All for a Scout's Honor

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The Boy Scouts of America knew who its adversaries were. "The three Gs," says its attorney George Davidson, "Girls, godless and gays." On four previous occasions, the Scouts had confronted these would-be infiltrators in court; and four times, the organization had emerged victorious. A California state court chose not to reinstate a scout leader who was kicked out because he was gay; the U.S. Supreme Court refused to hear his appeal. Meanwhile, atheists who sued for membership were ruled out of order, as was a woman who wanted to be a scoutmaster. But last week the New Jersey supreme court brought an end to the win streak. In a unanimous decision, the seven justices upheld the membership of James Dale, 29, a gay assistant scoutmaster expelled in 1990.

Dale had spent a dozen years in the group, earning 30 merit badges, rising to the level of eagle scout before becoming an assistant scoutmaster. But then Scout officials saw a photo in a local New Jersey paper that identified Dale as a leader of the Lesbian/Gay Alliance at Rutgers University. The Scouts promptly expelled him. Dale's ouster, the court declared, was "based on little more than prejudice"; he had "never used his leadership position or membership [in the Scouts] to promote homosexuality, or any message inconsistent with Boy Scouts' policies" of being "morally straight" and "clean." The New Jersey court rejected the argument that the Boy Scouts were a private membership organization and had First Amendment rights of "intimate" and "expressive association." In fact, the court referred to the Scouts as a quasi-public entity because of its partnerships with public institutions and facilities. Such accommodation thus put the Scouts in violation of state law prohibiting exclusion based on race, gender, religion or sexual orientation.

The Boy Scouts of America has not been completely resistant to modernization of its membership criteria. After winning the lawsuit brought by the woman scoutmaster in 1987, the group eventually altered its rules and allowed women to become scoutmasters. But even as New Jersey ordered Dale to be reinstated, the group shows no sign of compromise over gays. Scout lawyer Davidson says he will bring the battle to a new arena: the U.S. Supreme Court. "This ruling unconstitutionally infringes on the rights of the Boy Scouts of America," says Davidson. "It's sad when the state dictates to parents what role models they must provide their children."

Yet experts doubt the Supreme Court will take up the case. Says Georgetown University law professor David Cole: "On a symbolic level this is an extremely important decision," a small victory in the struggle of gays and lesbians to participate fully in civil society. However, he adds, "on a technical level, this applies only to the Boy Scouts in New Jersey."

The battleground over gay rights is more likely to move to Vermont. The supreme court there must soon decide if the state's constitution allows gay marriage. A referendum in Hawaii rejected it last year, but in liberal Vermont, the state's justices are more likely to declare in favor. Vermont would then be the first jurisdiction anywhere in the world to allow fully equal marriage rights to homosexual couples. To reverse it, opponents need to go through a two-year process to change the state's charter. During that time, hundreds or perhaps thousands of gay couples could wed.