scouts-l Mail Archive for July of 2000: Court decision
Joseph Tabrisky (jtabrisky@TBSLLP.COM
Wed Jun 28 2000 - 12:10:01 CDT
Court Says Boy Scouts Can Bar Gays
By LAURIE ASSEO, associated Press Writer
WASHINGTON (AP) - The Boy Scouts can bar homosexuals from serving as
troop leaders, the Supreme Court ruled Wednesday, placing a limit on how
far the courts should go to force open admissions upon private
The 5-4 decision said forcing the Scouts to accept gay troop leaders
would violate the organization's rights of free expression and free
association under the Constitution's First Amendment.
"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. Requiring them to accept a gay scoutmaster "would
significantly burden the organization's right to oppose or disfavor
The ruling reversed a New Jersey Supreme Court holding that the Scouts
wrongly ousted assistant scoutmaster James Dale when the organization
learned he is gay. The state court had said the scouts' action violated
a New Jersey law banning discrimination in public accommodation.
Dale, who was an Eagle Scout, had sued the Scouts under the New Jersey
law. But the Supreme Court said Wednesday that law must yield to the
Scout organization's right of "expressive association'' under the
Constitution's First Amendment.
The American Center for Law and Justice, a conservative advocacy group
that filed a friend-of-the-court brief supporting the Boy Scouts, said
the ruling "will have a dramatic impact on all private organizations -
including religious groups - to define their own mission and set their
own criteria for leadership.''
The Human Rights Campaign, a gay-rights organization, called the ruling
a "travesty of justice that may allow large, open membership groups to
be above the law and evade state and local nondiscrimination laws.''
Rehnquist's opinion was joined by Justices Sandra Day O'Connor, Antonin
Scalia, Anthony M. Kennedy and Clarence Thomas.
Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader
Ginsburg and Stephen G. Breyer.
Writing for the four, Stevens said the New Jersey law "does not impose
any serious burdens'' on the Boy Scouts' goals, "nor does it force (the
Boy Scouts) to communicate any message that it does not wish to endorse.
New Jersey's law, therefore, abridges no constitutional right of the Boy
Dale was 19 and an assistant scoutmaster of a Matawan, N.J., troop when
in 1990 he was identified in a newspaper article as co-president of a
campus lesbian and gay student group at Rutgers University.
The Scouts' Monmouth Council revoked Dale's registration as an adult
leader, telling him the organization does not allow openly gay members.
Dale sued, contending the Scouts violated New Jersey's
The New Jersey Supreme Court ruled in his favor, saying the expulsion
of Dale was based "on little more than prejudice.''
During oral arguments in April, the Scouts' lawyer, George Davidson,
said the group had a right "to choose the moral leaders for the
children in the program.''
The Scouts relied on a 1995 Supreme Court decision in which the
justices let the private sponsor of the Boston St. Patrick's Day Parade
exclude a group of gays and lesbians, saying parades are a "form of
Dale's lawyer, Evan Wolfson, said giving public accommodations the broad
freedom to exclude people who do not match their message could swallow
the civil rights laws.
Dale's attorneys cited Supreme Court decisions during the 1980s that let
states force the Jaycees and Rotary International to admit women as full
members. The court also let New York City bar large private clubs from
discriminating against women and minorities.
Rehnquist's opinion said "it appears that homosexuality has gained
greater societal acceptance'' in recent times.
"But this is scarcely an argument for denying First Amendment protection
to those who refuse to accept those views,'' the chief justice wrote.
"The First Amendment protects expression, be it of the popular variety
The Supreme Court has dealt with gay rights infrequently. In 1996, the
justices struck down a Colorado measure that barred ordinances giving
gays legal protection from discrimination, such as in housing or
employment. But the court also has repeatedly turned away challenges to
President Clinton's "don't ask, don't tell'' policy on gays in the
Dale now lives in New York City and is advertising director for a
magazine for people who are HIV-positive.
The case is Boy Scouts of America v. Dale, 99-699.