The Boy Scouts of America should not be forced to crusade openly against homosexuality in order to enforce the organization’s moral code barring homosexuals from being Scout leaders, an attorney for the Scouts told the Supreme Court yesterday.
“It’s the right of the Scouts to choose the moral leaders it wants for the children in the program,” George A. Davidson told the court, which includes at least four former Boy Scouts.
He insisted the policy was made clear by recitation at every meeting since 1910 of the requirement to be “morally straight in thought, word and deed.”
“Boy Scouting is so closely identified with traditional moral values that the term ‘a real Boy Scout’ has entered the language,” he said in urging the court to overturn a New Jersey Supreme Court ruling to restore to duty James Dale, 30, who was expelled by a Monmouth County troop on the basis of a news report that he declared his homosexuality at a seminar unrelated to Boy Scouting.
Lawyer Evan Wolfson of the gay rights activist group, Lambda Legal Defense Fund, said New Jersey’s Law Against Discrimination targeted “discriminatory practices, not expression” and accused the Boy Scouts of using First Amendment claims as an excuse for violating Mr. Dale’s rights since 1990.
Mr. Wolfson said that unless the Boy Scouts are an “anti-gay organization” Mr. Dale’s scoutmaster role did not interfere with its First Amendment rights of expression. He reminded the justices the state high court ruled Boy Scouting a “public accommodation” subject to civil rights laws.
“Once there’s a ‘public accommodation’ the right of association is subordinated somehow secondary?” Justice Anthony M. Kennedy asked.
“Mr. Dale has not asked to carry a banner” promoting homosexuality, Justice David H. Souter said in pressing the Scouts to answer Mr. Dale’s promise not to proselytize and his claim that Boy Scout manuals don’t “convey an explicit view against homosexuals.”
“Mr. Justice Souter, he put a banner around his neck,” Mr. Davidson responded. “He can’t take that banner off. He put it on himself.”
“A human being is not speech,” Mr. Wolfson said, focusing on his contention that Boy Scouting could only bar homosexuals if it declared that as its goal and exchanged the present “don’t ask, don’t tell” policy for investigative tactics.
“It’s not a stealth policy… . It’s well known,” Mr. Davidson said, contradicting Mr. Wolfson.
Justice Ruth Bader Ginsburg expressed concern that Mr. Dale won his case by a judge’s summary order, without the BSA having a chance at a trial to present evidence on its views and how it set policy for its 3.4 million members. Fifty-five percent of Scouts are in troops operated by churches, some of which are internally split over the policy.
The case argued yesterday in the last public hearing for the court’s 1999-2000 term but the decision due by July likely would affect Boy Scouts and other youth organizations nationwide.
Much of yesterday’s debate involved hypothetical questions regarding a ban on girls in the Boy Scouts, whether the Knights of Columbus or B’nai B’rith may restrict membership to co-religionists, and whether Boston’s law barring bias against ex-convicts means felons could run Boy Scout troops.
“People have certainly not liked ex-cons for a long time. They are a discrete and distinct minority,” Chief Justice William H. Rehnquist said.
“What about a gay or lesbian group that didn’t want straight members?” Justice Sandra Day O’Connor offered.
Mr. Wolfson argued that any group trying to maintain a ban likely must express a specific message that would be muted if it admitted opponents.
“So a Catholic organization has to admit Jews. A Jewish organization has to admit Catholics. That’s your view of constitutional law?” asked Justice Stephen G. Breyer, a former Eagle Scout. Other former Scouts on the court include the chief justice and Justices Kennedy and Antonin Scalia.
Scouting would thus be forced “to have as a scoutmaster someone who embodies a contradiction of its moral message whether that person wears a sign or not,” said Justice Scalia.