If recent Supreme Court decisions are any indication, the Boy Scouts of America don't stand much chance of prevailing in their efforts to prevent gays from becoming leaders and members. On Tuesday the Court heard closing arguments in the case of Boy Scouts of America vs. James Dale which centers on whether a New Jersey troop had the right to oust scout leader Dale in 1990 when it became known that he was a homosexual. The Court, says TIME legal correspondent Adam Cohen, has become much more sympathetic to measures protecting the rights of homosexuals. Cohen points in particular to a 1996 decision overturning a Colorado law that prevented localities from protecting gays' civil rights. "That ruling was very important in showing that the Court is becoming more receptive to claims by gays that they are a group that deserves legal protections," says Cohen.
The Court is now charged with wading through the pros and cons of whether the Scouts a private organization, but one with millions of members that declares itself "open to all boys" should be considered a "public accommodation," and therefore governed by anti-discrimination laws. "The Court has to balance the discrimination claims brought by the gay community and the free-association rights of the Boy Scouts," says Cohen.
Underlying the case are quickly changing general attitudes toward homosexuals. Although public opinion was largely with the Boy Scouts back in 1990, when the case was filed, since then society's relationship with gays has changed drastically, including the adoption of the military's "don't ask, don't tell" policy and the passing of domestic-partner laws in various municipalities and the state of Vermont. What's more, says Cohen, the legal precedent the Scouts used to get their case before the Justices doesn't really apply here. In that 1995 case, the Court found that the sponsor of a Boston St. Patrick's Day parade could bar a gay and lesbian group from participating. "Parades are a form of speech," notes Cohen. "They're usually set up to deliver a specific message, so the organizers can certainly guard how that message is presented. But a large organization such as the Boy Scouts that's supported by tax-exempt contributions more closely resembles the sort of public accommodation that we require to treat people equally."