Law & Courts

High Court To Hear Case On Gay Scoutmaster

By Mark Walsh — April 26, 2000 6 min read

Since 1910, the Boy Scouts have symbolized values such as honesty, self-reliance, and service to others. Think Norman Rockwell, and his numerous Scout paintings.

For the past decade, however, Scouting has been forced to confront a different set of ideals: gay self-expression, religious freedom, and nondiscrimination.

Individuals, school districts, cities, states, and charities are among those that have challenged the Scouts’ policy against accepting acknowledged homosexuals and those who refuse to affirm a belief in God.

Now, this cultural conflict is coming to a head in the U.S. Supreme Court, which will hear oral arguments April 26 in a case that will determine whether the Scouts must allow James Dale—a former Eagle Scout who was expelled as an assistant scoutmaster when Boy Scout leaders learned he was gay—to rejoin the organization. The New Jersey Supreme Court ruled last year that Scouting is a public accommodation, like a restaurant, and cannot discriminate on the basis of sexual orientation.

The appeal in Boy Scouts of America v. Dale (Case No. 99-699) has attracted the kind of widespread interest at the high court normally reserved for such volatile issues as abortion and school prayer.

Lining up on Mr. Dale’s side, besides gay-rights groups and the American Civil Liberties Union, are the National Education Association and the American Federation of Teachers; urban school districts such as New York City, Los Angeles, and San Francisco; and even the staid American Association of School Administrators.

“Discriminatory attitudes such as those exhibited by the Boy Scouts of America in expelling James Dale promote negative and harmful attitudes toward gay students in our schools,” the AASA says in its brief.

Joining the Boy Scouts are a number of religious denominations that sponsor thousands of Scout troops, such as the Mormon Church and the U.S. Catholic Conference, as well as a who’s who of conservative political and social organizations, including Concerned Women for America, the Eagle Forum, and the Family Research Council.

The Washington-based FRC argues, among other points, that “it is imperative that homosexuals are excluded from BSA membership in order to protect Scouts from potential abuse by homosexual pedophiles.”

‘Morally Straight’

The Boy Scouts of America emphasizes in its court papers that it makes no effort to discover the sexual orientation of prospective Scouts or leaders.

“Boy Scouting does not have an ‘anti-gay’ policy, it has a morally straight policy,” the organization told the Supreme Court in its main legal brief. Scouting officials declined interview requests, but the organization has long maintained that homosexuality conflicts with the portion of the Scout Oath that says boys will keep themselves “morally straight.”

Mr. Dale believes that being gay and morally straight are not mutually exclusive. He joined the Cub Scouts at age 8 and went on the earn the rank of Eagle Scout through the troop at his family church in Middletown, N.J.

In 1990, at age 19, Mr. Dale was serving as an assistant scoutmaster for another troop when he attended a conference for educators about the needs of gay teenagers. He was co-president of the Rutgers University gay students’ alliance at the time. The Star-Ledger newspaper of Newark, N.J., ran an article about the conference, which included a quote from Mr. Dale, but no mention of his affiliation with the Boy Scouts.

Within weeks, though, he was expelled from the organization by his local Scouting council. In 1992, shortly after New Jersey added sexual orientation to its anti-discrimination law, Mr. Dale sued the Boy Scouts in state court. He lost in a trial court, but won in an appellate court and the state supreme court.

The Boy Scouts of America is a public accommodation under the law, the state high court held last year, in part because it maintains close relationships with governmental bodies such as school districts.

The Scouts’ close relationship with schools underlies many of the arguments in the case.

Brian Thomas, a spokesman for the national headquarters of the BSA in Irving, Texas, said the public schools rank third as chartering organizations for Scout troops, behind the Methodist Church and the Church of Jesus Christ of Latter-Day Saints.

Public schools have also been among the battlegrounds over the Scouts’ policies barring homosexuals.

In 1991, the San Francisco school board voted to bar the Boy Scouts from making recruiting presentations in its classrooms during school hours because of the group’s stance on gay members.

“The teacher might be gay, but the person making the Scout presentation could not be gay,” Tom Ammiano, the current president of the San Francisco Board of Supervisors and a school board member at the time, said in an interview last week. “I said that this is a violation of our nondiscrimination clause.”

Mr. Ammiano, who is gay (and a former Boy Scout), sponsored the policy ousting the Scouts from the San Francisco schools.

“It’s anti-American to say to every boy that you can be a Boy Scout, but then turn around and say, ‘You can’t because you’re gay,’” he said.

Gay Activist?

The Boy Scouts’ chief legal argument is that as a private organization, it has First Amendment rights of free speech and freedom of association that would be infringed by New Jersey’s mandate that it accept gay members.

“Requiring a Boy Scout troop to appoint an avowed homosexual and gay-rights activist as an assistant scoutmaster unconstitutionally abridges” the Scouts’ free-speech rights, the BSA told the justices in its brief.

The organization cites the Supreme Court’s 1995 ruling that the private sponsor of Boston’s St. Patrick’s Day parade could not be forced to accept a gay Irish group in the parade.

“Putting Dale in an adult leader’s uniform would interfere with Boy Scouting’s ability to control the content of its message,” the BSA argues. “Indeed, the very service of an openly gay person as a role model would convey a message with which Boy Scouting does not wish to be associated.”

Mr. Dale has been quoted as saying he would like to be a gay role model, but his lawyers also tell the court that he would not advocate gay rights in his role as a scoutmaster.

He argues that Scouting is not an intimate association, and that its members do not come together for the principal purpose of opposing homosexuality, so no rights of association or free speech are violated by the New Jersey anti-discrimination law.

The Lambda Legal Defense and Education Fund, a New York City-based gay-rights organization that represents Mr. Dale, points out that the BSA has not expelled non-gay Scouting leaders who have questioned or publicly opposed its policy barring homosexuals.

The fund stresses three Supreme Court rulings from the 1980s in which the justices held that private groups of a commercial nature, such as the Jaycees and Rotary Clubs, had to comply with anti-discrimination laws requiring them to admit women.

But the Boy Scouts also cite one of those cases, Roberts v. United States Jaycees. In a concurrence to the 1984 ruling, Justice Sandra Day O’Connor emphasized that the purposes of an association are relevant in determining whether it is involved in constitutionally protected expression.

Citing Girl Scout and Boy Scout handbooks, she wrote, “Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”

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A version of this article appeared in the April 26, 2000 edition of Education Week as High Court To Hear Case On Gay Scoutmaster

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