scouts-l Mail Archive for July of 2000: [Re: Dale vs BSA]
Aaron Kuperman (AWKuperman@NETSCAPE.NET
Mon Jul 03 2000 - 11:32:13 CDT
If one reads the official opinions, it should be
obvious that the "holding" is that BSA can object to an adult application when
the individual is a well known gay activist who states publicly that his goal
is to locate potentially gay teenage male and encourage them
to engage in homosexual acts. The Chief Justice's opinion is therefore very
narrow and wouldn't address a situation such a a gay hiking
enthusiast or a parent of a boy in the unit who keeps his or her sexual
preferences to himself or herself. It isn't even clear if it would apply to a
gay activist concerned with property rights of same sex couples or AIDS rather
than encouraging the belief that homosexual behavior should be considered
BSA's position in litigation (which reflects the lack of reference to
homosexuality on the application forms or manuals) is that it isn't clear if
it would object to an adult leader who didn't make a point of advertising
their sexual tastes (and arguably, anyone who wants to discuss sex in front of
other people's children is acting objectionably).
The dissenting opinions, based on the New Jersey opinion, were based on
the "facts" agreed to in the lower courts that BSA objected to Dale for
"being" gay rather than based on anything he said or did. The majority
rejected those facts
(as well as statements made early in the case by
BSA that they objected to Dale since he was gay), and looked to the real
reason BSA didn't want Dale as an adult leader (his public statments and
public conduct, not his "orientation").
While the case will encourage the "politically correct" (who also find
BSA's support of "duty to god and country" objectionable) in their war with
the "family values" lobby, which may or may not help scouting, from a legal
perspective, the Chief Justice's artful manipulation of the facts led to a
legal holding that few would find controversial (excluding marginal groups
that advocate homosexual relations for adolescents), and in all fairness the
minority (and New Jersey) opinion would have led to a holding that
would still have left unanswered whether BSA could object to gay activists
(since the lower
court only addressed BSA's initial claims that it objected to having an
orientation, rather than activism or sexual behaviors).
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