No out Scouts

Plaintiff James Dale, the Boy Scouts, Andrew Sullivan and others react to the ruling that the organization can exclude gays.

Topics: Supreme Court, New Jersey, LGBT, First Amendment,

Eagle Scout James Dale’s 10-year battle against the Boy Scouts of America came to an abrupt end Wednesday after the Supreme Court ruled 5-to-4 that the Scouts have a First Amendment right to exclude gays.

Dale, now 29, was dismissed as assistant scoutmaster for Monmouth Council’s Troop 73 in Matawan, N.J., in July 1990, after an article in the Newark Star-Ledger identified him as the co-president of a gay student alliance at Rutgers University. Two years later, Dale launched a court battle that wound its way through New Jersey state courts all the way up to the Supreme Court.

The handsome Dale, whose cornfed, all-American good looks made him a favored talking head, became the face of a fight against anti-gay discrimination that took on one of the most symbolically important organizations (after the U.S. military) that still excludes gays from membership.

The court effectively reversed a New Jersey Supreme Court ruling that the Boy Scouts are a “public accommodation,” since they use schools and other public property as meeting places and, in doing so, violated the state’s anti-discrimination laws. The 90-year-old Boy Scouts of America has long prohibited gays from membership or leadership roles.

“The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill,” opined Chief Justice William Rehnquist, writing the majority decision. The ruling held that application of New Jersey’s public accommodations law represented an unconstitutional burden on the right to free association by intruding “into a group’s internal affairs by forcing it to accept a member it does not desire.”

The debate originates in the Scout Oath and Law, which states that scouts and scout leaders should be “morally straight” and “clean.” The Boy Scouts have long held that homosexuals by definition cannot be morally straight or clean.

“The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law … and that the organization does not want to promote homosexual conduct as a legitimate form of behavior,” Rehnquist wrote. “The Court gives deference to the Boy Scouts’ assertions regarding the nature of its expression.”



The court’s free speech argument was unsettling for gay activists, who often use the First Amendment as a foundation in pushing for their own gains. The court dismissed arguments made by Evan Wolfson of the Lambda Legal Defense and Education Fund, Dale’s lawyer, that the Boy Scout ban was akin to excluding women from private organizations. The court’s 1997 decision forcing the Rotary Club to admit women, Rehnquist said, did not “materially interfere with the ideas that the organization sought to express.”

Wednesday’s decision had civil rights activists and constitutional scholars arguing over how broadly the ruling could be interpreted. Would it open the door for private organizations to discriminate against women or ethnic minorities? Would other private organizations scramble to write anti-gay messages into their charters? Or would the ruling serve only to exclude gay teens and leaders from joining in the campfire songs and adventure of the Boy Scouts?

Salon News canvassed experts from all sides of the debate in the wake of the ruling. Their reactions follow.

Gregg Shields, spokesman for Boy Scouts of America:

We’re very pleased by the court’s decision. This decision affirms our standing as a private organization with rights to set our own standards for membership and leadership, and with this, we can continue our mission of providing character-building programs for young people. That’s what we’ve been doing since 1910. Boy Scouts of America, in the Scout Oath and Laws, talks about a Scout having respect towards others, being courteous, being kind, and that’s not going to change. The Boy Scouts respect the rights of others to hold beliefs other than what we believe. We simply ask others to have tolerance for our beliefs. This has not been a quiet case, and through it all, we’ve gained membership, we’ve grown. In fact, in recent years, we’ve seen the fastest growth we’ve seen since the baby boom. This ruling, hopefully, will bring to a close our litigation and allow us to get back to our work.

James Dale:

I’m saddened by 10 years that I’ve been fighting for the Boy Scouts to drop this policy of exclusion, so of course the decision from the Supreme Court does sadden me, but I also think there’s a lot of room for hope in where America’s going. Although the Boy Scouts think discrimination is right, America does not think that discrimination is right. America, overall, is moving in the right direction. This is a setback, but I still think we’re moving forward.

