Closing the Ranks in the Boy Scouts

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They're not saying they agree with the Boy Scouts, mind you, but the Supreme Court ruled Wednesday that the 90-year-old organization has the right to bar gay men from becoming troop leaders. The 5-4 decision also serves another purpose; by accepting the Scouts' interpretation of their oath — which requires members to be "morally straight and clean," and therefore, apparently, not gay — the Supreme Court has effectively banned openly gay boys and men from ever joining a local troop or participating in scouting activities.

The case, brought by James Dale of Monmouth, N.J., challenged the Scouts' dismissal of Dale, which everyone agreed was based solely on the plaintiff's sexual orientation. Dale was long considered a golden boy of the Scouts, rising through the ranks to receive a prestigious Eagle Scout badge. In 1992, a member learned that Dale was gay, and proceeded to dismiss him from his position as an assistant scoutmaster.

Despite its apparent simplicity, this case encompasses myriad legal issues. The Boy Scouts' argument, for example, was prefaced with the idea that gay people are not welcome in their ranks because their presence indicates an implicit approval of a gay lifestyle, which, according to Scout spokesmen, is in direct violation of the group's identity. The Court agreed; their ruling established that as long as the Boy Scouts believe that Dale's sexual identity renders him incompatible with the group's mission, they are free to exclude him. It does not matter, apparently, that Dale has proven himself to be well suited to the Scouts. Nor does it matter, as Dale's lawyer argued, that the Scouts do not consider their mission to be explicitly anti-gay, and would therefore not be adversely affected by Dale's presence.

This decision essentially pits the First Amendment rights of a group against the rights of an individual not to be discriminated against on the basis of his sexual orientation. And in this instance, at least, the First Amendment won out: The Court decided that the Scouts were a "private" entity, and therefore entitled to exercise their First Amendment right to "expressive association," and were not subject to anti-discrimination laws.

The New Jersey Supreme Court, which found in favor of Dale last August, came to exactly the opposite conclusion: The Scouts, they wrote, chartered by Congress in 1910, were a public organization whose reach extended far beyond individual squads into communities at large. Public institutions like churches and fire departments, they argued, routinely sponsor local troops, and according to New Jersey's anti-discrimination laws, the Scouts were required to accept Dale.

The Court's perception of sexual orientation as a "message" played a critical role in its decision, and on that front, at least, the Court was consistent. The Justices had ruled previously that the organizers of Boston's St. Patrick's Day parade were not required to allow gay and lesbian groups to march, citing the groups' presence as a "message." Mr. Dale's lawyer took vehement exception to the Court's interpretation. "A human being is not speech," he told the Court.

Wednesday's ruling seems to close the book on suits against the Scouts. The group has been challenged in several state courts; girls, atheists, and gays have brought cases against the organization, and until Mr. Dale's case surfaced in the New Jersey Supreme Court last year, legal interpretation had smiled on the Scouts. Now, with the approval of a slim majority in the U.S. Supreme Court, the Scouts can return to their campfires and songs.

In the words of the Court:

Justice Rehnquist (writing for the majority): "We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong. Public or judicial disapproval of a tenet of an organization's expression does not justify the state's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message."

Justice Stevens (writing the dissent): "Neither the Boy Scouts' law or oath expresses any position whatsoever on sexual matters. It is plain as the light of day that neither one of these principles... says the slightest thing about homosexuality."