Gay Student Sues over Ouster from Boy Scouts
James Dale Has More than 30 Merit Badges.
He Said the Organization Taught Him to Be Proud of Who He Is.
Philadelphia Inquirer (PI) - THURSDAY July 30, 1992
By: Dara N. Sharif, ASSOCIATED PRESS
TRENTON - James Dale says the Boy Scouts taught him to take pride in who he was. But yesterday he sued the organization, saying his membership was revoked after they found out he was gay.
"I owe it to the organization to point out to them how bad and wrong this policy is
," said Dale, 21, a Rutgers University student. "Being proud about who I am is something the Boy Scouts taught me. They taught me to stand up for what I believe in."
The Monmouth Council of the Boy Scouts of America said Dale did not meet the standards of leadership set by the national organization, which prohibits homosexuals from membership.
Dale, of Port Monmouth, was an Eagle Scout, the highest rank in scouting, with Troop 73 in Matawan. He held 30 merit badges. He
received a letter in August 1990 saying his membership had been terminated, said his attorney, Evan Wolfson. When asked the reason, the Monmouth Council told Dale it was because he was gay, the lawyer said.
The Boy Scouts were made aware of Dale's sexual orientation after a newspaper article appeared about a seminar on gay and lesbian youth at which he was a speaker.
The lawsuit, filed in Monmouth County Superior Court, named the
Monmouth Council and the Boy Scouts of America as defendants, said Wolfson. It was filed under a January 1992 state law that prohibits discrimination on the basis of sexual orientation.
The lawsuit contends that the Boy Scouts' anti-homosexual policy is discriminatory and asks the court to reinstate Dale's membership and award him compensatory damages.
Wolfson is with the Lambda Legal Defense and Education Fund in
New York, a legal advocacy group concerned with the civil rights of homosexuals, lesbians and people with AIDS.
"The Boy Scouts corner the market in organized activities for boys," said Wolfson. "What message are they teaching our children? They're teaching a message of hatred and inferiority to gay youth and teaching other kids that it's OK to look down on gay people."
The Boy Scouts said the issue was not whether a person is
homosexual, but whether he met membership standards.
"If you don't meet the standards for something, then you don't join," said Monmouth Council executive director James Kay. "It's not an issue of the individual. The issue is purely and simply one that says we have a right to set standards for membership."
"We don't think a homosexual presents a role model that's consistent with the expectations of mainstream American families,"
said Blake Lewis, spokesman for the Boy Scouts of America, based in Dallas. He said the Boy Scouts' policy against homosexual membership had been around since the group's inception.
"I want to get back into the Boy Scouts," Dale said in a telephone interview from San Francisco, where he is vacationing. "It should be open to me. It was really great and allowed me to feel a sense of belonging," Dale said. "The Boy Scouts made me what I am today
and I'm really happy with who I am. I wish the Boy Scouts could be happy, too."
For the Boy Scouts, Trust and Loyalty Doesn't Apply to Gay Members
Philadelphia Inquirer (PI) - WEDNESDAY August 12, 1992
By: VICTORIA A. BROWNWORTH
The Boy Scouts of America: an emblem of American life - like apple
pie, baseball and the Fourth of July. The BSA is a symbol of a kinder, gentler nation where young men helped old ladies across the street instead of mugging them.
Open to all boys, rich or poor, black or white, urban or suburban, able or disabled, the Boy Scouts has long been the great equalizer. Any boy can be a scout. Ross Perot is proud to be one; ditto James Dale.
At least that's what James Dale thought for the 12 years he spent as
an Eagle Scout in Monmouth, NJ. Dale became a scout at 7 and spent over half his life as one, earning 30 merit badges, achieving the highest rank, Eagle Scout. Finally, at 19, he was invited to become an assistant scoutmaster, a coveted job open only to scouts with singular performance records.
After devoting 12 years of his young life to scouting, to obeying the rules, to pledging to honor and uphold the standard of the Boy Scouts of America, Dale learned there were some unwritten rules
that applied only to him and other scouts like him.
Dale was dismissed from the Boy Scouts without explanation. When he requested a review of his dismissal according to the BSA rules, his request was denied. After nearly a year of requests, the BSA admitted it had expelled Dale for being gay.
