The Boy Scouts of American 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 the 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 “a stealth policy.” Homosexuality that is “known or avowed” is inconsistent with the pledge in the Scout Oath to be “morally straight,” 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.
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.
Associate Justice Anthony Kennedy questioned whether the Scouts or the state would better be able to determine what is moral in the Scouts’ message.
A decision in Boy Scouts of America v. Dale is expected before the court’s term ends, which probably will be in late June. (BP)
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