Supreme Court Looks at Implications of Gays in Boy Scouts

Affiliate: ACLU of New Jersey
April 26, 2000 12:00 am

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WASHINGTON — The question before the Supreme Court today was whether the Boy Scouts have a constitutional right to exclude gay members, but the Justices did not seem particularly interested in either Boy Scout policy or the future of gay rights, The New York Times reported.

The Times said that what clearly concerned the Court, instead, were the implications of ruling for one side or the other. If the Boy Scouts cannot exclude gays, can they still exclude girls, the Justices wanted to know. Would a Jewish social group be forced to accept non-Jewish members, or a gay organization to include heterosexuals?

More generally, the Justices asked, if an organization deems a particular kind of exclusivity to be central to its identity, must courts take that assertion at face value? If not, by what standard are they to judge it? If so, might that not be the equivalent of giving a free pass from the anti-discrimination commands of civil rights law?

The Times reported that the questions came thick and fast for the lawyers representing the Boy Scouts of America and James Dale, who was an Eagle Scout assistant scoutmaster when his troop in New Jersey expelled him 10 years ago, after learning from a newspaper article that he is gay.

The Boy Scouts “specifically forbid membership to homosexuals,” he was told. Dale, who as the article reported was co-president of a student gay rights organization at Rutgers University, sued under New Jersey’s anti-discrimination law, which includes protection for sexual orientation.

Last year the New Jersey Supreme Court ruled that the Boy Scouts are a “public accommodation,” to which the state law applies, and rejected the argument that the First Amendment guarantee of freedom of association shielded the Scouts’ policy.

The Justices’ questions today reflected their effort to decide where to slot this case into an array of First Amendment precedents that offer ammunition to both sides. For example, several Justices asked in various ways whether Dale’s termination reflected the simple fact of his sexual orientation, as opposed to scouting officials’ conclusions that he was engaged in “public advocacy,” as Justice Anthony M. Kennedy put it.

“It’s about the message that would go to youth in the program,” said George A. Davidson, the Boy Scouts’ lawyer. “Being openly homosexual communicates the concept that this is O.K.”

But Dale’s lawyer, Evan Wolfson of the Lambda Legal Defense and Education Fund, maintained that what was at issue in Dale’s case was “identity-based discrimination, the equation of a human being with an assumed message,” without reference to anything Dale had said or done.

“A human being is not speech, other than ‘I am who I am,’ ” Wolfson said.

The ACLU filed an amicus (friend-of-the-court) brief in the case, Boy Scouts of America v. Dale, arguing that Mr. Dale’s dismissal from the Scouts was a form of discrimination and violated his rights.

A decision is expected by early summer.

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