DO BOY SCOUTS HAVE TO HIRE
WASHINGTON Do the Boy Scouts have a right to
choose their own leaders, even if that means refusig to hire homosexual
Scoutmasters? Or does a New Jersey court have the right to tell Boy
Scouts it should hire an openly gay Scoutmaster? That issue was debated
at the U.S. Supreme Court this week.
When James Dale, a former Eagle Scout and
Assistant Scoutmaster, became co-president of the Rutgers University
Lesbian/Gay Alliance, and gave a seminar on the needs of gay teens
reported in the Newark Star Ledger, the Boy Scouts of America (BSA)
wrote him a letter severing his relationship. He sued on grounds that
the New Jersey Law Against Discrimination prohibited that action.
The New Jersey Supreme Court ruled BSA had no
constitutional right to prevent Dale from serving as Assistant
Scoutmaster. It said Scouting was not the kind of intimate association
protected by the First Amendment and that allowing a homosexual to serve
as an adult leader was consistent with its understanding of the BSA's
mission. Finally, it noted the BSA had not expressed any public message
against homosexuality, and therefore having a homosexual adult leader is
not forcing a message upon the organization.
U.S. Supreme Court justices asked BSA's
attorney, George Davidson, whether Mr. Dale's termination was because he
was homosexual, or was it due to his ''public advocacy.''
Davidson responded, ''It is about the message
that would go to youth in the program. Being openly homosexual
communicates the concept that this is OK.''
Various justices asked if there were any
policy excluding gays that appeared in BSA's official manuals. Davidson
conceded there was none, but the group's position was made known in
''Scouting,'' the official magazine. More important, ''The Boy Scouts
are so closely identified with traditional moral values that the phrase,
`He's a real Boy Scout' has entered the language.''
He said the policy is based on the Scout's
moral code, as expressed in the phrase ''morally straight,'' in the
Scout Oath and the word ''clean'' in the Scout Law.
Unfortunately, he did not explain why the Boy
Scouts take this position. As Janet LaRue wrote in an amicus brief filed
in the case for the Family Research Council, ''A nationwide
investigation of child molestation in the Boy Scouts from 1971 to 1991
revealed that more than 2,000 boys reported molestation by adult Scout
The intimate association that exists between
Boy Scout leaders and impressionable boys away from home in a camping
experience, is a natural attraction for pedophiles seeking opportunity
to sexually abuse boys. Recent studies reveal that child molesters
average 30-60 child victims before being caught, and pedophiles will
abuse an average of 380 children in their lifetime!
Apparently, BSA fears scaring parents that
some boys are at risk. It simply claimed to not have an ''anti-gay''
policy, since it does not ask the sexual orientation of members or
Evan Wolfson, Dale's lawyer, said what was at
issue was ''identity-based discrimination, the equation of a human being
with an assumed message.''
However, Davidson cited a 1995 Supreme Court
decision that unanimously concluded the organizers of a St. Patrick's
Day parade had a First Amendment right to exclude a group of gay
marchers who would have marched with a banner celebrating being Irish
gays. The Court said the organizers ''clearly decided to exclude a
message it did not like from the communication it chose to make...That
choice is presumed to lie beyond the government's power to control.''
But Justice David Souter, who wrote the
Court's opinion in that case, disputed Davidson's analysis. He said Mr.
Dale wanted to rejoin scouting and was ''not proposing to carry a
Davidson sharply replied, ''He put a banner
around his neck when he appeared in the newspaper. He can't take it
Several Justices seemed hostile to Dale's
position. Justice Stephen Breyer told Wolfson, ''In your view, a
Catholic organization has to admit Jews and a Jewish organization has to
admit Catholics.'' Justices Souter asked whether Scouts could be
required to admit girls. Justice Antonin Scalia was incredulous that the
Scouts, who ''think that homosexuality is immoral'' would be forced to
accept ''someone who embodies a contradiction to their message.''
An amicus brief by the nation's Catholic
bishops noted that various churches and synagogues sponsor Scouting
units with a million Scouts. If the Boy Scouts are not upheld, religious
entities will have to ''stop participating in Scouting as a way of
teaching values and morals or continue participating with leadership
that exemplifies the contrary of their teachings.''
I predict the Court will uphold the Boy
Scout's right to choose its own leaders.
Copyright 2000 Michael J. McManus.