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April 29, 2000
Column #974


     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 leaders.'' 

     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 leaders.

     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 banner.'' 

     Davidson sharply replied, ''He put a banner around his neck when he appeared in the newspaper. He can't take it off.''

     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.

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