which an organization that truly aims to foster a belief at odds with the In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), we recognized that the government may not
purposes of a State's antidiscrimination laws will have a First Amendment right to association that "requir[e] affirmation of a belief and an attitude of mind," nor force an American citizen publicly to
precludes forced compliance with those laws. But that right is not a freedom to discriminate at will, nor profess any statement of belief," even if doing so does not require the person to "forego any contrary
is it a right to maintain an exclusionary membership policy simply out of fear of what the public reaction convictions of their own." Id., at 633634. "[O]ne important manifestation of the principle of free speech
would be if the group's membership were opened up. It is an implicit right designed to protect the is that one who chooses to speak may also decide 'what not to say.'" Hurley, 515 U. S., at 573. Though
enumerated rights of the First Amendment, not a license to act on any discriminatory impulse. To prevail the majority mistakenly treats this statement as going to the right to associate, it actually refers to a free
in asserting a right of expressive association as a defense to a charge of violating an antidiscrimination speech claim. See id., at 564-565, 580-581 (noting distinction between free speech and right to associate
law, the organization must at least show it has adopted and advocated an unequivocal position claims). As with the right to associate claim, though, the court is obligated to engage in an independent
inconsistent with a position advocated or epitomized by the person whom the organization seeks to inquiry into whether the mere inclusion of homosexuals would actually force BSA to proclaim a message
exclude. If this Court were to defer to whatever position an organization is prepared to assert in its it does not want to send.
briefs, there would be no way to mark the proper boundary between genuine exercises of the right to
associate, on the one hand, and sham claims that are simply attempts to insulate nonexpressive private
In its briefs, BSA implies, even if it does not directly argue, that Dale would use his Scoutmaster position
discrimination, on the other hand. Shielding a litigant's claim from judicial scrutiny would, in turn, render
as a "bully pulpit" to convey immoral messages to his troop, and therefore his inclusion in the group
civil rights legislation a nullity, and turn this important constitutional right into a farce. Accordingly, the
would compel BSA to include a message it does not want to impart. Brief for Petitioners 21-22. Even
Court's prescription of total deference will not do. In this respect, Justice Frankfurter's words seem
though the majority does not endorse that argument, I think it is important to explain why it lacks merit,
particularly apt:
before considering the argument the majority does accept.

"Elaborately to argue against this contention is to dignify a claim devoid of constitutional substance. Of
BSA has not contended, nor does the record support, that Dale had ever advocated a view on
course a State may leave abstention from such discriminations to the conscience of individuals. On the
homosexuality to his troop before his membership was revoked. Accordingly, BSA's revocation could
other hand, a State may choose to put its authority behind one of the cherished aims of American feeling
only have been based on an assumption that he would do so in the future. But the only information BSA
by forbidding indulgence in racial or religious prejudice to another's hurt. To use the Fourteenth
had at the time it revoked Dale's membership was a newspaper article describing a seminar at Rutgers
Amendment as a sword against such State power would stultify that Amendment. Certainly the
University on the topic of homosexual teenagers that Dale attended. The relevant passage reads:
insistence by individuals on their private prejudices as to race, color or creed, in relations like those now
before us, ought not to have a higher constitutional sanction than the determination of a State to extend
the area of nondiscrimination beyond that which the Constitution itself exacts." Railway Mail "James Dale, 19, co-president of the Rutgers University Lesbian Gay Alliance with Sharice Richardson,
Assn. v. Corsi, 326 U. S. 88, 98 (1945) (concurring opinion). also 19, said he lived a double life while in high school, pretending to be straight while attending a
military academy.
There is, of course, a valid concern that a court's independent review may run the risk of paying too little
heed to an organization's sincerely held views. But unless one is prepared to turn the right to associate "He remembers dating girls and even laughing at homophobic jokes while at school, only admitting his
into a free pass out of antidiscrimination laws, an independent inquiry is a necessity. Though the group homosexuality during his second year at Rutgers.
must show that its expressive activities will be substantially burdened by the State's law, if that law truly
has a significant effect on a group's speech, even the subtle speaker will be able to identify that impact. "'I was looking for a role model, someone who was gay and accepting of me,' Dale said, adding he wasn't
just seeking sexual experiences, but a community that would take him in and provide him with a support
In this case, no such concern is warranted. It is entirely clear that BSA in fact expresses no clear, network and friends."
unequivocal message burdened by New Jersey's law.
Nothing in that article, however, even remotely suggests that Dale would advocate any views on
homosexuality to his troop. The Scoutmaster Handbook instructs Dale, like all Scoutmasters, that sexual
13

issues are not their "proper area," and there is no evidence that Dale had any intention of violating this we held that GLIB's participation in the parade "would likely be perceived" as the parade organizers' own
rule. Indeed, from all accounts Dale was a model Boy Scout and Assistant Scoutmaster up until the day speech-or at least as a view which they approved-because of a parade organizer's customary control
his membership was revoked, and there is no reason to believe that he would suddenly disobey the over who marches in the parade. Id., at 575. Though Hurley has a superficial similarity to the present
directives of BSA because of anything he said in the newspaper article. case, a close inspection reveals a wide gulf between that case and the one before us today.

To be sure, the article did say that Dale was co-president of the Lesbian/Gay Alliance at Rutgers First, it was critical to our analysis that GLIB was actually conveying a message by participating in the
University, and that group presumably engages in advocacy regarding homosexual issues. But surely parade-otherwise, the parade organizers could hardly claim that they were being forced to include any
many members of BSA engage in expressive activities outside of their troop, and surely BSA does not unwanted message at all. Our conclusion that GLIB was conveying a message was inextricably tied to the
want all of that expression to be carried on inside the troop. For example, a Scoutmaster may be a fact that GLIB wanted to march in a parade, as well as the manner in which it intended to march. We
member of a religious group that encourages its followers to convert others to its faith. Or a Scoutmaster noted the "inherent expressiveness of marching [in a parade] to make a point," id., at 568, and in
may belong to a political party that encourages its members to advance its views among family and particular that GLIB was formed for the purpose of making a particular point about gay pride, id., at 561,
friends.16 Yet BSA does not think it is appropriate for Scoutmasters to proselytize a particular faith to 570. More specifically, GLIB "distributed a fact sheet describing the members' intentions" and, in a
unwilling Scouts or to attempt to convert them from one religion to another nor does BSA think it previous parade, had "marched behind a shamrock-strewn banner with the simple inscription 'Irish
appropriate for Scouts or Scoutmasters to bring politics into the troop.18 From all accounts, then, BSA American Gay, Lesbian and Bisexual Group of Boston.'" Id., at 570. "[A] contingent marching behind the
does not discourage or forbid outside expressive activity, but relies on compliance with its policies and organization's banner," we said, would clearly convey a message. Id., at 574. Indeed, we expressly
trusts Scouts and Scoutmasters alike not to bring unwanted views into the organization. Of course, a distinguished between the members of GLIB, who marched as a unit to express their views about their
disobedient member who flouts BSA's policy may be expelled. But there is no basis for BSA to presume own sexual orientation, on the one hand, and homosexuals who might participate as individuals in the
that a homosexual will be unable to comply with BSA's policy not to discuss sexual matters any more parade without intending to express anything about their sexuality by doing so. Id., at 572-573.
than it would presume that politically or religiously active members could not resist the urge to
proselytize or politicize during troop meetings.19 As BSA itself puts it, its rights are "not
Second, we found it relevant that GLIB's message "would likely be perceived" as the parade organizers'
implicated unless a prospective leader presents himself as a role model inconsistent with Boy Scouting's
own speech. Id., at 575. That was so because "[p]arades and demonstrations ... are not understood to be
understanding of the Scout Oath and Law." Brief for Petitioners 6 (emphases added).20
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
The majority, though, does not rest its conclusion on the claim that Dale will use his position as a bully organizers are usually understood to make the "customary determination about a unit admitted to the
pulpit. Rather, it contends that Dale's mere presence among the Boy Scouts will itself force the group to parade."
convey a message about homosexuality-even if Dale has no intention of doing so. The majority holds that
"[t]he presence of an avowed homosexual and gay rights activist in an assistant scoutmaster's uniform
Dale's inclusion in the Boy Scouts is nothing like the case in Hurley. His participation sends no cognizable
sends a distinc[t] ... message," and, accordingly, BSA is entitled to exclude that message. Ante, at 655-
message to the Scouts or to the world. Unlike GLIB, Dale did not carry a banner or a sign; he did not
656. In particular, "Dale's presence in the Boy Scouts would, at the very least, force the organization to
distribute any factsheet; and he expressed no intent to send any message. If there is any kind of message
send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual
being sent, then, it is by the mere act of joining the Boy Scouts. Such an act does not constitute an
conduct as a legitimate form of behavior Ante, at 653; see also Brief for Petitioners 24 ("By donning the
instance of symbolic speech under the First Amendment.
uniform of an adult leader in Scouting, he would 'celebrate [his] identity' as an openly gay Scout leader").

