Court to rule on gays, Scouts

Justices will tackle sexual orientation bias, abortion ban

Especially divisive cases

January 15, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court, stepping into two blockbuster controversies, agreed yesterday to rule on the Boy Scouts' refusal to accept gays and on state laws that ban the most disputed form of abortion.

In two actions that seem sure to make an already historic term more so, the justices indicated plans to return to gay rights for the first time in four years and to abortion rights after an eight-year lapse.

When the two cases are decided, by early summer, they will provide clear signals on how the nine justices deal with the most divisive kinds of issues they can confront. And the outcomes may well translate into major political issues in the presidential and congressional elections.

The Scouts case will be, for homosexuals, the most significant test they have faced in their step-by-step campaign to gain acceptance in the nation's mainstream institutions.

That case involves a New Jersey man who was ousted as a Scout leader after publicly identifying himself as gay.

The abortion case -- involving laws that ban some late-term abortions -- will likely redefine the meaning of Roe vs. Wade, the 1973 decision that established the right to abortion. Two justices have joined the court since its last abortion ruling.

The laws that ban such abortions have become the main focus of the abortion opposition movement in an effort to outlaw at least some forms of abortion. That campaign has intensified since the years-long campaign to persuade the Supreme Court to overrule Roe vs. Wade failed.

The court refused, in the Casey ruling in 1992, to overturn Roe and partly reaffirmed it. In Casey, the court ruled that state laws that seek to control abortion are valid unless they put an "undue burden" on women's right to abortion.

In its order yesterday, the court explicitly refused to reconsider Roe or Casey. The state of Nebraska had asked the justices in the new case to abandon those rulings and turn the entire issue of abortion control over to state legislatures and to Congress.

The case to be heard focuses on the constitutionality of a 1997 Nebraska law on late-term abortions. The outcome, however, almost surely will affect similar laws in 29 other states. Maryland has no such law.

Both cases will come up for hearings in late April and will be decided by early summer.

The Boy Scouts of America, in its appeal, persuaded the justices to review a unanimous decision in August by the New Jersey Supreme Court that the Scouts may not discriminate on the basis of sexual orientation in deciding who may become a Scout or a Scout leader.

George A. Davidson, a lawyer for the Scouts, said the case before the court will test the Scouts' "moral belief that homosexual conduct is not moral. Boy Scouting is really all about sending messages. The message is that you should be morally straight."

Evan Wolfson, senior staff attorney for the Lambda Legal Defense Fund, who represents the gay Scout leader in the case, said, "The court now has a chance to hear that Scouting is about honesty, community service, self-reliance and respect for others -- not discrimination."

The New Jersey Supreme Court ruled in the case that Scouting organizations are "a place of public accommodations" under the state's anti-discrimination law and are not a private organization free to decide who gets in.

Excluding gays, that court declared, is a policy "based on little more than prejudice and not on a unified position" within Scouting about homosexuality.

The Scouts insist that the New Jersey court ruling threatens their very existence.

"If the state is permitted to impose its will on Boy Scouting," on matters of sex, religion and morality, the organization's appeal contends, "Boy Scouting would cease to be recognizable."

When the justices rule, they will not actually decide whether the New Jersey law applies to Scouting. Rather, they will rule on whether the group is sufficiently private that it can claim a constitutional right to select its own members. Under prior rulings by the court, only a distinctly private group has a right to discriminate in selecting its members.

Gay rights advocates believe that gaining a right to enter the Boy Scouts, one of America's most revered institutions, would be a major breakthrough in acceptance in American society.

The Scouts' long-standing policy against admitting homosexuals was challenged successfully in New Jersey by James Dale after his ouster as a leader.

Although the ruling in the case will have an immediate impact only in New Jersey, its ultimate effect could be wider because 10 other states, and the District of Columbia, ban discrimination based on sexual orientation. Maryland is not one of those states.

If gays win the case, similar challenges to exclusion could be pursued by homosexuals in other states. In addition, those who have no belief in God -- who are also excluded by Scouting -- might renew challenges they have made unsuccessfully before.

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