New Jersey appeals court rules Boy Scouts can’t ban gays

Tuesday, March 3, 1998

James Dale...
Photo by AP
James Dale

TRENTON, N.J. (AP) — The Boy Scouts’ ban on homosexuals is illegal under New Jersey’s anti-discrimination law, a state appeals court ruled March 2 in the first legal defeat for the organization’s policy excluding gays.

The court, saying “stereotypical notions about homosexuals must be rejected,” ruled James Dale should be reinstated as an assistant scoutmaster, eight years after he was kicked out of the Scouts because he is gay.

The ruling comes as the Boy Scouts of America fights court challenges around the country to its exclusion policies.

The organization contends it is a private group and is protected by the First Amendment right to freedom of association, which allows it to exclude anyone who disagrees with its standards.

“The Boy Scouts of America has a right as a voluntary association, to teach youth the traditional values that it has taught since 1910, and to establish membership and leadership standards,” said spokesman Gregg Shields.

“The Boy Scouts of America is not a public accommodation. It’s a voluntary association, and anyone who agrees with our principles is welcome to join.”

The organization said it would appeal the New Jersey decision to the state Supreme Court.

Shields said the Scouts “have long taught traditional family values, and a homosexual is simply not a role model for those values.”

Dale, now 27 and working in New York for a publishing company, said he was elated by the decision.

“This is everything that I was taught in the Boy Scouts, that justice will prevail,” Dale said. “It’s a wonderful victory for scouting. I was taught in Boy Scouts that you stand up for your rights, that when you know something was right, deep down, you go for it.”

Dale earned 30 merit badges, seven achievement honors and other awards, and was an Eagle Scout during his 12 years in the organization. He last served as an assistant scoutmaster in Matawan.

He was expelled by the Monmouth Council of the Boy Scouts in 1990 after the group learned from a newspaper article that he was gay. He sued.

A lower court judge ruled in the Scouts’ favor in 1995, calling homosexuality “a serious moral wrong” and agreeing with the Boy Scouts that the group is a private organization and has a constitutional right to decide who can belong.

The Appellate Division of State Superior Court overruled that decision, saying the Boy Scouts of America and its local councils are “places of accommodation” that “emphasize open membership” and therefore must adhere to New Jersey’s anti-discrimination law.

That law was expanded in 1992 to prohibit most organizations from discriminating on the basis of sexual orientation.

“There is absolutely no evidence before us, empirical or otherwise, supporting a conclusion that a gay scoutmaster, solely because he is a homosexual, does not possess the strength of character necessary to properly care for, or to impart BSA humanitarian ideals to the young boys in his charge,” the decision read.

The court said Dale’s “exemplary journey through the Boy Scouts of America ranks is testament enough that these stereotypical notions about homosexuals must be rejected.”

The court also rejected the Boy Scouts’ contention that the group is protected by First Amendment rights of freedom of expression.

The ruling did not technically order Dale to be reinstated, leaving that to a lower court judge. But the Scouts will ask the state Supreme Court to reverse Monday’s decision.

Dale said he found it “ironic” that he was kicked out while troops were folding because there weren’t enough leaders. Troop 73 in Matawan, where Dale was an assistant scoutmaster, is no longer in operation, according to the Monmouth Council.

Dale said he would consider rejoining the Boy Scouts, saying: “I think the scouting program is a wonderful program.”

The Scouts contended keeping Dale in the organization would have conflicted with its polices to be “morally straight.”

“No one is required to be a Boy Scout,” Shields said. “We force our beliefs on no one. Anyone who agrees with our principles is invited to join. We simply ask here that people respect what we believe.”

Dale’s attorney, Evan Wolfson, said the decision “sends a very important signal to people, gay and non-gay, across the country. It tells gay people, you can participate, if you play by the same rules. It tells non-gays about what the Boy Scouts profess to be: to stand up for people, to be open and honest about yourself.”

Wolfson is with the New York-based Lambda Legal Defense and Education Fund, a national gay-rights advocacy group.

“It’s the first appellate court to look at this and really address it in our favor, rejecting the Boy Scout’s attempt to wriggle out of this,” Wolfson said. “It says flat-out that allowing gay people to participate is not going to hurt the organization.”

The Washington-based Family Research Council, a conservative think tank, branded the New Jersey ruling “un-American.”

“This is judicial activism at its worst,” said Robert H. Knight, director of cultural studies for the group. “It strips parents of the right to entrust their children to a group that reflects their values. It is a naked assault on the Scouts’ freedom to set their moral standards without government coercion.”

The California Supreme Court is expected to rule this month on two discrimination lawsuits against the Boy Scouts filed by a man who was expelled because he is gay and by twin boys who were thrown out because they do not believe in God.

Last May, a federal court in San Diego ruled the Scouts is not a business and does not have to give a leadership post back to a gay police officer who was forced out after he disclosed his sexuality.

And last month, Chicago settled a lawsuit by agreeing to sever its ties to scouting programs until the group accepts gays and stops requiring a religious oath.