Definition of freedom key as case of Scouts' ban on gays considered

Group defends right to exclude those not seen as 'morally straight' WASHINGTON - Trying to decide whether the Boy Scouts can fire a troop leader because he is gay,

Thursday, April 27th 2000, 12:00 am

By: News On 6

Group defends right to exclude those not seen as 'morally straight'

WASHINGTON - Trying to decide whether the Boy Scouts can fire a troop leader because he is gay, the Supreme Court grappled Wednesday with very different ideas of freedom.

For the Boy Scouts, it's about the right to exclude those they believe violate their oath to be "morally straight."

"This case is about the freedom of a voluntary association to choose its own leaders," said George A. Davidson, attorney for a New Jersey Scouts' council, during a one-hour hearing.

For James Dale, an assistant scoutmaster fired in 1990, it's about the freedom to teach the virtues of Scouting, including the responsibility "to respect and defend the rights of all people."

"That's what being morally straight is all about," the Eagle Scout said after the hearing.

The Boy Scouts' national headquarters is in Irving.

The justices will decide by July whether the Boy Scouts are subject to a New Jersey law that bans discrimination against gays and lesbians.

The state Supreme Court said last year that the Scouts are subject to the law because they are a "public accommodation" that receives much government support.

Public support

Mr. Dale's attorney, Evan Wolfson, noted that Scout troops across the country are sponsored by local governments, schools, law-enforcement departments and military agencies.

During the Supreme Court hearing, Mr. Wolfson said his client did not use his Scouting duties to promote homosexuality. He said the local council found out only because of a newspaper story that identified Mr. Dale as the co-president of a gay and lesbian organization at Rutgers University.

Mr. Dale's dismissal is the kind of discrimination that the state has the right to prevent, his attorney told the court.

"Mr. Dale is not here to be able to advocate homosexuality," Mr. Wolfson said. "Mr. Dale was expelled for taking part in a seminar outside of Scouting. Had non-gay people espoused those views, they would not have been expelled."

Some of the justices, however, wondered how a ruling in Mr. Dale's favor might affect other ostensibly private organizations.

Justice Sandra Day O'Connor said that Mr. Wolfson's interpretation of the law might forbid the Boy Scouts from excluding girls, or stop homosexual organizations from excluding heterosexuals.

"You would presume this law would provide for that," she told the attorney.

Ramifications

Other justices asked whether a broad interpretation of the law would, for example, force Catholic organizations to accept Jewish members or vice-versa.

Many churches also sponsor Boy Scout troops, so a number of religious organizations filed briefs urging the court to uphold the ban. Otherwise, some argued, they might be compelled to accept gay members.

Civil-liberties groups, meanwhile, submitted briefs arguing that a decision favoring the Boy Scouts might encourage other groups to unfairly discriminate.

Justice Antonin Scalia said the law doesn't permit the state to dilute the message that a private organization wants to convey.

"Is there any doubt that one of the primary purposes - if not the primary purpose - of the Boy Scouts is moral formation?" Justice Scalia asked the former scoutmaster's attorney. "They say that excludes homosexuals."

Mr. Wolfson questioned their right to make that determination. He said that the Boy Scouts don't promote themselves as an anti-gay organization, and that Mr. Dale's presence does not affect their message.

"A human being such as Mr. Dale is not [free] speech," he said.

In quizzing the lawyer for the Boy Scouts, however, the justices wondered why the Scout manual or other literature did not specifically bar homosexuality.

"Should we find some significance in the fact that the Scouts have not officially addressed this in any of the publications?" Justice David Souter asked.

Where to draw the line

Other justices asked if the Scouts could expel others who, in their view, fail the morality test. The examples included adulterers, unmarried couples who live together and heterosexuals who do not regard homosexuality as a sin.

Chief Justice William Rehnquist interrupted this line of questioning to say, "Perhaps the Scouts have not adopted a comprehensive policy covering every conceivable situation."

Mr. Davidson, the Boy Scouts' attorney, agreed.

"There is no obligation to talk about every single application of a morally straight policy," he told the court.

Mr. Davidson said the Scouts do not care about someone's "status" and added that "heterosexual conduct that is not regarded as morally straight has resulted in termination."

The Scouts act, he said, only when confronted with a problem - in this case, the newspaper story that mentioned Mr. Dale's role with the gay organization. Since the dismissal, the lawyer added, Mr. Dale has been an outspoken support of gay rights.

"Mr. Dale has created a reputation for himself," Mr. Davidson said.

Supporters of the Boy Scouts are relying largely on a 1995 Supreme Court ruling that the St. Patrick's Day Parade of Boston did not have to let gays and lesbians march.

Mr. Dale's backers point to decisions during the 1980s that said the Jaycees and Rotary Clubs are subject to state laws that ban discrimination against women.

Greg Shields, a national spokesman for the Boy Scouts of America, noted that four state supreme courts and a federal appeals court have ruled that that Scouts are not public accommodations.

"The real issue here is the First Amendment issue - the Boy Scouts' right as a private, voluntary organization to peacefully assemble and have freedom of speech," Mr. Shields said.

Mr. Dale said that if he wins the case, he will return to Scouting.

"It is a program I have always loved," Mr. Dale said. "I have always believed in what Scouting is about."