The Magazine

The Boy Scouts' Day in Court

The Supreme Court hears a high stakes case over gay scoutmasters. Will freedom of association prevail?

Apr 24, 2000, Vol. 5, No. 31 • By JOE LOCONTE
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On April 26, the Supreme Court will be told that one of America's premier character-building organizations, the Boy Scouts of America, has drifted dangerously into the woods of bigotry. By expelling an openly gay scoutmaster in New Jersey, the Scouts allegedly violated state anti-discrimination laws. The proposed remedy: Reinstate him.

Because the Boy Scouts has won nearly every major court challenge so far, it's easy to overlook what is at stake -- ultimately, the absorption of private associations into the bureaucratic state. At issue is not just one organization's 90-year tradition of grooming young boys to be "morally straight." If the Supreme Court upholds the decision for the gay plaintiff by New Jersey's highest court, it will rewrite the constitutional protections of free speech, free association, and free exercise of religion. "If the Scouts lose, then there is no freedom of association left," says Michael McConnell, one of the lawyers defending the group. And since most Scout troops are sponsored by churches, "nothing stands in the way of religious associations' being coerced to disband or violate their tenets," warns Nathan Diament in a brief filed by the Union of Orthodox Jewish Congregations of America. "This is not about the Boy Scouts," says Princeton political philosopher Robert George. "This is about the meaning of human sexuality. It's about the meaning of human life. This is as big as it gets."

Apocalyptic melodrama? Maybe, but it's not just social conservatives who see the horsemen over the horizon. "I don't like to see the law used as a battering ram," says Jonathan Rauch, writer-in-residence at the Brookings Institution. Richard Sincere, president of a gay rights group in Washington, D.C., warns the case "could back-fire": "If the New Jersey Court can assert for itself that kind of authority -- if they can redefine what your beliefs are -- then civil society is at risk."

The case of The Boy Scouts of America v. Dale goes back to 1990, when James Dale was a 20-year-old assistant scoutmaster in Matawan, New Jersey. After Dale was featured in a local newspaper as a leader of a gay rights organization, the Monmouth Council of the Boy Scouts ousted him. Dale sued and won, and last year the New Jersey Supreme Court unanimously upheld his reinstatement. Now the Boy Scouts of America has appealed to the Supreme Court. Lining up behind the Scouts is an unlikely coalition that includes the Mormon Church, the U.S. Catholic Conference, the Family Research Council, Agudath Israel, and Gays and Lesbians for Individual Liberty. Representing Dale in this microcosm of the culture war is the Lambda Legal Defense and Education Fund, joined by, among others, the American Civil Liberties Union, the National Organization for Women, People for the American Way, the American Federation of Teachers, and the American Psychological Association.

The briefs on both sides address the main arguments of the New Jersey ruling: that the Boy Scouts is not exempt from state laws requiring equal treatment of homosexuals because (1) it is not really a private organization, (2) it has not maintained a clear position against homosexuality, and (3) its mission will not be affected by its accepting gay leaders. Each of these arguments carries sweeping implications.

For 20 years, the Boy Scouts has fended off anti-discrimination charges by invoking exemption as a private association exercising its First Amendment rights. But not this time. The New Jersey court called the Scouts a "public accommodation" under a state law barring discrimination on the basis of sexual orientation. (Ten other states have similar laws, with loopholes for private and religious groups.) To reach this conclusion, the judges relied on the fact that a small minority of troops -- fewer than 10 percent nationally -- are chartered by public institutions such as schools and fire departments, which provide leadership and a place to meet. This, added to the Scouts' large membership -- 4.8 million -- and public recruiting, gives them what the Lambda brief calls "an extraordinary partnership with government."

The Boy Scouts has always insisted it is a private group. It takes no government money and is composed mainly of volunteers. The vast majority of troops have non-governmental sponsors -- nearly 65 percent are sponsored by religious bodies. Scouts meet in groups ranging from 5 to 30 boys. Troops are organized by parents, led by parents, and hosted in homes, churches, and synagogues as well as schools. "That's the genius of the Scouts," says Harvard law professor Mary Ann Glendon. "You're talking about very small troops here and very intimate relationships. It's as close to the family as you get."