Excerpts from the New Jersey Supreme Court Opinion August 4, 1999; Discussion

Full opinion at http://lawlibrary.rutgers.edu/courts/supreme/a-195-97.opn.html

Or at http://www.doaskdotell.com/content/rutgers.htm

James Dale v. Boy Scouts of America and Boy Scouts, Monmouth Council

"The sad truth is that excluded groups and individuals have been prevented from full participation in the social, economic and political life of our country. The human price of this bigotry has been enormous. At a most fundamental level, adherence to a principle of equality demands that our legal system protect the victim of invidious discrimination." (Justice Poritz)

"One particular stereotype that we renounce today is that homosexuals are inherently immoral. That myth is repudiated by decades of social science data that convincingly establishes that being homosexual does not, in itself, derogate from one's ability to participate in and contribute responsibly and positively to society. In short, a lesbian and gay person, merely because she or he is a homosexual, is no more or less likely to be moral than a person who is heterosexual."
(This paragraph by Justice Alan Handler.)

"To recognize the Boy Scouts' First Amendment claim would be tantamount to tolerating the expulsion of an individual solely because of his status as a homosexual -- an act of discrimination unprotected by the First Amendment freedom of speech."

The Supreme Court, in June 2000, upheld the Boy Scouts’ position by a 5-4 vote. Some of its reasoning is similar to what appears in the GLIL brief or in my own discussion below. For partial text, visit http://www.doaskdotell.com/content/bsaopn.htm.

Discussion (by Bill Boushka, hppub.com)

On the surface, there seems to be one "legal" problem: whether a "private" organization may "discriminate" against a minority in order to express a particular point of view, or, rephrased with a different emphasis, whether a private organization may discriminate against individuals inclined to engage in certain kinds of private (but, to some people, immoral) conduct.

And there appears to be an associated cultural and political problem. That is, a "private" organization may be so successful in expressing a "moral" or cultural view that some people may perceive it to be part of an "oppressive establishment." Or, in the view of some people, some "moral issues" (especially those involving discrimination) should be regarded as "settled" at large and not be the subject of legitimate "free speech" claims. But these sentiments may have little significance as a matter of law, and they tend to invoke the notion of "political correctness."

Discussion of this case necessarily breaks down into a number of facets, both legal (or constitutional) and social. So I'll try to emphasize the main points.

All states have laws prohibiting discrimination against minorities by "public accommodations." In some states (such as New Jersey and California), sexual orientation is defined as a category for which discrimination is prohibited. But then there is a legal problem in defining "public accommodation." For example, a pro-profit business is practically always a public accommodation. An expressive, membership group usually is not (such as was held for BSA in the Curran case in California, as well as in New Jersey in the original Superior Court ruling). However, an organization may seriously undermine its exemption from being so considered if it depends in a significant way upon public funds or resources, such as free meeting spaces on public property or upon original Congressional charter. (Tax-exempt status probably would not confer public accommodation status, nor would trivial or unremarkable ties to government). I agree with the NJ Supreme Court that if the BSA wants to be exempted from treatment as a public accommodation, it should renounce all ties to tax-supported funding. (Some commentators such as Richard Sincere of Gays and Lesbians for Individual Liberty point out that some apparently “public” sources of support are really private, such as PTA’s, veterans’ organizations, police unions, and the like.) Of course, without state laws defining sexual orientation as a quasi-protected class, there may be difficulties in other states maintaining this position: government still may discriminate against gays in the military (and, I think, particularly with this issue setting a bad example) and in marriage and child custody laws.

But if BSA junked its government ties, should it still be able to exclude "known" homosexuals from its ranks, in New Jersey or in any other state? This gets into First Amendment analysis which seems tricky to some people. One key concept is "expressive association." Under the First Amendment, non-commercial groups may operate to promulgate a particular view about moral, social or political matters, even if this view (for example, homophobia or racism) is disagreeable to most people. Case law recognizes that group association is sometimes an essential element in effective public speech, and that groups tend to be more effective in speech than individuals (as argued by Sherrill in Steffan v. Aspin), although in the age of the Internet this point may gradually become weaker. Furthermore, courts have developed various tests as to whether excluding certain members is essential for a group's ability to develop and inculcate its views. These tests include "Roberts" (restrictive) and "O'Connor" (less restrictive as to exclusion), as well explained by Queersoup (see link below).

