Justices Troubled by Homosexual Scoutmasters

July 7, 2008 - 7:02 PM

Supreme Court (CNSNews.com) - The Supreme Court Wednesday heard oral arguments in a case that will determine whether or not the Boy Scouts of America have the right to exclude homosexuals from leadership positions.

The case, Boys Scouts of America v. Dale, comes from the New Jersey Supreme Court, which concluded last year that the BSA was a "public accommodation" subject to that state's anti-discrimination laws, which prohibits exclusion based on sexual orientation.

James Dale, a former Eagle Scout and assistant scoutmaster in Matawan, NJ, sued the Scouts after he was removed from his leadership for publicly declaring his homosexuality in a local newspaper.

In a sharply-worded opinion, New Jersey Chief Justice Deborah Poristz decried "the human price of this bigotry" in finding for Dale.

On Wednesday almost all of the Supreme Court Justices seemed troubled by the assertion from Evan Wolfson, general counsel of the Lambda Legal Defense and Education Fund, that the BSA "bears the heavy burden of making the case that they deserve a First Amendment shield against a content-neutral anti-discrimination law."

The BSA has claimed that they have a right to free association and expressive conduct under the First and Fourteenth Amendments, and that homosexual behavior is incompatible with the requirement in the Boy Scout Oath that Scouts be "morally straight."

Wolfson claimed that the anti-homosexual policies of the Boy Scouts were not central to their identity, but "peripheral or tertiary," and that an anti-homosexual message was not explicitly passed on to youth members by the leadership.

"[The BSA] had an ample opportunity to put forth millions of documents" to show that the anti-homosexual polices were explicit and central to the mission, and they didn't, Wolfson claimed. "Even if you assume that they have the moral view that they claim to have, they have failed to show that their message would be clearly burdened" by applying anti-discrimination laws.

Several justices questioned Wolfson on the application of his argument. Both Chief Justice William Rehnquist and Justice Stephen Breyer asked whether public accommodation laws would require religious organizations to admit members of other religions.

Wolfson replied that the Court would be required to examine the organization's explicit statements to determine if it had an explicit position for or against a particular group or practice.

But Rehnquist suggested that Wolfson was too literal in his interpretation of expressive conduct.

"Were a Catholic organization to say, we are more comfortable with Catholics and we do Catholic things, would that not be expressive conduct, despite the fact that they don't take a specific position against non-Catholics?" asked Rehnquist.

Justice Sandra Day O'Connor questioned Wolfson on whether or not anti-discrimination laws would force the Boy Scouts to accept women.

Wolfson replied that New Jersey's public accommodation laws allowed organizations to exclude women if there was a reasonable showing that a single-sex membership was vital to the organization's mission.

But Justice David Souter claimed that if the New Jersey single-sex exception was dropped from the law, the organization would be forced to include women. Wolfson replied that the BSA could then claim First Amendment protection for its exclusion of women.

Rehnquist also asked what would happen if New Jersey passed a law protecting ex-convicts from discrimination.

"At some point," said Rehquist, "the state's interest [in enforcing anti-discrimination laws] is greatly dissipated."

Justice Antonin Scalia asserted that Wolfson's arguments would force the BSA to adopt a more explicit exclusionary policy in lieu of the present unstated anti-homosexual policy.

"If you succeed, what you will be doing is make the Boy Scouts become more openly, avowedly anti-homosexual," said Scalia.

Wolfson said throughout oral arguments that a human being "could not be equated with speech."

"Dale is not here to advocate that he be allowed to advocate," said Wolfson. "He is asking that the Court take identity-based discrimination off the table."

But George Davidson, an attorney for the Scouts, said that in making his public comments, Dale had in effect engaged in public advocacy inimical to the BSA's stated position on homosexuality.

"He put a banner around his neck," said Davidson. "He can't take that banner off" when working as a leader in the Scouts.

The Justices did question Davidson at length on whether the anti-homosexual policy would exclude heterosexuals who supported allowing homosexuals to serve as Scout leaders, and whether the Scouts addressed the issue in enough specificity to claim a First Amendment protection.

"The official publications do not expressly address this problem," said Justice David Souter. "Is there some significance in the fact that the Scouts have not addressed this?"

Davidson said that a leader could be excluded if that person engaged in advocacy within a particular troop, although he asserted that the Scouts were under "no obligation to talk about every single application of the 'morally straight' codes to enjoy First Amendment protections."

Davidson said that the BSA would rather forego any federal funding or government sponsorship than change its position on homosexuality.

"The BSA has always asserted that its policies are not for sale," said Davidson. "If the government giving assistance to the Scouts is a problem they would rather say no the assistance than change the policy."

A decision in the case is expected in June.