On July 31, Dale filed a lawsuit against the BSA for discrimination.
Such blacklisting does not evoke the scout code that stresses, among other traits, trust and loyalty. The BSA action is both
arbitrary and disturbing and has shattered the life of a young man who the BSA continues to characterize as "an exemplary scout."
Call it family values. Call it a safeguard. Or call it what it is: homophobia.
There are no written rules within the BSA that makes sexual orientation a reason for exclusion or for firing; the BSA has been unable to produce any written rules for Dale's attorneys that would justify his expulsion and firing.
But the BSA, citing its concerns about "morality," "family values" and the "image" of scouting would rather expunge gay scouts than remain open to all American boys, as it claims.
The issue of pedophilia is always a specter in organizations where adults work closely with children. The issue of homosexuality is always a specter in same-sex organizations from sports to scouts. But that is not the issue here. No charges of child molestation have
been leveled against Dale. In fact, in all instances where such charges have been leveled by the BSA, the alleged perpetrators have been married men with children of their own. According to Dale's attorney Kevin Cathcart, these scoutmasters were not expunged. When asked, a BSA spokesman declined to comment on this issue because "the case is currently in litigation."
Dale proved his capability as a scout for over 12 years. Somewhere
between the age of 7 and 19 he discovered he was gay. It was not a matter he discussed with his fellow scouts or scoutmasters, but he was gay when he was invited into the job of scoutmaster. And he was still gay when he was dismissed.
The rhetoric of "family values" is flourishing in the United States. A euphemism for homophobia, it is reminiscent of another euphemism of a few decades past: "racial purity" was once a similar code for
anti-black and anti-Semitic attitudes. Yet in 1992 it is unacceptable to employ such tactics - except toward gay and lesbian Americans.
Whether it is the BSA, or the armed services, or even the Republican Party's' presidential campaign, the expulsion of otherwise exemplary workers on the basis of their sexual orientation has become disturbingly frequent. It is a purification process which, if it were applied on the basis of race or religion, would be decried as un-American.
The BSA's concerns over James Dale are not about his behavior or his attitude; Dale is by all accounts the perfect scout. So why does the BSA suddenly want him out after 12 years? He has proven over time that he is the prototype of the good scout; he represents neither threat nor insult to the BSA image.
According to Cathcart, Dale's attorney, the BSA is using Dale's "model scout" image against him.
"Not everyone is the perfect model, like Jim. In dismissing such an exemplary scout, the BSA is enforcing silence and invisibility. The same pattern has occurred in the armed services." says Cathcart. In his view, "The BSA message is, stay silent and keep your job; be honest and get fired."
It takes the kind of bravery and honesty that is part of the BSA motto for its scouts to behave as James Dale has done. It takes a
unique kind of courage to withstand the public and private scrutiny Dale has undergone. Not everyone is up to that standard, a point clearly understood by the BSA, the armed forces and any other group that seeks to enforce a heterosexual-only standard.
By removing some of its most talented and most highly regarded exemplars, groups like the BSA reaffirm the fiction that only heterosexuals can fit those models, fill those roles. And they also
reinforce the fear of discovery in those gays who may be simply average. It is a way to frighten others into silence, so that they either leave quietly or never reveal their sexual orientation in the first place.
It is in male preserves such as the BSA and the military that the fear of gays seems most strong, and homophobia is de rigueur. Is the cause for concern that if a gay man can do as good a job (or better) than someone heterosexual, the straight man's sexuality is called
into question? In 1992 are we still equating sexual preference with integrity, strength and bravery? Aren't we all capable of manifesting those traits?
James Dale certainly has those characteristics, and he put them to good use as a scout, a role model for other boys, straight and gay. And isn't that what we most want for our sons, models of courage and integrity? Shouldn't that form the foundation for any family's values?
James Dale said, "The Scouts told us not to lie about who we are and to stand up for what is right. I am an Eagle Scout and I am gay and it is not right to kick me out because of who I am. "
The BSA took James Dale into the scouts based on merit. It should let him back in on the same basis. He has remained true to his scouting principles, even if the BSA has not.
TRENTON, N.J. (AP) -- A state judge, citing the biblical story of
Sodom and Gomorrah as evidence that homosexuality is immoral, upheld the Boy Scouts' ban on gays.
