High court seems to lean toward Boy Scouts in dispute over exclusion of gays

Wednesday, April 26, 2000

The Boy Scouts of America may be on the verge of winning its First Amendment battle to keep gays out of its ranks.

In oral arguments today in Boy Scouts of America v. James Dale, the justices appeared concerned that the New Jersey Supreme Court exerted too much control over the message and membership of a private organization last year when it ordered the Scouts to reinstate James Dale as a scoutmaster. The Scouts expelled Dale in 1990 after a newspaper depicted him as a leader of a gay-rights group at Rutgers University.

Several justices wondered whether the Boy Scouts would have to admit girls, or Catholic groups would have to admit Jews, if anti-discrimination laws were applied to private organizations like the Boy Scouts.

Dale's lawyer Evan Wolfson noted that the New Jersey law barring discrimination in public accommodations allows an exception for some single-sex organizations, so the Boy Scouts would probably not have to allow girls in.

But Wolfson appeared not to have calmed the justices' general concern when he argued that private groups should carry the burden of proving that their expressive message would be violated by allowing non-adherents to join. The Boy Scouts has not met that burden in seeking to exclude homosexuals, Wolfson said.

That requirement might force groups to articulate messages they don't strongly feel and should not have to espouse to maintain control of their membership, several justices responded. “You will have succeeded in inducing the Boy Scouts to be more openly and avowedly opposed to homosexuality than they are now,” said Justice Antonin Scalia.

“Does there have to be an expressive purpose?” asked Chief Justice William Rehnquist. “What if a Catholic organization said, 'we just feel more comfortable with Catholics?'”

Justice Anthony Kennedy seemed worried that states were getting too involved in scrutinizing the internal views of private organizations. “Who is better qualified to determine their message — the Boy Scouts or New Jersey?” Kennedy asked at one point.

Wolfson recovered ground when he replied that the court has never allowed private organizations to assert a “free floating” right of association to thwart civil rights laws. Freedom of association, civil rights groups have pointed out, was a favorite shield for segregationist groups.

But Boy Scouts lawyer George Davidson cast his client's position as a principled plea to maintain its core focus on providing “morally straight” guidance for young men. The Boy Scouts, he said, has a First Amendment “right to choose the moral leaders it wants.”

The Boy Scouts organization, Davidson said, tries only to provide a role model for young people and is “far from a business networking organization.” That was a reference to Jaycees and Rotary International, which the court in past rulings said could not exclude women.

When several justices suggested that the Boy Scouts' exclusion of homosexuals might force government agencies that sponsor Scout activities — police departments, schools and the like — to sever ties with the Scouts, Davidson said that is a price the organization is willing to pay. “Their policies are not for sale,” he said curtly.

One of the hour's sharpest exchanges came when Davidson invoked the court's 1995 decision in Hurley v. Irish-American Gay Group of Boston, in which the court said the organizers of a St. Patrick's Day parade could keep a gay Irish group from marching and espousing a message contrary to that of the parade.

Justice David Souter, who authored the Hurley opinion, suggested the Boy Scouts case was different because Dale was not seeking to espouse a message about homosexuality within the Scouts. “Dale has not asked to carry a banner,” Souter said.

Davidson vigorously disagreed, arguing that Dale “put a banner around his neck” when he identified himself as a gay-rights leader, albeit in a different context. “He created a reputation,” Davidson said. “He can't take that banner off.” His point seemed persuasive, though Wolfson later insisted that “a human being is not a speech.”

Davidson ran into trouble only when he answered questions from justices who were seeking to clarify the extent of the Scouts' seemingly uncodified policy regarding homosexuals.

Seeking to determine if the policy has to do with Dale's status as a homosexual or with the message of homosexuality, Justices Sandra Day O'Connor and Stephen Breyer asked what would happen to a heterosexual Scout leader who espoused gay rights.

“I don't know how that would be resolved,” Davidson replied.

What about a heterosexual Scout leader who was living with a woman “without the blessing of marriage?” asked Ruth Bader Ginsburg. Davidson was again unsure, but he did indicate that Scout leaders have been expelled for inappropriate heterosexual activity.

A decision in the case could come anytime before the end of the court's term this June or July.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.