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'Gay' Scouts of America?

Yesterday, the

U.S. Supreme Court
heard oral arguments in the

Boy Scouts of America’s
case against former assistant leader James Dale, the homosexual Eagle Scout who was removed from leadership when his sexual orientation became known.

James Dale, a former assistant scout leader, won his case in the New Jersey Supreme Court, but an appeal by the Boy Scouts of America was heard in the U.S. Supreme Court yesterday.

In a case pitting homosexual rights against a private group’s right to set its own moral code, the high court struggled with the reach of a state anti-discrimination law in considering whether the Boy Scouts may exclude homosexuals as leaders.

On the last day of arguments for the court’s 1999-2000 term featuring numerous high-profile cases — including the

constitutionality of partial-birth abortion bans
— several justices voiced concern about the impact of extending anti-discrimination laws to private groups.

The legal battle began in 1990 when Dale was identified by a newspaper article as being co-president of a campus homosexual student group at

Rutgers University.

Then a 20-year-old college student, Dale sued both the Monmouth Council in Matewan, N.J. and the national organization in 1992 after he was told Boy Scouts of America “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.

Eagle Scout James Dale with his parents.

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 later the

New Jersey Supreme Court,
ruled for Dale.

The case has generated a staggering 37 amicus briefs — written arguments filed by outside parties urging the court to decide the case in a particular manner — including one filed by

Bay Area Lawyers for Individual Freedom.
Filed on behalf of Dale, the brief argues the Boy Scouts is not a “wholly private” organization.

According to Jerry Roth, one of the authors of BALIF’s brief, the Boy Scouts is “entwined” with civic government. One example of such entwinement, he said, is that the president of the United States is the organization’s honorary leader.

Additionally, government at all levels gives special recognition to the Boy Scouts, allowing groups to meet in public facilities and officially sponsoring local troops. That sponsorship requires the Scouts to follow government anti-discrimination laws, said Roth.

“There are obvious important issues on both sides,” said Ian Sweedler, co-chair of BALIF. “If you agree people have the right to associate for expression purposes, then that’s important. You have to decide where to draw the line.”

Lambda Legal Defense and Education Fund
is representing Dale, and senior staff attorney Evan Wolfson presented arguments before the nine justices.

Lambda Legal Defense attorney Evan Wolfson presented Dale’s case to the Supreme Court, arguing the Boy Scouts of America should be subject to anti-discrimination laws.

“The tone was very respectfully in a way that certainly has not always been true from the Supreme Court,” said Jenny Pizer, managing attorney of Lambda’s western regional office. “The questions from at least six, if not seven, of the judges” indicated the justices’ understanding that “this is about discrimination and this is an issue to be taken seriously. That shows how far we’ve come,” she said.

The court’s tone indicated it recognizes “this is one of those cases that catches a moment in time of our legal history,” she continued. America is “coming of age” and is having a “legal realization” that homosexuals should not be discriminated against, the attorney said.

Pizer, who attended the hearing in Washington D.C., told WorldNetDaily the Boy Scouts has not clarified its position on the issue of homosexuality, a fact she says is surprising since the organization has been in litigation on similar matters for 20 years.

“It’s peculiar that if they care so much about this issue, they haven’t clarified their policy,” Pizer said.

“Honesty, independence, respect for oneself and [one’s] community — those are spelled out very clearly” in Boy Scout law, she continued. “They don’t include homosexuality in that. They say that’s an issue that should be discussed in the family.”

Since the issue is not to be discussed as a part of scouting, the Scouts should not object to admitting homosexuals, Pizer explained.

“It’s their burden to show that their speech is being hindered” by being forced to include homosexuals, she added.

Surprisingly, at least one homosexual group supports the Boy Scout’s freedom to admit scouts and leaders according to its own standards.

Gays and Lesbians for Individual Liberty
is a non-partisan organization founded in 1991 to “advance the principles of the free market, individual responsibility and non-interference by government in the private lives of all citizens.”

In its amicus brief,
GLIL says the New Jersey Supreme Court’s decision “restricting the ability of the Boy Scouts of America to choose its own leaders and define its own membership criteria dangerously erodes the freedom of all Americans, including gay Americans, and should be reversed.”

The ruling is “especially pernicious, for it places the government in the intolerable position of second-guessing a private organization’s interpretation of its own rules and articulation of its own message,” the brief continues.

GLIL noted that it “strongly disapproves” of the Boy Scouts’ position, but respects the organization’s right to maintain the “misguided policy.”

Celebrating its 90th birthday this year, the Boy Scouts of America has based its policy on the Scout Oath and accompanying “laws.” The oath states: “On my honor I will do my best to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake, and morally straight.”

One of BSA’s twelve “laws,” which, among other things, requires scouts to be trustworthy, loyal and obedient, is reverence toward God. A good scout is “faithful in his religious duties. He respects the beliefs of others.”

“This really is not a gay rights case,” said Boy Scout spokesman Greg Shields. “It’s a First Amendment rights case.”

Shields told WorldNetDaily the organization’s membership has seen “tremendous” growth in the last several years, “which says parents agree with the values of the Boy Scouts.”

“We’re confident that the Supreme Court will uphold our rights that are in the First Amendment,” said Shields.

The spokesman’s confidence may be underscored by comments from some of the Justices.

“What about a gay or lesbian group that takes a position that it does not want heterosexual members?” Justice Sandra Day O’Connor asked Wolfson.

Wolfson responded that the homosexual organization could not discriminate if it was a public group engaged in public accommodations.

Justice Stephen Breyer, one of four former Boy Scouts on the court — including Chief Justice William Rehnquist — cited the Catholic Knights of Columbus and the Jewish B’nai B’rith and asked Wolfson, “In your view, a Catholic organization has to admit Jews and a Jewish organization has to admit Catholics?”

Another question aimed at Wolfson came from Justice Anthony Kennedy, also a former Boy Scout.

“Who is better qualified to determine the expressive purpose of the Boy Scouts — the Boy Scouts or the New Jersey courts?” he asked.

But Breyer doubted whether the Boy Scouts really believed homosexuals were engaged in “bad conduct” or if they were simply concerned about the public’s reaction, because leaders and scouts are not asked to identify their sexual orientation.

He was countered by former Boy Scout Justice Antonin Scalia, who pointed out the organization does not ask if leaders were “ax murderers” or “adulterers” either.

The court is expected to rule on the case by the end of June.

Related story:

Boy Scouts vs. homosexuals