There is also the troubling notion that the content of a group's message sometimes affects its "free speech" claims. For example, the original New Jersey 1995 Superior Court opinion referred to the BSA's "God-acknowledged, moral foundation." I would understand this view to include the (old-fashioned) notion that boys are supposed to grow up to be men who will accept the initiatory obligations of fatherhood and of defending and providing for women and children, as a prerequisite for pursuing their own ends. In Curran, the plaintiff was put into the position of contraposition, of having to show that homosexuality was not incompatible with Scout teaching. However in Dale the New Jersey Supreme Court went to the trouble to analyze the Scout manual for explicitly "homosexual-excluding" expression and devalued the BSA's claims according (when not finding them). We should note well that Congress took a similar tack in 1993 when trying to justify its statutory exclusion of open homosexuals from the military, and into trying to protect itself from claims that its reasoning could be applied to many civilians. Likewise, the speech content of the (homosexual) plaintiffs seemed to get inappropriate attention. Curran was criticize for wanting to "out" himself to the BSA, and James Dale, while not wanting to present his views directly as a scoutmaster, was penalized for media attention focused on other reports of his homosexuality and homosexual advocacy.

Gay libertarian and gay conservative writers, such as Rick Sincere and Queersoup, have pointed out that the New Jersey opinion could jeopardize the operation of "queer-safeplace" groups such as SMYAL (for gay youth), which may believe that they need to exclude non-homosexuals from presence. (In a similar fashion, NGLTF actually excluded whites from a session intended for "people of color"). In arguing this point, one point to remember is that social association (gathering in a gay bar, for example) does not have First Amendment protection (maybe it should!, considering the history of bar raids in many cities), where as expressive association does.

Some commentators have compared the BSA cases to the Hurley case, where a gay group was barred from marching as a group in a St. Patrick's Day parade. But in Hurley, the use of publicly owned facilities (streets) was infrequent, and the expressive speech only resulted in the barring of gays from marching as a group, not as individuals.

In general, I agree with the contention that BSA must not be allowed to exclude gays if it uses publicly funded resources or charters to any extent at all. But to the extent that it is a truly "private" organization, it must be allowed to present any view of sexual or motivational morality it chooses, and to exclude persons who would distract or undermine its cohesion and presentation. It is then up to BSA whether it will continue to enrich our culture or find itself cornered, shrinking away from the American mainstream into its own Schwarzchild radius.

Libertarian philosophical arguments against “hamstringing” property owners with anti-discrimination law notwithstanding, the legal fact is that states do, according to current constitutional law, have quite a wide latitude in defining “public accommodations,” even to the point of including “private” businesses open to the public, and that states have considerable latitude in protecting other classes beyond those of the 1964 Civil Rights Act. A state, however, would have to observe some “line in the sand” in recognizing the expressive association rights of a restrictive private membership group. Ultimately, people must have the right to express their own opinions (however “wrong”) about any issue, all the more an issue involving behaviors and values; otherwise we all live with the moral laziness of “political corretness.” Organizations with religious purposes are, in practice, going to enjoy more respect for their associative expression rights than will other groups, an observation that troubles me.

On September 26, 2000 Colorado Re. Tom Tancredo from Colorado introduced the “Scout’s Honor Act” (H.B. 5306) which forbids the use of federal funds to “discriminate against, investigate, or deny access to public property or facilities to the Boy Scouts of America,” and to maintain that no organization that accepts federal funds may “compel the Boy Scouts to accept members who do not share their beliefs.” Does this mean that no such organization could refuse to do business with the Boy Scouts? What does this bill really mean? Similarly, in 2001 Representative Hilleary (R-TN) will offer an amendment to the reauthorization of the Elementary and Secondary Education Act (H.R. 1) denying federal funds to any school district that denies equal access to any group (including the BSA) because of that group’s opposition to homosexuality. HRC and LLDEF call this a “bill or solution in search of a problem.” Barbara Boxer (D-Ca) introduced a version prohibiting school systems that receive federal money from discriminating against a group for its stance on sexual orientation. (This word salad sounds innocuous, doesn’t it?)

On October 4, 2000, the Minneapolis Star Tribune published the op-ed, “Turning the Boy Scouts into Pariahs,” by Katherine Kersten. The article offered the view that corporate sponsors need not dissociate themselves from an organization that does so much good (especially for inner city youths) just because of a perspective on a particular social issue. But later in October the Minneapolis school board prohibited city public schools from sponsoring or promoting Boy Scout troops, although for now the troops may still meet in schools. Some want the board to prohibit the Scouts from meeting on school property altogether. The BSA is suing Broward County, Florida, for the right to at least meet in school-owned space in a manner allowed other groups.

