The Boy Scouts of America can exclude gays from their organization. A 5-4 majority of the U.S. 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 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."
The Opinions
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 viewpoints."
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 latter 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 farce."
"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 treatment … . Though unintended, reliance on such a justification is tantamount to a constitutionally prescribed symbol of inferiority."
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."
Reactions
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 pyrrhic 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 vision."
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 "marginalized."
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 Scouts.
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 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 do 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.
SCOUTING FOR ALL
Eagle Scout Steve Cozza, co-founder of Scouting For All, was expected to give details of a national protest against the Boy Scouts of America at the July 2 service at the Metropolitan Community Church of San Francisco.
Cozza and his father, Scott Cozza, "Scouting For All" co-founders, will be honored for their commitment to end discrimination by the Boy Scouts against gay youth and adults. Cozza began Scouting For All, with his father, in 1997.
Cozza will announce specific actions Scouting For All organization plans at the Federal, state and local level against the Boy Scouts of America. They will also announce a national day of protest at Boy Scout headquarters and Scout Council offices in major cities in every state in the nation.
Until the Boy Scouts of America ends their policy of discrimination "Scouting for All" will call for "all public entities supported by taxpayer revenues including police and fire departments and public schools to revoke the special support and privileges heretofore extended to the Boy Scouts of America."
