Law & Courts

Supreme Court Takes Case On Boy Scouts’ Ban on Gays

By Mark Walsh — January 26, 2000 4 min read

The public schools will be interested bystanders as the U.S. Supreme Court considers whether the Boy Scouts of America has a First Amendment right to exclude homosexuals.

The court announced Jan. 14 that it would hear the Boy Scouts’ appeal of a New Jersey Supreme Court ruling that organized Scouting is a public accommodation under state law and thus cannot discriminate on the basis of sexual orientation.

A key element of the decision last year by New Jersey’s highest court was that Boy Scout groups have close relationships with the public schools for recruitment of new members and sponsorship of Scouting units.

Meanwhile, opponents of the Boy Scouts’ policies barring youths and adult volunteers who are gay, as well as those who refuse to affirm a belief in God, have increasingly asked schools and other public agencies not to do business with the Scouts. Last year, the Illinois chapter of the American Civil Liberties Union sued the Chicago school system, seeking to force an end to its sponsorship of Scouting activities. The lawsuit is pending in federal district court.

The Supreme Court agreed to hear Boy Scouts of America v. Dale (Case No. 99-699), adding another high-profile case to its docket for this term. The case involves James Dale, an Eagle Scout who was an assistant scoutmaster in Matawan, N.J., in 1990 when Scouting officials expelled him because they learned he was gay.

Mr. Dale sued the Boy Scouts in the New Jersey courts, where he cited the state’s broad anti-discrimination statute, which includes protection based on sexual orientation. In a unanimous ruling last year, the state supreme court rejected the Boy Scouts’ claim that it was a private organization not subject to the law.

The Boy Scouts is a “public accommodation” under the law, the court held, in part because it maintains close relationships with governmental bodies such as school districts.

“Boy Scouts currently recruits many of its members through its presence in and use of school facilities,” the court said.

The New Jersey court also rejected the Boy Scouts’ equation of homosexuality with immoral behavior. Such a view is “little more than prejudice,” the court said.

In its appeal to the U.S. Supreme Court, the Boy Scouts of America said it “interprets its moral code as inconsistent with homosexual conduct.” Being required by state law to accept Mr. Dale into a Scouting leadership position would infringe on the organization’s First Amendment rights, it said.

“Boy Scouting is an expressive organization with the purpose of instilling in boys and young men certain ideals of what it means to be a man,” the Boy Scouts’ appeal says. “If the state is permitted to impose its will on Boy Scouting in [sex, religion, and morality], Boy Scouting would cease to be recognizable.”

Greg Shields, a spokesman for the Irving, Texas- based Boy Scouts of America, said that of some 3.2 million U.S. youths who participate in traditional Boy Scout and Cub Scout activities, some 363,000, or just over 10 percent, are members of units sponsored by public schools. The BSA also encompasses such programs as Explorers and Venturers, which are open to boys and girls ages 14 to 20.

Some opponents of the Boy Scouts’ membership restrictions have targeted government sponsors, such as school districts. The ACLU lawsuit against the Chicago schools was a class action alleging that school districts and other government agencies unconstitutionally advance religion when they sponsor Boy Scout units because of Scouting’s requirement of affirming a belief in God.

“If the Boy Scouts keep their discriminatory policies, then government agencies will not be able to participate with them,” said Roger Leishman, a senior staff lawyer with the Illinois ACLU chapter. The lawsuit is pending in U.S. District Court in Chicago.

The Supreme Court will hear arguments in the New Jersey case in April and should hand down a decision by the end of its term in late June or early July.

Good Friday Holiday

In separate action last week, the Supreme Court:

  • Declined to disturb a federal appeals court ruling upholding a law that authorizes public school holidays on Good Friday and the Monday after Easter.

The U.S. Court of Appeals for the 4th Circuit, based in Richmond, Va., held that the Montgomery County, Md., district’s closing of schools on those days under the state law does not run afoul of the First Amendment’s prohibition against government establishment of religion.

“The board’s desire to economize scarce educational resources that are wasted when classes are held on days with a high rate of absenteeism provides a plausible secular purpose for closing schools for a four-day holiday around Easter,” the appeals court held.

The Supreme Court on Jan. 18 declined without comment to hear a taxpayer’s appeal of that ruling in Koenick v. Felton (No. 99-816).

  • Declined without comment to consider federal voting-rights challenges to at-large school board elections in two Texas districts. The justices disregarded the advice of the Clinton administration, which had suggested in a brief that either Perez v. Pasadena Independent School District (No. 98-1747) or Valdespino v. Alamo Heights Independent School District (No. 98-1987) be granted review to resolve a question about vote dilution in at-large elections.

In both cases, groups of Hispanic voters had sued under the federal Voting Rights Act of 1965, seeking to force the creation of single-member electoral districts.

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A version of this article appeared in the January 26, 2000 edition of Education Week as Supreme Court Takes Case On Boy Scouts’ Ban on Gays


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