News - December 1995

Judge upholds scout's expulsion because being gay is a "moral wrong"

A Monmouth County judge ruled against a gay Eagle Scout who brought a discrimination suit against the Boy Scouts of America for expelling him.

The judge referred to homosexuality as ''a gravely serious moral wrong'' in the eyes of religion.

The 71-page decision by Superior Court Judge Patrick J. McGann Jr. found the state's Law Against Discrimination, which was amended in 1991 to cover ''affectional or sexual orientation,'' did not apply to the ''distinctly private'' Boy Scouts.

Even if it did, McGann wrote, the Boy Scouts enjoy a ''First Amendment freedom of expressive association rights'' that bars the government from ''forcing'' the group to accept a gay member.

The lawsuit was brought by James Dale, now 25, a former assistant scoutmaster of Troop 73 in Matawan at the time of his expulsion. A gay advocacy group said the case was the first brought under the state's anti-discrimination law barring bias against gays.

A spokesman for the Boy Scouts applauded the decision yesterday, but Dale's lawyer condemned it as playing into ''the most odious kinds of stereotypes about who gay people are.''

In his decision, McGann equated homosexuality with sodomy, which was illegal in New Jersey until 1979, and noted, that ''all religions deem the act of sodomy a serious moral wrong.'' As such, he argued, homosexuality was incompatible with the Boy Scouts, which he called a ''moral organization.''

To emphasize the moral repugnance with which he said homosexuality is viewed under the Judeo-Christian tradition, McGann noted that: '' 'Sodomy' is derived from the name of the biblical city, Sodom, which, with the nearby city of Gomorrah, was destroyed by fire and brimstone rained down by the Lord because of the sexual depravity (active homosexuality) of their male inhabitants.''

McGann said Dale, who had been in scouting for 12 years at the time of his ouster, has a constitutional right to pursue his lifestyle now that sodomy is not illegal.

''But he cannot compel'' the Boy Scouts ''to continue his volunteer adult leadership status when he is not in compliance with the Scout Oath, the Scout Law and the Statement of Religious Principle.''

The judge wrote that the Boy Scout organization ''has determined that an assistant scoutmaster who is an active sodomist is simply incompatible with scouting and is not 'morally straight.' '' He then addressed the question of whether the anti-discrimination law required ''a fundamental, court-imposed change'' in Boy Scout policy.

''The short answer,'' he wrote, ''is no.''

Dale, a fund-raiser for a drug-rehabilitation center in Manhattan, said it appeared that the judge was not ruling on the basis of the discrimination allegations. ''To think that someone as qualified as myself, an exemplary scout, can't be an assistant scoutmaster when adults are needed is ridiculous,'' he told the Associated Press.

Beatrice Dohrn, the legal director for the Lambda Legal Defense and Education Fund in New York, which brought the suit on Dale's behalf, complained yesterday that McGann had become ''so lost in his abhorrence of gay men that he fails completely to apply the law.''

Dohrn said the group would appeal.

Dale became involved in scouting as an 8-year-old, and eventually worked his way up to the position of Eagle Scout, scouting's highest honor. He became an assistant scoutmaster when he turned 18 in 1988, and served in that post until 1990, when he was expelled.

(Some information in this article taken from a Philadelphia Inquirer article)

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