Superior Court Judge Patrick J. McGann found that the Monmouth Council of the Boy Scouts did not violate state discrimination laws when it expelled James Dale as an assistant scoutmaster in 1990 after learning he is gay.
The judge said the Boy Scouts is a private organization and has a constitutional right to decide who can belong. The Scouts' gay ban
has been challenged several times but always upheld.
"Men who do those criminal and immoral acts cannot be held out as role models," McGann wrote in the Nov. 3 ruling released Wednesday.
Dale's lawyer Evan Wolfson said Thursday it was "shocking to read such harsh anti-gay language coming from a judge in writing." Wolfson said he may appeal.
McGann did not immediately return a call for comment.
In his legal analysis, McGann cited the Bible: "Sodomy is derived from the name of the biblical city, Sodom, which, with the nearby city of Gomorrah, was destroyed by fire and brimstone rained down by the Lord because of the sexual depravity (active homosexuality) of their male inhabitants," he wrote.
McGann went on to write that "all religions deem the act of sodomy a serious moral wrong," and that until 1979, it was considered a criminal act in New Jersey.
"It is unthinkable that in a society where there was universal governmental condemnation of the act of sodomy as a crime, that the BSA could or would tolerate active homosexuality if discovered in any of its members," he wrote. "The criminal law has changed. The moral law -- as to the act of sodomy -- has not."
Dale, 25, said, "It was upsetting that a judge would rule this way." Dale, who was in the Boy Scouts for more than 12 years, is now a
fund-raiser for a New York City drug rehabilitation center. "To think that someone as qualified as myself, an exemplary Scout, can't be an assistant Scoutmaster when adults are needed is ridiculous," he said.
Richard W. Walker, the Boy Scouts of America national spokesman in Irving, Texas, said Dale had no business being a Scout. "We believe the person knew very well in advance what our values are," Walker
said. "This person was trying to change the BSA when these values have been very, very successful over the last 85 years."
McGann came under criticism in 1992 when he blocked a woman from getting an abortion after the man who impregnated her petitioned the court. An appeals court lifted the order.
Boy Scouts Can't Ban Gays
By Thomas Martello
March 2, 1998
The Boy Scouts of America's ban on admitting gays violates New Jersey's laws against discrimination, a state appeals court ruled today.
The court said the Scouts' decision to kick James Dale out of the Boy Scouts because he is gay should be overturned. An attorney for Dale said this is the first time any appeals court has ruled against the Boy Scouts in challenges to their exclusion of homosexuals. A spokesman for the Boy Scouts' national headquarters said the
decision will be appealed to the state Supreme Court.
Dale earned 30 merit badges, seven achievement honors and other awards, and was an Eagle Scout during his 12 years in the organization. He last served as an assistant scoutmaster.
He was expelled by the Monmouth Council of the Boy Scouts in 1990 after the group learned from a newspaper article that he was gay. He sued and a lower court judge ruled in the Scouts' favor in 1995,
calling homosexuality "a serious moral wrong" and agreeing with the Boy Scouts of America that the group is a private organization and has a constitutional right to decide who can belong.
The Appellate Division of State Superior Court overruled that decision today, saying the Boy Scouts of America and its local councils are "places of accommodation" that "emphasize open membership" and therefore must adhere to New Jersey's anti-discrimination law.
New Jersey's anti-discrimination law was expanded in 1992 to prohibit most organizations from discriminating on the basis of sexual orientation.
"There is absolutely no evidence before us, empirical or otherwise, supporting a conclusion that a gay scoutmaster, solely because he is a homosexual, does not possess the strength of character necessary to properly care for, or to impart BSA humanitarian ideals to the young boys in his charge," the decision read.
All three members of the appellate panel agreed that Dale should be restored as a member of the Boy Scouts. One judge, however, disagreed that the Boy Scouts should be forced to reinstate Dale to a leadership position. The dissent means the decision can be automatically appealed for a hearing before the state Supreme Court.
Gregg Shields, spokesman for the Boy Scouts of America, said an appeal will be filed.
"The Boy Scouts of America has a right as a voluntary association, to
teach youth the traditional values that it has taught since 1910, and to establish membership and leadership standards," said Shields. "The Boy Scouts of America is not a public accommodation. It's a voluntary association, and anyone who agrees with our principles is welcome to join."
