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Posted 24 Feb 2001   For week ended April 30, 2000
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Sent on Mormon-News: 25Apr00

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 Court.

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 gay,'"

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 its brief.

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 associated."

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.

See also:

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, 1999.


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