Gays and Boy Scouts meet in court

Christian Century, August 25, 1999

The Boy Scouts of America says it will ask the U.S. Supreme Court to uphold its ban on homosexuals, claiming that its constitutional rights of free association and speech include the right to bar gays. "We'll argue the First Amendment," attorney George Davidson said in the wake of a ruling August 4 by New Jersey's Supreme Court finding that the Scouts' ban on gays violated the state's antibias laws. The ruling was the first time a state high court has invalidated the Scouts' ban. The group also bars atheists and agnostics from membership and leadership positions.

The American Center for Law and Justice, a legal advocacy group founded by religious broadcaster Pat Robertson, said it found the New Jersey ruling "troubling." "The decision ... turns the Boy Scouts' constitutional right of freedom of association on its head," said Jay Sekulow, chief counsel of the ACLJ. The group had filed a friend-of-the-court brief in the case on behalf of four members of Congress.

But the National Gay and Lesbian Task Force hailed the ruling as a victory for tolerance. "Discrimination is a harmful and serious moral wrong," said Kerry Lobel, executive director of the task force. New Jersey is one of 11 states, along with the District of Columbia, that bar discrimination based on sexual orientation.

The decision was a victory for James Dale, an assistant scoutmaster who was kicked out of the Scouts nine years ago when leaders found out he was gay. He sued, seeking reinstatement. In its unanimous 7-0 ruling the court held that the Boy Scouts "is a place of public accommodation" and therefore subject to the state's antibias law. It rejected the youth group's argument that the words "morally straight" and "clean" in the Scouts' Oath and Law "explicitly or implicitly stand for the proposition that homosexuality is immoral." And: "The words `morally straight' and `clean' do not, on their face, express anything about sexuality, much less that homosexuality, in particular, is immoral."

In subsequent developments, a local Rhode Island chapter of the Boy Scouts of America has issued a statement acknowledging that a Scout can be a homosexual as long as he doesn't advertise it. The Narragansett Council of the Boy Scouts of America, representing approximately 20,000 Scouts, issued the statement in the wake of an incident involving a 16-year-old Eagle Scout who, when asked, said he was gay. The council said that while it does not accept "known or avowed homosexuals," neither does it, as a matter of policy, inquire about sexual orientation.

In the specific case, the 16-year-old was allowed to remain a Scout. Some critics of the Scouts view the move by the Rhode Island group, which appears to have the tacit backing of the national leadership, as a retreat from scouting's hard-line opposition to homosexuality. "It sounds to me like the Boy Scouts are in retreat," said Mary Bonato, an attorney for the Gay and Lesbian Advocates and Defenders in Boston. "They acknowledge that the sexual orientation of their members is none of their business."

Steven Brown, executive director of the Rhode Island chapter of the American Civil Liberties Union, compared the statement to the military's "don't ask, don't tell" policy on gays in the armed forces: "My understanding was that gays were not allowed in the Boy Scouts, but what they now seem to be saying is that they have a `don't ask, don't tell' policy, which is different. What has happened in this case is that a gay teenager has been allowed to remain in the Boy Scouts. And the Boy Scouts know he is gay."

On August 14 an Illinois court up-held a fine and sanctions against the Boy Scouts in Chicago for discouraging a job application from a gay man. Cook County Circuit Judge Stephen Schiller approved a token $100 fine levied against the Scouts by the Chicago Commission on Human Relations and enjoined the BSA's Chicago Area Council from enforcing rules against hiring homosexuals. "Heterosexual orientation is not a bona fide job qualification, "Schiller said in his ruling. Schiller referred to the New Jersey ruling in his decision. -RNS