Boy Scouts of America vs. Dale

At a time when the United States government is doing all it can to do away with discrimination based on race, age, gender, and religious persuasion in all aspects of the American society, the Boy Scouts of America should not be allowed to exercise discriminatory practices in the process of accepting its members. In this connection, the United States Supreme Court may have erred in its decision with regards the discrimination case filed by James Dale against the Boy Scouts of America in 1992.

James Dale’s scouting life started at a tender age of eight when he was accepted as a member of Cub Scout Pack 142 of the Monmouth Council in 1978. By 1981 Dale was already a Boy Scout. In 1988, he was awarded one of the highest honors in scouting – the Eagle Scout rank – after seven years. The following year, 1989, his application for adult membership was approved, becoming an “assistant scoutmaster of Troop 73” in the process. Between 1981 and 1989, his performance as a Boy Scout was nothing short of exemplary (Cornell University Law School, n. d. ).

His troubles began when he attended Rutgers University where he immediately acknowledged that he was gay and became the “copresident” of the alliance of gays and lesbians in the university. In 1990, in his capacity as copresident of their alliance, Dale attended a seminar which confronted the psychological as well as health needs of teenage gays and lesbians. During the seminar, Dale was interviewed regarding his gay advocacy. The Monmouth Council finally learned about his being gay after the interview was published sometime in July 1990, complete with Dale’s picture.

That same month, his membership with the Monmouth Council was immediately revoked because, according to James Kay, the council executive who advised him about the revocation, the “Boy Scouts specifically forbid membership to homosexuals” (Cornell University Law School, n. d. ). The case that ensued showed that the country’s courts did not agree whether the Boy Scouts of America was justified in revoking the adult membership of James Dale.

Dale first brought the matter to the New Jersey Superior Court in 1992. In his complaint, he claimed that the revocation of his adult membership by the Monmouth Council on the basis of his being gay was in violation not only of the “public accommodations statute” of the State of New Jersey but also the common law. He alleged that the public accommodations law of the state “prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation” (N.

J. Stat. Ann. §§10:5-4 and 10:5-5 West Supp. 2000 as cited in Cornell University Law School, n. d. ). However, the decision of the Chancery Division of the Superior Court of New Jersey favored the Boy Scouts, stating that the New Jersey law on public accommodations could not be applied in his case because the “Boy Scouts was not a place of public accommodation,” that it was, in fact, a private entity and thus was not covered by the public accommodations statute.

The Chancery Division also declared that the position held by the Boy Scouts in relation to ‘active homosexuality” was very clear, therefore, it could not be forced to accept active homosexuals like Dale into its membership as provided for by the “freedom of expressive association” of the First Amendment.

It also stated that the common law was likewise inapplicable since the appropriate policy of the state of New Jersey was contained in the public accommodations law and not the common law (Cornell University Law School, n. d. ). In the first instance of disagreement which underlined the case, the Appellate Division of the Superior Court reversed the Chancery Division’s ruling, stating that the Boy Scouts was covered by the public accommodations law.

In revoking Dale’s membership, the Boy Scouts, therefore, violated the law. Sometime later, in affirming the ruling of the Appellate Division, the New Jersey Supreme Court said that the Boy Scouts of America “was a place of public accommodation subject to the public accommodation law, that the organization was not exempt from the law under any of its express exceptions, and that the Boy Scouts violated the law by revoking Dale’s membership based on his avowed homosexuality” (Cornell University Law School, n.

d. ). The New Jersey Supreme Court also addressed the Boy Scouts’ claim that its federal constitutional right “to enter into and maintain …intimate or private relationships … [and] to associate for the purpose of engaging in protected speech” had been violated when the public accommodations law was applied to the case.

According to the court, the Boy Scouts is not private enough to deserve the constitutional protection of intimate association for several reasons: first, it is a rather large organization; second, its purpose is characterized by inclusiveness, not exclusiveness; and, third, it allows and even invites outsiders to attend their meetings. The court agreed with the Boy Scouts that its activities are geared towards encouraging the members’ moral development.

Nevertheless, it is of the opinion that the Boy Scouts do not group together for the express purpose of denouncing homosexuality as immoral (Cornell University Law School, n. d. ). Because of the foregoing reasons, the New Jersey Supreme Court decided that retaining Dale as a member of the organization would not be violating the “right of expressive association” of the Boy Scouts since his membership would have no significant effect on how the members would be performing their duties and obligations.

