A Matter of Opinion

Debate rages over implications of Supreme Court’s decision to allow Boy Scouts to exclude homosexual leaders

The U.S. Supreme Court’s decision to uphold the Boy Scouts of America’s right to reject

homosexual leaders is a big legal victory for the charity, which has fought for two decades to exclude gays, atheists, and, from some of its programs, girls.

But many observers in the non-profit world say that the battle over the Scouts’ policy is far from over.

Opponents of the organization’s position say that the public is likely to place increasing pressure on local government agencies, such as police departments and schools across the country that support Scout programs, to sever or limit their relationships with the Scouts. The rationale: It might be illegal for government agencies to help a group that discriminates.

Ultimately, critics say, the blemish of bigotry on the Boy Scouts’ once-sterling reputation will also drive away support from a variety of charitable organizations and individual and corporate donors.

Indeed, some observers are questioning whether the Boy Scouts might be at risk of losing its charitable status, as Bob Jones University did nearly two decades ago over its policy of refusing to admit students involved in interracial relationships. In that case, the Supreme Court ruled in 1983 that “an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.”

The Scouts’ supporters, however, argue that the standard applied in the Bob Jones case does not apply to cases involving sexual orientation. Instead, they hail the Supreme Court’s decision as a victory for all private organizations that wish to set standards for their membership, and they believe that the decision will not cut away the charity’s base of support.

The court was hardly unanimous in last month’s decision. The vote was a narrow 5 to 4 in favor of the Scouts. Many non-profit leaders appear just as deeply conflicted about the ruling.

Many say that, while they deplore discrimination against gays, they also believe that private organizations should have the right to decide their own values and the best way to impart those values.

Even the United Methodist Church, the biggest sponsor of Boy Scout troops, is not united on the issue. The church’s Board of Church and Society, its advocacy arm, decried the Supreme Court ruling, while the General Commission on United Methodist Men, the church agency that coordinates Scouts sponsorships, welcomed the decision.

Charities are also debating the implications of the ruling beyond the Boy Scouts. Many argue that the ruling was narrowly tailored to accommodate only the Boy Scouts. But some say the decision could give other private membership groups that seek to teach or promote values the right to exclude people based not only on their sexual orientation but on their race and religion as well.

The U.S. Supreme Court’s decision overturned a ruling by the Supreme Court of New Jersey that the Boy Scouts had violated a state antidiscrimination law when it expelled an assistant scoutmaster, James Dale, in 1990 after learning he was gay.

“The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill,” Chief Justice William H. Rehnquist wrote for the court’s majority. Requiring the charity to accept a homosexual Scout leader “would significantly burden the organization’s right to oppose or disfavor homosexual conduct,” he wrote. Mr. Rehnquist was joined in his opinion by Justices Anthony M. Kennedy, Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas. Dissenting were Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter, and John Paul Stevens.

The decision was a significant victory for one of the nation’s biggest charities. With $270-million in private support, the Boy Scouts ranks No. 17 on The Chronicle‘s Philanthropy 400 list of the charities that raise the most from private sources.

“This decision allows us to continue our mission of providing character-building experiences for young people, which has been our chartered purpose since our founding,” the charity said in a statement.

What the ruling says to the public, added Gregg Shields, the group’s national spokesman, “is that we do have standards, we do have a defined mission, and that mission is something we’re going to stand up for.”

Indeed, the charity has steadfastly defended in court its controversial positions on homosexuals and atheists for two decades. In a California case similar to Mr. Dale’s, an assistant scoutmaster took the Boy Scouts to court in 1981 after he was expelled for being a homosexual. Another suit was filed in California in 1991 by twin brothers, then Cub Scouts, who were ejected when they refused to affirm the existence of God in the Boy Scouts’ oath.

In unanimous decisions issued in 1998, the California Supreme Court sided with the Scouts in both cases, declaring that the charity did not have to abide by the state’s civil-rights law.

“There’s nothing new here,” said Mr. Shields about the U.S. Supreme Court’s ruling. “The only thing that’s new is that we now have it from the Supreme Court that we have constitutional rights.”

The decision was viewed as a huge legal defeat for civil-liberties organizations and gay-rights groups, many of which had filed friend-of-the-court briefs in support of the State of New Jersey and Mr. Dale, the assistant scoutmaster who sued the charity. More than 100 non-profit organizations, governments, and others officially weighed in on both sides of the dispute by filing a total of three dozen amicus briefs.

“The Court’s decision permits the Boy Scouts to hide their discrimination behind the First Amendment and rejects the right of New Jersey to create a just society for its citizens,” said Ralph G. Neas, president of the People For the American Way Foundation, a group that supported Mr. Dale.

Mr. Dale, now 29, had achieved the coveted rank of Eagle Scout. His sexual orientation was never an issue until he was identified in a newspaper article as a member of a local homosexual-rights group, after which he received a letter from the Boy Scouts telling him that he had been expelled.

