Supreme Court to decide if Boy Scouts can exclude gays

The Associated Press

01.14.00

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WASHINGTON — Taking on emotional issues of free speech and homosexuality, the Supreme Court agreed today to decide whether the Boy Scouts of America can exclude gays as members and troop leaders.

The justices said they would decide whether the organization had a constitutional right to oust a young troop leader after learning he is gay. The court is expected to hear arguments in Boy Scouts of America v. James Dale in April and issue a decision by July.

New Jersey's highest court ruled last summer that the Boy Scouts' denial of membership to homosexual boys and leaders violated a state law banning discrimination in public accommodations.

But the Scouts' lawyer contends that law violated the organization's rights of free speech and free association under the First Amendment.

``Scouting adheres to a moral belief ... that homosexual conduct is not moral,'' the Scouts' lawyer, George A. Davidson, said today after the high court granted review.

An openly gay person would not be a proper Scout role model, Davidson said, adding, ``Boy Scouting is really all about sending messages. The message is that you should be morally straight.''

But the attorney for James Dale, the former assistant scoutmaster whose leadership role was revoked, says opposition to homosexuality is not one of the Scouts' main purposes.

``As gay people we know how important the First Amendment is,'' said lawyer Evan Wolfson of the Lambda Legal Defense and Education Fund. ``Their First Amendment rights are not being interfered with. The members did not join the Boy Scouts for bigotry in the first place.''

Dale was 20 and an assistant scoutmaster of a Matewan, N.J., troop when in 1990 he was identified in a newspaper article as co-president of a campus lesbian and gay student group at Rutgers University.

He previously had attained the rank of Eagle, which only 2% of all Scouts achieve, and had been elected to the Order of the Arrow, a Scouting honor society.

The Scouts' Monmouth Council revoked Dale's registration as an adult leader. Dale was told the Boy Scouts ``does not admit avowed homosexuals to membership in the organization.''

Dale sued the Monmouth Council and the national organization in 1992, contending they violated the New Jersey Law Against Discrimination. His lawsuit seeks reinstatement and monetary damages.

A state trial judge threw out the case, ruling that the Boy Scouts is not a place of public accommodation and therefore is not covered by the law. But an appeals court and the New Jersey Supreme Court ruled for Dale.

The state Supreme Court rejected the organization's argument that accepting homosexuals would violate the Scout Oath's commitment to remain ``morally straight'' and the Scout Law's commitment to remain ``clean.''

Its decision added: ``The Boy Scouts' expulsion of Dale is based on little more than prejudice and not on a unified Boy Scout position.''

The Scouts' appeal to the nation's highest court said the New Jersey court decision leaves many organizations vulnerable.

``Almost any organization could find itself a victim of a court's desire to foster social change by forcing social private associations to conform to its idea of egalitarian values,'' the appeal said.

The appeal relied on a 1995 U.S. Supreme Court decision in which the justices said the sponsor of Boston's St. Patrick's Day Parade should not be forced to let a group of gays and lesbians participate. The court said parades are ``a form of expression'' and private sponsors cannot be forced to include ``a group imparting a message the organizers do not wish to convey.''

But Dale's lawyers contend his case should be governed by a series of Supreme Court decisions dealing with state public-accommodations laws.

The court ruled in 1984 that states may force the Jaycees, a group dedicated to developing America's future leaders, to admit women as full members. Three years later, the court ruled that states may force Rotary International to admit women as members.

In 1988, the court said New York City can bar discrimination against women and minorities by clubs with more than 400 members.

None of those decisions dealt with gay rights, however, an issue the court has visited on a few occasions in the last two decades but never seemed eager to tackle. For example, the justices repeatedly have turned away challenges to President Clinton's ``don't ask, don't tell'' policy on gays in the military.