It is true, of course, that some acts are so imbued with symbolic meaning that they qualify as "speech"
The majority's argument relies exclusively on Hurley v.
under the First Amendment. See United States v. O'Brien, 391 U. S. 367, 376 (1968). At the same time,
however, "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled
Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995). In that case, 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Ibid. Though
petitioners John Hurley and the South Boston Allied War Veterans Council ran a privately operated St. participating in the Scouts could itself conceivably send a message on some level, it is not the kind of act
Patrick's Day parade. Respondent, an organization known as "GLIB," represented a contingent of gays, that we have recognized as speech. See Dallas v. Stanglin, 490 U. S. 19, 24-25 (1989).22 Indeed, if merely
lesbians, and bisexuals who sought to march in the petitioners' parade "as a way to express pride in their joining a group did constitute symbolic speech; and such speech were attributable to the group being
Irish heritage as openly gay, lesbian, and bisexual individuals." Id., at 561. When the parade organizers joined; and that group has the right to exclude that speech (and hence, the right to exclude that person
refused GLIB's admission, GLIB brought suit under Massachusetts' antidiscrimination law. That statute, from joining), then the right of free speech effectively becomes a limitless right to exclude for every
like New Jersey's law, prohibited discrimination on account of sexual orientation in any place of public organization, whether or not it engages in any expressive activities. That cannot be, and never has been,
accommodation, which the state courts interpreted to include the parade. Petitioners argued that the law.
forcing them to include GLIB in their parade would violate their free speech rights.
The majority might have argued (but it did not) that Dale had become so publicly and pervasively
We agreed. We first pointed out that the St. Patrick's Day parade-like most every parade-is an inherently identified with a position advocating the moral legitimacy of homosexuality (as opposed to just being an
expressive undertaking. Id., at 568-570. Next, we reaffirmed that the government may not compel individual who openly stated he is gay) that his leadership position in BSA would necessarily amount to
anyone to proclaim a belief with which he or she disagrees. Id., at 573-574. We then found that GLIB's using the organization as a conduit for publicizing his position. But as already noted, when BSA expelled
marching in the parade would be an expressive act suggesting the view "that people of their sexual Dale, it had nothing to go on beyond the one newspaper article quoted above, and one newspaper
orientations have as much claim to unqualified social acceptance as heterosexuals." Id., at 574. Finally,
14

article does not convert Dale into a public symbol for a message. BSA simply has not provided a record coaches, and a host of other jobs filled by citizens who serve as role models for children and adults alike.
that establishes the factual premise for this argument. Dozens of Scout units throughout the State are sponsored by public agencies, such as schools and fire
departments, that employ such role models. BSA's affiliation with numerous public agencies that comply
with New Jersey's law against discrimination cannot be understood to convey any particular message
This is not to say that Scouts do not engage in expressive activity. It is only to say that the simple act of
endorsing or condoning the activities of all these people.26
joining the Scouts-unlike joining a parade-is not inherently expressive.

25 The majority simply announces, without analysis, that Dale's participation alone would "force the
The only apparent explanation for the majority's holding, then, is that homosexuals are simply so
organization to send a message." Ante, at 653. "But ... these are merely conclusory words, barren of
different from the rest of society that their presence alone-unlike any other individual's-should be
analysis .... For First Amendment principles to be implicated, the State must place the citizen in the
singled out for special First Amendment treatment. Under the majority's reasoning, an openly gay male
position of either apparently or actually 'asserting as true' the message." Wooley v. Maynard, 430 U. S.
is irreversibly affixed with the label "homosexual." That label, even though unseen, communicates a
705, 721 (1977) (REHNQUIST, J., dissenting).
message that permits his exclusion wherever he goes. His openness is the sole and sufficient justification
for his ostracism. Though unintended, reliance on such a justification is tantamount to a constitutionally
prescribed symbol of inferiority.23 As counsel for BSA remarked, Dale "put a banner around his neck 26BSA also argues that New Jersey's law violates its right to "intimate association." Brief for Petitioners
when he ... got himself into the newspaper .... He created a reputation ... He can't take that banner off. 39-47. Our cases recognize a substantive due process right "to enter into and carryon certain intimate or
He put it on himself and, indeed, he has continued to put it on himself." See Tr. of Oral Arg. 25. private relationships." Rotary Club, 481 U. S., at 545. As with the First Amendment right to associate, the
State may not interfere with the selection of individuals in such relationships. Jaycees, 468 U. S., at 618.
Though the precise scope of the right to intimate association is unclear, "we consider factors such as
Another difference between this case and Hurley lies in the fact that Hurley involved the parade
size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship" to
organizers' claim to determine the content of the message they wish to give at a particular time and
determine whether a group is sufficiently personal to warrant this type of constitutional
place. The standards governing such a claim are simply different from the standards that govern BSA's
protection. Rotary Club, 481 U. S., at 546. Considering BSA's size, see supra, at 697, its broad purposes,
claim of a right of expressive association. Generally, a private person or a private organization has a right
and its non selectivity, see supra, at 666, it is impossible to conclude that being a member of the Boy
to refuse to broadcast a message with which it disagrees, and a right to refuse to contradict or garble its
Scouts ranks among those intimate relationships falling within this right, such as marriage, bearing
own specific statement at any given place or time by including the messages of others. An expressive
children, rearing children, and cohabitation with relatives. Rotary Club, 481 U. S., at 545.
association claim, however, normally involves the avowal and advocacy of a consistent position on some
issue over time. This is why a different kind of scrutiny must be given to an expressive association claim,
lest the right of expressive association simply turn into a right to discriminate whenever some group can VI
think of an expressive object that would seem to be inconsistent with the admission of some person as a
member or at odds with the appointment of a person to a leadership position in the group.
Unfavorable OpInIOnS about homosexuals "have ancient roots." Bowers v. Hardwick, 478 U. S. 186, 192
(1986). Like equally atavistic opinions about certain racial groups, those roots have been nourished by
Furthermore, it is not likely that BSA would be understood to send any message, either to Scouts or to sectarian doctrine. Id., at 196-197 (Burger, C. J., concurring); Loving v. Virginia, 388 U. S. 1,3 (1967).27
the world, simply by admitting someone as a member. Over the years, BSA has generously welcomed See also Mathews v. Lucas, 427 U. S. 495, 520 (1976) (STEVENS, J., dissenting) ("Habit, rather than
over 87 million young Americans into its ranks. In 1992 over one million adults were active BSA analysis, makes it seem acceptable and natural to distinguish between male and female, alien and
members. 160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999). The notion that an organization of that size citizen, legitimate and illegitimate; for too much of our history there was the same inertia in
and enormous prestige implicitly endorses the views that each of those adults may express in a non- distinguishing between black and white"). Over the years, however, interaction with real people, rather
Scouting context is simply mind boggling. Indeed, in this case there is no evidence that the young Scouts than mere adherence to traditional ways of thinking about members of unfamiliar classes, have modified
in Dale's troop, or members of their families, were even aware of his sexual orientation, either before or those opinions. A few examples: The American Psychiatric Association's and the American Psychological
after his public statements at Rutgers University.24 It is equally farfetched to assert that Dale's open Association's removal of "homosexuality" from their lists of mental disorders; 28 a move toward greater
declaration of his homosexuality, reported in a local newspaper, will effectively force BSA to send a understanding within some religious communities;29 Justice Blackmun's classic opinion in Bowers.
message to anyone simply because it allows Dale to be an Assistant Scoutmaster. For an Olympic gold
medal winner or a Wimbledon tennis champion, being "openly gay" perhaps communicates a message-
30 The significance of that opinion is magnified by comparing it with Justice Blackmun's vote 10 years
for example, that openness about one's sexual orientation is more virtuous than concealment; that a
earlier in Doe v. Commonwealth's Attorney for City of Richmond, 425 U. S. 901 (1976). In that case, six
homosexual person can be a capable and virtuous person who should be judged like anyone else; and
Justicesincluding Justice Blackmun-voted to summarily affirm the District Court's rejection of the same
that homosexuality is not immoralbut it certainly does not follow that they necessarily send a message
due process argument that was later rejected in Bowers. Two years later, furthermore, Justice Blackmun
on behalf of the organizations that sponsor the activities in which they excel. The fact that such persons
joined in a dissent in University of Missouri v. Gay Lib, 434 U. S. 1080 (1978). In that case, the university
participate in these organizations is not usually construed to convey a message on behalf of those
had denied recognition to a student gay rights organization. The student group argued that in doing so,
organizations any more than does the inclusion of women, African-Americans, religious minorities, or
the university had violated its free speech and free association rights. The Court of Georgia's invalidation
any other discrete groUp.25 Surely the organizations are not forced by antidiscrimination laws to take
of the statute upheld in Bowers; 31 and New Jersey's enactment of the provision at issue in this case.
any position on the legitimacy of any individual's private beliefs or private conduct.
Indeed, the past month alone has witnessed some remarkable changes in attitudes about
homosexuals.32
The State of New Jersey has decided that people who are open and frank about their sexual orientation
are entitled to equal access to employment as schoolteachers, police officers, librarians, athletic
15

That such prejudices are still prevalent and that they have caused serious and tangible harm to countless If, on the other hand, an expressive association claim has met the conditions JUSTICE STEVENS describes
members of the class New Jersey seeks to protect are established matters of fact that neither the Boy as necessary, there may well be circumstances in which the antidiscrimination law must yield, as he says.
Scouts nor the Court disputes. That harm can only be aggravated by the creation of a constitutional It is certainly possible for an individual to become so identified with a position as to epitomize it publicly.
shield for a policy that is itself the product of a habitual way of thinking about strangers. As Justice When that position is at odds with a group's advocated position, applying an antidiscrimination statute
Brandeis so wisely advised, "we must be ever on our guard, lest we erect our prejudices into legal to require the group's acceptance of the individual in a position of group leadership could so modify or
principles." muddle or frustrate the group's advocacy as to violate the expressive associational right. While it is not
our business here to rule on any such hypothetical, it is at least clear that our estimate of the progressive
character of the group's position will be irrelevant to the First Amendment analysis if such a case comes
If we would guide by the light of reason, we must let our minds be bold. I respectfully dissent.
to us for decision.

JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting.
* An expressive association claim is in this respect unlike a basic free speech claim, as JUSTICE STEVENS
points out; the latter claim, i. e., the right to convey an individual's or group's position, if bona fide, may
I join JUSTICE STEVENS'S dissent but add this further word on the significance of Part VI of his opinion. be taken at face value in applying the First Amendment. This case is thus unlike Hurley v. Irish-American
There, JUSTICE STEVENS describes the changing attitudes toward gay people and notes a parallel with Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995).
the decline of stereotypical thinking about race and gender. The legitimacy of New
Relevant Facts:
Appeals agreed with that argument. A dissent from denial of certiorari, citing the university's argument,
suggested that the proper analysis might well be as follows: When the Boy Scouts organization discovered that a former Eagle Scout and then assistant scoutmaster
James Dale was gay, they revoked his organization membership. Subsequently, Dale sued the Boy Scouts
"[T]he question is more akin to whether those suffering from measles have a constitutional right, in of America in 1992 asserting that the Boy Scouts had violated New Jersey’s statute barring sexual
violation of quarantine regulations, to associate together and with others who do not presently have orientation-based discrimination in places of public accommodation. Opposing Dale’s assertion, the Boy
measles, in order to urge repeal of a state law providing that measle sufferers be quarantined." Id., at
Scouts countered that homosexual behavior was inconsistent with the values the organization works to
1084 (REHNQUIST, J., dissenting).
instill in its youth, and that as a private, non-profit organization, it has the ability to revoke membership
on such a basis. The New Jersey Superior Court found that the New Jersey statute did not apply in this
Jersey's interest in forbidding discrimination on all these bases by those furnishing public
case because Boy Scouts of America was (and continues to be) a private enterprise not within the public
accommodations is, as JUSTICE STEVENS indicates, acknowledged by many to be beyond question. The
fact that we are cognizant of this laudable decline in stereotypical thinking on homosexuality should not, sphere. Additionally, the Superior Court also found that because of its private status in particular, the
however, be taken to control the resolution of this case. Boy Scouts could effectively discriminate as a matter of expressing their own First Amendment freedom
of expression rights. In this particular case, the expression was that which precluded. including tolerance
Boy Scouts of America (BSA) is entitled, consistently with its own tenets and the open doors of American of a principle that the organization was implicitly founded on stamping out. The New Jersey Appellate
courts, to raise a federal constitutional basis for resisting the application of New Jersey's law. BSA has Division reversed the lower court’s ruling. Subsequently, the New Jersey Supreme Court affirmed, finding
done that and has chosen to defend against enforcement of the state public accommodations law on the that the public accommodations provision did apply to the Boy Scouts because their recruiting efforts
ground that the First Amendment protects expressive association: individuals have a right to join extend far and wide, beyond the scope of what is often done in private clubs. Additionally, the New
together to advocate opinions free from government interference. See Roberts v. United States Jersey Supreme Court held that the Boy Scouts’ freedom of expression rights were not violated by
Jaycees, 468 U. S. 609, 622 (1984). BSA has disclaimed any argument that Dale's past or future actions, as compelling it to reinstate Dale. The matter was brought before the United States Supreme Court.
distinct from his unapologetic declaration of sexual orientation, would justify his exclusion from BSA. See
Tr. of Oral Arg. 12-13.
Issue: The legal question at issue was whether the application of New Jersey’s public accommodations
The right of expressive association does not, of course, turn on the popularity of the views advanced by a law violated the Boy Scouts’ right to freedom of expression via association by preventing it from barring
group that claims protection. Whether the group appears to this Court to be in the vanguard or homosexuals from serving within its ranks.
rearguard of social thinking is irrelevant to the group's rights. I conclude that BSA has not made out an
expressive association claim, therefore, not because of what BSA may espouse, but because of its failure
to make sexual orientation the subject of any unequivocal advocacy, using the channels it customarily Holding:
employs to state its message. As JUSTICE STEVENS explains, no group can claim a right of expressive
association without identifying a clear position to be advocated over time in an unequivocal way. To
require less, and to allow exemption from a public accommodations statute based on any individual's The Supreme Court held that yes, the public accommodations law violated the Boy Scouts’ right to
difference from an alleged group ideal, however expressed and however inconsistently claimed, would freedom of expression via association.
convert the right of expressive association into an easy trump of any antidiscrimination law.*
16

Majority Opinion Reasoning: Facts.

The Respondent, a life-long boy scout, was an assistant scout master in New Jersey, when the Petitioner
Writing the majority opinion, Chief Justice Rehnquist stated that, “[t]he Boy Scouts asserts that learned of his homosexuality and revoked his membership. The Respondent brought suit to enjoin the
homosexual conduct is inconsistent with the values it seeks to instill.” Furthermore, Rehnquist asserted action and the New Jersey court, under its public accommodations law, required the Petitioner to admit
that having a gay trooper around boy scouts “would, at the very least, force the organization to send a the Respondent.
message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as
Issue. This case questions whether an organization can be compelled to accept a member whose
a legitimate form of behavior.” The majority held that forcing the organization to do this was effectively
activities and beliefs may be against the very nature of the organization.
tantamount to the government explicitly favoring one manner of behavior (or at least public
accommodation) over another in such a manner that private organizations can be compelled to include Held.
political expression in which they do not believe or condone.
Reversed.
The court found that, while the Petitioner’s laws and oaths do not mention sexuality, the purpose of the
Dissenting Opinion: organization to foster “morally straight” and “clean” membership would be disregarded if the Petitioner
was forced to accept the Respondent. Further, the First Amendment Rights of the association would be
Associate Justice Stevens presented the dissenting opinion and argued that the Court erred because it violated if it were forced, under the guise of law, to send a message that it accepted homosexual conduct
when, on its own assertions, it did not. The Supreme Court of the United States (Supreme Court) held
failed to take into account the Boy Scouts’ founding principles of instilling values in young boys and men that to require the Petitioner to accept Respondent was an abridgment of the Petitioner’s freedom of
– the implication being that discrimination was not one of those values. Stevens further argued that the expression.
Court interfered in New Jersey’s right to address the issue of discrimination by essentially nullifying their
Dissent. J
public accommodations law with respect to the Boy Scouts’ ousting of Dale. Stevens took issue more so
with principle than law regarding this case, or so it seemed in that he focused on the fallacy in principle ustice John Paul Stevens (J. Stevens) dissented, noting that by allowing the Petitioner to revoke the
of upholding discrimination on constitutional (shield) grounds, although the majority found the issue was Respondent’s membership, the Supreme Court was allowing the organization to prevail over the anti-
discrimination laws of the state.
actually about freedom of expression for not only so-called more open-minded and accepting individuals
and groups, but also arguable bigots, provided they operate within the private sphere.
Discussion.
Conclusion:
An organization cannot be compelled to accept a member whose beliefs do not align with the tenants
upon, which the organization stands. To do so would violate the First Amendment constitutional rights of
The Boy Scouts v. Dale case was legally and politically significant. Legally, it demonstrated that while the entire organization and its members, who also align themselves with the principals on which the
certain forms of discrimination can be prohibited in the public sphere, within the private sphere, organization stands.
organizations, much like individuals, can dictate with whom they associate and which beliefs they will
promote or which they will not. One party’s freedom of expression rights cannot trump another’s in the Facts of the case

private sphere. Politically, this case was seen as a substantial setback for the gay rights and overall LGBT
The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster James Dale's adult
movement, but a decisive victory for First Amendment activists. membership when the organization discovered that Dale was a homosexual and a gay rights activist. In
1992, Dale filed suit against the Boy Scouts, alleging that the Boy Scouts had violated the New Jersey
statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.
Brief Fact Summary. The Respondent, Dale (Respondent), was an eagle scout whose membership in the The Boy Scouts, a private, not-for-profit organization, asserted that homosexual conduct was
boy scouts was revoked when the Petitioners, the Boy Scouts of America (Petitioner), learned that he
inconsistent with the values it was attempting to instill in young people. The New Jersey Superior Court
was a homosexual.
held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a
Synopsis of Rule of Law. While individuals are given a right to freely associate, associations are not place of public accommodation. The court also concluded that the Boy Scouts' First Amendment freedom
forced to include members whose beliefs may affect its own ability to express the message it wishes to of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an
convey. adult leader. The court's Appellate Division held that New Jersey's public accommodations law applied to
17

the Boy Scouts because of its broad-based membership solicitation and its connections with various
public entities, and that the Boy Scouts violated it by revoking Dale's membership based on his
homosexuality. The court rejected the Boy Scouts' federal constitutional claims. The New Jersey
Supreme Court affirmed. The court held that application of New Jersey's public accommodations law did
not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion
would not significantly affect members' abilities to carry out their purpose. Furthermore, the court
concluded that reinstating Dale did not compel the Boy Scouts to express any message.

Question

Does the application of New Jersey's public accommodations law violate the Boy Scouts' First
Amendment right of expressive association to bar homosexuals from serving as troop leaders?

Yes. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "applying New
Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First
Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a
constitutional right to bar homosexuals from serving as troop leaders. Chief Justice Rehnquist wrote for
the Court that, "[t]he Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks
to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send
a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct
as a legitimate form of behavior."
18

EN BANC | G.R. No. 164301 What is before us now is a petition for review under Rule 45 of the Rules of Court of the Decision[2]
dated September 30, 2003 of the Court of Appeals, as reiterated in its Resolution[3] of June 9, 2004,
BANK OF THE PHILIPPINE ISLANDS, Petitioner, reversing and setting aside the Decision[4] dated November 23, 2001 of Voluntary Arbitrator Rosalina
Letrondo-Montejo, in CA-G.R. SP No. 70445, entitled BPI Employees Union-Davao Chapter-Federation of
- versus - Unions in BPI Unibank v. Bank of the Philippine Islands, et al.

BPI EMPLOYEES UNION-DAVAO CHAPTER-FEDERATION OF UNIONS IN BPI UNIBANK, Respondent. The antecedent facts are as follows:

Promulgated: August 10, 2010 On March 23, 2000, the Bangko Sentral ng Pilipinas approved the Articles of Merger executed on January
20, 2000 by and between BPI, herein petitioner, and FEBTC.[5] This Article and Plan of Merger was
DECISION approved by the Securities and Exchange Commission on April 7, 2000.[6]

LEONARDO-DE CASTRO, J.: Pursuant to the Article and Plan of Merger, all the assets and liabilities of FEBTC were transferred to and
absorbed by BPI as the surviving corporation. FEBTC employees, including those in its different branches
May a corporation invoke its merger with another corporation as a valid ground to exempt its absorbed
across the country, were hired by petitioner as its own employees, with their status and tenure
employees from the coverage of a union shop clause contained in its existing Collective Bargaining
recognized and salaries and benefits maintained.
Agreement (CBA) with its own certified labor union? That is the question we shall endeavor to answer in
this petition for review filed by an employer after the Court of Appeals decided in favor of respondent Respondent BPI Employees Union-Davao Chapter - Federation of Unions in BPI Unibank (hereinafter the
union, which is the employees recognized collective bargaining representative. Union, for brevity) is the exclusive bargaining agent of BPIs rank and file employees in Davao City. The
former FEBTC rank-and-file employees in Davao City did not belong to any labor union at the time of the
At the outset, we should call to mind the spirit and the letter of the Labor Code provisions on union
merger. Prior to the effectivity of the merger, or on March 31, 2000, respondent Union invited said
security clauses, specifically Article 248 (e), which states, x x x Nothing in this Code or in any other law
FEBTC employees to a meeting regarding the Union Shop Clause (Article II, Section 2) of the existing CBA
shall stop the parties from requiring membership in a recognized collective bargaining agent as a
between petitioner BPI and respondent Union.[7]
condition for employment, except those employees who are already members of another union at the
time of the signing of the collective bargaining agreement.[1] This case which involves the application of The parties both advert to certain provisions of the existing CBA, which are quoted below:
a collective bargaining agreement with a union shop clause should be resolved principally from the
standpoint of the clear provisions of our labor laws, and the express terms of the CBA in question, and ARTICLE I
not by inference from the general consequence of the merger of corporations under the Corporation
Code, which obviously does not deal with and, therefore, is silent on the terms and conditions of Section 1. Recognition and Bargaining Unit The BANK recognizes the UNION as the sole and exclusive
employment in corporations or juridical entities. collective bargaining representative of all the regular rank and file employees of the Bank offices in
Davao City.
This issue must be resolved NOW, instead of postponing it to a future time when the CBA is renegotiated
as suggested by the Honorable Justice Arturo D. Brion because the same issue may still be resurrected in Section 2. Exclusions
the renegotiation if the absorbed employees insist on their privileged status of being exempt from any
union shop clause or any variant thereof. Section 3. Additional Exclusions