All I know about the Boy Scouts of America is that for 12 years, as part of the program, they taught me to be honest and open in my relationships with other people. They taught me to respect and defend the rights of all people — these are all things the Boy Scouts represent. I joined the Boy Scouts because I believed in camping and leadership and getting involved in community. I still think the Boy Scouts still has a lot to offer America. But I think that if the Boy Scouts are not willing to open up their program to gay kids, there needs to be a place for them. When I was a kid, the Boy Scouts made me feel very good about myself and gave me self-respect and self-esteem, something all kids need, both gay and non-gay. There needs to be a program that takes its place. The dinosaurs became extinct because they didn’t evolve, and I think the Boy Scouts are making themselves exctinct. That’s sad.

Andrew Sullivan is a New York Times Magazine columnist and the author of “Virtually Normal: An Argument About Homosexuality.”

The court’s decision is, in fact, a good one for gay people. It enshrines the basic principle of freedom of association, which protects minorities above all. I’m sad that the Boy Scouts have decided to embrace bigotry, but in a free country they have every right to. I just hope that their organization suffers the fate of most bigoted institutions and declines until it has the courage and wisdom to accept openly gay men and boys as moral leaders.

Professor Laurence Tribe, Harvard Law School

The case was a difficult one to begin with, but I think that the opinion by the chief justice is very weak in meeting the primary objection that Justice [John Paul] Stevens’ dissent makes — that is, that the Supreme Court isn’t in the business of allowing groups an exemption from otherwise applicable neutral laws, whether laws of dealing with anti-discrimination or other things. It’s not generally in the business of letting them write their own ticket and essentially define, without any opportunity for review, the answers to the critical questions that the Constitution requires that we answer.

If we’re applying the First Amendment freedom of expressive association, the critical questions are whether the Boy Scouts of America in fact have a coherent anti-gay message, and whether that message would in fact be substantially undermined by the mere membership of an openly gay scout leader. In effect, the majority says, well, the Boy Scouts tell us that’s their message. And they tell us that the inclusion of Dale will foul the message up, even though there’s no real reason to believe it. Therefore, they win.

But there’s an additional irony in that several members of majority — the chief justice who wrote the opinion and justices Thomas and Scalia who joined it — have gone out of their way over and over again to say that in their view, the Constitution protects only explicitly enumerated rights, like the right to free speech and the right to freedom of expression. Well, the right to this very broad form of self-defining association — which is linked by a very weak kind of umbilical cord to the free speech clause — is pretty far out on the limb for someone who takes a very narrow view of what the Constitution protects.

So it’s hard not to think that consciously or unconsciously — and despite the chief justice’s disclaimer of being influenced in any way by the majority’s attitudes toward homosexuality — that the majority is influenced by its sense that the Boy Scouts are a time-honored motherhood and apple pie association, and they simply couldn’t bring themselves to believe that a state has the right to require that group to embrace the possibility of members who are outside that mainstream. Without that, it’s really very hard to account for a decision that in doctrinal and strictly constitutional terms is so weak.

Richard J. Sauer, president and CEO of the National 4H Council, which filed a legal brief on behalf of James Dale in the Supreme Court case:

I find the Supreme Court decision unfortunate because it will continue to exclude some young men from the considerable youth development opportunity offered through Boy Scouts of America. While I respect the right of any private organization to determine its membership, I question why the Boy Scouts should be allowed to use public facilities for meetings when not all public are welcome.

Documentary filmmaker Tim Curransued the Boy Scouts after he was kicked out for being gay in 1981; the California Supreme Court ruled against Curran in 1998.

I’m really disappointed because I had hoped that the Dale case would be the victory that I didn’t have. The facts are almost identical to my case, except it happened 10 years later. A victory for James Dale would have been a victory for me, and it would have entitled me to join a troop, which I would have done. I also recognize that this case has always been fought in the court of public opinion as much as the court of law. In the court of public opinion, the Scouts are losing anyway. It’s a terrible tragedy for scouting that the Boy Scouts of America won at the U.S. Supreme Court and have squandered an opportunity to lead on this issue, which strikes so close to the heart of their mission, which is to fight against discrimination and show leadership. But instead they have fought this reactionary battle.

Matt Coles, director of the American Civil Liberties Union’s Gay and Lesbian Rights Project

From a standpoint of constitutional law, this is a very bad decision. What makes it bad is that the court has somewhat astonishingly for the first time ruled that the First Amendment gives you the right to discriminate against a group of people based on who they are, if you say that you don’t like them. That’s an amazing and unprecedented thing. The Boy Scouts admitted and the court acknowledges that they keep in heterosexuals who say that they disagree with the policy. You only get knocked out if you’re openly gay.

