High Court Hears Case of Gay Scout

At issue: can government limit how non-profit leaders are selected?

The U.S. Supreme Court last week heard arguments in a case that could determine what limits the government can place on the rights of non-profit organizations to choose their leaders.

At issue: Whether the Boy Scouts of America violated New Jersey’s antidiscrimination law when it expelled James Dale, an Eagle Scout and assistant scoutmaster, in 1990 after learning that he was gay.

During a lively hour-long session in a crowded courtroom, justices sharply questioned the lawyers representing both sides in the dispute, and provided mixed signals about how the court will eventually rule.

Several of the justices made clear that they found the Boy Scouts’ position on excluding homosexuals vague and confusing, especially because it is not spelled out in the charity’s official manuals for Scouts and leaders.

But some justices questioned why a private organization should be compelled to admit those whose values run counter to its code of conduct.

The justices are expected to decide by July if the New Jersey Supreme Court last year properly rejected the Scouts’ argument that the organization is private and that its decision to expel Mr. Dale was protected by the First Amendment rights of freedom of association and freedom of expression.

In a unanimous decision, the New Jersey Supreme Court said that the Boy Scouts are subject to a state law that forbids places of “public accommodation,” such as hotels and restaurants, from discriminating on the basis of sexual orientation. The state court said that the Scouts qualify as a place of public accommodation — and not as a private organization — because, among other things, the organization says it is “open to all boys,” is frequently sponsored by government agencies such as police and fire departments and schools, often uses public buildings for meetings, and is chartered by Congress.

At the U.S. Supreme Court hearing, Justice Sandra Day O’Connor challenged that interpretation. “I can well understand how public-accommodation law can apply to commercial groups, or to the Jaycees, which have a commercial nexus,” she said. “But should the claim be the same for purely private organizations?”

The New Jersey court also ruled that the Scouts’ decision to expel Mr. Dale was not protected by First Amendment rights because of the organization’s size and because its ability to “disseminate its message” would not be significantly affected by Mr. Dale’s inclusion in the group.

The organization’s members don’t get together “for the purpose of disseminating the belief that homosexuality is immoral,” the New Jersey court said.

However, George A. Davidson, a lawyer for the Boy Scouts, told the U.S. Supreme Court justices that the group’s ethical code requires Scouts to be “morally straight” and “clean.”

“Scouting regards open homosexuality as wrong,” he said.

Evan Wolfson, a lawyer for Mr. Dale from the Lambda Legal Defense and Education Fund, told the justices that his client had no intention of advocating homosexuality as an assistant scoutmaster.

But Justice Antonin Scalia made it clear that he thought the New Jersey law could threaten the Scouts’ autonomy.

“Is there any doubt that one of the Boy Scouts’ primary purposes, if not its primary purpose, is moral formation?” Mr. Scalia asked. “One of the elements that they hold is that homosexuality is immoral. How is that not a central element?”

He added: “You don’t think it’s contrary to their message to have as a scoutmaster somebody who is the embodiment of the contradiction of that message?”

The U.S. Supreme Court’s ruling in the case, Boy Scouts of America v. James Dale, No. 99-699, will have major ramifications for Boy Scouts organizations across the country because lawsuits raising similar issues are pending in several other states. To date, New Jersey is the only state whose Supreme Court has ruled against the Boy Scouts’ claim that it is a private organization. State Supreme Courts in California, Connecticut, Kansas, and Oregon, as well as a federal appeals court, have decided in favor of the Boy Scouts. The California court held that the Boy Scouts could expel homosexuals, agnostics, and atheists.

The Dale case is so important to charities of all kinds that many non-profit organizations — including religious, civil-rights, youth, and mental-health groups — as well as cities and states have filed friend-of-the-court briefs with the Supreme Court on one side or the other. Among those supporting the Scouts: the Cato Institute, the Christian Legal Society, and the Eagle Forum Education & Legal Defense Fund. Among those on Mr. Dale’s side: the United Methodist General Board of Church and Society, the National Association for the Advancement of Colored People, and the National Gay and Lesbian Task Force.

Mr. Dale, 29, became a member of the Boy Scouts in 1978 at the age of 8, and remained a youth member until his 18th birthday in 1988. In 1989, Mr. Dale sought and was given the position of assistant scoutmaster of a troop. In July 1990, he was identified in an article by a New Jersey newspaper as co-president of the Rutgers University Lesbian/Gay Alliance. Later that month, Mr. Dale received a letter from the Boy Scouts’ Monmouth Council Executive revoking his membership in the organization. Scout officials then told him that the group did not admit avowed homosexuals. Mr. Dale sued the Scouts in 1992.

