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.”
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 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
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 treatmentS 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
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
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 (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.