The court further explained that it would be to the best interest of the State of New Jersey to actively participate in the process of eliminating discrimination and all its harmful consequences. Finally, it stated that it rejected the reference made by the Boy Scouts to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston in its attempt to justify its revocation of Dale’s adult membership.

According to the court, the Hurley case could not be made a precedent to decide the case for the Boy Scouts since “the reinstatement of Dale does not compel Boy Scouts to express any message” (Cornell University Law School, n. d. ). When the issue was elevated to the United States Supreme Court, a polarized America surfaced. The American Civil Liberties Union (ACLU), together with some other interested parties, submitted briefs of amici curiae which urged the United States Supreme Court to affirm the decision made by the New Jersey Supreme Court.

Taking the side of ACLU and, thus, Dale, were the states of New Jersey, New York, California, Hawaii, Maryland, Massachusetts, New Hampshire, Oklahoma, Vermont, Washington, Atlanta City, and the “American Association of School Administrators, American Bar Association, American Civil Liberties Union, American Jewish Congress, American Psychological Association, American Public Health Association, Bay Area Lawyers for Individual Freedom, Deans of Divinity Schools and Rabbinical Institutions, National Association for the Advancement of Colored People, Parents, Families, and Friends of Lesbians and Gays, Society of American Law Teachers, [and] Roland Pool” (ACLU ProCon. org, n. d. ). Their side was argued by Evan Wolfson who was assisted by Ruth E. Harlow, David Buckel, Jon W. Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas J. Moloney, Allyson W. Haynes, and Lewis H. Robertson (ACLU ProCon. org, n. d. ). If several organizations and parties sympathized with the cause of Dale, there were also those who believed that the Boy Scouts of America was right in excluding him.

Those who decided to file their amici curiae and urge the United States Supreme Court to reverse the New Jersey Supreme Court were: “Agudath Israel of America, American Center for Law and Justice, American Civil Rights Union, Becket Fund for Religious Liberty, California State Club Association, Center for the Original Intent of the Constitution, Christian Legal Society, Claremont Institute Center, Eagle Forum Education & Legal Defense Fund, Family Defense Council, Family Research Council, Gays and Lesbians for Individual Liberty, Individual Rights Foundation, Institute for Public Affairs of teh Union of Orthodox Jewish Congregations of America, Liberty Legal Institute, National Catholic Committee on Scouting, National Legal Foundation, Pacific Legal Foundation, Public Advocate of the United States, United States Catholic Conference, [and] John J. Hurley. ” Their case was argued by George A. Davidson who had the assistance of Carla A. Kerr, David K. Park, Michael W. McConnell, and Sanford D. Brown (ACLU ProCon. org, n. d. ). The U. S. Supreme Court agreed to review Dale’s case on January 14, 2000. By April 26, 2000, oral arguments were heard and two months later on June 28, 2000, in a final show of disagreement among the courts of the country, it handed down a decision reversing the New Jersey Supreme Court, thereby agreeing with the Boy Scouts of America that James Dale should indeed be excluded from its membership. The U. S.

Supreme Court decision showed just how divided America was, on the issue, by registering the slimmest of margin with a 5-4 decision (Scouting For All, n. d. ). Even the political leaders of the country were divided on the issue. A few days before the U. S. Supreme Court was to come out with its decision, President Clinton signed Executive Order 13160 which banned discrimination against homosexuals. The 2000 party platform of the Republican Party, on the other hand, contradicted the executive order by supporting the Boy Scouts of America (Tax Analysts, 2000). In effect, the U. S. Supreme Court declared that the Boy Scouts of America (BSA) is an organization which is private enough to be able to decide whether to accept or reject homosexuals. Some quarters, however, question this decision.

They assert that if BSA is indeed private, it should stop accepting government support like tax exemptions and direct funding subsidies. For instance, between 1997 and 2001 alone, the Pentagon provided BSA Jamborees with assistance in the tune of $6 – $8 million. Now, if it wants to continue enjoying these subsidies, it must be honorable enough to honestly pronounce itself public and stop discriminating gays. As Linda Hills of ACLU appropriately expressed, “The Boy Scouts can’t have it both ways…If they truly are a private …organization, free to engage in any form of discrimination they choose, then they are not entitled to a government subsidy” (McElroy, 2005).