Court says Scouts can ban gay leaders

WASHINGTON - The Boy Scouts can bar homosexuals from serving as troop leaders, the Supreme Court said Wednesday in a 5-4 decision on free-association rights that may also let the 6.2-million-member organization reject gay boys as members.

Forcing the Scouts to accept gay troop leaders would violate the organization's right of ''expressive association'' under the Constitution's First Amendment, the justices ruled on the last day of their 1999-2000 term.

''The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill,'' Chief Justice William H. Rehnquist wrote for the court.

Requiring the organization to have a gay scoutmaster would force it ''to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,'' the chief justice said.

''We're very pleased,'' said Scouts spokesman Gregg Shields. ''It's going to allow us to continue our mission of providing character-building programs for youth.''

But the New Jersey assistant scoutmaster ousted when the organization learned he is gay expressed dismay at the ruling.

''I'm definitely saddened by the decision,'' said James Dale. ''People don't join the Boy Scouts because they're anti-gay. People join the Boy Scouts because they want acceptance, they want community.''

The ruling did not specifically give the Scouts permission to bar homosexual boys from membership, but its language left room for that interpretation.

''I think it suggests that they can'' ban homosexual boys from being Scouts, said Evan Wolfson, Dale's lawyer. ''They won the right to declare themselves an anti-gay group.''

University of Southern California law professor Erwin Chemerinsky agreed, saying, ''I don't see any basis for drawing a distinction between Scout leaders and Scouts.''

But Matt Coles, director of the American Civil Liberties Union's lesbian and gay rights project, said he did not believe the court answered the question of gay Scouts.

The Scouts organization, formed in the United States in 1910 and now boasting 6.2 million members and adult leaders, has a policy that ''avowed homosexuals are not extended membership or leadership positions,'' Shields said. He would not say whether the organization has withdrawn membership from gay youths.

But Scott Cozza, an adult Scout leader in California and president of Scouting For All, which advocates letting homosexuals join, said: ''They've kicked out gay Scouts and now they'll continue to do so because they've been given the go-ahead by the Supreme Court to continue to discriminate.''

The justices reversed a New Jersey Supreme Court decision that said the Scouts wrongly ousted Dale, an Eagle Scout. The state court said the Scouts violated a New Jersey law banning discrimination in public accommodations.

But Rehnquist wrote, ''The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association'' if it harms the group's ability to advocate its viewpoint.

His opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Writing for the four, Stevens said the New Jersey law does not force the Scouts ''to communicate any message that it does not wish to endorse. New Jersey's law, therefore, abridges no constitutional right of the Boy Scouts.''

Wolfson, Dale's lawyer, had cited Supreme Court decisions during the 1980s that let states force the Jaycees and Rotary International to admit women as full members.

But Rehnquist said requiring such groups to accept women members would not interfere with the message they seek to express.

Instead, the chief justice likened Dale's case to a 1995 Supreme Court ruling in which the justices let the private sponsor of the Boston St. Patrick's Day Parade exclude a group of gays and lesbians, saying parades are a ''form of expression.''

The American Center for Law and Justice, a conservative advocacy group that supported the Scouts' appeal, said the ruling ''will have a dramatic impact on all private organizations - including religious groups - to define their own mission and set their own criteria for leadership.''

But Coles of the ACLU disagreed, saying, ''This ruling is limited to groups that exist for the purpose of expressing views and ideas.''

Dale was 19 and an assistant scoutmaster of a Matawan, N.J., troop when in 1990 he was identified in a newspaper article as co-president of a campus lesbian and gay student group at Rutgers University. The Scouts' Monmouth Council revoked Dale's registration as an adult leader, and he sued, citing the New Jersey anti-discrimination law.

Wolfson said, ''You'd never know from the way the court characterized it how important this organization is in the lives of kids.... The court has said that (the Scouts) have the right to discriminate, but it certainly did not say that discrimination is right.''

Dale now lives in New York City and is advertising director for a magazine for people who are HIV-positive.

---

On the Net: Supreme Court decision in Boy Scouts of America v. Dale: http://supct.law.cornell.edu/supct/html/99-699.ZS.html