The United Way is now, in some communities (such as Minneapolis) allowing donors to exclude specific organizations that they do not want to receive their contributions due to personal beliefts (about any issue), a good “libertarian” solution. However, on March 31, 2001 reported Robert Franklin wrote in the Minneapolis Star Tribune that the Twin Cities United Way had received about $500,000 more in individual pledges for local Boy Scout chapters in 2000 than the year before. Apparently many individual parents still want their male children inculcated with ‘traditional values” with respect to gender roles, and this gives pause for thought. On April 1, 2001 CBS “60 Minutes” reported that many school boards and other local governments were denying all access to BSA chapters, but that several major denominations were major supporters, to the extent that the Mormon (LDS) church makes every young male a member automatically. The program reviewed the quasi-military BSA arguments against gay scoutmasters, whether there was a “common sense” concern over pedophilia, which CBS refuted with the FBI statistic that three times as many crimes against underage boys are committed by heterosexually married men as by single men identifying as “gay.”

A column by Nat Hentoff in The Washington Times, Nov. 20, 2000, points out an important subtlety. In line with the Supreme Court opinion, Government may not deprive the Boy Scouts general use of public facilities in a manner allowed to other private groups with specific religious or other cultural points of view. [How, then, would one deal with a group that refused admittance to African-Americans; one might even take exception to some Boy Scout doctrines as religiously intolerant of some others and therefore maybe inappropriate in public spaces. Maybe a school board must allow groups, including gay-teen groups, to meet to answer a charge like this.] But government should not allow the Boy Scouts use that would imply, when compared to policies for other groups, approval of BSA policies with respect to members or leaders who (following military logic) demonstrate a propensity for homosexual conduct or other conduct contrary to BSA values. (To my way of thinking, this would make the 1916 charter questionable.)

On June 28, 2001 PBS presented a Frontline special, “Scout’s Honor,” about the public efforts of Eagle Scott Stephen Cozza to persuade the Boy Scouts to lift the ban and about the earlier case of gay scout Tim Curran (from 1981, ten years before James Dale). CBS “60 Minutes” presented a report on this on July 8, 2001, in which the “private debate” was explored. For example, the liberal side talks about blanket discrimination, whereas the conservative side maintains that it is “common sense” that men attracted to other males shouldn’t be on outings where there might be temptations or unexpectedly intimate situations (an argument similar to what is used by the military). As far as the concern over “pedophilia,” the report correctly noted an FBI statistic: that three times as many abuses of male minors are committed by men whose adult “lifestyles” are “heterosexual” (that is, who presumably have been married) as those who participate openly in the gay community. (That is, “openly gay men” present a much lower risk of involvement with minors than “closeted” men pretending to be heterosexual.) There was also discussion in both reports of what the Boy Scouts have meant over the years with the phrase, “morally straight.” Is it a pun or not?

In the August 6, 2000 issue of Newsweek, there is a detailed coverage (authored by David France) of the “Boy Scouts ban on gays” issue. The public is gradually becoming more concerned that the BSA policy is discriminatory. In the minds of some spokespersons for the supposed “common sense” side, there is the perception that the presence of (open) gays would distract marginal boys who need to learn “manly” practical life skills. This is similar to the military’s position. After all, the BSA was originally formed in Britain in 1910 “during a period of widespread concern that middle-class schoolboys were losing their ‘manly character.’” (Yet Britain’s chapter would eventually relax the ban.) The report notes that Boy Scout jamborees (by BSA’s own admission) use considerable taxpayer funds (the national one in 2000 used $5 million). The Girl Scouts, while prohibiting public displays of sexuality, are reportedly more relaxed with a gentle “don’t ask, don’t tell” policy although the BSA maintains that its policy is essentially that. What a legacy from Bill Clinton.

Refer also to Mother Jones, Nov-Dec 1999, "Scout's Honor," by William Saletan (p. 35).

Or to Richard Sincere's op-ed in the Wall Street Journal, Aug. 11, 1999.

Visit the Gays and Lesbians for Individual Liberty brief at http://www.gayliberty.org/

Or to Queersoup: “Boy Scouts: You Can’t Sleep in my Tent”

Here is an editorial on the Boy Scout brief from GLIL by Jeff Epperly, “Gay Libertarians Sell Out our Community,” originally published March 30, 2000, republished in Bay Windows (Boston), March 5, 2005.

http://www.baywindows.com/news/2000/03/30/Editorials/Gay-Libertarians.Sell.Out.The.Community-34264.shtml

A letter by Barney Frank (D-MA) Dec 13, 2005 regarding a rider on the 2005 Defense Authorization Bill to insulate the Boy Scouts from being “punished” by withdrawal of federal accommodation because of their anti-gay exclusion as a private organization:

December 13, 2005

I have seen the latest draft of a proposal that some are seeking to add to the Defense Authorization bill dealing with federal facilities being made available to a variety of youth organizations, which seems to be motivated in part by the concerns that have been raised over the Boy Scouts. In general, I think it is reasonable to have a policy of federal support for youth organizations, but there are specific parts of this which seem to me to make it wholly unsuitable to be simply added into an authorization of defense spending when it deals with many matters that go far beyond the scope of such a bill.

