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The Boy Scout Debate

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The Supreme Court Web site maintained by Cornell University

The Boy Scouts Of America Official Website]

Arguments for the Boy Scouts:

Gays and Lesbians for Individual Liberty

Arguments for James Dale:

Lambda, an organization advocating the rights of lesbians, gay men, and people with HIV/AIDS

Can Private Organizations Limit Membership?
(July 3, 2000)

Should girls be allowed to join the Boy Scouts? What about boys in the Girl Scouts? Can groups or clubs keep certain people out?

Suppose a heterosexual wants to be a member of a gay organization or a Catholic teenager wants to join a Jewish youth group. What if the group refuses? Is it legal for private organizations to exclude people because of who, or what, they are?

The Supreme Court has answered at least some of these questions. In a close decision (5-4) the nine Justices agreed that the Boy Scouts of America have a Constitutional right to exclude gay members.

The court said forcing the Scouts to accept gay troop leaders would violate the organization's First Amendment rights of free expression and free association.

The Boy Scouts, who also exclude people who don't believe in God from serving as leaders, argued that they have the right to decide who can join their ranks.

Chief Justice William Rehnquist agreed.

But he made it clear that homosexuality was not the main issue.

"We are not, as we must not be, guided by our views of whether the Boy Scouts' teaching with respect to homosexual conduct are right or wrong."

Discrimination or Interference?

Boy Scouts of America v. James Dale arose after the Boy Scouts of America expelled a New Jersey assistant scoutmaster because he was gay. The case has been hotly debated both in and out of the courtroom.

On one side of the conflict two very different groups agree. Conservative religious groups stand alongside organizations like Gays and Lesbians for Individual Liberty. They say the Scouts have a constitutional right to set their own standards for membership and leadership positions free from government interference.

But supporters of James Dale say New Jersey's civil rights law, and those like it in other states, mean organizations can't discriminate against gay individuals. The National Association for the Advancement of Colored People (NAACP), the United Methodist Church and the American Bar Association agree.

Eagle Scout vs. the Boy Scouts

Although the Boy Scouts have won this issue in court before, this is the first time the Supreme Court has considered the issue.

The case arose almost by accident. James Dale joined the Boy Scouts in 1978 when he was eight years old.

By the time James began Rutgers University in 1989 he had earned the rank of Eagle Scout, a top honor awarded to only three percent of all scouts, and was an assistant scoutmaster of a New Jersey scouting troop.

But in July of 1990, the Boy Scouts revoked James' membership after it to saw a newspaper article identifying him as the co-president of the Rutgers University Lesbian/Gay Alliance.

James sued the Boy Scouts of America for violating New Jersey's anti-discrimination law. The law applies to groups which invite the public to participate in activities or maintain close ties to government organizations. Such groups are considered "public accommodations" and the law says they can't discriminate against anyone because of his or her sexual preferences.

James' case worked its way through the lower courts with mixed results. Finally, the United States Supreme Court agreed to hear the case.

More Than One Issue

The legal issues are complex.

On the one hand, the Boy Scouts say they're a private, voluntary organization. They claim their "moral code" forbids membership to homosexuals. They say their long-standing policy is that members be "morally straight" and "clean."

They say being forced to accept a gay leader would violate their right to free speech-- that's a First Amendment right. The Boy Scouts say it's wrong to force them to send the message that homosexuality is moral, which would be implied if they were forced to accept gay leaders.

They also say that it's not right to force them to associate with people whose lifestyles they oppose.

James and his lawyers disagree.

They point to the Scouts' membership of more than five million. The Scouts say "any boy" is welcome-- and that makes the organization a "public accommodation", according to James' lawyers.

Moreover, they say, James was discriminated against not because of anything he had said or done but simply because of who he was.

--contributed by Sandra Velvel

What do you think? Do the Boy Scouts of America have the right to prevent gay men from being Boy Scout leaders?