We find it significant to note that it is only the employer, Bank of the Philippine Islands (BPI), that Section 4. Copy of Contract
brought the case up to this Court via the instant petition for review; while the employees actually
involved in the case did not pursue the same relief, but had instead chosen in effect to acquiesce to the ARTICLE II
decision of the Court of Appeals which effectively required them to comply with the union shop clause
under the existing CBA at the time of the merger of BPI with Far East Bank and Trust Company (FEBTC), Section 1. Maintenance of Membership All employees within the bargaining unit who are members of
which decision had already become final and executory as to the aforesaid employees. By not appealing the Union on the date of the effectivity of this Agreement as well as employees within the bargaining
the decision of the Court of Appeals, the aforesaid employees are bound by the said Court of Appeals unit who subsequently join or become members of the Union during the lifetime of this Agreement shall
decision to join BPIs duly certified labor union. In view of the apparent acquiescence of the affected as a condition of their continued employment with the Bank, maintain their membership in the Union in
FEBTC employees in the Court of Appeals decision, BPI should not have pursued this petition for review. good standing.
However, even assuming that BPI may do so, the same still cannot prosper.
19

Section 2. Union Shop - New employees falling within the bargaining unit as defined in Article I of this with their employment with BPI. Otherwise stated, the absorbed employees service is continuous and
Agreement, who may hereafter be regularly employed by the Bank shall, within thirty (30) days after there is no gap in their service record.
they become regular employees, join the Union as a condition of their continued employment. It is
understood that membership in good standing in the Union is a condition of their continued This Court is persuaded that the similarities of new and absorbed employees far outweighs the
employment with the Bank. distinction between them. The similarities lies on the following, to wit: (a) they have a new employer; (b)
new working conditions; (c) new terms of employment and; (d) new company policy to follow. As such,
After the meeting called by the Union, some of the former FEBTC employees joined the Union, while they should be considered as new employees for purposes of applying the provisions of the CBA
others refused. Later, however, some of those who initially joined retracted their membership.[9] regarding the union-shop clause.

Respondent Union then sent notices to the former FEBTC employees who refused to join, as well as To rule otherwise would definitely result to a very awkward and unfair situation wherein the absorbed
those who retracted their membership, and called them to a hearing regarding the matter. When these employees shall be in a different if not, better situation than the existing BPI employees. The existing BPI
former FEBTC employees refused to attend the hearing, the president of the Union requested BPI to employees by virtue of the union-shop clause are required to pay the monthly union dues, remain as
implement the Union Shop Clause of the CBA and to terminate their employment pursuant thereto.[10] members in good standing of the union otherwise, they shall be terminated from the company, and
other union-related obligations. On the other hand, the absorbed employees shall enjoy the fruits of
After two months of management inaction on the request, respondent Union informed petitioner BPI of labor of the petitioner-union and its members for nothing in exchange. Certainly, this would disturb
its decision to refer the issue of the implementation of the Union Shop Clause of the CBA to the industrial peace in the company which is the paramount reason for the existence of the CBA and the
Grievance Committee. However, the issue remained unresolved at this level and so it was subsequently union.
submitted for voluntary arbitration by the parties.[11]
The voluntary arbitrators interpretation of the provisions of the CBA concerning the coverage of the
Voluntary Arbitrator Rosalina Letrondo-Montejo, in a Decision[12] dated November 23, 2001, ruled in union-shop clause is at war with the spirit and the rationale why the Labor Code itself allows the
favor of petitioner BPIs interpretation that the former FEBTC employees were not covered by the Union existence of such provision.
Security Clause of the CBA between the Union and the Bank on the ground that the said employees were
not new employees who were hired and subsequently regularized, but were absorbed employees by The Supreme Court in the case of Manila Mandarin Employees Union vs. NLRC (G.R. No. 76989,
operation of law because the former employees of FEBTC can be considered assets and liabilities of the September 29, 1987) rule, to quote:
absorbed corporation. The Voluntary Arbitrator concluded that the former FEBTC employees could not
be compelled to join the Union, as it was their constitutional right to join or not to join any organization. This Court has held that a valid form of union security, and such a provision in a collective bargaining
agreement is not a restriction of the right of freedom of association guaranteed by the Constitution.
Respondent Union filed a Motion for Reconsideration, but the Voluntary Arbitrator denied the same in
an Order dated March 25, 2002.[13] A closed-shop agreement is an agreement whereby an employer binds himself to hire only members of
the contracting union who must continue to remain members in good standing to keep their jobs. It is
Dissatisfied, respondent then appealed the Voluntary Arbitrators decision to the Court of Appeals. In the THE MOST PRIZED ACHIEVEMENT OF UNIONISM. IT ADDS MEMBERSHIP AND COMPULSORY DUES. By
herein assailed Decision dated September 30, 2003, the Court of Appeals reversed and set aside the holding out to loyal members a promise of employment in the closed-shop, it wields group solidarity.
Decision of the Voluntary Arbitrator.[14] Likewise, the Court of Appeals denied herein petitioners Motion
for Reconsideration in a Resolution dated June 9, 2004. Hence, the voluntary arbitrator erred in construing the CBA literally at the expense of industrial peace in
the company.
The Court of Appeals pertinently ruled in its Decision:
With the foregoing ruling from this Court, necessarily, the alternative prayer of the petitioner to require
A union-shop clause has been defined as a form of union security provision wherein non-members may the individual respondents to become members or if they refuse, for this Court to direct respondent BPI
be hired, but to retain employment must become union members after a certain period. to dismiss them, follows.[15]

There is no question as to the existence of the union-shop clause in the CBA between the petitioner- Hence, petitioners present recourse, raising the following issues:
union and the company. The controversy lies in its application to the absorbed employees.
I. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE
This Court agrees with the voluntary arbitrator that the ABSORBED employees are distinct and different FORMER FEBTC EMPLOYEES SHOULD BE CONSIDERED NEW EMPLOYEES OF BPI FOR
from NEW employees BUT only in so far as their employment service is concerned. The distinction ends PURPOSES OF APPLYING THE UNION SHOP CLAUSE OF THE CBA
there. In the case at bar, the absorbed employees length of service from its former employer is tacked
20

II. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE unless he or she is, becomes, and, for the duration of the agreement, remains a member in good
VOLUNTARY ARBITRATORS INTERPRETATION OF THE COVERAGE OF THE UNION SHOP standing of a union entirely comprised of or of which the employees in interest are a part.[19]
CLAUSE IS AT WAR WITH THE SPIRIT AND THE RATIONALE WHY THE LABOR CODE ITSELF
ALLOWS THE EXISTENCE OF SUCH PROVISION[16] In the case of Liberty Flour Mills Employees v. Liberty Flour Mills, Inc.,[20] we ruled that:

In essence, the sole issue in this case is whether or not the former FEBTC employees that were absorbed It is the policy of the State to promote unionism to enable the workers to negotiate with management
by petitioner upon the merger between FEBTC and BPI should be covered by the Union Shop Clause on the same level and with more persuasiveness than if they were to individually and independently
found in the existing CBA between petitioner and respondent Union. bargain for the improvement of their respective conditions. To this end, the Constitution guarantees to
them the rights to self-organization, collective bargaining and negotiations and peaceful concerted
Petitioner is of the position that the former FEBTC employees are not new employees of BPI for purposes actions including the right to strike in accordance with law. There is no question that these purposes
of applying the Union Shop Clause of the CBA, on this note, petitioner points to Section 2, Article II of the could be thwarted if every worker were to choose to go his own separate way instead of joining his co-
CBA, which provides: employees in planning collective action and presenting a united front when they sit down to bargain with
their employers. It is for this reason that the law has sanctioned stipulations for the union shop and the
New employees falling within the bargaining unit as defined in Article I of this Agreement, who may closed shop as a means of encouraging the workers to join and support the labor union of their own
hereafter be regularly employed by the Bank shall, within thirty (30) days after they become regular choice as their representative in the negotiation of their demands and the protection of their interest
employees, join the Union as a condition of their continued employment. It is understood that vis--vis the employer.
membership in good standing in the Union is a condition of their continued employment with the Bank.
In other words, the purpose of a union shop or other union security arrangement is to guarantee the
Petitioner argues that the term new employees in the Union Shop Clause of the CBA is qualified by the continued existence of the union through enforced membership for the benefit of the workers.
phrases who may hereafter be regularly employed and after they become regular employees which led
petitioner to conclude that the new employees referred to in, and contemplated by, the Union Shop All employees in the bargaining unit covered by a Union Shop Clause in their CBA with management are
Clause of the CBA were only those employees who were new to BPI, on account of having been hired subject to its terms. However, under law and jurisprudence, the following kinds of employees are
initially on a temporary or probationary status for possible regular employment at some future date. BPI exempted from its coverage, namely, employees who at the time the union shop agreement takes effect
argues that the FEBTC employees absorbed by BPI cannot be considered as new employees of BPI for are bona fide members of a religious organization which prohibits its members from joining labor unions
purposes of applying the Union Shop Clause of the CBA.[18] on religious grounds;[21] employees already in the service and already members of a union other than
the majority at the time the union shop agreement took effect;[22] confidential employees who are
According to petitioner, the contrary interpretation made by the Court of Appeals of this particular CBA excluded from the rank and file bargaining unit;[23] and employees excluded from the union shop by
provision ignores, or even defies, what petitioner assumes as its clear meaning and scope which express terms of the agreement.
allegedly contradicts the Courts strict and restrictive enforcement of union security agreements.
When certain employees are obliged to join a particular union as a requisite for continued employment,
We do not agree. as in the case of Union Security Clauses, this condition is a valid restriction of the freedom or right not to
join any labor organization because it is in favor of unionism. This Court, on occasion, has even held that
Section 2, Article II of the CBA is silent as to how one becomes a regular employee of the BPI for the first a union security clause in a CBA is not a restriction of the right of freedom of association guaranteed by
time. There is nothing in the said provision which requires that a new regular employee first undergo a the Constitution.[24]
temporary or probationary status before being deemed as such under the union shop clause of the CBA.
Moreover, a closed shop agreement is an agreement whereby an employer binds himself to hire only
Union security is a generic term which is applied to and comprehends closed shop, union shop, members of the contracting union who must continue to remain members in good standing to keep their
maintenance of membership or any other form of agreement which imposes upon employees the jobs. It is the most prized achievement of unionism. It adds membership and compulsory dues. By
obligation to acquire or retain union membership as a condition affecting employment. There is union holding out to loyal members a promise of employment in the closed shop, it wields group solidarity.[25]
shop when all new regular employees are required to join the union within a certain period for their
continued employment. There is maintenance of membership shop when employees, who are union Indeed, the situation of the former FEBTC employees in this case clearly does not fall within the first
members as of the effective date of the agreement, or who thereafter become members, must maintain three exceptions to the application of the Union Shop Clause discussed earlier. No allegation or evidence
union membership as a condition for continued employment until they are promoted or transferred out of religious exemption or prior membership in another union or engagement as a confidential employee
of the bargaining unit or the agreement is terminated. A closed-shop, on the other hand, may be defined was presented by both parties. The sole category therefore in which petitioner may prove its claim is the
as an enterprise in which, by agreement between the employer and his employees or their fourth recognized exception or whether the former FEBTC employees are excluded by the express terms
representatives, no person may be employed in any or certain agreed departments of the enterprise of the existing CBA between petitioner and respondent.
21

