Summarized by Kent Larsen
High Court To Hear Case On Gay Scoutmaster
Education Week 26Apr00 N1
By Mark Walsh
WASHINGTON, D.C. -- The U.S. Supreme Court will hear oral arguments
tomorrow in the case of a former Eagle Scout who was expelled as an
assistant scoutmaster when leaders learned he was gay. The
controversial case has attracted widespread interest and sparked
'friend of the court' briefs from more than a dozen organizations,
including the LDS Church, a sponsor of thousands of Boy Scout Troops.
The case is an appeal of a New Jersey Supreme Court decison which ruled
that Scouting is a public accommodation, similar to a restaurant, and
therefore can't discriminate on the basis of sexual orientation.
James Dale was an assistant scoutmaster and student at Rutgers
University in New Jersey when a Newark Star-Ledger newspaper article
ran an article quoting him as co-president of the Rugters University
gay students' alliance. While the article made no mention of his
affiliation with the Boy Scouts, Scouting officials noticed the article
and expelled him. In 1992 he sued the Boy Scouts in court, losing at
the Trial court, but winning on appeal and again in the State Supreme
The New Jersey Supreme Court ruled that the Boy Scouts are a public
accomodation under the law. Part of the ruling came because the Scouts
maintain close relationships with governmental bodies like the public
schools. According to officials at Scouting's national headquarters in
Irving, Texas, public schools are the third largest chartering
organizations for Scout troops, after the Methodist and LDS Churches.
The presence of Scouts in public schools has caused problems before
because of homosexuality. The San Francisco School Board voted to bar
the Boy Scouts from recruiting in the schools because it felt the BSA's
stance on homosexuality violated the board's nondescrimination policy.
Then school board member and now president of the San Fransico Board of
Supervisors Tom Ammiano, a former Boy Scout who is gay, said in a
recent interview, "It's anti-American to say to every boy that you can
be a Boy Scout, but then turn around and say, 'You can't because you're
But the Scouts dispute that argument. They say that as a private
organization, the Scouts have First Amendment rights of free speech and
freedom of association that the New Jersey decision infringes.
"Requiring a Boy Scout troop to appoint an avowed homosexual and gay-
rights activist as an assistant scoutmaster unconstitutionally
abridges" the Scouts' free-speech rights, the BSA told the justices in
To support their argument, the Scouts cite the Supreme Court's 1995
ruling that the private sponsor of Boston's St. Patrick's Day parade
could not be forced to accept a gay Irish group in the parade."Putting
Dale in an adult leader's uniform would interfere with Boy Scouting's
ability to control the content of its message," the BSA argues.
"Indeed, the very service of an openly gay person as a role model would
convey a message with which Boy Scouting does not wish to be
And the Scouts try to make it clear that they are not against
homosexuals themselves. "Boy Scouting does not have an 'anti-gay'
policy, it has a morally straight policy," Scouting's brief states.
But Dale and his lawyers from the Lambda Legal Defense and Education
Fund argue that the Scouts are not 'an intimate association' and don't exist
solely to oppose homosexuality. They say this means that the New
Jersey decision doesn't violate the group's rights of association or
free speech. The group cites three Supreme Court rulings in the 1980s
that said private commercial groups had to admit women.
Syllabus (summary) of the New Jersey Supreme Court opinion in James Dale v.
Boy Scouts of America, and Monmouth Council, Boy Scouts of America, Aug. 4,