High court to test Boy Scouts’ claim of First Amendment right to exclude gays

Wednesday, January 19, 2000

Boy Scouts are loyal, trustworthy, courteous and kind. But the question the Supreme Court will have to answer sometime this spring is this: Is the Boy Scouts of America also an organization communicating a unified message that should be protected by the First Amendment?

That will be the core issue in the case of Boy Scouts of America v. James Dale, which the justices agreed on Jan. 14 to consider. The New Jersey case arose as a challenge by James Dale to the Boy Scouts' decision to exclude him as a Scout leader after he revealed publicly that he is a homosexual.

Dale was an honored Scout throughout his youth, and after he was excluded as an assistant Scoutmaster in 1990, he sued under New Jersey's law against discrimination in public accommodations.

“Scouting is a wonderful program that should be available to all boys, free of discrimination,” said Dale after the Jan. 14 action. “I look forward to our day before the U.S. Supreme Court.”

The case, which will likely be argued in April or May, will bring together several strands of court precedent in the First Amendment areas of freedom of speech and association. In its rulings, the court has identified two distinct types of associations worthy of First amendment protection: intimate association and expressive association.

Intimate associations, the court has said, are family relationships and small, private groups of people with deep attachments that are maintained as a fundamental aspect of personal liberty.

The New Jersey Supreme Court cited a series of high court decisions to rule that the Boy Scouts of America, with nearly 5 million members and a highly visible public face, was not that sort of intimate organization that might be entitled to exclude potential members as it wishes. The cases of Roberts v. U.S. Jaycees and Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte evaluated organizations that sought to be categorized as intimate associations, but in both cases the court found they did not fit, and they could not exclude women under civil rights laws barring discrimination in public accommodations.

The Boy Scouts of America were in the same category, the New Jersey court said, and the U.S. Supreme Court may find it difficult to disagree, though the Rotary Club and the Jaycees have somewhat different characteristics from the Boy Scouts. In a passing comment in Roberts, Justice Sandra Day O'Connor suggested that Boy Scouts and Girl Scouts organizations might well be evaluated differently.

The main battleground in the case is likely to be the other branch of the court's jurisprudence: whether the Boy Scouts qualifies as an expressive association — a group that comes together to voice a particular message or point of view. In the 1995 case Hurley v. Irish-American Gay Group of Boston, the Supreme Court said organizers of the St. Patrick's Day march in Boston were not obliged to include gay marchers because the parade had a specific message that was counter to that voiced by the gay group.

Likewise, if the Boy Scouts can convince the court that it too has a specific message that would be spoiled by the inclusion of a gay member or leader, the court could rule that the exclusion of Dale is constitutionally protected.

“Boy scouting is an expressive organization with the purpose of instilling in boys and young men certain ideals of what it means to be a man,” the Boy Scouts' brief contends.

But Dale, represented in the case by Lambda Legal Defense and Education Fund, disagrees. While acknowledging the Scouts has “some expressive component,” Lambda lawyer Evan Wolfson says, “our bottom line is that members don't join the Boy Scouts to promote bigotry and anti-gay bias.”

While Scout bylaws require members to be “morally straight,” neither the definition of that term nor any other Scout rule specifically excludes homosexuals. As a result, Wolfson asserts, allowing Dale to remain a member does not burden the Scouts' message or violate the organization's freedom of expression.

Shouldn't the organization be allowed to decide what its message is and what would contradict it? No, says Wolfson emphatically. If it were, any organization could exclude anyone it wants by redefining its message and invoking the First Amendment, he says. “The civil rights laws would be gutted.”

But advocates for the Scouts say the organization's First Amendment rights are at stake. The case before the court, says Jay Sekulow of the American Center for Law and Justice, “represents the Boy Scouts' last and best chance to defend its time-honored traditions and define its leadership criteria -something it should be permitted to do under the First Amendment.”

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