Can Boy Scouts keep out gay scoutmasters?
Supreme Court hears arguments today on whether the group can bar homosexuals.
The Boy Scouts of America encourages boys to be trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.
It doesn't sound much like an organization of hypocrites and bigots. But that is basically how the New Jersey Supreme Court characterized the group when it ruled last year that the Boy Scouts, a national organization of more than 4 million boys and 1 million adult leaders, illegally discriminated against an assistant scoutmaster when it barred him from scouting because he is openly homosexual.
Basically, the court ruled that the Boy Scouts is a quasi-public organization - like a restaurant or private school - and that state antidiscrimination laws overrule any internally set policies.
Today, the US Supreme Court begins considering whether the New Jersey ruling complies with constitutional mandates.
It is a case that pits the right of homosexuals to equal access to mainstream organizations against the right of like-minded Americans to associate in groups that restrict membership to those they deem also to be like-minded.
"You have two extremely important constitutional interests in conflict in an area of law where the court has really not definitively spoken," says Nan Hunter, a professor at Brooklyn Law School who filed a friend-of-the-court brief on behalf of a group of law professors.
"The courts have said both that private organizations like the Boy Scouts cannot discriminate against a group of people, and also that private organizations like the Boy Scouts have a right to express an opinion on various issues of the day," she says. "What this presents the court with is the sharpest conflict that it has ever faced between these two rights."
At issue is the case of James Dale, an eagle scout and assistant scoutmaster in Monmouth County, New Jersey, who was stripped of his volunteer post after Boy Scout leaders learned he was a gay activist at the university he was attending. Mr. Dale sued the Boy Scouts and won in New Jersey's highest court.
Enforced political correctness?
The case has sparked a vigorous national debate, with some analysts suggesting that, if a majority of justices uphold the New Jersey decision, it could usher in an Orwellian version of government-mandated political correctness. They warn of requirements that the Girl Scouts admit boys, that the Boy Scouts admit girls, that religious clubs accept atheists as leaders, and even that gay and lesbian organizations appoint heterosexuals as leaders.
"American society would be fundamentally transformed," says George Davidson in a brief filed on behalf of the Boy Scouts. "A society in which each and every organization must be equally diverse is a society which has destroyed diversity."
Evan Wolfson of the Lambda Legal Defense and Education Fund argues on behalf of Dale that the Boy Scouts is largely a public, rather than private, organization. He says it must be held accountable to state antidiscrimination laws. "That result will not interfere with [the Boy Scouts'] ability to craft and control its own message, but will serve New Jersey's vital interest in guaranteeing equality of opportunity in important institutions that open their doors to the public," Mr. Wolfson says in his brief.
Lawyers for the Boy Scouts disagree. They say that an openly gay scoutmaster communicates a different unspoken message to the boys in his troop than the ideal of a scoutmaster who is a father and husband. And they say the national executive committee has a right to preempt messages that they believe run counter to the fundamental family values the organization wishes to promote.
It is not a question of being intolerant, they say. Rather, it is an issue of allowing the executive committee to make its own decisions without judges imposing their own views on a private organization.
"Boy Scouting attempts to walk the line between tolerance toward all people and disapproval of some types of conduct," Mr. Davidson writes. "Believing that homosexual conduct along with other sex outside marriage is immoral, Boy Scouting does not want to promote homosexual conduct as a legitimate form of behavior."
Lawyers for Dale acknowledge that the Boy Scouts have a First Amendment right to promote family values. But they say the action against Dale is prompted from his status as a homosexual rather than any refusal on Dale's part to promote the family values adopted by the Boy Scouts.
"Dale and other openly gay members can fully accomplish the important work of scoutmasters, with no effect on [the Boy Scouts'] message," says Wolfson.
But that's not what many parents believe. And some parents are reluctant to permit their boys to spend a weekend in the woods with a gay scoutmaster.
"Whenever people are dealing with children, there is a lot of concern of children being made sexual victims," says Patricia McDermott, an adult leader with Troop 72 in Fredericksburg, Va. Ms. McDermott, who is also active in the Girl Scouts, says that organization discourages men from attending Girl Scout camping trips. She says such concerns may be unfair to most men, but they are real concerns of parents struggling to protect their children. "Even though the vast majority of men are not going to sexually harm a child, whenever there is close contact, parents are going to worry about it," she says.
Michael Gannon, an assistant leader in the Fredericksburg troop, says he isn't sure how the US Supreme Court should rule in the current case. But if a gay man became an assistant scoutmaster of Troop 72 "it would be a very controversial thing," he says. "It would divide the troop.
"There would be a lot of parents who would be scared and pull their kids out, and that is a shame."
A decision in the case is expected by late June.
(c) Copyright 2000. The Christian Science Publishing Society