Shields said the scouts "have long taught traditional family values, and a homosexual is simply not a role model for those values."
Dale, now 27 and working in New York for a publishing company, said he was elated by the decision.
"This is everything that I was taught in the Boy Scouts, that justice will prevail," Dale said. "It's a wonderful victor for scouting. I was taught in Boy Scouts that you stand up for your rights, that when you know something was right, deep down, you go for it."
In a related decision, the national executive board of the Boy Scouts
has voted to create a new division of Explorer scouting that will allow posts to choose their religious standards, spokesman Gregg Shields said today.
The Explorer program-which involves scouts from the ages of 14 to 20-will be split into a newly created Venturing division as well as Career Exploring, Shields said from Scout headquarters in Irving, Texas.
Venturing programs will retain "traditional standards for duty to God
," Shields said, while Career Exploring posts will be allowed an option.
"The change removes the [religion-related] conflict for some of the organizations currently offering Exploring programs, but it allows us to continue reaching youths with our character-building programs," he said.
The change could avert some court challenges to the scouts' requirement of a belief in God and also its ban on gay youths and
gay adult leaders, The Milwaukee Journal Sentinel said today in a report on the board's vote.
Two such discrimination suits now before the California Supreme Court were filed by a man who was expelled because he is gay and twin boys who were thrown out because they do not believe in God.
Scout lawyer George Davidson argued before the court in January that homosexuals and atheists do not belong in an organization that teaches conservative sexual morality and promotes a duty to God.
The court's decision was expected this month.
Last May, a federal court in San Diego ruled the Scouts is not a business and does not have to give a leadership post back to a gay police officer who was forced out after he disclosed his sexuality.
And last month, Chicago settled a lawsuit by agreeing to sever its ties to scouting programs until the group accepts gays and stops requiring a religious oath.
The American Civil Liberties Union had sued alleging the city's
involvement violated the separation of church and state and that the Scouts' ban on admitting gays is discriminatory.
The model Boy Scout
By Erik Meers
Sitting across from James Dale, you can't help feeling you are in the presence of an archetypal Boy Scout. Earnest, polite, handsome, charismatic, and
well-spoken are all words that immediately spring to mind.
And, indeed, the 27-year-old Dale spent 12 years of his life tirelessly serving the Boy Scouts of America, eventually rising to the rank of assistant scoutmaster until the organization expelled him in 1990 after learning he was gay. For the past eight years, Dale has turned the same moral righteousness that he learned from the Scouts against the group in court.
Initially Dale lost his case to a judge who called him a "sodomite." But on March 2 a split three-judge appeals-court panel in New Jersey ruled that the restriction was illegal and that Dale should be allowed to serve as a scoutmaster. According to Evan Wolfson, who represented Dale on a pro bono basis for the Lambda Legal Defense and Education Fund, the gay legal group that is fighting a similar case in California, it was the first time "any court has ruled in our
favor against the discriminatory policy of the Boy Scouts of America."
The court said the Scouts cannot discriminate on the basis of sexual orientation. The opinion read, "There is absolutely no evidence before us...supporting a conclusion that a gay scoutmaster, solely because he is a homosexual, does not possess the strength of character necessary to properly care for or impart BSA humanitarian ideals to the young boys in his charge." The judges went further,
praising Dale's moral character and issuing a scathing rebuke to the first judge for his homophobic remarks. Maintaining that it has the right to set its own membership criteria, the BSA has vowed to appeal the decision to the state supreme court.
In an interview with The Advocate, Dale, who now lives in New York City and works as a publicist and events coordinator for Poz magazine, talks about his long battle to set the Scouts straight.
What did the Boy Scouts mean to you?
I think what the scouting program teaches is self-reliance and leadership. Giving your best to society. Leaving things better than you found them. Standing up for what's right. That's one of the tragic ironies of this whole story--that when they found out that I was gay, suddenly I wasn't good enough anymore.
Growing up, did you find the Scouts to be a homophobic environment?
If anything, I think it was much less homophobic than the norm of society. I think the Boy Scouts allows for the human factor a lot more than other organizations. It was a more supportive environment. This policy really goes against everything this program taught me.