For example, on page 2 of the most recent draft I have seen, beginning on line 9, the proposed amendment says "No Federal law...shall be construed to limit any Federal agency from providing any form of support for a youth organization...that would result in the Federal agency providing less support to that youth organization...than was provided during the preceding fiscal year to that youth organization." First, why does this defense authorization deal with every single federal agency? And why is it a rule that federal agencies may never reduce the support they give to a wide range of organizations that are listed in this bill from year to year? What we have here is a classic one-way ratchet - whenever any federal agency does anything for any youth organization, that then becomes the floor for the future, and agencies that might have limited resources and wanted, for example, to rotate the extent to which they accommodate organizations would be prevented from doing so. I understand that people are trying to defend the Boy Scouts against those of us - myself included - who are very critical of their blanket exclusion of all gay males, even in the absence of any suggestion whatsoever that any of those males have ever done anything to transgress Boy Scout principles. But while I would myself oppose a narrowly drafted provision, the one that you have goes far beyond this, and seems to me a good example of why it is not useful to put this sort of thing into broader bills when they get no attention. Mandating that every federal agency that ever helps any youth organization must always help that organization - ad infinitum - at the exact same level at least that it had helped it before does not seem to me a very rational policy.

I do note that the legislation courageously argues that the provision I have just quoted "shall not apply to any youth organization that ceases to exist." But what about an organization that has substantially dropped in its membership, level of support, etc.? By excluding only those that have ceased to exist, if you adopt this, you will be insisting that the same level of support be provided even to organizations that have substantially withered, although not to the point of nonexistence. This is another example of why it is a mistake to put something so broad into this bill.

On 12/21/2005 Congressman Frank released this statement: (It seems like Congress is trying to pass a “Solomon Amendment” for the Boy Scouts!!)

Washington, DC - Congressman Barney Frank today strongly criticized provisions included in a major Department of Defense bill that will preempt state and local laws barring anti-gay discrimination. Once the legislation receives final Congressional approval, which is likely to happen this week, it will be illegal for communities to prevent certain groups, such as the Boy Scouts, from using public buildings because the groups are not in compliance with laws and ordinances designed to protect people from discrimination. The direct impact of this law will be to make it impossible for local governments to enforce laws barring discrimination based on sexual orientation.

During debate on the House Floor, Congressman Frank said: "I just want to call attention to one wholly irrelevant provision, irrelevant to the defense. The Boy Scouts of America have been found by States and cities to be violating their anti-discrimination policies with regard to both sexual orientation and religion, and some cities have said that they do not want anyone who fails to follow their State or city's policy getting free facilities. That I suppose can be debated or not as to whether it is right or wrong, but it does not seem to me that there is any argument for having it in the Armed Services authorization bill in a Congress run by supposed States rights conservatives, a provision that says to every city in America you will let the Boy Scouts use your facilities for free whether or not you think they violate the law against discrimination based on religion or sexual orientation.

"Now, that is probably going to be found unconstitutional, but I find that to be way beyond the scope of this bill and an example of the degradation of the legislative process that it is in here," Rep. Frank concluded.

The relevant provision states:

"No state or unit of general local government that has a designated public forum, limited public forum or nonpublic forum and that is a recipient of assistance under this title shall deny equal access or a fair opportunity to meet to, or discriminate against, any youth organization, including the Boy Scouts of America or any group officially affiliated with the Boy Scouts of America, that wises to conduct a meeting or otherwise participate in that designated open forum, limited public forum, or nonpublic forum."

The provision was included in the final version of the Department of Defense authorization bill, which was approved in the House with minimal debate in the middle of the night this past weekend, and with no separate vote on this important provision. The Senate has not yet taken up the bill, but is likely to do so this week.

Congressman Frank tried unsuccessfully to remove the provision at a meeting of the conference committee appointed to work out a final version of the defense bill, but House and Senate negotiators denied his motion. In addition, he wrote letters to the negotiators asking that the language be deleted from the bill, noting in part, that the provision had nothing to do with the operations of the Department of Defense.

There is a somewhat similar case with a lawsuit against online dating service eHarmony in 2007 for not accepting gay-related business. Blogger entry: http://billonglbt.blogspot.com/2007/06/eharmony-dating-service-sued-for.html

Return to chronology

Return to home page