Supreme Court hears Gay Scout Leader's Case

Wednesday, April 26th 2000, 12:00 am

By: News On 6

WASHINGTON (AP) â€” Supreme Court justices struggled Wednesday over whether to let the Boy Scouts bar homosexuals from serving as troop leaders, role models in an organization that teaches its members to be ``morally straight.''

Without saying how they will ultimately vote, several justices voiced skepticism about how far the court could go to force open admissions upon private organizations.

``In your view, a Catholic organization has to admit Jews'' and ``a Jewish organization has to admit Catholics,'' Justice Stephen G. Breyer told Evan Wolfson, the lawyer for James Dale of New Jersey, a former assistant scoutmaster ousted when the organization learned he is gay. Dale subsequently filed suit against the Scouts.

Justices Sandra Day O'Connor and David H. Souter followed Breyer's line of questioning, asking Wolfson whether his argument meant the Scouts could be required to admit girls.

Justice Antonin Scalia voiced his reservations another way.

``They think that homosexuality is immoral,'' he said, asking why the Scouts must accept as a leader ``someone who embodies a contradiction of their message?''

The Scouts require members to promise to be ``clean'' and ``morally straight.'' But Wolfson said the Scouts are not primarily an ``anti-gay organization'' and therefore Dale's presence did not burden the group's message.

Dale did not seek to use his leadership position to advocate homosexuality, Wolfson added.

New Jersey's highest court ruled that the Boy Scouts' ban on gay troop leaders violated a state prohibition on discrimination in public accommodations. But the Scouts say the state law violates the organization's rights of free speech and free association under the Constitution's First Amendment.

Some justices also had pointed questions for the Scouts' lawyer, George Davidson.
Justice John Paul Stevens asked whether a homosexual could be excluded if he did not publicly declare his sexual orientation but it was discovered against his wishes.

Yes, said Davidson, arguing that the organization had a right ``to choose the moral leaders for the children in the program.''

``Boy Scouting is so closely identified with traditional moral values that the phrase, 'He's a real Boy Scout,' has entered the language,'' Davidson said. The Scouts believe homosexuality does not fit that moral code, he said.

Souter told Davidson, ``Mr. Dale is not asking to carry a banner. He's saying, 'I'm not going to carry a banner.'''

Dale and his parents attended the argument, and he spoke afterward to reporters.
``I have always loved the Boy Scouts of America,'' he said. ``It's a program that I hold dear to my heart, and I hope to one day be able to be back in the program.'' Being morally straight means ``standing up for yourself and being honest,'' he added.

Wednesday's argument was the last for the court's current term, and the justices are expected to decide by July whether the Scouts had the right to revoke Dale's role as a troop leader.

Dale was 19 and an assistant scoutmaster of a Matawan, N.J., troop when in 1990 he was identified in a newspaper article as co-president of a campus lesbian and gay student group at Rutgers University.

The Scouts' Monmouth Council revoked Dale's registration as an adult leader, telling him the organization does not allow openly gay members.

Dale sued, contending the Scouts violated New Jersey's anti-discrimination law.

Scalia told Wolfson that if the court ruled in favor of his argument that gays cannot be banned because the Scouts' overall message is not anti-homosexual, it may ``induce them to become more openly and avowedly opposed to homosexual conduct.''

Wolfson said the Scouts may not want to do so because they could lose heterosexuals who would not support an anti-gay policy.

Giving public accommodations broad freedom to exclude people the organization believes do not match its message could ``swallow the civil rights laws,'' Wolfson said.

Breyer and Justice Anthony M. Kennedy questioned how courts should determine whether a policy was central enough to a group's goals to allow exclusion of people who oppose the policy.
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On the Net: For the state court ruling in Dale vs. Boy Scouts of America: http://lawlibrary.rutgers.edu/courts/supreme/a-195-97.opn.html