Law: Scouts defend no-homosexuals policy

When a Boy Scouts Council in Monmouth, New Jersey, discovered James Dale was homosexual, it dismissed him as an assistant scout leader in July 1990.

Dale sued under the state’s civil rights law, which prohibits discrimination on the basis of sexual orientation, and won in the state’s Supreme Court (CT, April 27, 1998, p. 14).

The U.S. Supreme Court is scheduled to hear the case this month. Supporters of the New Jersey scout council’s ban on homosexuals say the ruling will have far-reaching implications on other private groups.

“If the Supreme Court rules against the Boy Scouts, I think it’s going to be a green light for states to come in and start applying the anti-discrimination law—not only against the Boy Scouts but against Christian organizations, other religious organizations and private foundations,” says Jay Sekulow, chief counsel of the American Center for Law and Justice.

At issue is whether the scout council’s decision to ban Dale violates New Jersey’s civil rights law. The local council and the Boy Scouts of America (BSA) say the organization, as a private group, enjoys protections of free association under the First Amendment.

New Jersey’s Supreme Court unanimously ruled last August that the Monmouth Boy Scouts organization is a “public accommodation” because it recruits from all levels of society. The group does not have a specific anti-homosexual policy to justify its action against Dale, the court also ruled.

“The members don’t join that organization in order to express bigotry or say anything or do anything that gay members are not equally able to participate in,” says Evan Wolfson, senior staff attorney for Lambda Legal Defense and Education Fund, which represents Dale.

BSA advertises itself as open to all people and receives special privileges from the government, such as sponsorship by public schools, Wolfson says. Thus, anti-discrimination laws would apply even to a private organization such as BSA, Wolfson adds.

BSA has asked the U.S. Supreme Court to address the broader constitutional argument of its rights to free speech and freedom of association.

BSA official Brian Thomas says the organization has a First Amendment right to exclude members based on behavior contrary to BSA’s beliefs. Supreme Courts in four other states have ruled in the Boy Scouts’ favor in cases involving homosexuals, atheists, and girls who have wanted to join the group.

“What we go to is the Scout Oath and Law, which require that all members be morally straight,” Thomas says. “And Boy Scouts do not feel that homosexuals are the proper role models for young scouts.”