- The Washington Times - Thursday, June 29, 2000

The Supreme Court ruled yesterday that the Boy Scouts of America can bar homosexuals as scoutmasters solely on moral grounds, upholding what the court called the organization's "right of expressive association."

The high-court decision left the 3.4-million-member organization, with two-thirds of its troops sponsored by churches, free to choose its leaders.

The court did not directly address the question of whether Scouts who declare themselves "gay" can be barred from membership.

Forcing the Scouts to accept homosexual troop leaders would violate the organization's right of "expressive association" under the Constitution's First Amendment, the justices ruled on the last day of their term.

"The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," Chief Justice William H. Rehnquist wrote for the court.

"The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association" if it harms the group's ability to advocate its viewpoint. "Indeed, it appears that homosexuality has gained greater societal acceptance, but this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views.

"The presence [of a homosexual scoutmaster] 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."

In a dissent, Justice John Paul Stevens said barring a homosexual scoutmaster is inherently harmful. "That harm can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers. If we would guide by the light of reason, we must let our minds be bold."

The 5-4 decision reversed a New Jersey state Supreme Court decision that deemed scouting a "public accommodation" open to almost anyone, as if it were a restaurant or motel.

The chief justice was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Justice Stevens, joined in the dissent by David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, wrote that the minority was disturbed "that such prejudices are still prevalent" and said they cause serious harm to their targets. They said New Jersey's human rights law, the source of the litigation, does not force the Boy Scouts "to communicate any message that it does not wish to endorse."

The case began in 1990 when the Monmouth Council of the Boy Scouts of America ejected Assistant Scoutmaster James Dale of Matawan. It acted after Mr. Dale's photograph appeared in the Newark Star-Ledger, identifying him as co-president of the Rutgers University Lesbian/Gay Alliance. The former Eagle Scout is now 29 and works on a magazine for HIV-positive readers.

Mr. Dale, in his reaction to the ruling, said the policy would damage the Boy Scouts and showed a disregard for the needs of boys who see themselves as homosexuals at an early age. "Dinosaurs became extinct because they didn't evolve," he said. "The Boy Scouts are making themselves extinct, and that's a very sad thing."

The leadership of the Scouts was elated. "This decision affirms our standing as a private organization with the right to set our own standards for membership and leadership," spokesman Gregg Shields said.

George A. Davidson, lawyer for the Scouts, had argued that homosexuals cannot teach "true manliness" or acceptance of a boy's ultimate responsibility to women, children and religious beliefs. "Boy Scouting espouses family values, which emphasize marriage and fatherhood," he told the court.

The Human Rights Campaign, a homosexual-rights advocacy group, called the ruling a "travesty of justice" that could allow other large groups "to evade state and local nondiscrimination laws."

Conservative legal and advocacy groups were predictably pleased. The American Center for Law and Justice, a conservative interest group that joined in defense of the Scouts, called the ruling a victory for all private organizations.

"The decision will have a dramatic impact on all private organizations, including religious groups, to define their own mission and set their own criteria for leadership," said Vincent P. McCarthy, a lawyer for the group.

Said Jan LaRue of the Family Research Council: "It is not the role of government to decide who should share a pup tent with the Scouts, who is fit to be a scoutmaster, and what message the Scouts should deliver about homosexuality. The Supreme Court has confirmed that the Boy Scouts are not an appendage of the state, and the government cannot force them to accept leaders who do not share their core principles."

Yesterday's decision was the Supreme Court's first in a Scout case. Over two decades, the Scouts have defended nine other challenges, including one in the District of Columbia.

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