When did you come out?
I came out when I was 19. Going to Rutgers University and meeting other gay people, I was seeing positive role models who were gay. After that the whole idea of being gay wasn't so alien to me. The summer between my first and second years of college, I met a guy who was gay. He told me about the gay community. That gave me the self-respect and pride I needed so that when I went back to Rutgers in my sophomore year, I had no problem telling other people
. I immediately started going to the lesbian and gay organization at Rutgers. About three months later there was a vacancy in the presidency position. I was elected by the lesbian and gay alliance to take that position. I was always taught that if there's a need, you pick up the slack.
How did the Scouts find out you were gay?
It was the summer between my sophomore and junior years that I
was speaking at a conference for social workers. Shortly thereafter a newspaper article ran. About a week later I got a letter from the Boy Scouts that said I no longer meet its standards for leadership. I didn't even know what it was about. So I sent them a letter, and then I got a second letter back from them, and that said avowed homosexuals are not permitted in the Boy Scouts of America. When I heard that I felt really devastated and betrayed. This is a program
that I spent my weekends and time after school focusing on, helping out at nursing homes and cleaning parks. I had given so much to the program so freely and so happily.
When did you decide to fight back?
A month later, after I had talked it over with some friends, I knew what they had done was wrong and that this wrong must be undone. I found Lambda, which took my case in 1990. But it wasn't a very
strong case at first. Even though it appeared to be illegal, it wasn't. New Jersey didn't have a nondiscrimination law inclusive of sexual orientation. But shortly thereafter New Jersey enacted a nondiscrimination law that included gays. Then the first judge, who was very, very antigay, ruled against me and even mentioned brimstone and fire in his decision.
How did your family deal with the publicity associated with your
Not every parent has to deal with the fact of their child's being gay becoming public. They take it personally too. My mother was a den leader when I was a Cub Scout. It's not just what they did to me; it's what they did to us. My mother was recently at a seminar, and one of the people there said some antigay stuff. And my mother stood up and said, "That's my son you're talking about. You don't
know what you are talking about. You're ignorant." My father is in the military, and he goes and raises money for the Gay Men's Health Crisis's walkathon.
How do you feel about your victory?
It was a wonderfully worded opinion. They went the exact opposite way that the first judge did. It has taken eight years, but I'd wait
another eight years to get this decision. It's a shame so much money is being wasted on this bigotry and discrimination. When I think about all the money I spent on uniforms, camps, and merit badges, I get really upset. There are often these drives for kids to go to camp who can't afford it. If they stopped suing people for being gay, they could afford to send a lot more people to camp.
What would you say to a young scout today who wanted to come out
I don't want to ever advise somebody not to come out of the closet, because it was the most wonderful thing I ever did. But a gay scout called me up a few years ago when my lawsuit was first announced. Against my better judgment, I had to tell him that they'll kick him out of the program if he comes out.
Do you think there is hope for change at the Boy Scouts?
There's a 13-year-old kid who's made it his own personal issue for his Eagle Scout project to generate a million signatures to overturn this policy I'm fighting. His father and one of his assistant scoutmasters are behind an organization called Scouting for All. They are all straight. It's one thing to say homophobia is wrong. It's another to put your money where your mouth is, to make this his own personal struggle. This boy is my hero.
New Jersey Lifts Boy Scout Ban on Gays
by Thomas Martello, Associated Press
August 4, 1999
The Boy Scouts of America's ban on homosexuals is illegal under New Jersey's anti-discrimination law, the state Supreme Court ruled today.
The Boy Scouts vowed to appeal the court's ruling, which upheld a
state appellate court decision, to the US. Supreme Court.
The court, in a unanimous decision, sided with James Dale, a Matawan assistant scoutmaster who was kicked out of the Boy Scouts nine years ago when leaders found out he is gay. Dale said the ruling showed that ''justice will prevail.''
The court said the Boy Scouts organization constitutes a ''place of public accommodation'' because it has a broad-based membership
and forms partnerships with public entities and public service organizations.
Thus, the court said the Boy Scouts fall under New Jersey's anti-discrimination law and cannot deny any person ''accommodations, advantages, facilities and privileges'' because of sexual orientation.
The court also rejected the Boy Scouts' contention that striking down their ban on homosexuals violates the group's First Amendment rights.
