A divided United States Supreme Court on June 28 held that the Boy Scouts of America can discriminate against a gay scoutmaster, blunting the decade-long legal challenge to the groups anti-gay policy that Lambda Legal Defense and Education Fund has waged on behalf of decorated Eagle Scout James Dale.
"This is a pyrrhic victory for the BSA leadership; they have won for themselves the dubious right to be bigoted and exclusionary. They have convinced the highest court in the land, and have shown the rest of the country, that they stand for discrimination," said Lambda Senior Staff Attorney Evan Wolfson, who argued the case in April.
He added, "The Supreme Court said BSA has a right to discriminate, but didnt say that anti-gay discrimination is right. And thanks to this case, there is now awareness that gay kids, like all kids, deserve programs that offer inclusion and support."
While they did not endorse BSAs discrimination, the Justices, by a 5-4 vote, nonetheless held that the application of the New Jersey Law Against Discrimination to BSAs ban on gay scouts violated the groups first amendment rights. The majority, led by Chief Justice William H. Rehnquist, wrote that reinstating Dale "would significantly affect" BSAs expression. Chief Justice Rehnquists opinion was joined by Justices Sandra Day OConnor, 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 States anti-discrimination law. To the contrary, we have squarely held that a States anti-discrimination law does not violate a groups right to associate simply because the law conflicts with that groups 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.
Lambda Deputy Legal Director Ruth E. Harlow added, "BSA has diminished themselves by fighting this fight. Public schools will now disassociate from this discriminatory organization, parents will seek a more respectful approach for their kids, and the essence of Scouting will be lost. Its a shame, because James so believed in the Boy Scouts real lessons."
The Justices decision in Boy Scouts of America v. Dale overturns a ruling by the New Jersey Supreme Court, which last August unanimously rejected similar first amendment claims by BSAs attorneys. Reviewing the abundant evidentiary record in the case, that court noted the conspicuous absence of any mention of gay people ? or any discussion of sexuality whatsoever ? in any of BSAs official materials, including its mission statement, the "Scout Oath" and the "Scout Law," and the Boy Scout Handbook.
The New Jersey court, in a 7-0 opinion written by Chief Justice Deborah T. Portiz, concluded that because BSA had no avowed anti-gay message, its first amendment rights were not significantly burdened by the application of the state civil rights law.
Wednesdays ruling rebuffs James Dales efforts over the past ten years to strike down BSAs anti-gay policy. The case, because of the weightiness of the legal questions raised, and its resonance with Main Street USA, had made the it one of the most closely-watched during a Supreme Court term replete with potential landmarks. Thirty-seven amicus briefs were filed in the case, putting it among the 10 largest in Supreme Court history, according to the National Law Journal.
Sixteen of those briefs, representing 76 groups from across the country, were filed by Dales supporters, which included the American Bar Association, the American Psychological Association, the NAACP, the ACLU, People for the American Way, the United Methodist Church, the National 4-H Club, NOW Legal Defense and Education Fund, 11 states, seven cities, and five school districts.
At a news conference in New York following the decision, Dale said, "Ive 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 dont know that yet."
Dale, now 29, was in Scouting for a dozen years, earned over 30 merit badges, and rose to the rank of Eagle Scout. BSA ousted Dale in 1990, one year after he was inducted into the prestigious Order of the Arrow, a Scouting honor society. A local troop was forced to disband after Dale was stripped of his position as an assistant scoutmaster.
Joining Dale at the news conference were Wolfson, Harlow, Lambda Legal Director Beatrice Dohrn, Senior Staff Attorney David S. Buckel (who lined up Dales 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 its clear that BSAs 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."
New Jersey attorney Lewis H. Robertson acted as local counsel in the case. Lambda is the nations oldest and largest legal organization defending the rights of lesbians, gay men and people with HIV/AIDS.