In its brief filed with the U.S. Supreme Court, the Boy Scouts suggested that nothing less than the rights of all voluntary organizations was at stake in the case: “the freedom of a private, voluntary, non-commercial organization to create and interpret its own moral code, and to choose leaders and define membership criteria accordingly.”

The Scouts said that the New Jersey decision that the organization is a place of public accommodation “is so sweeping that almost any organization could find itself the target of a state’s desire to enforce conformity to its ideas of desirable social change.”

The Scouts said that without First Amendment protection “against intrusion of public accommodations laws into the voluntary sector — where many organizations consist of members of or provide services to a single sex, ethnicity, or religion — American society would be fundamentally transformed.” The brief added: “A society in which each and every organization must be equally diverse is a society which has destroyed diversity.”

To back up its argument, the Scouts cited a 1995 Supreme Court decision that said that organizers of a St. Patrick’s Day parade in Boston could not be required to include the Irish-American Gay, Lesbian, and Bisexual Group of Boston, even though that state had an antidiscrimination law. In that ruling, the court said that requiring parade organizers to include the group “violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”

But Justice David H. Souter questioned the similarity between the Boston parade and the Boy Scouts’ cases.

“Mr. Dale is not asking to carry a banner; he’s saying, ‘I’m not going to carry a banner,’” Mr. Souter said.

Mr. Davidson, the Boy Scouts’ lawyer, replied that Mr. Dale “put a banner around his neck” by leading his college gay-rights group. “He can’t take that banner off. He put it on himself.”

For his part, Mr. Dale, in his brief, said that the New Jersey Supreme Court had it figured out right.

The Boy Scouts’ “government entanglement and the large, open nature of the organization defeat BSA’s efforts to cloak itself in the mantle of highly private associations” that could avoid the New Jersey antidiscrimination law, he said. “Unlike virtually all private organizations in this country,” Mr. Dale continued, the Boy Scouts “has a relationship with public entities whereby those entities, along with others, implement BSA’s program at the local level.”

The Boy Scouts’ “size, symbiosis with government at all levels, and broad invitation to volunteer leaders and ‘all boys,’ demonstrate that it is far less ‘private’ than most associations that operate in this country,” Mr. Dale said.

To support his position, Mr. Dale’s brief pointed to three Supreme Court decisions dating back to 1984 that rejected efforts by groups with all-male memberships, including the United States Jaycees, to exclude women on First Amendment grounds.

Friend-of-the-court briefs filed with the Supreme Court by organizations taking one side or another shed light on the heat of the debate.

Squarely on the side of the Boy Scouts are the United States Catholic Conference and the New Jersey Catholic Conference, which emphasized that the case is not about discrimination against homosexuals but about the First Amendment right of a private organization to decide what its beliefs are and who will represent those beliefs.

“For the judiciary effectively to direct the Boy Scouts to convey, through its Scout leadership, another and directly contrary message is indefensible and threatens the integrity of a wide range of American institutions,” the brief stated. “Churches and religious organizations and other groups that exist to promote strong social and moral messages, and take firm stands in support of those messages, are particularly at risk.”

A brief supporting Mr. Dale submitted by 19 organizations, including the American Civil Liberties Union and the National Organization for Women Legal Defense and Education Fund, said that any “incidental burden” on the Boy Scouts’ freedom of association was outweighed by New Jersey’s interest in ensuring equality.

“In banning sexual orientation discrimination, New Jersey sought to include in ordinary life a group of Americans unfairly excluded from much of it,” the brief said. “That is an important interest, unrelated to the suppression of expression.”

In its brief in support of Mr. Dale, the American Jewish Congress said that the Scouts “would draw a bright line around non-profit activity and suggest that all not-for-profits are entitled to exclude whom they will. Though there is a surface appeal to this claim, it does not survive closer scrutiny.”

Blanket tolerance of private discrimination in the non-profit world would come at a very high price, the American Jewish Congress said. “The sense of fraternity, commonality, and community which accrues from membership in nominally private organizations like the Boy Scouts is an integral part of society’s social capital. That capital is placed off limits to distinct and disadvantaged groups only at a high cost to the whole community.”