The Leadership Conference on Civil and Human Rights

Volume 11 No 4

Discrimination Based on Sexual Orientation Allowed by the Boy Scouts

Dale v. The Boy Scouts of America

On June 28, 2000, the Supreme Court ruled 5-4 that the Boy Scouts of America (BSA) can discriminate against gay men and boys by prohibiting them from becoming or remaining members. This case involved James Dale, an assistant scoutmaster removed from the Boy Scouts nine years ago when organizational leaders discovered that he was gay. Mr. Dale sued for reinstatement. The New Jersey State Supreme Court unanimously held that the BSA constituted a "place of public accommodation," and that it was therefore not permitted to discriminate against Dale. That ruling conflicted with an unrelated March 1998 decision in the Boy Scouts' favor by the California Supreme Court, that held that the organization was not a business and was therefore free to exclude gays.

Background

James Dale joined the BSA as a Cub Scout in 1978, when he was eight years old. He then became a Boy Scout and remained a member until he was eighteen years old. Along the way, he earned 25 merit badges, was admitted into the prestigious Order of the Arrow, and was awarded the rank of Eagle Scout. In 1989, BSA approved his application to be an Assistant Scoutmaster. On July 19, 1990, after more than 12 years of active and honored participation, the BSA sent Dale a letter advising him of the revocation of his membership. The letter stated that membership in BSA "is a privilege" that may be denied "whenever there is a concern that an individual may not meet the high standards of membership which the BSA seeks to provide for American youth." Expressing surprise at his expulsion, Dale sent a letter requesting an explanation of the decision. In response, BSA sent him a second letter stating that the grounds for the decision "are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals."

The question before the Supreme Court was whether applying the New Jersey public accommodations law so as to require the Boy Scouts to retain Dale violated "the Boys Scouts' First Amendment right of expressive association." The Court held that it did.

Opinion

Chief Justice Rehnquist delivered the opinion of the Court, which reversed the decision of the New Jersey Supreme Court, citing the Court's 1984 opinion in Roberts v. U.S. Jaycees, the majority states that the "right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious and cultural ends" is implicit in the right to engage in activities protected by the First Amendment. The majority continues: "This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas." Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express." Chief Justice Rehnquist continues: "We are not, as we must not be, guided by our views of whether the Boy Scouts's teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization's expressive message."

Joining Chief Justice Rehnquist in his opinion were Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas.

Four justices, led by Justice Stevens, issued a strongly worded dissent which states, "That such prejudices [unfavorable opinions about homosexuals] are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes. That harm can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers... If we would guide by our light of reason, we must let our minds be bold."

The dissent also states: "The majority holds that New Jersey's Law violates the BSA's right to associate and its right to free speech. But that law does not impose any serious burdens on the BSA's collective effort on behalf of its shared goals... nor does it force the BSA to communicate any message that it does not wish to endorse. New Jersey's law, therefore, abridges no constitutional right of the Boy Scouts."

Implications

"In accepting the BSA's arguments concerning expressive association, the Court inexplicably ignored the fact that the BSA's purpose and message has never had anything to do with sexual orientation," said Tony Varona, Legal Director of the Human Rights Campaign.

There has been a rather strong reaction to this policy across the country. Nationwide, the BSA has lost financial support from such organizations as Chase Manhattan Bank, Levi Strauss, and several local United Way Chapters. In addition, at least nine public school districts- inluding District 2 in Manhattan, New York and the San Diego, California school system- have severed ties with the Boy Scouts, though the ban does not extend to the use of school facilities after school hours.

To view the Court's opinion on the web visit: http://supct.law.cornell.edu/supct/html/99-699.ZO.html