Boy Scouts' ban on gay leaders upheld by court

WASHINGTON — WASHINGTON - Allowing homosexuals to be shut out of one of America's most revered institutions, the Boy Scouts of America, a divided Supreme Court barred states yesterday from forcing Scout troops to accept gays as scoutmasters.

The mere presence of an openly gay person as an adult Scout leader, the court declared in its 5-4 ruling, would contradict the Scouts' own "sincere" belief that homosexuality is immoral and "unclean."


In the most significant gay rights case the court has considered in four years, the justices issued a fairly narrow decision confined to the Scouting policy against homosexuals.

Chief Justice William H. Rehnquist's spare, 19-page opinion for the majority said nothing specific about other state and local laws that seek to protect access for gays and lesbians to jobs, housing and other private opportunities.


But the opinion did include some language that seemed to question the use of state "public accommodation laws" to control access to private groups, instead of limiting those laws to guaranteeing access to such public places as restaurants and hotels.

Although the decision was confined to the Scouts' policy of excluding homosexuals from leadership posts, some of the language in the opinion was broad enough to permit the organization to keep out gay boys as members.

The 6.2-million member organization does not have separate bans on gay leaders and gay youth members. Its policy, quoted by the court yesterday, says simply: "We do not allow for the registration of avowed homosexuals as members or as leaders of the BSA."

Rehnquist's opinion contained no moral judgments against homosexuality and, in fact, said that "it appears that homosexuality has gained greater societal acceptance." And he was careful to note that the justices were not ruling on whether the Scouts' beliefs on the subject were right or wrong.

The ruling was a defeat for a former Eagle Scout in New Jersey, James Dale, who now lives in New York. He had fought in New Jersey courts to overturn his exclusion as an assistant scoutmaster, after the Scouting organization learned from a newspaper article that he was gay.

He won in the New Jersey Supreme Court, under a state public accommodations law. But the justices took away his victory.

Dale said he was "definitely saddened by the decision."

"People don't join the Boy Scouts because they're anti-gay," he said. "People join the Boy Scouts because they want acceptance, they want community."


A spokesman for the Scouts, Gregg Shields, commented: "We're very pleased. It's going to allow us to continue our mission of providing character-building programs for youth."

President Clinton, whose office makes him honorary president of the Scouts, repeated his opposition to discrimination against gays, but did not condemn the Scouts.

"They're a great group," he told reporters. "They do a lot of good. And I would hope that ... this is just one step along the way of a movement toward greater inclusion for our society, because I think that's the direction we ought to be going in."

Within the Scouting movement itself, there appears to be the some effort to get national leaders to reconsider the gay ban.

At least two regional Scout councils have called for a review.

In addition, some religious groups that sponsor Scout troops have said the policy should be changed.


The Girl Scouts do not ban lesbians from membership or adult leadership posts.

Matt Coles, director of the American Civil Liberties Union's project on lesbian and gay rights, called the ruling "damaging but limited."

"It will not reach very far beyond groups like the Boy Scouts," he said, adding: "Anti-gay groups did not get the 'free pass' they were looking for to dismantle civil rights laws that provide equal protection to lesbians and gay men."

'Important victory'

But Vincent P. McCarthy, a senior counsel for the American Center for Law and Justice, a conservative legal advocacy group, called the decision "an important victory, not only for the Boy Scouts but for all private organizations."

He said the court "reaffirmed the rights of private organizations to define their own criteria for leadership."


"The decision will have a dramatic impact on all private organizations as they define their own mission," he said.

Rehnquist's opinion was limited to the history of Dale's case, the background of the Scouting policy against gays and a recitation of a few basic principles about private groups' constitutional right to come together and share common views.

Showing strong respect for the organization, the chief justice did not question the Scouts' claim that they believe sincerely that "homosexual conduct is not morally straight" and their policy against promoting "homosexual conduct as a legitimate form of behavior."

It was not for the courts, Rehnquist said, to reject a group's "expressed values." He said the policy has been followed at least since 1978, before Dale became an assistant scoutmaster in a Matawan, N.J., troop.

If the Scouts now had to take Dale back as a leader, the opinion said, that "would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."

Dissenting opinion


Justice John Paul Stevens, in a dissenting opinion, denounced the decision. Stevens said it was based not on any conclusion that Dale would himself advocate homosexuality within Scouting, but solely on his status as an avowed homosexual.

Joining Stevens in dissent were Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.

The dissenters lambasted the Scouts' policy, saying it was "the product of a habitual way of thinking about strangers."

Rehnquist's majority included Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.