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Dale v. Boy Scouts of America


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     As with many other Boy Scouts, James Dale joined the BSA as a Cub Scout when he was 8-years-old. When he turned 11, he joined a Boy Scout Troop where he earned a total of 33 merit badges and the Eagle Scout Award at the age of 17. James was also elected into the Order of the Arrow, receiving the Vigil Honor and serving as chairman of his Lodge's Vigil Honor Selection Committee. Because of his attainment of the principles of Scouting, James was asked by the Council to speak as a youth representative at various fund raising events.

     In 1988, James turned 18 and continued in Scouting, serving as an Assistant Scoutmaster to troop 73, sponsored by the Matawan First United Methodist Church. Meanwhile, James enrolled at Rutgers University, where he became co-president of the school's Lesbian and Gay Alliance. A newspaper report in 1990 on the Alliance's activities mentioned James. Shortly after that, the 19-year-old Scouter received a letter (available as a PDF) from the Scout Executive for the Monmouth Council, revoking his registration with the BSA and terminating his position, on grounds that "the standards for leadership established by the Boy Scouts of America . . . specifically forbid membership to homosexuals."

     James had always considered himself a political conservative. Given the treatment he received from BSA, he began to change his views.
     He sued the Council under the New Jersey human rights law in July 1992. BSA moved for a summary judgment, which the Law Division judge granted in 1994. In his opinion, New Jersey Superior Court Judge Patrick J. McGann dismissed all of Dale's claims.
     McGann ruled that the BSA is not a "place of public accommodation" under the New Jersey human rights law, that an adult volunteer scout leader is not an "employee," and that the relationship between a volunteer and the organization does not constitute "doing business." Consequently, McGann found the law's nondiscrimination requirements inapplicable to James's claim that he had been unlawfully terminated as an adult scout leader due to his sexual orientation.
     In reaching his decision, McGann emphasized the asserted religious orientation of the BSA. McGann also rejected claims that the way in which James's participation was terminated should subject BSA to damages for emotional distress, and that BSA should be estopped from terminating James because BSA publications and handbooks fail to explicitly state that homosexuals may not be members or leaders.
     In a long and rambling opinion that emphasized the "religious" nature of Scouting, including references to God and "traditional" moral standards in the Scout oath and publications, McGann found that not only were the Scouts a "private" association, with selective membership requirements, but that their published membership and leadership standards, by harping on the requirements of moral conduct in the context of non-sectarian but religious references, made reasonably clear that homosexuals would not be welcomed as members. This of course, rests on the notion that a typical person would interpret a requirement that somebody be "morally straight" as, indeed, including a rejection of homosexuality.
     McGann reached this result by equating homosexuality with "sodomy," reciting the derivation of that term from the Biblical story of Sodom and Gomorrah, asserting that in "the Judeo-Christian tradition the act of sodomy has always been considered a gravely serious moral wrong," noting the long history of criminalization of sodomy (which continued in New Jersey until 1979), and noting that the US Supreme Court in Bowers v. Hardwick (1986) had upheld the right of states to criminalize sodomy. Because of this, and after extensive quotes from the generalized but moralistic language of BSA publications, McGann asserted: "To suggest that the BSA had no policy against active homosexuality is nonsense. It was an organization which from its inception had a God-acknowledged moral foundation.  It required its members, youth and adult, to take the Scout Oath that they would be `morally straight.' It is unthinkable that in a society where there was universal governmental condemnation of the act of sodomy as a crime, that the BSA could or would tolerate active homosexuality if discovered in any of its members. In this State that is surely correct from 1910 to 1979. BSA did not change its moral stance thereafter simply because the criminal law changed."
     Although criminal law has changed, wrote McGann, "The moral law - as to the act of sodomy - has not." Characterizing BSA as a "moral organization," McGann concluded that the New Jersey civil rights law did not require a "fundamental, court-imposed, change in its policies." He also contended that the BSA's action against James did not impose any tangible damages on him; he was not paid as a volunteer Scout leader, and the BSA's action does not take away from him his past status as an Eagle Scout or the various awards and honors he received. BSA made no public announcements about its actions, so, according to McGann, would not be responsible for any adverse impact on James of publicity generated by the case. (McGann conveniently overlooked that terminating James's ongoing participation with his troop would naturally publicize BSA's decision to the members of the troop, their families, and the community in which they lived.)
     Straining to find that the BSA is not a public accommodation, McGann rejected an analogy to Little League Baseball, which the New Jersey courts have held to be a public accommodation, by emphasizing the "religious" or "moral" goals of Scouting, and treating the Scout Oath requirement as a selective membership screening device of a type not used by the Little League. McGann also sought to distinguish a large body of case law holding such membership clubs as Rotary and Kiwanis to be subject to state civil rights laws, emphasizing the business orientation of those groups as contrasted with the asserted religious-moral orientation of the Scouts. McGann found that requiring the Scouts to accept openly gay people would change the nature of their organization in a way, if compelled by court order, that would raise First Amendment freedom of association issues.
     Concluding that the BSA is a "quasi-religious" organization, McGann dismissed all of James's claims. James's attorneys announced that they would appeal the decision.
     James said it appeared that the judge was not ruling on the basis of the discrimination allegations: ''To think that someone as qualified as myself, an exemplary scout, can't be an Assistant Scoutmaster when adults are needed is ridiculous.''
     Given the heavy reliance of biblical references to decide a civil case, McGann's decision came under fire from his fellow jurists. His decision was subjected to an enthusiastic skewering by retired judge and former New Jersey State Bar Association President Martin L. Haines in his column in the New Jersey Law Journal entitled "Rampant Homophobia."
     James did appeal the summary judgment to the New Jersey Appellate Division of New Jersey Superior Court. On March 2, 1998, in a 2-1 decision (PDF File), the appellate court reversed the lower court's summary judgment, finding that the BSA is a "place of public accommodation" holding itself out as "open to all boys," and therefore is not exempt from the civil rights law. Writing for the majority, Judge James M. Havey wrote: "Nothing before us even suggests that a male, simply because he is gay, will somehow undermine BSA's fundamental beliefs and teachings." Judge David Landau gave a partial dissent, saying the BSA should be required to accept gay youth as members but be allowed to bar them from leadership positions.
     As expected, BSA appealed the appellate decision to the New Jersey Supreme Court. On January 5, 1999, oral arguments were heard before the New Jersey Supreme Court. On August 4, 1999, the New Jersey Supreme Court unanimously upheld the appellate decision that BSA is a place of public accommodation and therefore must not discriminate on the basis of sexual orientation. The Court concluded that there is no First Amendment problem with enforcement of the civil rights law. Chief Justice Deborah T. Poritz wrote: "We are not persuaded . . . that a 'shared goal' of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral." BSA lawyers immediately filed a petition for certiorari with the US Supreme Court.
    On April 26, 2000, the US Supreme Court heard oral argument in Boy Scouts of America v. Dale. Lambda Legal Defense and Education Fund (Lambda) attorney and lead counsel Evan Wolfson argued the case on Dale's behalf and George Davidson argued on behalf of the BSA (The oral transcript is available as a PDF File).



