By Tom Strode
WASHINGTON (BP)--The Boy Scouts of America should be free as a "voluntary association to choose its own leaders," the U.S. Supreme Court was told April 26 in a case that could have a far-reaching impact on private organizations, including even religious bodies.
The justices heard oral arguments in their review of a unanimous New Jersey Supreme Court opinion that the Boy Scouts must reinstate James Dale, a homosexual assistant Scoutmaster, because it had violated the state's anti-discrimination law by removing him from that position. The New Jersey court ruled the Boy Scouts is not a private organization but a public accommodation that cannot discriminate, in this case on the basis of "sexual orientation." In a somewhat stunning part of the opinion, the court said having a homosexual leader was not inconsistent with the Boy Scouts' values, in spite of the organization's arguments to the contrary.
Much of the high court's discussion centered on how clearly the Boy Scouts should have expressed the organization's opposition to homosexuals in leadership positions and how far the rationale in the lower court's ruling could be extended.
It is not only open homosexuality that has brought disqualification from leadership in Scouting but "heterosexual conduct that is not considered moral," Boy Scouts lawyer George Davidson told the justices.
Under questioning about the Scouts' policy on homosexual leaders, Davidson acknowledged it is not a detailed one but said neither is it "a stealth policy." Homosexuality that is "known or avowed" is inconsistent with the pledge in the Scout Oath to be "morally straight," he said.
When Associate Justice David Souter asked if the court should weigh the fact the Scouts still don't have a policy addressing homosexuality, Davidson said there is no reason to discuss every application of the "morally straight" pledge.
"Do the Scouts ask prospective leaders if they are adulterers ... [or] ax murderers?" Associate Justice Antonin Scalia asked.
Scouting does not investigate the "sexual orientation" of its leaders, Davidson said. The BSA is concerned about two things, "expression and conduct," he said.
Dale's homosexuality came to the Scouts' attention when a newspaper reported on a speech he gave at a 1990 seminar for homosexual teenagers.
Dale, a former Eagle scout, was co-president of the Lesbian/Gay Alliance at Rutgers University at the time.
Dale's homosexuality "affected his ability to be a role model," Davidson said.
If a heterosexual leader believed homosexuality were not immoral and communicated that position to scouts, he also would not be able to continue as a leader, Davidson told the justices.
The Boy Scouts' lawyer said his client's case is "far stronger" than one won in 1995 at the high court against homosexual rights proponents. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group, the justices ruled unanimously a private organization that sponsored a St. Patrick's Day parade in Boston could exclude a homosexual rights group because it had a First Amendment right to determine what message was communicated.
When Dale expressed his homosexuality publicly, "he put a banner around his neck," Davidson said in comparing his action to that of a marcher in a parade.
Evan Wolfson, Dale's lawyer and senior attorney with the Lambda Legal Defense and Education Fund, argued the Scouts' opposition to homosexual leaders is implicit, not communicated to troop members and not deserving of protection by the government.
His argument would require the Boy Scouts to "go further" in their "anti-gay" policies in order to receive constitutional protection, Scalia told Wolfson.
"I don't know why we have any power to question" if opposition to homosexuality is a part of the Scouts' policy, Scalia said. Does he not think it violates the Scouts' policy to force into leadership "someone who embodies a contradiction of their message?" Scalia asked.
"A human being, such as Mr. Dale, is not a speech" and not a message, Wolfson said.
Associate Justice Anthony Kennedy questioned whether the Scouts or the state would better be able to determine what is moral in the Scouts' message.
The two female justices, Sandra Day O'Connor and Ruth Bader Ginsburg, both questioned whether New Jersey could require the Boy Scouts to accept girls. The state has an exception to its public-accommodation law to protect single-sex organizations, Wolfson said.
Associate Justices Stephen Breyer and John Paul Stevens questioned Wolfson's reasoning when applied to religious groups. Breyer wondered if his view were "Catholics would have to admit Jews."
It is unlikely a church would be considered a public accommodation, Wolfson told the justices.
The Supreme Court will determine only First Amendment issues in the case, since the New Jersey court's ruling the BSA is a public accommodation under its state's law is binding on the high court.
A majority of the Scout troops in the United States are sponsored by churches and other religious bodies. Some supporters of the Boy Scouts in the case have frequently voiced concerns a defeat for the BSA could bring problems for churches and other religious groups in the future. They continued to give that warning after the arguments.
The case is not being taken as seriously as it should be by Christians, said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.
"This is not just an isolated case," Land said on "For Faith and Family," the ERLC's radio program. "This is an issue that will potentially impact every private, voluntary organization, particularly voluntary organizations of faith, in the United States. We should pray that God would touch the hearts of the Supreme Court justices."
When the ERLC signed on to a friend-of-the-court brief siding with the Boy Scouts, Land said, "[W]hat we allow a government entity, in this case the New Jersey Supreme Court, to do to the Boy Scouts today, they may very well try with religious organizations and even churches tomorrow."
If the high court were to rule against the Boy Scouts, it would be possible for the government "to force Catholic organizations to accept Jewish members, Jewish organizations to accept Catholic members, unless those organizations can prove that somehow their express message [was] substantially burdened by having to allow people of other faiths in those organizations," said David Adams of the Lutheran Church-Missouri Synod outside the court. "We feel like there is a long-term, tremendous risk here for not only religious organizations but for all organizations that organize themselves around an expressive purpose or a common viewpoint."
Focus on the Family joined the ERLC in signing onto a brief by the American Center for Law and Justice.
Others joining in briefs on the side of the BSA included Christian Legal Society, Campus Crusade for Christ, Family Research Council, U.S. Catholic Conference, Union of Orthodox Jewish Congregations, Eagle Forum, and Gays and Lesbians for Individual Liberty. Among those on briefs opposed to the Scouts were the American Bar Association, American Psychological Association, National Education Association, American Civil Liberties Union, NAACP, People for the American Way, American Jewish Congress, General Board of Church and Society of the United Methodist Church, National 4-H Council, seven city governments, 11 state attorneys general and several homosexual rights organizations.
A decision in Boy Scouts of America v. Dale is expected before the court's term ends, which probably will be in late June.
Used with permission.