New Jersey’s antidiscrimination law forbids places of “public accommodation,” such as hotels and restaurants, from discriminating on the basis of sexual orientation.

Mr. Dale sued the organization in 1992 under that law, arguing that the organization should be considered a public entity, in large part because government agencies such as police and fire departments routinely sponsor local troops.

Throughout the court fight, the Boy Scouts argued that its decision to expel Mr. Dale was protected by the First Amendment rights of freedom of association and freedom of expression. The charity, which was founded in 1910, has long excluded openly gay people. Homosexuality, the group argues, is immoral and runs counter to the Boy Scouts’ oath and ethical code requiring members to be “morally straight” and “clean.”

In its opinion, the Supreme Court majority concluded that the state’s application of the antidiscrimination law did violate the organization’s Constitutional rights.

New Jersey’s interests in preventing discrimination ”do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association,” the majority said.

But in a strongly worded, passionate dissent that ran longer than the majority opinion, Justice Stevens wrote that New Jersey’s law does not impose any serious burdens on the Boy Scouts’ efforts to accomplish its mission, “nor does it force B.S.A. to communicate any message that it does not wish to endorse.”

Justice Stevens added: “Surely there are instances in which an organization that truly aims to foster a belief at odds with the purposes of a state’s antidiscrimination laws will have a First Amendment right to association that precludes forced compliance with those laws.”

But, he said, “that right is not a freedom to discriminate at will, nor is it a right to maintain an exclusionary membership policy simply out of fear of what the public reaction would be if the group’s membership was opened up.”

The court’s decision is likely to have implications for Boy Scout troops across the country, where the anti-gay policy has already attracted controversy (The Chronicle, May 4).

Some government agencies that had sponsored local Scout troops, as well as such supporters as local United Ways and some corporations, have already ended their affiliations with the organization in recent years over the policy, and others are likely to follow suit, observers say.

Earlier this year, for example, the City of Chicago decided to stop supporting Boy Scout programs because of the group’s policies of excluding homosexuals from participating and of requiring participants to recite a religious oath. Nearly a dozen other municipalities have taken or are considering taking similar steps.

Authorities in Connecticut recently took steps to scratch the group from a list of charities that can solicit state government workers in on-the-job fund-raising drives because they said the Scouts’ policy on homosexuals violates Connecticut’s antidiscrimination law. State officials now plan to review the move in the aftermath of the Supreme Court’s decision.

A handful of local United Ways have withdrawn their support because of the anti-gay policy.

Matthew A. Coles, director of the American Civil Liberties Union Lesbian and Gay Rights Project, said that charity officials are now speculating as to what extent governments might choose — or be forced — to refuse to deal with the Scouts in the future.

Local governments currently tend to have two kinds of relationships with Boy Scout troops, he said. In some circumstances, governments include the Scouts in programs that are also offered to every other group in the community. One example: schools that rent facilities to Scouts for a modest fee. “Government cannot exclude the Boy Scouts from programs like that because the Supreme Court has said that the Scouts’ discriminatory policy is protected by the First Amendment,” he said.

But Mr. Coles said governments also have a lot of “special deals” with local Scout troops in which they sponsor the Scouts, or give them access to parks and other facilities — privileges that other groups are not afforded.

After the Supreme Court ruling, he said, “I think the government is perfectly free not to do those kinds of things anymore, and indeed some places that have nondiscrimination laws may be required not to do them anymore.”

Beatrice Dohrn, legal director of the Lambda Defense and Education Fund, which represented Mr. Dale in court, said her organization has not ruled out suing local governments or schools to demand that they sever their ties to the Scouts. But, Ms. Dohrn said, “we would rather see the people who are very involved in Scouting take action at the local level — those who throughout this case have said they didn’t want to think that their Scouts would be tagged as anti-gay.”

The Boy Scouts, however, are confident that they will retain their good standing. Despite the controversy, the charity has seen its Scout membership grow from 4.3 million members in 1997 to nearly 5 million this year. The number of church-affiliated groups, in particular, has increased — to 65 percent in 1999.

The Supreme Court’s decision is likely to strengthen support for the Boy Scouts among some religious and conservative groups. The organization receives significant financial aid from the Mormon Church and the Roman Catholic Church, both of which support the charity’s anti-homosexual policy.

What the ruling means for groups beyond the Boy Scouts is still under debate.

Jay Sekulow, chief counsel for the American Center for Law and Justice, a conservative legal group that supports religious rights, said the decision affirms the rights of all private organizations that teach values or advocate particular views to make choices about who can be leaders.

“The court affirmed the rights of private organizations to define their own criteria for leadership,” Mr. Sekulow said. “What it means is that the N.A.A.C.P. can say that the president of its organization has to be an African-American, B’nai B’rith can say its leader has to be Jewish.” He added: “All organizations that have as part of their advocacy racial or religious criteria, they can make those distinctions.”