The Supreme Court of New Jersey handed down a decision yesterday that
could affect the way in which Boy Scouts of America is run and
organized. The unanimous decision declared the organization’s ban on
homosexuals to be illegal under the state’s Law Against Discrimination.

The person who initially brought the lawsuit against the Boy Scouts
of America is James Dale, a former Matawan assistant scoutmaster and
exemplary scout who was expelled from the Boy Scouts in July of 1990
because he was a homosexual.

Dale first announced he was a homosexual to his family and friends
while attending Rutgers University. While in college, he became the
co-president of the university’s Lesbian/Gay Alliance and attended a
seminar that addressed the psychological and health needs of lesbian and
gay teenagers. At the seminar, he was interviewed by the Star-Ledger
for an article published on July 8, 1990, that discussed the seminar.

Concerning the Court decision, Evan Wolfson, senior attorney for
Lambda Legal Defense and Education Fund who was representing Dale, said,
“The highly respected New Jersey Supreme Court handed down a win-win
ruling: a victory for an outstanding Eagle Scout who was thrown out
because he is gay, a victory for gay youth who should be included, not
excluded, from scouting, as well as a victory for all members of
scouting, who join because they value honesty, community service,
self-reliance, and respect for others — not discrimination.”

The concluding statement of the Court’s decision reads, “We hold that
Boy Scouts is a ‘place of public accommodation’ and is, therefore,
subject to the provisions of the LAD (Law Against Discrimination). As a
‘place of public accommodation,’ it cannot deny any person
‘accommodations, advantages, facilities, and privileges … because of
… sexual orientation.'”

The Boy Scouts claim, however, that even if the group is a place of
public accommodation, it is still exempt from the LAD for certain
reasons including being a “distinctively private” organization, being a
religious educational facility, and falling under the loco parentis
exception which states the organization is acting in place of the
parents of the boys.

One group in California that has taken an interest in the case by
filing an amicus brief is the Claremont Institute. Michael Warder, vice
president for development at the institute said it appears to him and
his organization the Boy Scouts had taken a position that homosexual
behavior was “not a good thing.” In other words, it appears as if the
Boy Scouts have taken the position that, along with the teaching of
certain skills, scout leaders should also be concerned with the teaching
of morality and “the good life.”

“We were concerned that the government was going to compel them to
change the nature of their organization,” Warder said, adding he was
also concerned the Boy Scouts’ First Amendment right to assemble was
being violated.

In The Claremont Institute’s amicus brief, Phillip J. Griego, author
of the brief, said, “The issue is whether the Boy Scouts of America
shall retain the liberty, guaranteed by the First Amendment, to define
its own identity, to apply its own creed to express the traditional
moral point of view that homosexuality is neither moral nor reverent.
Or, shall New Jersey require them to include among their leadership
members whose avowed purpose is to impart a message the leadership does
not wish to convey.”

Arguing for the Boy Scouts’ position, Warder said there is a moral
dimension to the Boy Scouts.

“When parents entrust their kids to the Boy Scouts, they expect that
a certain, moral uprightness is going to be part of the educational
experience,” said Warder. “And the Boy Scouts have said that they do
not want homosexuals in leadership positions or as members. In that
way, parents could be confident that their kids’ moral compass would not
be jeopardized or tampered with, and on that basis, they could entrust
their kids to the Boy Scouts. Now this ruling is saying that the Boy
Scouts can’t do that, and I don’t think that’s right.”

In the Claremont Institute amicus brief, several main points are
covered. The first point states that free associations are among the
most important foundations in a free society because it is through free
associations that people form their opinions and meet others who have
similar opinions. The brief also states that the New Jersey Supreme
Court’s decision interferes with the Boy Scouts’ right to expressive
association and the right to form and adopt an opinion amongst its own
membership. A final point in the brief states that the trial court that
initially heard the case ruled correctly in its decision to protect the
private associational, educational and moral purposes of the Boy Scouts.

Following the Court’s decision, the Boy Scouts of America announced
its plan to appeal the decision to the United States Supreme Court. If
the case is heard in the U.S. Supreme Court, Warder believes the Boy
Scouts will prevail.

“The Boy Scouts have prevailed in these legal controversies for a
long, long time, so this is a very unusual case. I think in terms of
the legal merit, the Boy Scouts will prevail,” Warder said. “I (also)
believe that there is such an overwhelming support throughout the
country across political spectrums in support of the Boy Scouts, that
that support will be mobilized to exert influence. I dare say that
influence might even penetrate the legal branch of government.”

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