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Published in Print: May 3, 2000, as Justices Join Lively Debate In Gay Scout Case

Justices Join Lively Debate In Gay Scout Case

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The Boy Scouts of America cannot be required to accept an openly gay man as a leader because that would contradict the organization's message that homosexual conduct is immoral, the group's lawyer told the U.S. Supreme Court last week.

"This case is about the freedom of a voluntary association to choose its own leaders," George A. Davidson said.

But the lawyer for James Dale, a former Eagle Scout who was ousted as an assistant scoutmaster in 1990 when Scout leaders learned he was gay, argued that the Boy Scouts have "failed to show that their expressive activities and their message are burdened" by a New Jersey law that prohibits discrimination based on sexual orientation.

Mr. Dale is not seeking to "advocate that 'gay is OK' within Scouting," Evan Wolfson, a senior staff lawyer with the Lambda Legal Defense and Education Fund, a New York City-based gay-rights group, told the justices.

The justices appeared troubled by several issues in Boy Scouts of America v. Dale (Case No. 99-699), including the fact that public schools and other government agencies are among the most common sponsors of Scout troops. But they gave no clear indication during the spirited oral arguments on April 26 about how they might rule.

'Moral Meaning'

Several members of the high court explored whether homosexuals who were not as open as Mr. Dale could serve as scoutmasters, or whether a heterosexual who disagreed with Scouting's views on homosexuality would clash with the policy. One of Mr. Dale's legal arguments is that the organization has renewed the charters of several troops that have openly objected to its exclusionary policies.

Mr. Davidson suggested that a heterosexual could advocate a change in the policy within Scouting's internal channels but that open dissent and defiance of the policy would lead to problems.

"In Mr. Dale's case, he has a desire to be open," said Mr. Davidson, a lawyer in private practice in New York City. "It's about the message that would go to youth in the program.

"Being openly homosexual communicates the message that this is OK," he added.

Lawyers for Mr. Dale argue that he does not want to use a Scouting leadership position to advocate gay rights. The 29-year-old magazine executive was a student at Rutgers University in 1990 and a co-leader of the gay students' group there when he was quoted in a newspaper article about the needs of gay teenagers. The article came to the attention of the leaders of his local Boy Scout council in New Jersey, and Mr. Dale was expelled from his position as an assistant scoutmaster.

In 1992, he sued the Boy Scouts of America under New Jersey's anti-discrimination law, which includes protection based on sexual orientation. Although he lost in a state trial court, Mr. Dale won in a state appeals court and in the New Jersey Supreme Court.

The state high court ruled that Scouting was a public accommodation under the law and could not exclude homosexuals. The court rejected the BSA's argument that it was a private organization with First Amendment rights of free speech and freedom of association that would be infringed by the state's application of its anti-discrimination law.

Schools, Religious Groups

Several school districts and education organizations, including the American Association of School Administrators, the American Federation of Teachers, and the National Education Association, filed friend-of-the-court briefs supporting Mr. Dale. They argue that because of Scouting's close relationship with schools, the exclusion of homosexuals is harmful to educators' efforts to eradicate bias against gay students.

After the Methodist Church and the Mormon Church, schools charter more Scout troops than any other group. ("Supreme Court Takes Case on Boy Scouts' Ban on Gays," April 26, 2000.)

Justice Anthony M. Kennedy questioned Mr. Davidson about the heavy sponsorship of Scouting units by governmental entities.

"I'm puzzled by what weight to give that," Justice Kennedy said. "If you prevail, do you think schools and fire departments would be ... required to sever their relationship?"

Mr. Davidson said that would be a matter for those sponsors to decide, adding that "Scouting itself has pulled back from government" in recent years.

During Mr. Wolfson's turn on behalf of Mr. Dale, he faced a tough line of questioning about whether the Boy Scouts of America's message would be infringed by having to accept an openly gay scoutmaster.

"Is there any doubt that one of the primary purposes of the Boy Scouts is moral formation?" said Justice Antonin Scalia, who made clear his support for the BSA's position.

Justice Stephen G. Breyer, a relatively liberal member of the court and a former Eagle Scout, wondered whether a ruling for Mr. Dale would lead to a private Roman Catholic group such as the Knights of Columbus being required to admit Jews.

Mr. Wolfson suggested it would be easier for a religious organization to show that its message, and thus its free-speech rights, would be burdened by requiring the admission of nonadherents.

The case will be decided before the court's term ends in late June.

Vol. 19, Issue 34, Pages 30,32

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