Scouts' gay ban upheld

Thursday, June 29th 2000, 12:00 am
By: News On 6

WASHINGTON – Dealing a setback to gay-rights advocates, the Supreme Court said Wednesday that the Boy Scouts of America is a private organization that can exclude gays.

In a narrowly drawn 5-4 decision, the justices reversed the New Jersey Supreme Court, which had called the Boy Scouts a public organization subject to state laws against discrimination.

"The New Jersey ruling had threatened the autonomy of every organization, from the Girl Scouts to the Gay Men's Chorus," said George Davidson, a New York attorney who argued the Scouts' case. "What this ruling preserves is the Boy Scouts' ability to chart its own course."

Attorneys for an assistant Scoutmaster fired for being gay called the decision a defeat for equal rights but doubted it could be applied to other organizations.

James Dale, the ex-assistant Scoutmaster who is an Eagle Scout, predicted that parents and schools would begin shunning the Boy Scouts for so explicitly declaring themselves anti-gay.

"The dinosaurs became extinct because they didn't evolve," he said. "The Boy Scouts are making themselves extinct and that's a shame."

The national spokesman for the Irving-based organization said it should continue to thrive.

"We are tolerant of everyone's right to hold an opinion," spokesman Gregg Shields said. "We simply ask other people to be tolerant of our own opinions, our beliefs, our values."

The Monmouth Council in New Jersey fired Mr. Dale in 1990, after officials read a newspaper story about his work with the Lesbian/Gay Alliance at Rutgers University.

Not 'morally straight'

The Scouts argued that homosexuality violates their members' oaths to be "morally straight," and that they have a constitutional right to promote that viewpoint.

Writing for the Supreme Court majority, Chief Justice William Rehnquist said forcing the Scouts to retain Mr. Dale "would significantly burden the organization's right to oppose or disfavor homosexual conduct."

"The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the freedom of expressive association," Justice Rehnquist wrote.

The majority also included Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. The four dissenters noted that Boy Scout troops are often sponsored by public agencies such as schools and fire departments. Because those organizations are subject to anti-discrimination laws, the Boy Scouts should not be given a "constitutional shield" to promote outmoded prejudices, Justice John Paul Stevens argued in the minority opinion.

"That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that Boy Scouts nor the court disputes," Justice Stevens wrote.

Joining his opinion were Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Justice Rehnquist wrote that the court was not endorsing the Boy Scouts' views about gays. The chief justice agreed with the dissenters that "homosexuality has gained greater acceptance" but added "this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views."

President Clinton noted that the Supreme Court seemed "to go out of their way to draw the ruling quite narrowly." Mr. Clinton said, "I'm generally against discrimination against gays," but he declined to criticize the Scouts.

Gov. George W. Bush, the presumptive Republican presidential nominee, applauded the ruling. "He believes private organizations should be allowed to set their own standards," spokesman Scott McClellan said.

Gore's reaction

Vice President Al Gore, the likely Democratic presidential nominee, said: "I am opposed to discrimination against gays and lesbians. I also understand that, in the application of the law, there is a difference between public organizations and private organizations."

Dave Rice, vice president for Scouting For All, a dissident group opposing the gay policy, was unhappy about the ruling.

Mr. Rice said the 5-4 decision has created a new direction for his organization – creating pressure on the Scouts to change their policy on its own.

That will include pressing city councils and school districts to ban recruiting efforts that have traditionally taken place at public schools and parks, Mr. Rice said.

During the 1980s, the Supreme Court said civic groups like the Jaycees and the Rotary Club could not deny membership to women.

In those cases, the court said states' interest in blocking discrimination against women did not significantly alter those groups' civic goals and messages.

In Wednesday's ruling, the court emphasized that the Boy Scouts leadership "asserts that homosexual conduct is inconsistent with the values embodied in the Scout oath and law."

Five years ago, however, it ruled that Boston's St. Patrick's Day's parade could not exclude gay and lesbian marchers. In addition, four other state supreme courts and a federal appeals court have said that Scouting is not subject to public accommodation laws.

Thomas E. Baker, a Drake University law professor, said the ruling could encourage other organizations to keep out other groups on the basis of freedom of association.

"It goes a long way toward establishing expressive association status for any organization," said Mr. Baker, who analyzed this case for the American Bar Association. "I think it makes it easier to invoke the First Amendment against anti-discrimination statutes."

The New York City-based Girl Scouts, which has no affiliation with the Irving-based Boy Scouts of America, does not have a similar policy toward gays.

In a statement, the Boy Scouts said: "Boy Scouting makes no effort to discover the sexual orientation of any person. Scouting's message is compromised when prospective leaders present themselves as role models inconsistent with Boy Scouting's understanding of the Scout oath and law."

Evan Wolfson, an attorney for Mr. Dale, doubted that the court decision would impact other organizations, saying that the narrow court ruling applies strictly to the Boy Scouts.

"What you have here is five justices bending over backwards to let the Boy Scouts discriminate," he said. "I think it's a very particularized case. I would be surprised if the majority allows this to become a widespread practice."

Staff writer Todd Bensman in Dallas and The Associated Press contributed to this report.