Must the Boy Scouts allow gay leaders? Religion Today Tuesday, April 18, 2000 Dozens of religious, civic, and civil rights groups are lined up for battle over the future of the Boy Scouts of America. The U.S. Supreme Court is set to hear arguments April 26 in the landmark case of Boy Scouts of America vs. James Dale, an Eagle Scout and former assistant scoutmaster the Scouts expelled after learning he is gay. The New Jersey Supreme Court ruled last August that Dale's expulsion was illegal because it violated the state's anti-discrimination law; the Boy Scouts is appealing the decision. The court will rule later this year in the case, which will decide whether the BSA, and other similar organizations, will be forced to allow homosexuals to be leaders. "If the Supreme Court rules against the Boy Scouts," said Alan Sears of the Alliance Defense Fund, a Christian legal group, "the precedent could affect every church and legal group in the country." Lining up on the side of the Boy Scouts are conservative legal-rights groups and Protestant, Roman Catholic, Jewish, and Mormon denominations and ministries. They include the Ethics & Religious Commission of the Southern Baptist Convention, Campus Crusade for Christ, Intervarsity Christian Fellowship/USA, Orthodox Jewish Congregations of America, the Church of Jesus Christ of Latter-day Saints, the Lutheran Church-Missouri Synod, and the United States Catholic Conference. Medical and educational professionals, bar groups, and state and local officials have filed briefs for Dale. They include the attorneys general of 11 states, the National 4-H Council, National Education Association, the American Bar Association, American Psychological Association, American Civil Liberties Union, NAACP, NOW Legal Defense and Education Fund, and National Gay and Lesbian Task Force. The American Jewish Congress, deans of a number of divinity schools and rabbinical institutions, and groups from the United Church of Christ and Unitarian Universalist Association also have sided with Dale. Two groups within the United Methodist Church have taken opposing sides. The General Commission on the United Methodist Men is supporting the Boy Scouts, while the General Board of Church and Society has filed a brief to support Dale. Competing arguments in the case are weighty. The 5 million member Boy Scouts of America bases its case on the First Amendment right to freedom of association and its corollary, the right not to associate. It argues that what is at stake is the right of a private, voluntary organization to "create and interpret its own moral code." Without such freedom, "American society would be fundamentally transformed," the group says. "A society in which each and every organization must be equally diverse is a society which has destroyed diversity," the Boy Scouts says in its brief. It warns that the logical result of the New Jersey court's ruling would be for a homosexual-rights group to be unable to exclude a conservative Christian who opposes homosexuality, or a Croatian cultural society to be forced to admit Serbs, The New York Times said. Dale and his attorneys are arguing that freedom of association is not an absolute right, but rather a right to associate for a purpose, to advance a cause or belief. The common interests that bring Boy Scouts together "are not about homosexuality or sexual orientation," Dale says. Therefore, he argues that what he considers a minor burden on the group's freedom of association is outweighed by New Jersey's "vital government interest" in prohibiting discrimination. The Supreme Court at various times has agreed with both kinds of arguments, setting two separate lines of legal precedent, the Times said. On one hand, it rejected efforts by government to limit what a private group can say or to force a private group to yield control of its message. An example is a 1995 decision holding that the organizers of the Boston St. Patrick's Day parade could not be required, despite a state anti-discrimination law, to allow a group to march under a gay-pride banner. But the high court also has held that organizations cannot exclude someone based only on their group status or identity. In the 1980s it rejected rules excluding women from all-male organizations such as the Jaycees and the Rotary Club. The court found that the clubs existed for a commercial purpose and that exclusion of women was not part of the mission. Another issue is whether the Boy Scouts of America is essentially a public or private group. The Boy Scouts is classified legally as a private organization, and as such is exempt from anti-discrimination laws. But Dale is arguing, as the New Jersey court ruled, that despite what it calls itself it operates as a de facto public group, or "a place of public accommodation," because it reaches out to boys in the general public. Nearly 14,000 churches and synagogues sponsor Scout troops, and many might reconsider their association with scouting if the Scouts lose the case, observers said. If the court rules that the Scouts are a public accommodation, liberal judges could invoke the precedent to require other organizations, including churches, to hire homosexuals, observers said. If the Scouts lose the case, "almost any organization could find itself a victim of a court's desire to foster social change by forcing private social associations to conform to its idea of egalitarian values," the BSA is arguing.

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