Justices question effect of gay Scout case

Court raises concern over forced admittance to all nonprofit groups

April 27, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Raising new doubts that the Boy Scouts will be ordered to admit homosexuals, the Supreme Court yesterday showed deep concern about setting a precedent to control who can join a wide array of private groups.

In a closely watched test of states' and cities' power to open mainstream groups to gays and lesbians, the court held a lively and sometimes fretful hearing on a New Jersey case that poses a major civil rights battle. It was the court's final hearing of this term.

What emerged most clearly from the justices' questions was the feared effect on private groups other than the Scouts if the court required an open-door policy to end private discrimination.

Justice Sandra Day O'Connor said she wondered whether the Scouts would next have to admit girls, and whether homosexual groups would have to admit heterosexuals.

Chief Justice William H. Rehnquist pondered whether ex-convicts might be the next to be assured that they could join groups that don't want them.

Justice Stephen G. Breyer questioned whether Jewish groups could retain the right to keep out Catholics, and vice versa. Justice John Paul Stevens mused about the possibility that a Catholic church might be treated as a "public accommodation" under state anti-discrimination law and thus forced to accept non-Catholics.

Justice Anthony M. Kennedy pondered the possibility that state courts would assume the role of defining who should be allowed to join private groups over members' objections.

The court had considerable difficulty finding out from the Scouts' lawyer, George A. Davidson of New York City, exactly what the organization's anti-homosexual policy is -- that is, whether a gay boy or leader would be barred merely because he had been identified publicly as gay, or because he had advocated homosexuality as moral behavior and might preach that doctrine within Scout troops.

Davidson was clear, though, in defending the ouster in 1990 of a New Jersey assistant scoutmaster, James Dale, as necessary after Dale was identified in a news article as gay.

"He put a banner around his neck when he got in the newspaper," Davidson said. "People see him all the time. He put that banner on himself."

O'Connor and Justice David H. Souter seemed troubled that the Scouts had not made the homosexual ban a formal policy declaration, making it difficult to know how committed the organization is to the policy.

Breyer also wondered whether the Scouts had embraced the anti-gay policy out of conviction or for public relations purposes. He said that the answer might make a difference to him.

By the end of Davidson's argument, it appeared that most of the justices were ready to accept the Scout's view that its policy - whatever its dimensions - was intended to express a moral belief that homosexuality is wrong and incompatible with Scouting.

Several justices, perhaps a majority, seemed to accept that the Scouts would be allowed to act on that belief in excluding gays, particularly because a forced end to that ban would have repercussions far beyond Scouting.

The mood in the courtroom grew more tense after Davidson had finished his sometimes halting defense of the Scouts' right to choose its own. Davidson had faced few tough questions.

na When a gay rights lawyer, Evan Wolfson of the Lambda Legal Defense Fund in New York City, stood to attack the ban on homosexuals, the justices began pressing him with rapid and hard questions, many of them about the effect of the case on other private organizations.

Wolfson tried to assure the justices that religious organizations would not be forced to accept those who hold opposing beliefs and that the Scouts could remain an all-male organization without running afoul of state anti-discrimination laws.

Dale's lawyer based most of his argument on the theme that the Scouts had simply not offered any evidence that their ban on homosexuals was so fundamental to the Scouts' beliefs that it was entitled to protection under the Constitution's First Amendment.

Wolfson argued that some groups that sponsor Scout troops and that do not believe homosexuality is immoral have never been required to tell their troops that it is immoral.

Justice Antonin Scalia, the strongest supporter of the policy against gays, said the Scouts clearly conveyed their message by refusing to admit "someone who is the embodiment of a contradiction of their moral message."

Scalia asked, "Is there any doubt that one of the purposes of the Scouts is moral formation?"

Wolfson replied that the New Jersey anti-bias law did not force the Scouts to change any core beliefs, but simply barred the organization from discrimination on the basis of homosexuality.

After the lawyer had criticized the Scouts' lack of documentary proof that their ban was a fundamental belief worthy of constitutional protection, Souter suggested that the Scouts could simply issue an official statement that its ban was "essential to our objective of moral leadership."

In that event, Souter went on, the Scouts could claim that being forced to admit homosexuals was "a burden" on their beliefs that would be unconstitutional.

Justice Ruth Bader Ginsburg also said that the Scouts had never had a chance to define their policy fully as the case unfolded in abbreviated proceedings.

She said she was "a little uneasy" with Wolfson's accusation that the Scouts had never proved that their message was that homosexuality is wrong.

Scalia said Wolfson was taking a position that would force the Scouts "to go further and make their [anti-gay policy] a prominent part of their promotion" of Scouting to boys , something Scalia seemed to assume Wolfson would not prefer.

Justice Clarence Thomas, following his usual practice, did not ask any questions.

The court is expected to decide the Scout case by early summer.

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