(concurring and dissenting).
It is unlikely, in my view, that the New Jersey Legislature originally intended that private groups, large or small, would be deemed to be “places” of public accommodation, akin to hotels, stores, restaurants, theaters and the like, whose discriminatory conduct troubled our collective conscience when the LAD was enacted in 1945. Use of the words “other real property” in N.J.S.A. 10:5-4 in the phrase “place of public accommodation, publicly assisted housing accommodation, and other real property” would incline me to a property-based interpretation, were this truly a matter of first impression. See also N.J.S.A. 10:1-5; 10:5-5(1).
I am persuaded, nonetheless, partly by the enduring, legislatively undiluted, vitality of the Little League1 opinion in this State, and partly by the authorities cited in the majority’s carefully crafted opinion, that notwithstanding authority to the contrary, see, e.g., Welsh v. Boy Scouts of Am., 993 F.2d 1267 (7th Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993), judicial interpretation has generally transformed organizations which extend an open invitation to public membership as broad as that of the Boy Seouts into places of public accommodation for purposes of statutes such as the LAD.
What has been lost in the majority’s opinion is our traditional focus upon the special facts of the case on appeal. James Dale, who excelled as a Boy Scout, has been prominently publicized as an avowed, practicing homosexual and also as a leader in organizational activities given to the promotion of the interests of gay and *562lesbian students. He wants to continue his scouting career in a leadership capacity as a volunteer scoutmaster or assistant scoutmaster.
Concerned that accepting an avowed homosexual as a scoutmaster would signify endorsement of such a lifestyle in contradiction to their declared policies against extramarital sex and homosexual activity, the Boy Scouts went beyond refusing Dale a volunteer leadership post. They also revoked his Boy Scout membership.
These facts require us to address two separate issues, restriction of membership and restriction of leadership. As a “place” of public accommodation, the Boy Scouts should not have revoked Dale’s membership. I must concur with the majority in that regard.
What of the second issue?
In January 1993, several years after revocation of Dale’s membership, the Boy Scouts promulgated a Position Statement providing, in pertinent part:
The Boy Scouts of America does not ask prospective members about their sexual preference, nor do we check on the sexual orientation of boys who are already Scouts. The reality is that Scouting serves children who have no knowledge of, or interest in, sexual preference. We allow youth to live as children and enjoy Scouting and its diversity without immersing them in the politics of the day.
Membership in Scouting is open to all youth who meet basic requirements for membership and who agree to live by the applicable oath and law.
* # *
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 expectations.
Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA.
The present members of the Boy Scouts number approximately five million. We are told that as many as ninety million boys and men have enjoyed membership in the Boy Scouts since 1910. Surely the Boy Scouts are aware that, statistically, a number of *563these must have been gay. There obviously has been no anti-gay witch hunt in the Boy Scout movement.
The defendants’ consistent theme is evident; scouting condemns homosexual practice as morally unacceptable, and so acts negatively with respect to its open avowal because it is inconsistent with one of the expressed moral policies of the organization.
The 1972 Scoutmaster’s Handbook emphasized a scout leader’s duty as a role model, and advised:
You are providing a good example of what a man should be like. What you do and what you are may be worth a thousand lectures and sermons____ What you are speaks louder than what you say. This ranges from simple things like wearing the uniform to the matter of your behavior as an individual. Boys need a model to copy and you might be the only good example they know.
If their perception of the immorality of homosexuality is in fact an important part of the Boy Scouts’ institutional message to young Scouts, what Jim Dale openly professes and exemplifies clearly flies in the face of that view. When we force the Boy Scouts to permit him to serve as a volunteer leader, we force them equally to endorse his symbolic, if not openly articulated, message. I believe that this violates the right of expressive association guaranteed by the First Amendment of the United States Constitution. Even when a membership association provides public benefits to which this State may insure equal access under the LAD, such compelled access to membership does not carry with it a right to “trespass on the organization’s message itself.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 580, 115 S.Ct. 2338, 2351, 132 L.Ed.2d 487, 508 (1995); New York State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988). We may not compel the Boy Scouts to alter a message which they wish to convey by including messages more acceptable to others. Hurley, supra, 515 U.S. at 581, 115 S.Ct. at 2351, 132 L.Ed.2d at 508. This principle is not changed merely because the altered message is implicitly, but no less strongly, conveyed by example rather than by verbal articulation or by signs.
*564As applied to Dale’s status as scoutmaster, I differ with the majority’s reliance upon Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). There, only admission to Jaycee membership was the issue. Of course, the Boy Scouts were not organized for the primary purpose of advancing an anti-gay agenda. However, nothing in Roberts prevents an organization from advocating its view that a gay lifestyle is immoral and undesirable without requiring it to provide a platform for competing advocacy, express or implicit. Indeed, as Hurley demonstrates, the First Amendment guarantees the Boy Scouts that right of unfettered advocacy.
To the extent the majority opinion questions the fundamental nature of the Boy Scouts’ profession of an organizational view on homosexuality, there are two equally dispositive responses. First, it is not for this court to tell the Boy Scouts what to believe or what to profess. That is an internal matter. Their consistent litigation stand in eases like this, and the representations of their governing officials are enough for me. There has been no contravening intervention by opposing Boy Scout groups, although other, non-affiliated, amici curiae are abundantly represented in this appeal.
Secondly, when limited to the First Amendment issue of the expressive effect of elevating Dale to an adult leadership role (as distinct from his admission to or retention of Boy Scout membership), whether or not the Boy Scouts’ stand on homosexuality is fundamental to that organization’s creation is entirely irrelevant.
Based upon the above views, I respectfully' dissent from the majority opinion to the extent it would compel the Boy Scouts to accept plaintiff James Dale as assistant scoutmaster or to any Scout leadership position. I concur with the majority result, to the extent that it would require plaintiff be restored to membership.
National Org. for Women, Essex County Chapter v. Little League Baseball, Inc., 127 N.J.Super. 522, 318 A.2d 33 (App.Div.), aff'd, 67 N.J. 320, 338 A.2d 198 (1974).