N.J. court rejects Boy Scouts' gay ban

Group plans to appeal `dangerous precedent' to U.S. Supreme Court

August 05, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Giving homosexuals a right to join one of America's most revered organizations -- the Boy Scouts -- the New Jersey Supreme Court ruled yesterday that it is illegal to bar gay males as Scouts or as troop leaders.

The Boy Scouts of America said it would appeal the unanimous decision to the U.S. Supreme Court. It was the first ruling against the Scouts by any state's highest court.

The decision is binding only in New Jersey. Even so, it was a major symbolic breakthrough for gay rights advocates, who have long stressed the importance to their cause of gaining access to the nation's mainstream institutions -- including marriage and military service.

About 87 million Americans have been Boy Scouts or leaders during the group's 89-year history. The organization has formally banned homosexuals since at least 1978.

The Girl Scouts have no such ban.

Evan Wolfson, a senior attorney for Lambda Legal Defense Fund, a gay rights advocacy group, said the New Jersey ruling was "a victory for an outstanding Eagle Scout who was thrown out because he is gay" and "a victory for gay youth who should be included, not excluded, from Scouting." Wolfson represented the former New Jersey Scout, James Dale.

Dale, now 29 and living in New York, where he produces a traveling health fair on HIV and AIDS issues, said: "I always knew the Boy Scouts were not about bigotry, but were for something better and bigger than that. It is an incredible, wonderful day for me."

Jay Alan Sekulow, a lawyer who took part in the case in support of the Boy Scouts, called the ruling "a very dangerous precedent." He predicted that the U.S. Supreme Court "will be very interested in a case involving the Boy Scouts" because of the threat to their rights to choose their members and leaders and to project their own moral message.

"If they can crack the Boy Scouts, it is an important precedent" on gay rights, said Sekulow, chief counsel of the American Center for Law and Justice. Scouting, he said, "is Americana, it's mom, it's apple pie."

Another critic of the ruling, Janet Parshall, a spokeswoman for the Family Research Council, said: "This decision essentially dissolves the Boy Scouts in New Jersey. The state Supreme Court has defined the Boy Scouts as nothing more than a hotel, hospital or restaurant. All must be accommodated."

President Clinton, whose office makes him honorary president of the Boy Scouts, was not familiar with the case and had no comment, according to his spokesman, Joe Lockhart. But Lockhart stressed that the president opposes discrimination of all types, including bias based on sexual orientation.

`We've never lost'

Paul Stevenson, a spokesman for the Boy Scouts' national office in Irving, Texas, said, "We intend to seek review in the U.S. Supreme Court. We've never lost" at the state supreme court level.

Stevenson said the Boy Scouts' membership policies have been in place for more than 80 years. Its ban on homosexuals as Scouts or as adult leaders was codified as a formal policy 21 years ago.

Under that ban, no boy or man can be admitted to Scouting, or remain a Scout or leader, if he is an "avowed homosexual." The policy treats homosexuality as morally wrong and, thus, in violation of the Scout oath and the Scout law.

The New Jersey case grew out of Dale's 12-year Scouting career in Matawan, in the east-central part of the state. Dale rose to the rank of Eagle Scout after earning 30 merit badges and then became an assistant scoutmaster of Troop 73. He was ousted in 1990 after his photograph appeared in a local newspaper, identifying him as co-president of the Gay/Lesbian Alliance at Rutgers University.

Dale said he had hidden his homosexuality while in high school and did not publicly declare it until he was a sophomore at Rutgers.

The New Jersey Supreme Court, in ruling in Dale's favor, said his exclusion from the Boy Scouts was "based on little more than prejudice and not on a unified position" about homosexuality.

The decision was made up of several parts, not all of them open to challenge in the U.S. Supreme Court.

Not a private group

The state court ruled that the Boy Scouts were "a place of public accommodation" and not a truly private organization, because the overall membership policy is to invite all boys to join. Thus, it decided that the Scouts were covered by a state public accommodation law that protects against discrimination based on sexual orientation.

It also ruled that enforcing the anti-bias law did not violate the organization's First Amendment right to choose the people with which it will closely associate, because the group is too large and its membership policy too open for it to be able to claim a right to family-like relationships.

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