Scouts seek justices' OK to maintain ban on gays; Group wants to be freed from state anti-bias laws


WASHINGTON -- The Boy Scouts of America, claiming a constitutional right to decide who can join its troops, asked the Supreme Court yesterday to allow it to maintain its ban on homosexuals as Scouts or leaders.

"This case," its lawyers argued, "involves constitutional rights at the heart of our free society" -- including the right of a private group to follow "its own moral code."

The 6 million-member organization urged the court to free it from state anti-discrimination laws and, in particular, from a New Jersey "public accommodations" law that led a state court to rule that the Scouts acted illegally in dismissing a homosexual as a deputy scoutmaster.

Conceding that "many people of good will believe that Boy Scouting's position is misguided," the Scouts contended that issues of morality should not be "made the subject of government compulsion."

Under a policy the Scouts have followed since at least 1978, no boy or man may be admitted to Scouting, or remain a Scout or leader, if he is an "avowed homosexual." The policy treats homosexuality as morally wrong and thus in violation of the Scout oath and Scout law.

The New Jersey case grew out of the 12-year Scouting career of James Dale of Matawan. Dale rose to the rank of Eagle Scout and went on to become an assistant scoutmaster. He was dismissed in 1990 after he publicly declared himself to be gay while he was a student at Rutgers University.

The New Jersey Supreme Court, in a trailblazing ruling in Dale's favor in August, found the Boy Scouts not to be a truly private organization because its overall membership policy is to invite all boys to join.

It also ruled that forcing the Scouts to admit homosexuals did not violate any right of the Scouts to choose the people with whom they will closely associate.

The Scouts' new appeal argued that "it is urgent that the Supreme Court intervene to provide guidance and coherence." It cited three lawsuits in which "various people with religious and moral views contradictory to those of Boy Scouting" have sued, seeking to "use government power to obtain membership and leadership positions."

It also noted that the New Jersey Supreme Court decision conflicts with earlier rulings by four other states' supreme courts and by a federal appeals court, all of which protected the Scouts' membership policy.

The appeal contended that state public accommodations laws are "broadly and vaguely worded" and that "it requires considerable judicial ingenuity to apply them to Boy Scouting."

It asserted that the New Jersey ruling violates the organization's right of free speech, its right to define its own membership and the right of its members to establish personal bonds with close associates in their small troops.

"Boy Scout troops are more nearly an extension of home, church and friendship than of the commercial or public sphere," the Boy Scouts' appeal argued. "Yet the [New Jersey] court treated a Boy Scout troop as constitutionally indistinguishable from a Rotary chapter. Under that analysis, it is difficult to imagine an association, other than perhaps a family, that would receive constitutional protection."

New Jersey is one of 11 states, along with the District of Columbia, with civil rights laws that ban discrimination based on sexual orientation. Maryland has no such laws.

The justices will act on the appeal after considering a reply that Dale is expected to file. Dale, 29, lives in New York, where he produces a traveling health fair on issues pertaining to the human immunodeficiency virus and acquired immune deficiency syndrome.

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