A state court in New Jersey has said no.
The challenge to the Scout policy of excluding homosexuals was brought by James Dale, who in the 1980s belonged to Troop 73 in Matawan, N.J. The troop was sponsored by the First United Methodist Church in Matawan.
Dale earned the rank of Eagle Scout. At 18, he registered as an assistant Scoutmaster of Troop 73, though he went away to college and was not active in that position.
However, a 1990 newspaper article portrayed Dale as a gay activist at Rutgers University. When copies of the article were sent to the Monmouth (N.J.) Council of the Boy Scouts of America, his Scoutmaster status was revoked.
About 18 months later, the state Law Against Discrimination was amended to ban discrimination against gays and lesbians, and Dale filed suit in state court based on the new provision.
A state lower court judge ruled that the Scouts were a private institution, not a public accommodation covered by the law.
Further, the judge ruled that the First Amendment, with its guarantee of free speech and free association, prevents "government from forcing them [the Scouts] to accept Dale as an adult leader-member" in violation of the Scout Oath.
The judge cited the provision of the oath to be "morally straight" and the 12 points of the Scout Law--"A Scout is trustworthy, loyal, helpful," etc.--especially the admonition to be "clean."
A state appeals panel, however, ruled 2-1 for Dale, and the New Jersey Supreme Court affirmed. The Scouts then asked the Supreme Court of the United States for review.
Speaking for the Boy Scouts before the U.S. Supreme Court Wednesday, New York attorney George Davidson argued passionately for his cause, which he said involved "the freedom of a voluntary association to choose its own leaders."
"Scouting does not investigate the sexual orientation of their applicants," Davidson said, "and only excludes those who have been open" about their homosexuality.
Davidson conceded that there is no Scouting policy specifically excluding homosexuals, only to exclude those who practice or advocate the gay lifestyle. Scouting "is concerned about expression and conduct...[and it] is not concerned about status," he said.
The attorney argued that even heterosexuals who had been identified as adulterers or who advocated to Scouts that homosexuality was acceptable would be excluded from Scouting.
"We're not talking about coming out as Canadian or anything else," Davidson said. "This is a statement about moral meaning."
As for Dale, Davidson said, "He put a banner around his neck" by allowing himself to be quoted in the newspaper article. "He can't take that banner off."
Speaking for Dale--who sat with his parents nearby in the courtroom--New York lawyer Evan Wolfson was just as adamant about his client's rights. Wolfson called the Boy Scouts "one of the least-private public accommodations in the country."
In response to questions from Justice Sandra Day O'Connor, Wolfson said the New Jersey law made exceptions for traditionally gender-based organizations. The Boy Scouts, Wolfson said, could not be forced to admit girls under the state law. Nor could Jewish organizations be forced to accept Catholics, or vice versa, he argued.
An organization could only place itself under the protection of the First Amendment, Wolfson told the justices, when it confronts a violation of the "expressive purpose that brings the members together." The Boy Scouts, Wolfson said, had no "expressive purpose" that would allow them to exclude Dale.
"A human being such as Mr. Dale is not speech," despite his homosexuality and whatever secondary meaning that might have for others, Wolfson said. There is no "speech" involved in his living his life, Wolfson said, "other than the message, 'I am who I am. I am here.'"
After hearing arguments Wednesday, the last day of oral arguments in the current term, the justices will decide by July whether the Scouts had a constitutional right to oust a troop leader after learning he is homosexual.
The Boy Scouts' Supreme Court appeal relies on a 1995 decision in which the justices let the private sponsor of Boston's St. Patrick's Day Parade exclude a group of gays and lesbians. Parades are a "form of expression," and private sponsors cannot be forced to include a group promoting a message the sponsors oppose, the court said.
Dale's lawyers point to Supreme Court decisions during the 1980s dealing with state public accommodations laws, in which the justices said that states may force the Jaycees and Rotary International to admit women as full members.
Also, the court let New York City bar clubs with more than 400 members from discriminating against women and minorities.
The Supreme Court has dealt with gay rights infrequently. In 1996, the justices struck down a Colorado measure that barred ordinances giving gays legal protection from discrimination, such as in housing or employment. But the court has also repeatedly turned away challenges to President Clinton's "Don't ask, don't tell" policy on gays in the military.
