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Gay News Sponsor Windy City Times 2023-02-22



Boy Scouts Can Exclude Gays, Says Supreme Court
by Bob Roehr

This article shared 1138 times since Wed Jun 28, 2000
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The Boy Scouts of America can exclude gays from their organization. A 5-4

majority of the US Supreme Court overruled a unanimous New Jersey State

Supreme Court, saying that requiring the admission of gays violates the Boy

Scouts' First Amendment right of expressive association. The ruling on the

case of Boy Scouts v. Dale was handed down on June 28.

James Dale, now 29, had been a scout from the age of eight, advancing with an

exemplary record to the pinnacle of Eagle Scout, serving as an assistant

troop leader as an adult. In 1990 a local newspaper published a picture

identifying Dale as a leader of the Rutgers University Lesbian/Gay Alliance.

The Scouts drummed him out of their organization, saying that homosexuals

were not "morally straight."

Last August the New Jersey Supreme Court ruled that the Scouts may not bar

gays from membership in that organization. In a powerful 7-0 decision Chief

Justice Deborah T. Portiz wrote, "It is clear that Boy Scouts does not limit

its membership to individuals who belong to a particular religion or

subscribe to a specific set of moral beliefs."

"Boy Scout members do not associate for the purpose of disseminating the

belief that homosexuality is immoral," she wrote. "Dale's expulsion

constituted discrimination based solely on his status as an openly gay man."


In overturning that decision, Chief Justice William Rehnquist wrote, "The

forced inclusion of an unwanted person in a group infringes the group's

freedom of expressive association if the presence of that person affects in a

significant way the group's ability to advocate public or private


He gave "deference" to the Boy Scout's assertions that they had an essential

anti-gay message, and that inclusion of gays would be detrimental, when he

wrote: "The presence of an avowed homosexual and gay rights activist in an

assistant scoutmaster's uniform sends a distinctly different message."

Rehnquist's opinion differentiated between inclusion of women and inclusion

of homosexuals. It seemed to say that the later were substantively different,

being gay imposes a greater burden on, and is less worthy of equal protection

than being female.

He said the state interest in this matter did not justify such an intrusion

on First Amendment protections. Rehnquist said, "We are not, as we must not

be, guided by our views of whether the Boy Scouts' teaching with respect to

homosexual conduct is right or wrong."

He noted that in his dissent Justice Stevens made much of the fact that

homosexuality has gained greater social acceptance. "But this is scarcely an

argument for denying First Amendment protection to those who refuse to accept

these views," wrote Rehnquist. The First Amendment protects unpopular views

as well as popular ones.

Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence

Thomas joined Rehnquist in the 21-page opinion.

Justice John Paul Stevens penned the unusually long 40-page dissent, joined

by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. He argued

that the New Jersey non-discrimination law did not impose any serious burden

on the Boy Scouts and "therefore, abridges no constitutional rights."

He characterized the majority's deference to the Scouts' assertion that

including gays would be detrimental as "an astounding view of the law. I am

unaware of any previous instance in which our analysis of the scope of a

constitutional right was determined by looking at what a litigant asserts in

his or her brief and inquiring no further. It is even more astonishing in the

First Amendment area."

Stevens argued that the Court needed to "mark the proper boundary" between

legitimate and sham claims of the right to association. "Shielding a

litigant's claim from judicial scrutiny would, in turn, render civil rights

legislation a nullity, and turn this important constitutional right into a


"The only apparent explanation for the majority's holding," wrote Stevens,

"is that homosexuals are simply so different from the rest of society that

their presence alone - unlike any other individual's - should be singled out

for special First Amendment treatmentS Though unintended, reliance on such a

justification is tantamount to a constitutionally prescribed symbol of


Justice Souter wrote a brief additional dissent, joined by Ginsburg and

Breyer. In it he concluded that the BSA did not have an expressive

association claim "because of its failure to make sexual orientation the

subject of any unequivocal advocacy, using the channels it customarily

employs to state its message."


The Boy Scouts praised the majority decision. Spokesman Gregg Shields said,

"This decision allows us to continue our mission of providing

character-building experiences for young people, which has been our chartered

purpose since our founding."

Dale was "saddened" by the outcome of his 10-year struggle. "But there is

also a lot of room for hope in where America is going. Although the Boy

Scouts think that discrimination is right, America does not think that

discrimination is right."

Ruth Harlow, assistant legal director of the Lambda Legal Defense and

Education Fund, which brought the case on behalf of Dale, called it "a hollow

phyrric victory" for the Boy Scouts. "Their leaders and their lawyers have

convinced five members of the Supreme Court that they are an anti-gay

institution. And now they have to live with that narrow, discriminatory


Evan Wolfson, the Lambda attorney who argued the case before the Court, was

disappointed by "the superficiality of the majority's analysis and the way

they rushed to rubber stamp the claims that the Boy Scouts made in Court." He

believes the majority "had a result they wanted to get to and they got there

by skimming over the surface, as the dissent pointed out."

He emphasized that "this case has triggered a very positive awareness that

lesbian and gay youth exist and need programs like the Boy Scouts."

Organizations that refuse to provide those services are going to be


Wolfson reminded reporters that most national youth organizations have a

non-discriminatory policy with regard to gays. The Girl Scouts of America,

4-H Club, and others filed legal briefs in support of Dale, not the Boy


He criticized the majority for not addressing "the extraordinary public

entanglement" of support "now that the Boy Scouts have fought to win the

label of exclusionary and discriminatory."

While the majority opinion did grant the Boy Scouts the right to

discrimination against gays, Wolfson pointed out that "they did not say that

the discrimination is right. That message and that tone is very, very

different from what we saw dripping from the Court's pages in Hardwick," the

1986 decision that affirmed antigay sodomy laws.

The Human Rights Campaign ( HRC ) was "gravely disappointed" with the ruling.

Legal director Tony Varona called it "a travesty of justice that may allow

large, open membership groups to be above the law and evade state and local

nondiscrimination laws."

While the Boy Scouts retain the right to discriminate against gays, many of

their sponsors to not have that option. Harlow pointed out that in New Jersey

and other jurisdictions with non-discrimination laws that cover gays, public

facilities such as schools and agencies such as police and fire departments,

are not allowed to discriminate. She said, "Public schools will have to

repudiate their sponsorship of this kind of discriminatory organization."

Corporate sponsors and agencies such as the United Way are also increasingly

unwilling to give financial support to groups that discriminate against gays.

The struggle to end discrimination within the Boy Scouts will continue

through other means.

This article shared 1138 times since Wed Jun 28, 2000
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