May 1, 2000
Boy Scouts case could impact other religious groups
___By Kevin Eckstrom
___Religion News Service
___WASHINGTON (RNS)--The U.S. Supreme Court revisited the sensitive issue of homosexuality April 26 in a case that pits the Boy Scouts of America against an ousted gay assistant scoutmaster. The outcome could have significant ramifications for religious groups.
___Lawyers for the Scouts told the court the Boy Scouts, as a private organization like churches or other religious groups, has the constitutional protection to dictate the standards for its leaders and members.
___But the lawyer for James Dale, the former Scout leader, says the Boy Scouts is a public accommodation group with large support from governmental agencies and, as such, cannot discriminate on the basis of a person's sexual orientation.
___"When the Boy Scouts says 'We are open to all,' all means all, and all means both gay and straight," said Dale's lawyer, Evan Wolfson, speaking to reporters after the oral arguments.
___The original case was brought by Dale, a former New Jersey Eagle Scout, who was dismissed from the Boy Scouts after a local newspaper identified him in 1990 as part of a gay and lesbian campus group at Rutgers University. At the time, Dale was an assistant scoutmaster.
___Boy Scouts officials said Dale's homosexuality was incompatible with the standards the scouting organization holds for its leaders. Dale sued, and after a lengthy legal battle, the New Jersey Supreme Court agreed the Boy Scouts had violated the state's anti-discrimination law.
___A decision by the Supreme Court is expected by the end of July.
___The justices appeared skeptical of the claims made by both sides, asking the Scouts why someone could be dismissed simply for being gay, and grilling Dale's lawyers as to why the Scouts cannot dictate its own leadership standards.
___Several justices, led by Sandra Day O'Connor and Anthony Kennedy, questioned how the Scouts could dismiss a homosexual when no official policy had been written banning them from membership or leadership.
___O'Connor wanted to know if the New Jersey law could be used to force the Scouts to accept women, for example, and Justice Stephen Breyer asked if religious groups might be forced to accept members of other faiths under the law.
___Breyer and Justice Ruth Bader Ginsburg expressed concern that the scouting organization was singling out homosexuals for their views and would not take similar action against heterosexuals who disagree with the Scouts' anti-gay stance.
___"Is there a policy where that would be the same if the person were not gay?" Breyer asked.
___In response, George Davidson, the Scouts' lawyer, said: "If that person were to take that position to the youth in the program, that person would not be eligible for leadership."
___Ginsburg asked Davidson whether gays would be welcome as long as they were not open about their sexuality.
___"Are we saying the policy is 'Don't ask, don't tell' or are we saying, 'If you're gay, you're not welcome'?" Ginsburg asked. "What's the policy?"
___All Scouts pledge to lead lives that are "morally straight." Scout leaders said an open homosexual does not qualify as "morally straight," even though they have issued no official guidelines on the subject.
___Davidson said the Scouts--as a private organization--has the right to determine what qualifies as "morally straight," even though it is a federally chartered institution and receives substantial support from governmental agencies such as police and fire departments.
___The Scouts organization found its strongest case in a 1995 decision that allowed the private sponsors of a Boston St. Patrick's Day parade to exclude gays and lesbians from marching.
___Questioning Dale's lawyer, justices wanted to know why Dale had a right to be a leader in an organization when he did not espouse its views. They also queried whether the organization itself or someone else should determine its beliefs.
___"Who is better qualified to determine the expressive purpose of the Boy Scouts--the Boy Scouts or the New Jersey courts?" Kennedy asked.
___Wolfson said the Boy Scouts is "one of the least private public accommodation" groups in the country. Because membership is open to anyone, Wolfson said, Boy Scouts is clearly a public group under private auspices.
___Wolfson pointed to earlier court decisions that allowed states to force groups like the Jaycees and Rotary International to admit women members. Wolfson said groups like the Boy Scouts must show they are "significantly burdened" by allowing members like Dale. In this case, "they failed to show that their expressive messages are burdened," Wolfson said.
___The case could have far-reaching implications for churches and religious groups. Several religious groups--including Southern Baptists, Mormons and Orthodox Jews--filed briefs with the court supporting the Scouts.
___The issue has divided elements of the United Methodist Church, which sponsors more Scout troops than any other organization. The church's General Board of Church and Society supports Dale, while the General Commission on United Methodist Men supports the Scouts.
___Speaking outside the court after the arguments, religious leaders said the case holds dangerous ramifications if the court finds for Dale and against the Boy Scouts.
___Robert Schenck, speaking for the National Clergy Council, said if Boy Scouts is forced to hire homosexual leaders, churches could be forced to hire gay clergy.
___"This case, should Mr. Dale prevail at the Supreme Court, will allow government entities to intrude on religious organizations and tell them what they should believe and what they should practice," Schenck said.
___David Adams, executive director of the office of government information for the Lutheran Church-Missouri Synod, agreed.
___"That kind of imposition of anti-discrimination laws on religious groups would be a deathblow on religious people of all faiths to associate together," Adams said.
___
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