''To recognize the Boy Scouts' First Amendment claim would be tantamount to tolerating the expulsion of an individual solely because of his status as a homosexual an act of discrimination unprotected by the First Amendment freedom of speech,'' the decision reads.
Dale, now 29, earned 30 merit badges and various other awards and was an Eagle Scout during his 12 years in the organization. He was expelled in 1990.
A lower court judge ruled in the Scouts' favor in 1995, calling homosexuality ''a serious moral wrong'' and agreeing with the Boy Scouts that the group is a private organization and has a constitutional right to decide who can belong.
In overturning that decision last year, an appeals court said Dale's ''exemplary journey through the Boy Scouts of America ranks as testament enough that these stereotypical notions about
homosexuals must be rejected.''
George Davidson, an attorney for the Boy Scouts, said this is the first time the group had lost such a case in a state's highest court. He had argued the group has a right to pick its own leaders without interference from ''an all-powerful state.''
''It's a sad day when the state dictates to parents what role models they must provide for their children,'' Davidson said.
''To us, the silver lining is it gives Boy Scouts the first opportunity to go the US. Supreme Court and get a definitive ruling to put an end to these lawsuits,'' he said.
The court decision rejected ''the notion that Dale's presence in the organization is symbolic of Boy Scouts' endorsement of homosexuality. ... Dale has never used his leadership position or membership to promote homosexuality, or any message inconsistent
with Boy Scouts' policies.''
Dale said his birthday was Monday, and ''this is the best birthday present I could have asked for. The Supreme Court of New Jersey is wonderful. This is exactly what scouting has taught me: to believe in the system and that justice will prevail.''
''When I was growing up, I didn't know I was gay, but the Boy Scouts made me feel good about who I was,'' Dale said. ''Whether or
not they know it, the Boy Scouts do wonderful things for gay kids across the country.''
He spoke at a news conference at the New York offices of the Lambda Legal Defense and Education Fund, which represented him in court.
Last November, the US. Supreme Court refused to hear the appeal of a California man ousted as a Boy Scout leader because he is gay. It was the first such case to reach the court this decade.
Supreme Court Backs Boy Scouts in Ban of Gays From Membership
By LINDA GREENHOUSE
WASHINGTON, June 28 -- The Supreme Court ruled today by a 5-to-4 vote that the Boy Scouts have a constitutional right to exclude gay members because opposition to homosexuality was part of the organization's "expressive message."
The decision overturned a ruling last year by the New Jersey Supreme Court that applied the state's law against discrimination in public accommodations to require a New Jersey troop to readmit a longtime member and assistant scoutmaster, James Dale, whom it had dismissed after learning he was gay.
Writing for the court today, Chief Justice William H. Rehnquist said that the court intended neither to approve nor disapprove the Boy
Scouts' view of homosexuality, but that the First Amendment's protection for freedom of association meant that the state could not compel the 6.2-million member organization "to accept members where such acceptance would derogate from the organization's expressive message."
He said "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth
members and the world, that the Boy Scouts accept homosexual conduct as a legitimate form of behavior."
The four dissenters did not object to the general principle that an organization cannot be forced to adopt or incorporate an unwanted message -- a principle the court applied unanimously five years ago in upholding the right of the Boston St. Patrick's Day parade organizers to exclude a group that sought to march under a banner of Irish gay pride.
But the dissenters objected strenuously to that principle's application in this case, because they said the majority had done little more than accept at face value the Boy Scouts' assertion of the central importance of their opposition to homosexuality. But except in briefs filed in cases defending their membership policy, the Boy Scouts had never made the "clear, unequivocal statement necessary to prevail" on a claim that homosexuality was fundamentally
incompatible with the organization's mission, the dissenters said.
Chief Justice Rehnquist's majority opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice John Paul Stevens filed the main dissenting opinion, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and David H. Souter, who also filed a dissenting opinion.
In permitting the Boy Scouts' First Amendment interests to trump
New Jersey's anti-discrimination law, the majority relied heavily on its 1995 St. Patrick's Day parade case, in which the gay marchers had claimed the protection of a Massachusetts civil rights law. That decision and the ruling today indicated that the court would continue to weigh on a case-by-case basis the competing claims of a private group's right to exclude unwanted participation and a public policy against discrimination.