To reiterate, petitioner insists that the term new employees, as the same is used in the Union Shop 4. The surviving or the consolidated corporation shall thereupon and thereafter possess all the rights,
Clause of the CBA at issue, refers only to employees hired by BPI as non-regular employees who later privileges, immunities and franchises of each of the constituent corporations; and all property, real or
qualify for regular employment and become regular employees, and not those who, as a legal personal, and all receivables due on whatever account, including subscriptions to shares and other
consequence of a merger, are allegedly automatically deemed regular employees of BPI. However, the choses in action, and all and every other interest of, or belonging to, or due to each constituent
CBA does not make a distinction as to how a regular employee attains such a status. Moreover, there is corporation, shall be taken and deemed to be transferred to and vested in such surviving or consolidated
nothing in the Corporation Law and the merger agreement mandating the automatic employment as corporation without further act or deed; and
regular employees by the surviving corporation in the merger.
5. The surviving or the consolidated corporation shall be responsible and liable for all the liabilities and
It is apparent that petitioner hinges its argument that the former FEBTC employees were absorbed by obligations of each of the constituent corporations in the same manner as if such surviving or
BPI merely as a legal consequence of a merger based on the characterization by the Voluntary Arbiter of consolidated corporation had itself incurred such liabilities or obligations; and any claim, action or
these absorbed employees as included in the assets and liabilities of the dissolved corporation - assets proceeding pending by or against any of such constituent corporations may be prosecuted by or against
because they help the Bank in its operation and liabilities because redundant employees may be the surviving or consolidated corporation, as the case may be. Neither the rights of creditors nor any lien
terminated and company benefits will be paid to them, thus reducing the Banks financial status. Based upon the property of any of such constituent corporations shall be impaired by such merger or
on this ratiocination, she ruled that the same are not new employees of BPI as contemplated by the CBA consolidated.
at issue, noting that the Certificate of Filing of the Articles of Merger and Plan of Merger between FEBTC
and BPI stated that x x x the entire assets and liabilities of FAR EASTERN BANK & TRUST COMPANY will be Significantly, too, the Articles of Merger and Plan of Merger dated April 7, 2000 did not contain any
transferred to and absorbed by the BANK OF THE PHILIPPINE ISLANDS x x x (underlining supplied).[26] In specific stipulation with respect to the employment contracts of existing personnel of the non-surviving
sum, the Voluntary Arbiter upheld the reasoning of petitioner that the FEBTC employees became BPI entity which is FEBTC. Unlike the Voluntary Arbitrator, this Court cannot uphold the reasoning that the
employees by operation of law because they are included in the term assets and liabilities. general stipulation regarding transfer of FEBTC assets and liabilities to BPI as set forth in the Articles of
Merger necessarily includes the transfer of all FEBTC employees into the employ of BPI and neither BPI
Absorbed FEBTC Employees are Neither Assets nor Liabilities nor the FEBTC employees allegedly could do anything about it. Even if it is so, it does not follow that the
absorbed employees should not be subject to the terms and conditions of employment obtaining in the
In legal parlance, however, human beings are never embraced in the term assets and liabilities. surviving corporation.
Moreover, BPIs absorption of former FEBTC employees was neither by operation of law nor by legal
consequence of contract. There was no government regulation or law that compelled the merger of the The rule is that unless expressly assumed, labor contracts such as employment contracts and collective
two banks or the absorption of the employees of the dissolved corporation by the surviving corporation. bargaining agreements are not enforceable against a transferee of an enterprise, labor contracts being in
Had there been such law or regulation, the absorption of employees of the non-surviving entities of the personam, thus binding only between the parties. A labor contract merely creates an action in personam
merger would have been mandatory on the surviving corporation.[27] In the present case, the merger and does not create any real right which should be respected by third parties. This conclusion draws its
was voluntarily entered into by both banks presumably for some mutually acceptable consideration. In force from the right of an employer to select his employees and to decide when to engage them as
fact, the Corporation Code does not also mandate the absorption of the employees of the non-surviving protected under our Constitution, and the same can only be restricted by law through the exercise of the
corporation by the surviving corporation in the case of a merger. Section 80 of the Corporation Code police power.[28]
provides:
Furthermore, this Court believes that it is contrary to public policy to declare the former FEBTC
SEC. 80. Effects of merger or consolidation. The merger or consolidation, as provided in the preceding employees as forming part of the assets or liabilities of FEBTC that were transferred and absorbed by BPI
sections shall have the following effects: in the Articles of Merger. Assets and liabilities, in this instance, should be deemed to refer only to
property rights and obligations of FEBTC and do not include the employment contracts of its personnel.
1. The constituent corporations shall become a single corporation which, in case of merger, shall be the A corporation cannot unilaterally transfer its employees to another employer like chattel. Certainly, if BPI
surviving corporation designated in the plan of merger; and, in case of consolidation, shall be the as an employer had the right to choose who to retain among FEBTCs employees, FEBTC employees had
consolidated corporation designated in the plan of consolidation; the concomitant right to choose not to be absorbed by BPI. Even though FEBTC employees had no choice
or control over the merger of their employer with BPI, they had a choice whether or not they would
2. The separate existence of the constituent corporations shall cease, except that of the surviving or the allow themselves to be absorbed by BPI. Certainly nothing prevented the FEBTCs employees from
consolidated corporation; resigning or retiring and seeking employment elsewhere instead of going along with the proposed
absorption.
3. The surviving or the consolidated corporation shall possess all the rights, privileges, immunities and
powers and shall be subject to all the duties and liabilities of a corporation organized under this Code; Employment is a personal consensual contract and absorption by BPI of a former FEBTC employee
without the consent of the employee is in violation of an individuals freedom to contract. It would have
22

been a different matter if there was an express provision in the articles of merger that as a condition for Where the provisions of a labor contract provided that in the event that a trucker absorbed the business
the merger, BPI was being required to assume all the employment contracts of all existing FEBTC of another private contractor or common carrier, or was a party to a merger of lines, the seniority of the
employees with the conformity of the employees. In the absence of such a provision in the articles of employees absorbed or affected thereby should be determined by mutual agreement between the
merger, then BPI clearly had the business management decision as to whether or not employ FEBTCs trucker and the unions involved, it was held in Moore v International Brotherhood of Teamsters, etc.
employees. FEBTC employees likewise retained the prerogative to allow themselves to be absorbed or (1962, Ky) 356 SW2d 241, that the trucker was not required to absorb the affected employees as well as
not; otherwise, that would be tantamount to involuntary servitude. the business, the court saying that they could find no such meaning in the above clause, stating that it
dealt only with seniority, and not with initial employment. Unless and until the absorbing company
agreed to take the employees of the company whose business was being absorbed, no seniority problem
There appears to be no dispute that with respect to FEBTC employees that BPI chose not to employ or was created, said the court, hence the provision of the contract could have no application. Furthermore,
FEBTC employees who chose to retire or be separated from employment instead of being absorbed, BPIs said the court, it did not require that the absorbing company take these employees, but only that if it did
assumed liability to these employees pursuant to the merger is FEBTCs liability to them in terms of take them the question of seniority between the old and new employees would be worked out by
separation pay,[29] retirement pay[30] or other benefits that may be due them depending on the agreement or else be submitted to the grievance procedure.[31] (Emphasis ours.)
circumstances.
Indeed, from the tenor of local and foreign authorities, in voluntary mergers, absorption of the dissolved
Legal Consequences of Mergers corporations employees or the recognition of the absorbed employees service with their previous
employer may be demanded from the surviving corporation if required by provision of law or contract.
Although not binding on this Court, American jurisprudence on the consequences of voluntary mergers The dissent of Justice Arturo D. Brion tries to make a distinction as to the terms and conditions of
on the right to employment and seniority rights is persuasive and illuminating. We quote the following employment of the absorbed employees in the case of a corporate merger or consolidation which will, in
pertinent discussion from the American Law Reports: effect, take away from corporate management the prerogative to make purely business decisions on the
hiring of employees or will give it an excuse not to apply the CBA in force to the prejudice of its own
Several cases have involved the situation where as a result of mergers, consolidations, or shutdowns, employees and their recognized collective bargaining agent. In this regard, we disagree with Justice
one group of employees, who had accumulated seniority at one plant or for one employer, finds that Brion.
their jobs have been discontinued except to the extent that they are offered employment at the place or
by the employer where the work is to be carried on in the future. Such cases have involved the question Justice Brion takes the position that because the surviving corporation continues the personality of the
whether such transferring employees should be entitled to carry with them their accumulated seniority dissolved corporation and acquires all the latters rights and obligations, it is duty-bound to absorb the
or whether they are to be compelled to start over at the bottom of the seniority list in the "new" job. It dissolved corporations employees, even in the absence of a stipulation in the plan of merger. He
has been recognized in some cases that the accumulated seniority does not survive and cannot be proposes that this interpretation would provide the necessary protection to labor as it spares workers
transferred to the "new" job. from being left in legal limbo.

