Box Turtle Bulletin

Today In History, 2000: U.S. Supreme Court Upholds Boy Scouts’ Gay Ban

James Dale at his Eagle Scout Award ceremony, 1988.

James Dale joined a Cub Scouts pack in Monmouth County, New Jersey and stayed with it through Boy Scouts, where he became an Eagle Scout at the age of seventeen. His Eagle Award was presented to him by none other than M. Norman Powell, a descendent of the founder of international scouting, Lord Baden-Powell. When he turned nineteen, Dale became an assistant Scoutmaster for Troop 73 while a freshman at Rutgers University, where Dale also became co-president of the Lesbian, Gay and Bisexual Alliance. In July of 1990, he was a featured speaker at a Rutgers Conference where he spoke about the health care needs of gay and lesbian teens. He was interviewed by the Newark Star Ledger, which quoted him as saying he was gay. When local Boy Scout officials saw the interview, they promptly expelled him for violating “the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals.

Dale sued the BSA in New Jersey Superior Court, alleging that the Boy Scouts had violated a New Jersey statute forbidding discrimination in a public accommodation. Superior Court Judge Patrick J. McGann ruled for the BSA and against the “active sodomite” — McGann’s very words in his ruling. The New Jersey Supreme Court overturned the lower court’s ruling in a unanimous decision, and held that the BSA’s actions violated state law. The Boy Scouts then appealed to the U.S. Supreme Court, which agreed to hear the case.

In a 5-4 decision, the Supreme Court ruled that the New Jersey Supreme Court’s application of its public accommodations law violated the Boy Scouts’ rights of free expressive association under the First Amendment of the U.S. Constitution. Chief Justice William H. Rehnquist, writing for the majority, wrote that “[t]he Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill,” and that Dale’s presence “would, at the very least, force the organization to send a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” He then added:

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. “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Hurley, 515 U.S. at 579.

Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas joined Rehnquist in the majority. Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens dissented. In Stevens’s dissent, he noted that the Boy Scouts had been inconsistent in its policies towards gay people, and its newfound opposition to homosexuality was inconsistent to the guidance it gave scout leaders on sexual and religious matters:

Insofar as religious matters are concerned, BSA’s bylaws state that it is “absolutely nonsectarian in its attitude toward . . . religious training.” App. 362. “The BSA does not define what constitutes duty to God or the practice of religion. This is the responsibility of parents and religious leaders.” In fact, many diverse religious organizations sponsor local Boy Scout troops. Because a number of religious groups do not view homosexuality as immoral or wrong and reject discrimination against homosexuals, it is exceedingly difficult to believe that BSA nonetheless adopts a single particular religious or moral philosophy when it comes to sexual orientation. This is especially so in light of the fact that Scouts are advised to seek guidance on sexual matters from their religious leaders (and Scoutmasters are told to refer Scouts to them); BSA surely is aware that some religions do not teach that homosexuality is wrong.

He then concluded:

The only apparent explanation for the majority’s holding, then, is that homosexuals are simply so different from the rest of society that their presence alone— unlike any other individual’s— should be singled out for special First Amendment treatment. Under the majority’s reasoning, an openly gay male is irreversibly affixed with the label “homosexual.” That label, even though unseen, communicates a message that permits his exclusion wherever he goes. His openness is the sole and sufficient justification for his ostracism. Though unintended, reliance on such a justification is tantamount to a constitutionally prescribed symbol of inferiority.

… That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes. That harm can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers. As Justice Brandeis so wisely advised, “we must be ever on our guard, lest we erect our prejudices into legal principles.”

The Boy Scouts’ gay ban wasn’t limited to leaders, but extended to Scouts themselves. In 2013, after a long and contentious debate, the Boy Scouts of America finally announced that they would rescind their ban against gay Scouts beginning January 1, 2014. The ban on gay leaders, however, remained in place until July 27, 2015, when the National Executive Board formally amended its adult leadership policy, although “religious chartered organizations may continue to use religious beliefs as criteria for selecting adult leaders.”