The U.S. Supreme Court decided yesterday it will hear the Boy Scouts
of America’s appeal of the August 1999 New
Jersey Supreme Court ruling that the scouting organization may not exclude
The legal battle began in 1990 when former assistant scout leader James
Dale was identified by a newspaper article as being co-president of a campus
lesbian and gay student group at Rutgers University. Then a 20-year-old
college student, the Eagle Scout sued both the Monmouth Council in Matewan,
N.J. and the national organization in 1992 after he was told that the Boy
Scouts “does not admit avowed homosexuals to membership in the
organization,” and lost his registration as a scout leader.
Dale’s suit charged the scouting organization with violating New Jersey
law, which does not allow discrimination on the basis of sexual orientation
in public accommodations, and demanded reinstatement and monetary damages.
Initially, the case was thrown out by a state trial judge on the basis
that the Boy Scouts of America is not a place of public accommodation and
therefore not subject to the discrimination law. But an appeals court and
the New Jersey Supreme Court ruled for Dale.
Lawyers for the Boy Scouts maintain that law violates the organization’s
First Amendment rights to free speech and free association.
“Scouting adheres to a moral belief … that homosexual conduct is not
moral,” said BSA’s attorney George A. Davidson after the nation’s highest
court announced it will decide the case.
Davidson stated that an openly gay person would not be a proper Scout
role model and that “Boy Scouting is really all about sending messages. The
message is that you should be morally straight.”
Dale’s attorney, however, disagrees, saying that opposition to homosexuality
is not one of the Scouts’ main purposes.
“As gay people, we know how important the First Amendment is,” said Evan
Wolfson of the Lambda Legal Defense and Education Fund, a homosexual rights organization.”Their First
Amendment rights are not being interfered with. The members did not join the
Boy Scouts for bigotry in the first place.”
New Jersey’s high court agreed, stating, “The Boy Scouts’ expulsion of
Dale is based on little more than prejudice, and not on a unified Boy Scout
Although the Boy Scouts’ pledge to be “physically strong, mentally alert,
and morally straight” is central to scouting culture, the New Jersey court
ruled that “Boy Scouts’ activities are designed to build character and
instill moral principles. Nothing before us, however, suggests that one of
Boy Scouts’ purposes is to promote the view that homosexuality is immoral.”
The New Jersey court decision leaves many organizations vulnerable, says
the Boy Scouts of America’s appeal.
“Almost any organization could find itself a victim of a court’s desire
to foster social change by forcing social private associations to conform to
its idea of egalitarian values,” the appeal says.
Dr. James Dobson of Focus on the Family
shares the concerns expressed in the appeal.
“It is perfectly evident that Americans who are determined to uphold
Judeo-Christian morality have become Public Enemy No. 1 to the judicial
tyrants who are using court benches to revise age-old principles of behavior
in favor of dangerous sexual conduct,” said Dobson in an exclusive
WorldNetDaily commentary. “We believe the New Jersey decision violates the
Boy Scouts’ constitutionally protected freedoms of association and speech.”
“It is high time that private citizens arise and fight for their rights
to live as free people — not as slaves to Big Brother,” he continued. “When
our courts can eradicate standards of behavior in private organizations, we
all stand in danger of having our beliefs and practices literally defined by
our government. That is nothing less than government oppression and a
frightening prospect for our future.”
The appeal relied on a 1995 decision in which the justices said the
sponsor of Boston’s St. Patrick’s Day Parade should not be forced to permit
a homosexual group to participate. The court said parades are “a form of
expression” and private sponsors cannot be forced to include “a group
imparting a message the organizers do not wish to convey.”
But Dale’s lawyers believe the case should be viewed in the context of
Supreme Court decisions dealing with state public accommodations laws.
In a similar case in 1998, the California Supreme Court — also
unanimously — reached the opposite conclusion to that of New Jersey’s high
court, ruling that scouting is a voluntary and private social organization with the authority to exclude homosexuals and atheists.
This case is one of only a few considered by the U.S. Supreme Court in
the last two decades dealing with the issue of homosexual rights
The court is expected to hear arguments in the constitutional rights case
in April and issue a decision by July.
Julie Foster is a staff reporter for
See Joseph Farah’s column:
New Jersey’s fascist court
See Rev. Jerry Falwell’s column:
Entering the Boy Scouts judicial fracas