From the Worldwide Faith News archives

Supreme Court hears arguments in gay Scout case

From NewsDesk <NewsDesk@UMCOM.UMC.ORG>
Date 27 Apr 2000 09:36:04

Supreme Court hears arguments in gay Scout case

April 27, 2000 News media contact: Thomas S.
McAnally*(615)742-5470*Nashville, Tenn.  10-71B{228}

NOTE:  This story is distributed by UMNS with the permission of Religion
News Service, which has offices in Washington.

By Kevin Eckstrom
Religion News Service

WASHINGTON -- The U.S. Supreme Court revisited the sensitive issue of
homosexuality April 26 in a case that pits the Boy Scouts of America against
an ousted gay assistant scoutmaster. The outcome could have significant
ramifications for religious groups.

Lawyers for the Scouts told the court that the Boy Scouts, as a private
organization like churches or other religious groups, has the constitutional
protection to dictate the standards for its leaders and members.

But the lawyer for James Dale, the former Scout leader, says the Boy Scouts
is a public accommodation group with large support from governmental
agencies, and as such, cannot discriminate on the basis of a person's sexual

"When the Boy Scouts say `We are open to all,' all means all, and all means
both gay and straight," said Dale's lawyer, Evan Wolfson, speaking to
reporters after the oral arguments.

The original case was brought by Dale, a former New Jersey Eagle Scout, who
was dismissed from the Boy Scouts after a local newspaper identified him in
1990 as part of a gay and lesbian campus group at Rutgers University. At the
time, Dale was an assistant scoutmaster.

Boy Scouts officials said Dale's homosexuality was incompatible with the
standards the scouting organization holds for its leaders. Dale sued, and
after a lengthy legal battle, the New Jersey Supreme Court agreed that the
Boy Scouts had violated the state's anti-discrimination law.

A decision by the Supreme Court is expected by the end of July.

The justices appeared skeptical of the claims made by both sides, asking the
Scouts why someone could be dismissed simply for being gay, and grilling
Dale's lawyers as to why the Scouts cannot dictate its own leadership

Several justices, led by Sandra Day O'Connor and Anthony M. Kennedy,
questioned how the Scouts could dismiss a homosexual when no official policy
had been written banning them from membership or leadership.

O'Connor wanted to know if the New Jersey law could be used to force the
Scouts to accept women, for example, and Justice Stephen G. Breyer asked if
religious groups might be forced to accept members of other faiths under the

Breyer and Justice Ruth Bader Ginsburg expressed concern that the scouting
organization was singling out homosexuals for their views and would not take
similar action against heterosexuals who disagree with the Scouts' anti-gay

"Is there a policy where that would be the same if the person were not gay?"
Breyer asked.

In response, George Davidson, the Scouts' lawyer, said: "If that person were
to take that position to the youth in the program, that person would not be
eligible for leadership."

Ginsburg asked Davidson whether gays would be welcome as long as they were
not open about their sexuality.

"Are we saying the policy is `Don't ask, don't tell' or are we saying, `If
you're gay, you're not welcome'?" Ginsburg asked. "What's the policy?"

All Scouts pledge to lead lives that are "morally straight." Scout leaders
said that an open homosexual does not qualify as "morally straight," even
though they have issued no official guidelines on the subject.

Davidson said the Scouts -- as a private organization -- has the right to
determine what qualifies as "morally straight," even though it is a
federally chartered institution and receives substantial support from
governmental agencies such as police and fire departments.

The Scouts organization found its strongest case in a 1995 decision that
allowed the private sponsors of a Boston St. Patrick's Day parade to exclude
gays and lesbians from marching.

Questioning Dale's lawyer, justices wanted to know why Dale had a right to
be a leader in an organization when he did not espouse its views. They also
queried whether the organization itself or someone else should determine its

"Who is better qualified to determine the expressive purpose of the Boy
Scouts -- the Boy Scouts or the New Jersey courts?" Kennedy asked.

Wolfson said the Boy Scouts is "one of the least private public
accommodation" groups in the country. Because membership is open to anyone,
Wolfson said Boy Scouts is clearly a public group under private auspices.

Wolfson pointed to earlier court decisions that allowed states to force
groups like the Jaycees and Rotary International to admit women members.
Wolfson said groups like the Boy Scouts must show they are "significantly
burdened" by allowing members like Dale and in this case "they failed to
show that their expressive messages are burdened,"
Wolfson said.

The case could have far-reaching implications for churches and religious
groups. Several religious groups -- including the Southern Baptists, Mormons
and Orthodox Jews -- filed briefs with the court supporting the Scouts.

The issue has divided elements of the United Methodist Church, which
sponsors more Scout troops than any other organization. The church's Board
of Church and Society supports Dale, while its Commission on United
Methodist Men supports the Scouts.

Speaking outside the court after the arguments, religious leaders said the
case holds dangerous ramifications if the court finds for Dale and against
the Boy Scouts.

The Rev. Robert Schenck, speaking for the National Clergy Council, said if
the Boy Scouts is forced to hire homosexual leaders, churches could be
forced to hire gay clergy.

"This case, should Mr. Dale prevail at the Supreme Court, will allow
government entities to intrude on religious organizations and tell them what
they should believe and what they should practice," Schenck said.

The Rev. David Adams, executive director of the office of government
information for the Lutheran Church-Missouri Synod, agreed.

"That kind of imposition of anti-discrimination laws on religious groups
would be a deathblow on religious people of all faiths to associate
together," Adams said.

Dale, surrounded by his attorneys and his parents, said he holds no grudges
against the Boy Scouts.

"I have always loved the Boy Scouts of America," Dale said. "It has always
been a program I hold dear to my heart and I hope to one day be a part of

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