In Carver v Brien (1942) 315 Ill App 643, 43 NE2d 597, the shop work of three formerly separate railroad However, there are instances where an employer can validly discontinue or terminate the employment
corporations, which had previously operated separate facilities, was consolidated in the shops of one of of an employee without violating his right to security of tenure. Among others, in case of redundancy, for
the roads. Displaced employees of the other two roads were given preference for the new jobs created example, superfluous employees may be terminated and such termination would be authorized under
in the shops of the railroad which took over the work. A controversy arose between the employees as to Article 283 of the Labor Code.[32]
whether the displaced employees were entitled to carry with them to the new jobs the seniority rights
they had accumulated with their prior employers, that is, whether the rosters of the three corporations, Moreover, assuming for the sake of argument that there is an obligation to hire or absorb all employees
for seniority purposes, should be "dovetailed" or whether the transferring employees should go to the of the non-surviving corporation, there is still no basis to conclude that the terms and conditions of
bottom of the roster of their new employer. Labor representatives of the various systems involved employment under a valid collective bargaining agreement in force in the surviving corporation should
attempted to work out an agreement which, in effect, preserved the seniority status obtained in the not be made to apply to the absorbed employees.
prior employment on other roads, and the action was for specific performance of this agreement against
a demurring group of the original employees of the railroad which was operating the consolidated shops. The Corporation Code and the Subject Merger Agreement are Silent on Efficacy, Terms and Conditions of
The relief sought was denied, the court saying that, absent some specific contract provision otherwise, Employment Contracts.
seniority rights were ordinarily limited to the employment in which they were earned, and concluding
that the contract for which specific performance was sought was not such a completed and binding The lack of a provision in the plan of merger regarding the transfer of employment contracts to the
agreement as would support such equitable relief, since the railroad, whose concurrence in the surviving corporation could have very well been deliberate on the part of the parties to the merger, in
arrangements made was essential to their effectuation, was not a party to the agreement. order to grant the surviving corporation the freedom to choose who among the dissolved corporations
employees to retain, in accordance with the surviving corporations business needs. If terminations, for
23

instance due to redundancy or labor-saving devices or to prevent losses, are done in good faith, they Proper Appreciation of the Term New Employees Under the CBA
would be valid. The surviving corporation too is duty-bound to protect the rights of its own employees
who may be affected by the merger in terms of seniority and other conditions of their employment due In any event, it is of no moment that the former FEBTC employees retained the regular status that they
to the merger. Thus, we are not convinced that in the absence of a stipulation in the merger plan the possessed while working for their former employer upon their absorption by petitioner. This fact would
surviving corporation was compelled, or may be judicially compelled, to absorb all employees under the not remove them from the scope of the phrase new employees as contemplated in the Union Shop
same terms and conditions obtaining in the dissolved corporation as the surviving corporation should Clause of the CBA, contrary to petitioners insistence that the term new employees only refers to those
also take into consideration the state of its business and its obligations to its own employees, and to who are initially hired as non-regular employees for possible regular employment.
their certified collective bargaining agent or labor union.
The Union Shop Clause in the CBA simply states that new employees who during the effectivity of the
Even assuming we accept Justice Brions theory that in a merger situation the surviving corporation CBA may be regularly employed by the Bank must join the union within thirty (30) days from their
should be compelled to absorb the dissolved corporations employees as a legal consequence of the regularization. There is nothing in the said clause that limits its application to only new employees who
merger and as a social justice consideration, it bears to emphasize his dissent also recognizes that the possess non-regular status, meaning probationary status, at the start of their employment. Petitioner
employee may choose to end his employment at any time by voluntarily resigning. For the employee to likewise failed to point to any provision in the CBA expressly excluding from the Union Shop Clause new
be absorbed by BPI, it requires the employees implied or express consent. It is because of this human employees who are absorbed as regular employees from the beginning of their employment. What is
element in employment contracts and the personal, consensual nature thereof that we cannot agree indubitable from the Union Shop Clause is that upon the effectivity of the CBA, petitioners new regular
that, in a merger situation, employment contracts are automatically transferable from one entity to employees (regardless of the manner by which they became employees of BPI) are required to join the
another in the same manner that a contract pertaining to purely proprietary rights such as a promissory Union as a condition of their continued employment.
note or a deed of sale of property is perfectly and automatically transferable to the surviving
corporation. The dissenting opinion of Justice Brion dovetails with Justice Carpios view only in their restrictive
interpretation of who are new employees under the CBA. To our dissenting colleagues, the phrase new
That BPI is the same entity as FEBTC after the merger is but a legal fiction intended as a tool to employees (who are covered by the union shop clause) should only include new employees who were
adjudicate rights and obligations between and among the merged corporations and the persons that hired as probationary during the life of the CBA and were later granted regular status. They propose that
deal with them. Although in a merger it is as if there is no change in the personality of the employer, the former FEBTC employees who were deemed regular employees from the beginning of their
there is in reality a change in the situation of the employee. Once an FEBTC employee is absorbed, there employment with BPI should be treated as a special class of employees and be excluded from the union
are presumably changes in his condition of employment even if his previous tenure and salary rate is shop clause.
recognized by BPI. It is reasonable to assume that BPI would have different rules and regulations and
company practices than FEBTC and it is incumbent upon the former FEBTC employees to obey these new Justice Brion himself points out that there is no clear, categorical definition of new employee in the CBA.
rules and adapt to their new environment. Not the least of the changes in employment condition that In other words, the term new employee as used in the union shop clause is used broadly without any
the absorbed FEBTC employees must face is the fact that prior to the merger they were employees of an qualification or distinction. However, the Court should not uphold an interpretation of the term new
unorganized establishment and after the merger they became employees of a unionized company that employee based on the general and extraneous provisions of the Corporation Code on merger that
had an existing collective bargaining agreement with the certified union. This presupposes that the union would defeat, rather than fulfill, the purpose of the union shop clause. To reiterate, the provision of the
who is party to the collective bargaining agreement is the certified union that has, in the appropriate Article 248(e) of the Labor Code in point mandates that nothing in the said Code or any other law should
certification election, been shown to represent a majority of the members of the bargaining unit. stop the parties from requiring membership in a recognized collective bargaining agent as a condition of
employment.
Likewise, with respect to FEBTC employees that BPI chose to employ and who also chose to be absorbed,
then due to BPIs blanket assumption of liabilities and obligations under the articles of merger, BPI was Significantly, petitioner BPI never stretches its arguments so far as to state that the absorbed employees
bound to respect the years of service of these FEBTC employees and to pay the same, or commensurate should be deemed old employees who are not covered by the Union Shop Clause. This is not surprising.
salaries and other benefits that these employees previously enjoyed with FEBTC.
By law and jurisprudence, a merger only becomes effective upon approval by the Securities and
As the Union likewise pointed out in its pleadings, there were benefits under the CBA that the former Exchange Commission (SEC) of the articles of merger. In Associated Bank v. Court of Appeals,[33] we
FEBTC employees did not enjoy with their previous employer. As BPI employees, they will enjoy all these held:
CBA benefits upon their absorption. Thus, although in a sense BPI is continuing FEBTCs employment of
these absorbed employees, BPIs employment of these absorbed employees was not under exactly the The procedure to be followed is prescribed under the Corporation Code. Section 79 of said Code requires
same terms and conditions as stated in the latters employment contracts with FEBTC. This further the approval by the Securities and Exchange Commission (SEC) of the articles of merger which, in turn,
strengthens the view that BPI and the former FEBTC employees voluntarily contracted with each other must have been duly approved by a majority of the respective stockholders of the constituent
for their employment in the surviving corporation. corporations. The same provision further states that the merger shall be effective only upon the issuance
24

