N.J. high court hears case of Boy Scout leader ousted for being gay

Thursday, January 7, 1999

Attorneys for the Boy Scouts of America argued before the New Jersey Supreme Court earlier this week that requiring the organization to retain a gay Scoutmaster intrudes on the group's First Amendment rights of expressive association and free speech.

The organization was appealing a lower-court ruling that it had violated New Jersey's anti-discrimination law when it expelled Scout leader James Dale in 1990 after discovering he was gay.

The Boy Scouts national office revoked Dale's membership after an article in The (Newark) Star-Ledger identified him as the president of Rutgers University's Lesbian/Gay Alliance.

Dale was notified by letter that “the grounds for this revocation are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals.”

Dale, who had earned over 30 merit badges and achieved Eagle Scout rank, sued the Boy Scouts under the New Jersey anti-discrimination law.

Last March, a New Jersey appeals court ruled in Dale v. Boy Scouts of America that the organization had violated the state's anti-discrimination law, which prohibits discrimination based on sexual orientation.

The appeals court cited the U.S. Supreme Court's 1984 decision in Roberts v. United States Jaycees. In that decision, the high court ruled that requiring the admission of women to the Jaycees did not violate the male members' free-association rights: “The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means less restrictive of associational freedoms.”

The New Jersey appeals court reversed the 1996 decision of a trial court judge who had granted summary judgment in favor of the Boy Scouts in Dale, writing that Scout members' “freedom of expressive association rights prevent government from forcing them to accept [Dale] as an adult leader-member” and “the presence of a publicly avowed active homosexual as an adult leader of Boy Scouts is absolutely antithetical to the purpose of Scouting.”

Evan Wolfson, who represents Dale on behalf of the Lambda Legal Defense & Education Fund, said: “For an organization to claim a First Amendment shield against an anti-discrimination law, the organization carries a heavy burden. It must show that the enforcement of that law severely burdens the core expressive purpose which brings the organization's members together.

“The attorneys for the Boy Scouts cannot point to one single piece of evidence that shows that including homosexuals burdens the ideological purposes of the organization,” he said.

“If the Boy Scouts want to reconstitute themselves as the Anti-Gay Scouts of America, then that might be a different story,” he said.

However, George Davidson, attorney for the Boy Scouts, says that excluding homosexuals serves the organization's message of acting “morally straight.” He said: “The U.S. Supreme Court in the Hurley case said that it is a First Amendment violation to make a group send a message that it does not wish to send.”

In its 1995 decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, the U.S. Supreme Court ruled that the organizers of a parade did not violate a Massachusetts discrimination law by refusing to allow a gay and lesbian group to participate as its own parade unit.

The high court wrote that “it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control” and “disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others.”

The American Center for Law and Justice, a public interest law firm, filed a friend-of-the-court brief in Dale on behalf of four U.S. congressmen — Rep. Robert Aderholdt, R-Ala.; Rep. Ernest Istook, R.-Okla.; Rep. Asa Hutchinson, R-Ark.; and Rep. Charles Pickering, R-Miss. — who sided with the Boy Scouts.

Vince McCarthy, senior regional counsel for the ACLJ, said: “The Boy Scouts have a right to define their speech and expression. The right of free speech is meaningless without the right to define your speech.”

In his brief, McCarthy wrote: “Requiring the Boy Scouts to accept Dale as an assistant Scoutmaster is nothing less than an effort to silence the Boy Scouts' views and message on homosexuality. As such, it is a severe intrusion on the Boy Scouts' First Amendment rights of free speech and expressive association.”

Wolfson, however, says that the Dale case is an expressive-association case, not a free-speech case. “Hurley is a pure speech case, not an expressive-association case. A parade is pure speech, it is a speech act.” With the Boy Scouts, we are not talking about pure speech, but association, he says.

“The Boy Scouts somehow claim that the Hurley case wipes out the U.S. Supreme Court's trilogy of expressive-association cases,” he said.

“Even if Hurley applies, it is not inconsistent with the Dale case. At issue in Hurley is a clash of views, not the exclusion of gays,” he said. “The U.S. Supreme Court made it clear that in the Hurley case, gays were not excluded from marching, but rather from expressing a viewpoint.”

“James Dale was not excluded for any speech or expressive conduct, he was excluded for who he is,” Wolfson said.

Wolfson said he was “very hopeful” for a favorable ruling by the New Jersey Supreme Court.

A decision is expected sometime later this year.