The majority today drew a distinction between this decision and a trio of Supreme Court rulings from the 1980's rejecting the arguments of all-male organizations, including the Rotary Club and the Jaycees, that they had a First Amendment right to exclude women.
The court held in those cases that because the exclusion of women was not part of the shared goal or expressive message of those organizations, the application of state civil rights laws to require the
admission of women did not place an unconstitutional burden on the members' right of association.
While none of the court's free association cases have dealt with exclusion by private organizations on the basis of race, that analysis would presumably permit a white supremacy group to exclude blacks if racial exclusion was an inherent part of the group's identity and message.
In his opinion, Boy Scouts of America v. Dale, No. 99-699, Chief
Justice Rehnquist quoted from various Boy Scouts publications and explanations of the policy, noting that although the terms "morally straight" and "clean" in the Scout Oath and Law "are by no means self-defining," Boy Scouts officials interpreted them as statements of opposition to homosexuality. "We accept the Boy Scouts' assertion" and "need not inquire further," the chief justice said.
Ruth Harlow, deputy legal director of the Lambda Legal Defense Fund in New York, said today that the Boy Scouts had won only a "hollow, Pyrrhic victory" because to win the case, it had to demonstrate to the court's satisfaction the centrality of its opposition to homosexuality. "The Boy Scouts have fought long and hard for something that has marginalized their institution," she said.
Evan Wolfson, another lawyer with the Lambda organization, who
represented Mr. Dale before the court, said the decision "requires you to declare yourself an institution with an anti-gay message, and we don't think there are many organizations in this day and age willing to declare themselves as that."
In his dissenting opinion, Justice Stevens noted several newspaper articles from the last few weeks that described a gay pride day at the Central Intelligence Agency, a New England boarding school's
acceptance of openly gay couples as dormitory parents and the extension of benefits to gay partners by the major automobile makers. "The past month alone has witnessed some remarkable changes in attitudes about homosexuals," he said.
Chief Justice Rehnquist responded to that observation. "Indeed, it appears that homosexuality has gained greater societal acceptance," he said. "But this is scarcely an argument for denying First
Amendment protection to those who refuse to accept these views."
In a statement posted on its Web site, the Boy Scouts said that as a private organization, they "must have the right to establish its own standards of membership if it is to continue to instill the values of the Scout oath and law in boys." The statement continued: "Thanks to our legal victories, our standards of membership have been sustained. We believe an avowed homosexual is not a role
model for the values espoused in the Scout oath and law."
Drawing on the distinctions between this case and the earlier rulings on all-male clubs, the chief justice said that, to claim the First Amendment's protection, "a group must engage in some form of expression, whether it be public or private."
Justice Stevens said in dissent that the majority's distinction was unpersuasive because just as the all-male clubs had not made the
exclusion of women a central goal, "there is no shared goal or collective effort to foster a belief about homosexuality" in the Boy Scouts, "let alone one that is significantly burdened by admitting homosexuals."
Justice Stevens continued: "The only apparent explanation for the majority's holding, then, is that homosexuals are simply so different from the rest of society that their presence alone -- unlike any other
individual's -- should be singled out for special First Amendment treatment."
The civic and cultural standing of the Boy Scouts, the "sincerity" of which the majority opinion noted in several places, may have had more to do with the outcome of the case than Mr. Dale's sexual orientation.
The case attracted dozens of briefs, a number depicting this legal battle -- which the Boy Scouts have been waging in courts around
the country for 20 years -- as the cutting edge of the current culture wars.
Mr. Dale was an Eagle Scout and popular member and then assistant leader of the troop he had joined at the age of 8 when, 12 years later, he was ejected after his picture appeared in a New Jersey newspaper article about a gay student conference at Rutgers, where he was co-president of the gay and lesbian students' organization. He brought suit under a New Jersey law that prohibits discrimination
in places of public accommodation.
Because the New Jersey Supreme Court found as a matter of state law that the Boy Scouts fit the definition of a public accommodation, rather than a purely private organization, that aspect of the case was not open to the justices' re-examination.
As can be imagined, there are many more articles that were written concerning the Dale case. I will attempt any relevant article when time permits.