So this is clearly not about having a message that’s different than the organization’s. This is about who you are. To say that the First Amendment gives you a right to discriminate against a group of people because of who they are is pretty astonishing.

The good news is that this decision is only going to apply to organizations that are set up to teach values or to express views. Most landlords, most employers, most garden variety public accommodations won’t be able to make use of this to discriminate and say that it’s protected by the First Amendment. But some will, and to those that can I think it’s pretty amazing.

Paula Ettelbrick is family policy director for the National Gay and Lesbian Task Force Policy Institute.

This case goes to show you how important the upcoming elections are. If it’s Bush, forget about it. There are a couple of justices, one of them liberal Justice Stevens, we may lose. This is a devastating decision to the strength of civil rights laws. The court ruled in a way that encourages rather than discourages groups to overtly discriminate. It encourages groups to adopt a mission that’s anti-gay, precisely in order to evade the application of the law. By claiming terms like “morally straight” or “good citizenship” they have basically claimed those terms to be “straight only.” Only straight people can be good, upstanding citizens. That’s factually and morally wrong. On the other hand, there are only a dozen states that ban anti-gay discrimination anyway.

I admit that early on, I was not big on bringing on these kinds of cases. You don’t ever want to bring a case before the Supreme Court that is likely to lose. You had the whole role model issue, which we’ve always lost on. It’s been the basic issue in gay and lesbian parenting; and we are still fighting those battles in many states around the country.

But I started to feel more strongly about the case because during those 10 years, the idea of gay people being good role models for children was no longer one that resonated with as many people. The gay man as predator idea is now right-wing rhetoric, it’s not the mainstream perspective.

William Van Alstyne, Duke University Law School

The precedent is significant, but not more dramatic than that. [In the case of the St. Patrick's Day parade,] The court had already held that the state’s anti-discrimination law as applied to that kind of group trying to express their own views as Irishmen and as Catholics did have a First Amendment protection, so in that setting, state statute could not apply to them.

This case is pretty similar to that. It’s an additional step to be sure. Mr. Dale was an adult leader that was dropped when his public professions of homosexuality came to the Boy Scouts’ attention. So they succeed in describing themselves as a voluntary ideological association that’s committed to certain social values, and the inclusion of him in a leadership role would be incompatible.

Majority’s acceptance of that as being protected by the First Amendment is not that novel — it’s a step of application beyond what the court has done previously. But it’s not a new precedent in establishing the prerogative of private organizations, voluntary associations, to form along certain ideological lines and control their leadership roles and membership roles in a manner they deem consistent with that ideological commitment.

If you accept [the Boy Scouts'] claim, as the majority of the court did, that they regard this kind of behavior as immoral or not clean — even though you and I might emphatically disagree, but that’s their view — then you can see why having to retain him in an adult mentoring and counseling role would seem to introduce a kind of raw inconsistency in the filling of those leadership roles with the very kind of message that they say they are intent on trying to communicate to the younger Boy Scout members.

Other than New Jersey, no state supreme court in the country had interpreted their public accommodation statute to apply to this kind of group. It was a big step to put it differently, a surprising step, that the New Jersey even deemed its statute applicable to this circumstance.

Evan Wolfson is the Lambda Legal Defense Fund senior staff attorney who argued before the Supreme Court on James Dale’s behalf:

I would emphasize that despite the 5-to-4 loss today, we think the discussion James Dale and this case have prompted has been very positive. People across the country are now aware that gay and lesbian youth exist. People understand that lesbian and gay kids need opportunities to be included, need support, need services. And it’s organizations like the Boy Scouts, who refuse to provide those services, that are going to be marginalizing themselves while the rest of us look for programs to bring those services to all kids.

The court’s ruling was narrow, but even more striking, look who filed briefs. The Girl Scouts of America has a non-discrimination policy. The 4-H Club, another national youth leader, filed a brief in support of our side in this case. The fact is, the Boy Scouts’ position is not one that most youth organizations or programs are taking. They understand that non-gay kids shouldn’t be taught bigotry.

Fiona Morgan is an associate editor for Salon News.

Daryl Lindsey is associate editor of Salon News and an Arthur Burns fellow. He currently lives in Berlin and writes for Salon and Die Welt.

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