Boy Scout Debate
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TERENCE SMITH: The issue before the court today was whether a New Jersey anti-discrimination law could compel the Boy Scouts of America to include in its ranks a gay scout leader without abridging the group’s First Amendment rights of freedom of speech and association. For more, we turn to NewsHour regular Jan Crawford Greenburg, national legal affairs correspondent for the Chicago Tribune. Jan, welcome.
JAN CRAWFORD GREENBURG: Thanks.
TERENCE SMITH: Jan welcome. Tell us a little of the background of this case and how it got to the court.
JAN CRAWFORD GREENBURG: The dispute arose in 1990 when James Dale got a letter from the local Boy Scout Council telling him that he was being expelled from the organization. Mr. Dale wrote back and asked why, and they informed him that it was because he was a homosexual. Now, by all accounts, James Dale had been an exemplary Boy Scout. He joined the organization when he was eight years old in 1978, and over the years, he won many awards and badges. He became an Eagle Scout, which only I think 3% of all Boy Scouts receive that honor.
And he had never made an issue out of his homosexuality. In fact, the organization learned of it only after reading a newspaper article. The article was about a seminar for gay and lesbian teens, and it quoted Mr. Dale and identified him as co-president of a gay and lesbian organization at Rutgers, where he had gone on to become a student.
Mr. Dale said that scouting was an important part of his life. He had become a scoutmaster, assistant scoutmaster, 16 months earlier. So he sued. And he argued that the Boy Scouts had to comply with the New Jersey law that prohibited discrimination based on sexual orientation.
The trial court disagreed. It said the Boy Scouts didn’t have to comply with that law, and in fact, they had a First Amendment right to exclude him and to associate with whoever they wanted to associate with. The appeals court and the New Jersey Supreme Court disagreed with that lower court ruling. They said, first of all, the Boy Scouts did have to comply with that state law; and secondly, the state’s interests in prohibiting discrimination were so great that it would trump whatever interests the Boy Scouts might have, their First Amendment interests, in expression and in association. So that’s how it got to the Supreme Court today.
The Boy Scouts appealed that ruling, and argued in the court today that the Supreme Court should come down for them and allow the Boy Scouts to select the leaders that the group chooses.
TERENCE SMITH: And what was their argument, the lawyer for the Boy Scouts?
JAN CRAWFORD GREENBURG: Mr. George Davison argued for the Boy Scouts and framed it in very simple terms. He said the case is just about that, whether an organization can pick its own leaders or whether or not the state, in this case the state of New Jersey, will select which leaders and which men will wear scouting uniforms.
He emphasized that the Boy Scouts believe that all their scouts should be morally straight, as the Boy Scout laws refer to it, and clean. And that is contrary to, he said, having a homosexual serve as a troop leader. To do so, he said, would convey the notion that Boy Scouts saw nothing wrong with homosexuality, and that is just not the case. That’s not the message that they want to convey.
TERENCE SMITH: And so, in response, the lawyer for James Dale?
JAN CRAWFORD GREENBURG: Right, Evan Wolfson stood up and said he saw the issue completely differently, and in fact it was about whether a large organization like the Boy Scouts could be exempt from a state antidiscrimination laws, could discriminate against someone solely because of their identity.
He noted that James Dale had never advocated or espoused to any kind of homosexual views in meetings with his Boy Scout members. And so to Mr. Wolfson, this case turned on whether or not this law would apply and whether or not the Boy Scouts would have to comply with it and allow someone who didn’t advocate contrary views.
TERENCE SMITH: So the Justices heard two strong arguments. How did they react?
JAN CRAWFORD GREENBURG: It was a very intense hour of questions, and they clearly struggled with this issue, which was, as you said, very difficult. And it was different in many ways because sometimes on controversial cases, a Justice will hammer a lawyer that he disagrees with to expose weaknesses in those arguments. But today, the Justices hit the lawyers from both sides and didn’t clearly indicate how they felt about this issue.
They asked, you know, “Try to assess what were the scouts’ moral views and who could the scouts exclude? Could they exclude adulterers?” Justice Ruth Bader Ginsburg asked if the scouts could exclude unmarried people who live together. What about heterosexuals, Justice O’Connor asked, who espoused the view that homosexuality was okay? Justice…
TERENCE SMITH: So putting these questions obviously to the lawyer for the Boy Scouts?
JAN CRAWFORD GREENBURG: Exactly. Justice Stevens asked “what about the homosexual Boy Scout who wanted to keep his sexual identity secret? Could he be in the Boy Scouts?” The lawyer said, “No. The Boy Scouts can choose the leaders that they want to choose.”
TERENCE SMITH: So in each one of those cases, his answer was yes, they can choose to exclude those people?
JAN CRAWFORD GREENBURG: Exactly right. They also looked at the impact that this ruling could have and seemed concerned about the consequences. Justice O’Connor said, “if the Boy Scouts could exclude… if the Boy Scouts, you know, could exclude gays, what about girls? Could the Boy Scouts be forced to admit girls in that situation?” What about gay and lesbian organizations — could they be forced to admit non-gays? Justice Breyer said, “could Catholic organizations be forced to admit Jews,” all, again, trying to get to the point that, if the Boy Scouts were forced to admit a gay troop leader here, what impact would it have in these other situations?
Now, the lawyer for James Dale pointed to a series of cases that the court handed down in the 1980’s that say the Jaycees and the Rotarians and other large organizations cannot exclude women under certain state antidiscrimination laws. He pointed to those cases to bolster his claims here, and he said the Supreme Court at that time noted that these organizations weren’t organized to oppose women or exclude women, that wasn’t their message.
The same thing, he says, should apply here because the Boy Scouts aren’t organized to oppose homosexuality. So that was his strongest case. The lawyer for the Boy Scouts presented other Supreme Court cases, notably one in 1995 in which the court said a parade in Boston could exclude gays and lesbians because…
TERENCE SMITH: A famous one.
JAN CRAWFORD GREENBURG: Right. …It went against their message. And he said, “here, being forced to admit a gay troop leader would go against the Boy Scouts’ message. So it depends a lot on which way the court’s going to go with this.
TERENCE SMITH: Yeah, because in other words, there were examples on both sides?
JAN CRAWFORD GREENBURG: Right.
TERENCE SMITH: ..Of relatively recent cases?
JAN CRAWFORD GREENBURG: Exactly.
TERENCE SMITH: This was the last day for oral arguments, this term.
JAN CRAWFORD GREENBURG: That’s right. Yes.
TERENCE SMITH: What’s this term been like so far?
JAN CRAWFORD GREENBURG: Well, it’s appropriate that I think the court ended the term arguments anyway on not such a controversial case because this has been an incredibly controversial term. There are a host of issues that have great import to Americans’ everyday lives. People have said that this is the most significant term in a generation.
Over the next two months now, the court will begin handing down decisions in a variety of areas: whether or not the federal government can give aid to religious schools; whether or not HMO’s can be sued: whether or not the Playboy Channel can be seen during daytime hours, a host of very important rulings, grandparents’ rights. All of these will come down in the next two months. And we ended the term today on a controversial note in what’s been a term of contentious cases.
TERENCE SMITH: So we better stay tuned.
JAN CRAWFORD GREENBURG: Right.
TERENCE SMITH: Jan Crawford Greenburg, thanks so much.
JAN CRAWFORD GREENBURG: Thank you.