The U.S. Supreme Court was packed n April 26, the last day for oral arguments in this term. The lead case was Boy Scouts of America v. James Dale. It sought to overturn the unanimous decision of the New Jersey Supreme Court that the organization may not discriminate against gays.
Little more than a sentence was out of the mouth of Boy Scout attorney George A. Davidson before the Justices began peppering him with questions. "I don't understand the policy," said Justice Ruth Bader Ginsburg, it seems to me "like don't ask, don't tell."
Davidson explained that because the organization was "so closely identified with moral values" it simply would not do to have an openly avowed homosexual as a leader. Scouts recite the scout pledge at virtually every event and in it they swear to be "morally straight."
"And a homosexual cannot fit that definition?" asked Justice Antonin Scalia. "That is correct," replied Davidson.
Justice Sandra Day O'Connor found the debate "a little confusing." What about a heterosexual who espouses support of gays, would he be excluded, she asked. Davidson said it was permissible for him to advocate "to change the policy," but not to as promote morality of the issue.
Would cohabiting unmarried heterosexuals also be excluded under the phrase "morally straight," asked Justice Ginsburg? Davidson said he knew of no instances where the policy was applied to that situation.
Justices Anthony Kennedy and David Souter pressed as to whether the Boys Scouts had any written policy regarding homosexuals or homosexuality. Not really, there is no mention in the official manuals.
Davidson tried to slip into the area of conduct via the subject of child abuse. Justice O'Connor quickly corrected, "But abuse is not alleged here." "No," said Davidson.
In subsequent discussion he seemed curiously unconcerned with closeted homosexuals or with homosexual acts. "If conduct is not relevant, then why is openness so important?" asked Justice Souter.
Because "that person would not be an effective role model," said Davidson. The exchange led Justice Stephen Breyer to suggest that the organization was "simply concerned with public reaction."
The Boy Scout's attorney repeatedly came back to the Hurley decision, where the Court ruled unanimously that the Boston St. Pat's parade was "speech" and gay groups could not impose themselves upon that speech.
Davidson said that by appearing in a newspaper article as a leader of the gay group on the campus of Rutgers University, Dale "put a banner around his neck." But even Justice Scalia was not buying that argument. "A public persona" is different from what they decided in the Hurley case, Scalia said.
The Justices pressed Evan Wolfson with equal vigor. The attorney with the Lambda Legal Defense and Education Fund has represented Dale throughout the appeals process.
Wouldn't the New Jersey law preclude a gay and lesbian organization from excluding heterosexuals?, asked Justice O'Connor. "If it were a public accommodation open to all, then yes," said Wolfson.
Justice Breyer sought to know how they could determine if being "anti-gay is fundamental or core" to the Boy Scouts. He said, a peripheral principle added to virtually any organizations purpose "could eviscerate all civil-rights laws."
Wolfson said the New Jersey court "looked to the record" and did not find that at the core of what it is to be a Boy Scout. Current practices "do not require scout leaders to inveigle against homosexuals."
Would the case be different if the Boy Scouts amended its literature, asked Justice Scalia. Wolfson conceded that the case would be different, perhaps stronger, but that was not the issue before the Court today. Scalia suggested that Lambda was "inducing the Boy Scouts to be more openly and avowedly anti-homosexual."
Outside the Court building, in a cool spring day drenched with brilliant sun, both sides stated their pleasure with the way arguments went.
"I do this because I care about the scouting program," said Dale. To him, morally straight means the same thing to him today as it did when he first joined: "To respect and defend the rights of all people, to be honest and open in their relationships with all people."
When the Boy Scouts say they are open to all boys, all means all. It includes gay youth," said Wolfson. "We are hopeful that the United States Supreme Court will end this discriminatory much as the New Jersey Supreme Court unanimously found that is not why the Boy Scouts exist."
by Bob Roehr
The U.S. Supreme Court was packed n April 26, the last day for oral arguments in this term. The lead case was Boy Scouts of America v. James Dale. It sought to overturn the unanimous decision of the New Jersey Supreme Court that the organization may not discriminate against gays.
Little more than a sentence was out of the mouth of Boy Scout attorney George A. Davidson before the Justices began peppering him with questions. "I don't understand the policy," said Justice Ruth Bader Ginsburg, it seems to me "like don't ask, don't tell."
Davidson explained that because the organization was "so closely identified with moral values" it simply would not do to have an openly avowed homosexual as a leader. Scouts recite the scout pledge at virtually every event and in it they swear to be "morally straight."
"And a homosexual cannot fit that definition?" asked Justice Antonin Scalia. "That is correct," replied Davidson.
Justice Sandra Day O'Connor found the debate "a little confusing." What about a heterosexual who espouses support of gays, would he be excluded, she asked. Davidson said it was permissible for him to advocate "to change the policy," but not to as promote morality of the issue.
Would cohabiting unmarried heterosexuals also be excluded under the phrase "morally straight," asked Justice Ginsburg? Davidson said he knew of no instances where the policy was applied to that situation.
Justices Anthony Kennedy and David Souter pressed as to whether the Boys Scouts had any written policy regarding homosexuals or homosexuality. Not really, there is no mention in the official manuals.
Davidson tried to slip into the area of conduct via the subject of child abuse. Justice O'Connor quickly corrected, "But abuse is not alleged here." "No," said Davidson.
In subsequent discussion he seemed curiously unconcerned with closeted homosexuals or with homosexual acts. "If conduct is not relevant, then why is openness so important?" asked Justice Souter.
Because "that person would not be an effective role model," said Davidson. The exchange led Justice Stephen Breyer to suggest that the organization was "simply concerned with public reaction."
The Boy Scout's attorney repeatedly came back to the Hurley decision, where the Court ruled unanimously that the Boston St. Pat's parade was "speech" and gay groups could not impose themselves upon that speech.
Davidson said that by appearing in a newspaper article as a leader of the gay group on the campus of Rutgers University, Dale "put a banner around his neck." But even Justice Scalia was not buying that argument. "A public persona" is different from what they decided in the Hurley case, Scalia said.
The Justices pressed Evan Wolfson with equal vigor. The attorney with the Lambda Legal Defense and Education Fund has represented Dale throughout the appeals process.
Wouldn't the New Jersey law preclude a gay and lesbian organization from excluding heterosexuals?, asked Justice O'Connor. "If it were a public accommodation open to all, then yes," said Wolfson.
Justice Breyer sought to know how they could determine if being "anti-gay is fundamental or core" to the Boy Scouts. He said, a peripheral principle added to virtually any organizations purpose "could eviscerate all civil-rights laws."
Wolfson said the New Jersey court "looked to the record" and did not find that at the core of what it is to be a Boy Scout. Current practices "do not require scout leaders to inveigle against homosexuals."
Would the case be different if the Boy Scouts amended its literature, asked Justice Scalia. Wolfson conceded that the case would be different, perhaps stronger, but that was not the issue before the Court today. Scalia suggested that Lambda was "inducing the Boy Scouts to be more openly and avowedly anti-homosexual."
Outside the Court building, in a cool spring day drenched with brilliant sun, both sides stated their pleasure with the way arguments went.
"I do this because I care about the scouting program," said Dale. To him, morally straight means the same thing to him today as it did when he first joined: "To respect and defend the rights of all people, to be honest and open in their relationships with all people."
When the Boy Scouts say they are open to all boys, all means all. It includes gay youth," said Wolfson. "We are hopeful that the United States Supreme Court will end this discriminatory much as the New Jersey Supreme Court unanimously found that is not why the Boy Scouts exist."
