c. 2000 Religion News Service

WASHINGTON _ By a slim margin, the U.S. Supreme Court ruled Wednesday (June 28) the Boy Scouts of America can legally exclude an openly gay person from holding leadership positions within the organization.

In a 5-4 decision, justices said that requiring the Scouts to accept gay troop leaders would violate the private organization’s First Amendment right of “expressive association” _ burdening the group’s “ability to advocate public or private viewpoints” concerning homosexuality.

“We have … concluded that a state requirement that the Boy Scouts retain (James) Dale as an assistant scoutmaster would significantly burden the organization’s right to oppose or disfavor homosexual conduct,” wrote Chief Justice William H. Rehnquist in the court’s majority opinion.

He was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. “Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

The ruling climaxed a case that began a decade ago when Dale, then an assistant scoutmaster, was expelled from the Boy Scouts after a newspaper article identified him as co-president of a gay and lesbian organization at Rutgers University.

Dale filed a lawsuit against the Boy Scouts in 1992. He claimed that in ousting him because he is gay, the group violated a New Jersey statute banning discrimination in places of public accommodation.

Though the New Jersey Supreme Court sided with Dale in 1999, Wednesday’s U.S. Supreme Court decision reversed that ruling. New Jersey’s anti-discrimination statute _ originally intended to prevent discrimination in places such as restaurants and trains, and expanded to include membership organizations _ infringed upon the Boy Scouts’ rights of free association, the court majority said.

“The state interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association,” wrote Rehnquist. “We hold that the First Amendment prohibits the state from imposing such a requirement through the application of its public accommodations law.”

But Justice John Paul Stevens disagreed Dale’s presence would violate the Boy Scouts’ First Amendment rights.

“(Dale’s) participation sends no cognizable message to the Scouts or to the world … Dale did not carry a banner or sign; he did not distribute any fact sheet and he expressed no intent to send any message,” Stevens wrote in a dissenting opinion in which he was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. “If there is any kind of message being sent, then, it is by the mere act of joining the Boy Scouts. Such an act does not constitute an instance of symbolic speech under the First Amendment.”

Stevens faulted the Boy Scouts for failing to make the “clear, unequivocal statement (about homosexuality) necessary to prevail on its claim.”

“It is plain as the light of day that neither one of these principles _ `morally straight’ and `clean’ _ says the slightest thing about homosexuality. Indeed, neither term in the Boy Scouts’ Law and Oath expresses any position whatsoever on sexual matters,” wrote Stevens. He added, “A state’s anti-discrimination law does not impose a `serious burden’ or a `substantial restraint’ upon the group’s shared goals if the group itself is unable to identify its own stance with any clarity.”

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Souter, in a separate dissent, and also joined by Ginsburg and Breyer, said he too believed the Scouts failed to show the group supported a stance on homosexuality that Dale’s presence as a leader in the group would burden.

“I conclude that (Boy Scouts of America) has not made out an expressive association claim … because of its failure to make sexual orientation the subject of any unequivocal advocacy, using the channels it customarily employs to state its message,” Souter wrote. “As Justice Stevens explains, no group can claim a right of expressive association without identifying a clear position to be advocated over time in an unequivocal way.

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The Supreme Court’s decision was a disappointment to Elizabeth Toledo, executive director of the National Gay and Lesbian Task Force.

“We are tremendously disappointed that the Court did not see it necessary to ensure that civil rights are enforced against all who overtly discriminate on the basis of sexual orientation,” she said. “The Boy Scouts exception to the civil rights law encourages, rather than discourages, groups to overtly claim an anti-gay … mission to evade the purpose of the law. This dramatically and dangerously subverts civil rights laws that ban discrimination.”

The justice’s ruling “has allowed freedom of association to become a tool by which groups unfairly exclude a group of Americans,” said Ralph G. Neas, president of People for the American Way.

“The Court’s decision permits the Boy Scouts to hide their discrimination behind the First Amendment and rejects the right of New Jersey to create a just society for its citizens,” said Neas, whose group filed an amicus brief in the case in support of Dale.

But several organizations _ including the American Center for Law and Justice, The Church of Jesus Christ of Latter-day Saints (Mormons) and the Family Research Council _ welcomed the decision.

“If the Supreme Court had ruled the other way, it could have forced the NAACP to accept a Ku Klux Klan member, the B’Nai Brith to accept Catholics, and the Knights of Columbus to accept Jews as members and leaders,” said Jan LaRue, senior director of Legal Studies for Family Research Council.

The Cato Institute, a nonpartisan public policy research foundation that filed an amicus brief in the case in support of the Boy Scouts, said the decision was “favorable,” but said the court “has a long way to go still before it secures true freedom of association.”

“In narrowing the freedom of association to the freedom of expressive association, the Court left untouched its earlier decision holding that private organizations formed along less `expressive’ lines _ like the Jaycees _ cannot exclude women or others who might wish to join,” said Roger Pilon, vice president for legal studies at the institute. “Ironically, that means if an organization takes an explicitly `expressive’ stance against some group, it may discriminate against members of the group. But if it takes a more tolerant view, it may find itself having to include those members among its own, which would water down any distinctiveness the organization might have.”

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