by the SEC of a certificate of merger. The effectivity date of the merger is crucial for determining when No Substantial Distinction Under the CBA Between Regular Employees Hired After Probationary Status
the merged or absorbed corporation ceases to exist; and when its rights, privileges, properties as well as and Regular Employees Hired After the Merger
liabilities pass on to the surviving corporation.
Verily, we agree with the Court of Appeals that there are no substantial differences between a newly
In other words, even though BPI steps into the shoes of FEBTC as the surviving corporation, BPI does so hired non-regular employee who was regularized weeks or months after his hiring and a new employee
at a particular point in time, i.e., the effectivity of the merger upon the SECs issuance of a certificate of who was absorbed from another bank as a regular employee pursuant to a merger, for purposes of
merger. In fact, the articles of merger themselves provided that both BPI and FEBTC will continue their applying the Union Shop Clause. Both employees were hired/employed only after the CBA was signed. At
respective business operations until the SEC issues the certificate of merger and in the event SEC does the time they are being required to join the Union, they are both already regular rank and file employees
not issue such a certificate, they agree to hold each other blameless for the non-consummation of the of BPI. They belong to the same bargaining unit being represented by the Union. They both enjoy
merger. benefits that the Union was able to secure for them under the CBA. When they both entered the employ
of BPI, the CBA and the Union Shop Clause therein were already in effect and neither of them had the
Considering the foregoing principle, BPI could have only become the employer of the FEBTC employees it opportunity to express their preference for unionism or not. We see no cogent reason why the Union
absorbed after the approval by the SEC of the merger. If the SEC did not approve the merger, BPI would Shop Clause should not be applied equally to these two types of new employees, for they are undeniably
not be in the position to absorb the employees of FEBTC at all. Indeed, there is evidence on record that similarly situated.
BPI made the assignments of its absorbed employees in BPI effective April 10, 2000, or after the SECs
approval of the merger.[34] In other words, BPI became the employer of the absorbed employees only at The effect or consequence of BPIs so-called absorption of former FEBTC employees should be limited to
some point after the effectivity of the merger, notwithstanding the fact that the absorbed employees what they actually agreed to, i.e. recognition of the FEBTC employees years of service, salary rate and
years of service with FEBTC were voluntarily recognized by BPI. other benefits with their previous employer. The effect should not be stretched so far as to exempt
former FEBTC employees from the existing CBA terms, company policies and rules which apply to
Even assuming for the sake of argument that we consider the absorbed FEBTC employees as old employees similarly situated. If the Union Shop Clause is valid as to other new regular BPI employees,
employees of BPI who are not members of any union (i.e., it is their date of hiring by FEBTC and not the there is no reason why the same clause would be a violation of the absorbed employees freedom of
date of their absorption that is considered), this does not necessarily exclude them from the union association.
security clause in the CBA. The CBA subject of this case was effective from April 1, 1996 until March 31,
2001. Based on the allegations of the former FEBTC employees themselves, there were former FEBTC Non-Application of Union Shop Clause Contrary to the Policy of the Labor Code and Inimical to Industrial
employees who were hired by FEBTC after April 1, 1996 and if their date of hiring by FEBTC is considered Peace
as their date of hiring by BPI, they would undeniably be considered new employees of BPI within the
contemplation of the Union Shop Clause of the said CBA. Otherwise, it would lead to the absurd situation It is but fair that similarly situated employees who enjoy the same privileges of a CBA should be likewise
that we would discriminate not only between new BPI employees (hired during the life of the CBA) and subject to the same obligations the CBA imposes upon them. A contrary interpretation of the Union Shop
former FEBTC employees (absorbed during the life of the CBA) but also among the former FEBTC Clause will be inimical to industrial peace and workers solidarity. This unfavorable situation will not be
employees themselves. In other words, we would be treating employees who are exactly similarly sufficiently addressed by asking the former FEBTC employees to simply pay agency fees to the Union in
situated (i.e., the group of absorbed FEBTC employees) differently. This hardly satisfies the demands of lieu of union membership, as the dissent of Justice Carpio suggests. The fact remains that other new
equality and justice. regular employees, to whom the absorbed employees should be compared, do not have the option to
simply pay the agency fees and they must join the Union or face termination.
Petitioner limited itself to the argument that its absorbed employees do not fall within the term new
employees contemplated under the Union Shop Clause with the apparent objective of excluding all, and Petitioners restrictive reading of the Union Shop Clause could also inadvertently open an avenue, which
not just some, of the former FEBTC employees from the application of the Union Shop Clause. an employer could readily use, in order to dilute the membership base of the certified union in the
collective bargaining unit (CBU). By entering into a voluntary merger with a non-unionized company that
However, in law or even under the express terms of the CBA, there is no special class of employees employs more workers, an employer could get rid of its existing union by the simple expedient of arguing
called absorbed employees. In order for the Court to apply or not apply the Union Shop Clause, we can that the absorbed employees are not new employees, as are commonly understood to be covered by a
only classify the former FEBTC employees as either old or new. If they are not old employees, they are CBAs union security clause. This could then lead to a new majority within the CBU that could potentially
necessarily new employees. If they are new employees, the Union Shop Clause did not distinguish threaten the majority status of the existing union and, ultimately, spell its demise as the CBUs bargaining
between new employees who are non-regular at their hiring but who subsequently become regular and representative. Such a dreaded but not entirely far-fetched scenario is no different from the ingenious
new employees who are absorbed as regular and permanent from the beginning of their employment. and creative union-busting schemes that corporations have fomented throughout the years, which this
The Union Shop Clause did not so distinguish, and so neither must we. Court has foiled time and again in order to preserve and protect the valued place of labor in this
jurisdiction consistent with the Constitutions mandate of insuring social justice.
25

There is nothing in the Labor Code and other applicable laws or the CBA provision at issue that requires Justice Brion, on the other hand, appears to recognize the inherent unfairness of perpetually excluding
that a new employee has to be of probationary or non-regular status at the beginning of the the absorbed employees from the ambit of the union shop clause. He proposes that this matter be left to
employment relationship. An employer may confer upon a new employee the status of regular negotiation by the parties in the next CBA. To our mind, however, this proposal does not sufficiently
employment even at the onset of his engagement. Moreover, no law prohibits an employer from address the issue. With BPI already taking the position that employees absorbed pursuant to its
voluntarily recognizing the length of service of a new employee with a previous employer in relation to voluntary mergers with other banks are exempt from the union shop clause, the chances of the said
computation of benefits or seniority but it should not unduly be interpreted to exclude them from the bank ever agreeing to the inclusion of such employees in a future CBA is next to nil more so, if BPIs
coverage of the CBA which is a binding contractual obligation of the employer and employees. narrow interpretation of the union shop clause is sustained by this Court.

Indeed, a union security clause in a CBA should be interpreted to give meaning and effect to its purpose, Right of an Employee not to Join a Union is not Absolute and Must Give Way to the Collective Good of All
which is to afford protection to the certified bargaining agent and ensure that the employer is dealing Members of the Bargaining Unit
with a union that represents the interests of the legally mandated percentage of the members of the
bargaining unit. The dissenting opinions place a premium on the fact that even if the former FEBTC employees are not
old employees, they nonetheless were employed as regular and permanent employees without a gap in
The union shop clause offers protection to the certified bargaining agent by ensuring that future regular their service. However, an employees permanent and regular employment status in itself does not
employees who (a) enter the employ of the company during the life of the CBA; (b) are deemed part of necessarily exempt him from the coverage of a union shop clause.
the collective bargaining unit; and (c) whose number will affect the number of members of the collective
bargaining unit will be compelled to join the union. Such compulsion has legal effect, precisely because In the past this Court has upheld even the more stringent type of union security clause, i.e., the closed
the employer by voluntarily entering in to a union shop clause in a CBA with the certified bargaining shop provision, and held that it can be made applicable to old employees who are already regular and
agent takes on the responsibility of dismissing the new regular employee who does not join the union. permanent but have chosen not to join a union. In the early case of Juat v. Court of Industrial
Relations,[38] the Court held that an old employee who had no union may be compelled to join the
Without the union shop clause or with the restrictive interpretation thereof as proposed in the union even if the collective bargaining agreement (CBA) imposing the closed shop provision was only
dissenting opinions, the company can jeopardize the majority status of the certified union by excluding entered into seven years after of the hiring of the said employee. To quote from that decision:
from union membership all new regular employees whom the Company will absorb in future mergers
and all new regular employees whom the Company hires as regular from the beginning of their A closed-shop agreement has been considered as one form of union security whereby only union
employment without undergoing a probationary period. In this manner, the Company can increase the members can be hired and workers must remain union members as a condition of continued
number of members of the collective bargaining unit and if this increase is not accompanied by a employment. The requirement for employees or workers to become members of a union as a condition
corresponding increase in union membership, the certified union may lose its majority status and render for employment redounds to the benefit and advantage of said employees because by holding out to
it vulnerable to attack by another union who wishes to represent the same bargaining unit.[35] loyal members a promise of employment in the closed-shop the union wields group solidarity. In fact, it
is said that "the closed-shop contract is the most prized achievement of unionism."
Or worse, a certified union whose membership falls below twenty percent (20%) of the total members of
the collective bargaining unit may lose its status as a legitimate labor organization altogether, even in a This Court had categorically held in the case of Freeman Shirt Manufacturing Co., Inc., et al. vs. Court of
situation where there is no competing union.[36] In such a case, an interested party may file for the Industrial Relations, et al., G.R. No. L-16561, Jan. 28, 1961, that the closed-shop proviso of a collective
cancellation of the unions certificate of registration with the Bureau of Labor Relations.[37] bargaining agreement entered into between an employer and a duly authorized labor union is applicable
not only to the employees or laborers that are employed after the collective bargaining agreement had
Plainly, the restrictive interpretation of the union shop clause would place the certified unions very been entered into but also to old employees who are not members of any labor union at the time the
existence at the mercy and control of the employer. Relevantly, only BPI, the employer appears to be said collective bargaining agreement was entered into. In other words, if an employee or laborer is
interested in pursuing this case. The former FEBTC employees have not joined BPI in this appeal. already a member of a labor union different from the union that entered into a collective bargaining
agreement with the employer providing for a closed-shop, said employee or worker cannot be obliged to
For the foregoing reasons, Justice Carpios proposal to simply require the former FEBTC to pay agency become a member of that union which had entered into a collective bargaining agreement with the
fees is wholly inadequate to compensate the certified union for the loss of additional membership employer as a condition for his continued employment. (Emphasis and underscoring supplied.)
supposedly guaranteed by compliance with the union shop clause. This is apart from the fact that
treating these absorbed employees as a special class of new employees does not encourage worker Although the present case does not involve a closed shop provision that included even old employees,
solidarity in the company since another class of new employees (i.e. those whose were hired as the Juat example is but one of the cases that laid down the doctrine that the right not to join a union is
probationary and later regularized during the life of the CBA) would not have the option of substituting not absolute. Theoretically, there is nothing in law or jurisprudence to prevent an employer and a union
union membership with payment of agency fees. from stipulating that existing employees (who already attained regular and permanent status but who
are not members of any union) are to be included in the coverage of a union security clause. Even Article
26

248(e) of the Labor Code only expressly exempts old employees who already have a union from inclusion ground of religious freedom and even without Victoriano every employee has the right to vote no union
in a union security clause.[39] in a certification election as part of his freedom of association. However, Reyes is not authority for
Justice Carpios proposition that an employee who is not a member of any union may claim an exemption
Contrary to the assertion in the dissent of Justice Carpio, Juat has not been overturned by Victoriano v. from an existing union security clause because he already has regular and permanent status but simply
Elizalde Rope Workers Union[40] nor by Reyes v. Trajano.[41] The factual milieus of these three cases are prefers not to join a union.
vastly different.
The other cases cited in Justice Carpios dissent on this point are likewise inapplicable. Basa v. Federacion
In Victoriano, the issue that confronted the Court was whether or not employees who were members of Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,[44] Anucension v. National Labor
the Iglesia ni Kristo (INK) sect could be compelled to join the union under a closed shop provision, Union,[45] and Gonzales v. Central Azucarera de Tarlac Labor Union[46] all involved members of the INK.
despite the fact that their religious beliefs prohibited them from joining a union. In that case, the Court In line with Victoriano, these cases upheld the INK members claimed exemption from the union security
was asked to balance the constitutional right to religious freedom against a host of other constitutional clause on religious grounds. In the present case, the former FEBTC employees never claimed any
provisions including the freedom of association, the non-establishment clause, the non-impairment of religious grounds for their exemption from the Union Shop Clause. As for Philips Industrial Development,
contracts clause, the equal protection clause, and the social justice provision. In the end, the Court held Inc. v. National Labor Relations Corporation[47] and Knitjoy Manufacturing, Inc. v. Ferrer-Calleja,[48] the
that religious freedom, although not unlimited, is a fundamental personal right and liberty, and has a employees who were exempted from joining the respondent union or who were excluded from
preferred position in the hierarchy of values.[42] participating in the certification election were found to be not members of the bargaining unit
represented by respondent union and were free to form/join their own union. In the case at bar, it is
However, Victoriano is consistent with Juat since they both affirm that the right to refrain from joining a undisputed that the former FEBTC employees were part of the bargaining unit that the Union
union is not absolute. The relevant portion of Victoriano is quoted below: represented. Thus, the rulings in Philips and Knitjoy have no relevance to the issues at hand.