     On June 28, 2000, in a narrow 5-4 vote, the US Supreme Court held that the application of the New Jersey's Law Against Discrimination to BSA's ban on gay  youth/adults violated the group's first amendment rights. The majority, led by Chief Justice William H. Rehnquist, wrote that reinstating Dale "would significantly affect" BSA's expression. Chief Justice Rehnquist's opinion (PDF File) was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.
     Justice John Paul Stevens' dissenting opinion declared, "[U]ntil today, we have never once found a claimed right to associate in the selection of members to prevail in the face of a State's anti-discrimination law. To the contrary, we have squarely held that a State's anti-discrimination law does not violate a group's right to associate simply because the law conflicts with that group's exclusionary policies." Justice Stevens' opinion was joined by Justices Ruth Bader Ginsburg, David H. Souter, and Stephen G. Breyer. Justice Souter issued another dissenting opinion joined by Justices Ginsburg and Breyer.
     At a news conference in New York following the decision, Dale said, "I've spent nearly half of my life in Scouting, so obviously this decision is disappointing. But if I learned anything during my years as a Scout, it was to believe that justice will prevail. America realizes that discrimination is wrong, even if the Boy Scouts don't know that yet."
     Joining Dale at the news conference were Wolfson, Harlow, Lambda Legal Director Beatrice Dohrn, Senior Staff Attorney David S. Buckel (who lined up Dale's amici support), and Allyson W. Haynes, an attorney with the New York law firm Cleary, Gottlieb, Steen & Hamilton, which was co-counsel in the case.
     Said Dohrn, "For years, BSA held itself out as being open to 'all boys.' Now that it's clear that BSA's leadership stands for discrimination, we think Scouting members will want to send their own message about continuing to be associated with that bigotry."
     Buckel added, "The Scouting program played a significant role in the positive development of young people, but today we know that gay youth are no longer welcome in that program, sending a hurtful message to both gay and non-gay scouts. Parents and troop sponsors, including public schools, will now look to find other programs that serve all youth in an affirming way, as they attempt to preserve the important values that once defined Scouting."

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