The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is, Time and again, this Court has ruled that the individual employees right not to join a union may be
however, limited. The legal protection granted to such right to refrain from joining is withdrawn by validly restricted by a union security clause in a CBA[49] and such union security clause is not a violation
operation of law, where a labor union and an employer have agreed on a closed shop, by virtue of which of the employees constitutional right to freedom of association.[50]
the employer may employ only member of the collective bargaining union, and the employees must
continue to be members of the union for the duration of the contract in order to keep their jobs. Thus It is unsurprising that significant provisions on labor protection of the 1987 Constitution are found in
Section 4 (a) (4) of the Industrial Peace Act, before its amendment by Republic Act No. 3350, provides Article XIII on Social Justice. The constitutional guarantee given the right to form unions[51] and the
that although it would be an unfair labor practice for an employer "to discriminate in regard to hire or State policy to promote unionism[52] have social justice considerations. In Peoples Industrial and
tenure of employment or any term or condition of employment to encourage or discourage membership Commercial Employees and Workers Organization v. Peoples Industrial and Commercial Corporation,[53]
in any labor organization" the employer is, however, not precluded "from making an agreement with a we recognized that [l]abor, being the weaker in economic power and resources than capital, deserve
labor organization to require as a condition of employment membership therein, if such labor protection that is actually substantial and material.
organization is the representative of the employees." By virtue, therefore, of a closed shop agreement,
before the enactment of Republic Act No. 3350, if any person, regardless of his religious beliefs, wishes The rationale for upholding the validity of union shop clauses in a CBA, even if they impinge upon the
to be employed or to keep his employment, he must become a member of the collective bargaining individual employees right or freedom of association, is not to protect the union for the unions sake.
union. Hence, the right of said employee not to join the labor union is curtailed and withdrawn.[43] Laws and jurisprudence promote unionism and afford certain protections to the certified bargaining
(Emphases supplied.) agent in a unionized company because a strong and effective union presumably benefits all employees in
the bargaining unit since such a union would be in a better position to demand improved benefits and
If Juat exemplified an exception to the rule that a person has the right not to join a union, Victoriano conditions of work from the employer. This is the rationale behind the State policy to promote unionism
merely created an exception to the exception on the ground of religious freedom. declared in the Constitution, which was elucidated in the above-cited case of Liberty Flour Mills
Employees v. Liberty Flour Mills, Inc.[54]
Reyes, on the other hand, did not involve the interpretation of any union security clause. In that case,
there was no certified bargaining agent yet since the controversy arose during a certification election. In In the case at bar, since the former FEBTC employees are deemed covered by the Union Shop Clause,
Reyes, the Court highlighted the idea that the freedom of association included the right not to associate they are required to join the certified bargaining agent, which supposedly has gathered the support of
or join a union in resolving the issue whether or not the votes of members of the INK sect who were part the majority of workers within the bargaining unit in the appropriate certification proceeding. Their
of the bargaining unit could be excluded in the results of a certification election, simply because they joining the certified union would, in fact, be in the best interests of the former FEBTC employees for it
were not members of the two contesting unions and were expected to have voted for NO UNION in view unites their interests with the majority of employees in the bargaining unit. It encourages employee
of their religious affiliation. The Court upheld the inclusion of the votes of the INK members since in the solidarity and affords sufficient protection to the majority status of the union during the life of the CBA
previous case of Victoriano we held that INK members may not be compelled to join a union on the which are the precisely the objectives of union security clauses, such as the Union Shop Clause involved
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herein. We are indeed not being called to balance the interests of individual employees as against the with respect to the employment contracts of existing personnel of the non-surviving entity which is
State policy of promoting unionism, since the employees, who were parties in the court below, no longer FEBTC. Pursuant to the said Article and Plan of Merger, all the assets and liabilities of FEBTC were
contested the adverse Court of Appeals decision. Nonetheless, settled jurisprudence has already swung transferred to and absorbed by BPI as the surviving corporation. FEBTC employees, including those in its
the balance in favor of unionism, in recognition that ultimately the individual employee will be benefited different branches across the country, were hired by petitioner as its own employees, with their status
by that policy. In the hierarchy of constitutional values, this Court has repeatedly held that the right to and tenure recognized and salaries and benefits maintained.
abstain from joining a labor organization is subordinate to the policy of encouraging unionism as an
instrument of social justice. ISSUE: Whether or not employees are ipso jure absorbed in a merger of the two corporations.

Also in the dissenting opinion of Justice Carpio, he maintains that one of the dire consequences to the RULING:
former FEBTC employees who refuse to join the union is the forfeiture of their retirement benefits. This
is clearly not the case precisely because BPI expressly recognized under the merger the length of service NO. [H]uman beings are never embraced in the term “assets and liabilities.”Moreover, BPI’s absorption
of the absorbed employees with FEBTC. Should some refuse to become members of the union, they may of former FEBTC employees was neither by operation of law nor by legal consequence of contract. There
still opt to retire if they are qualified under the law, the applicable retirement plan, or the CBA, based on was no government regulation or law that compelled the merger of the two banks or the absorption of
their combined length of service with FEBTC and BPI. Certainly, there is nothing in the union shop clause the employees of the dissolved corporation by the surviving corporation. Had there been such law or
that should be read as to curtail an employees eligibility to apply for retirement if qualified under the regulation, the absorption of employees of the non-surviving entities of the merger would have been
law, the existing retirement plan, or the CBA as the case may be. mandatory on the surviving corporation. In the present case, the merger was voluntarily entered into by
both banks presumably for some mutually acceptable consideration. In fact, the Corporation Code does
In sum, this Court finds it reasonable and just to conclude that the Union Shop Clause of the CBA covers not also mandate the absorption of the employees of the non-surviving corporation by the surviving
the former FEBTC employees who were hired/employed by BPI during the effectivity of the CBA in a corporation in the case of a merger.
manner which petitioner describes as absorption. A contrary appreciation of the facts of this case would,
undoubtedly, lead to an inequitable and very volatile labor situation which this Court has consistently [The] Court cannot uphold the reasoning that the general stipulation regarding transfer of FEBTC assets
ruled against. and liabilities to BPI as set forth in the Articles of Merger necessarily includes the transfer of all FEBTC
employees into the employ of BPI and neither BPI nor the FEBTC employees allegedly could do anything
In the case of former FEBTC employees who initially joined the union but later withdrew their about it. Even if it is so, it does not follow that the absorbed employees should not be subject to the
membership, there is even greater reason for the union to request their dismissal from the employer terms and conditions of employment obtaining in the surviving corporation.
since the CBA also contained a Maintenance of Membership Clause.
Furthermore, [the] Court believes that it is contrary to public policy to declare the former FEBTC
A final point in relation to procedural due process, the Court is not unmindful that the former FEBTC employees as forming part of the assets or liabilities of FEBTC that were transferred and absorbed by BPI
employees refusal to join the union and BPIs refusal to enforce the Union Shop Clause in this instance in the Articles of Merger. Assets and liabilities, in this instance, should be deemed to refer only to
may have been based on the honest belief that the former FEBTC employees were not covered by said property rights and obligations of FEBTC and do not include the employment contracts of its personnel.
clause. In the interest of fairness, we believe the former FEBTC employees should be given a fresh thirty A corporation cannot unilaterally transfer its employees to another employer like chattel. Certainly, if
(30) days from notice of finality of this decision to join the union before the union demands BPI to BPI as an employer had the right to choose who to retain among FEBTC’s employees, FEBTC employees
terminate their employment under the Union Shop Clause, assuming said clause has been carried over in had the concomitant right to choose not to be absorbed by BPI. Even though FEBTC employees had no
the present CBA and there has been no material change in the situation of the parties. choice or control over the merger of their employer with BPI, they had a choice whether or not they
would allow themselves to be absorbed by BPI. Certainly nothing prevented the FEBTC’s employees
WHEREFORE, the petition is hereby DENIED, and the Decision dated September 30, 2003 of the Court of from resigning or retiring and seeking employment elsewhere instead of going along with the proposed
Appeals is AFFIRMED, subject to the thirty (30) day notice requirement imposed herein. Former FEBTC absorption.
employees who opt not to become union members but who qualify for retirement shall receive their
retirement benefits in accordance with law, the applicable retirement plan, or the CBA, as the case may Employment is a personal consensual contract and absorption by BPI of a former FEBTC employee
be. SO ORDERED. without the consent of the employee is in violation of an individual’s freedom to contract. It would have
been a different matter if there was an express provision in the articles of merger that as a condition for
FACTS: the merger, BPI was being required to assume all the employment contracts of all existing FEBTC
employees with the conformity of the employees. In the absence of such a provision in the articles of
Bangko Sentral ng Pilipinas approved the Articles of Merger executed by and between BPI, herein merger, then BPI clearly had the business management decision as to whether or not employ FEBTC’s
petitioner, and Far East Bank and Trust Company (FEBTC) and was approved by the Securities and employees. FEBTC employees likewise retained the prerogative to allow themselves to be absorbed or
Exchange Commission. The Articles of Merger and Plan of Merger did not contain any specific stipulation not; otherwise, that would be tantamount to involuntary servitude.