Boy Scouts of America
Year 2000: A U.S. Supreme Court decision
on antigay discrimination by the BSA
Supreme Court, in a close 5 - 4 decision in Boy Scouts of America v. Dale, overturned an earlier New Jersey
Supreme Court ruling that had found that the Boy Scouts were a public accommodation. The case involved the expulsion by a Boy Scout troop in New Jersey of James Dale, a gay male who was an assistant scoutmaster.
The U.S. Supreme Court ruled that the BSA is a
private organization and thus may set its own moral code. Forcing it to accept gays would violate its constitutional right to
freedom of association.
Chief Justice William H. Rehnquist wrote for
the majority. He said in part:
"The values the Boy Scouts seeks to instill are ''based on' those listed in the scout oath and law. The Boy Scouts explains that the scout oath and law provide 'a positive moral code for living; they are a list of 'dos' rather than 'don'ts'. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the scout oath and law, particularly with the values represented by the terms ''morally straight' and 'clean'. ... "
"The Boy Scouts asserts that
homosexual conduct is inconsistent with the values it seeks to instill.
[Requiring the Scouts to accept homosexual scoutmasters] would
significantly burden the organization's right to oppose or disfavor
homosexual conduct." He did acknowledge that homosexuality
had gained greater social acceptance. However, he wrote that "This
is scarcely an argument for denying First Amendment protection to
those who refuse to accept these views. The First Amendment protects
expression, be it of the popular variety or not." 5
Justice John Paul Stevens wrote the dissent. He said in part:
"That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the court disputes. That harm can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers. As Justice Brandeis so wisely advised, 'we must be ever on our guard, lest we erect our prejudices into legal principles.'
If we would guide by the light of reason, we must let our minds be bold. I respectfully dissent." 5
Thus the BSA can now legally
discriminate on the basis of gender, age, sexual orientation, religious
belief or any other basis. At the time of the court decision, they discriminated against what they called the "3 G's:" God, gays and girls. They excluded Agnostics, Atheists, and other non-theists. They prohibited gays and bisexuals from joining the BSA and immediately expelled any who came out of "the closet" as members. For many years they excluded females. However, They do not have to follow local, state or federal anti-discrimination
One interesting implication of the court ruling is that the BSA will now
have much more difficulty when they try to gain access to schools or
government facilities, or when they try to tap into government
resources. In the past, they had held scout jamborees on army bases;
this may not be possible in the future.
The court decision only applies to gay scout
leaders, "...and does not directly confront the question of
whether the Scouts may ban gays from general membership..." 1
Conservative religious groups applauded the decision; civil
rights groups were appalled. Two immediate reactions to the court
Jan LaRue, Senior Director of Legal Studies for the Family Research Council, wrote:
"It is not the role of government to decide who
should share a pup tent with the Scouts, who is fit to be a
Scoutmaster, and what message the Scouts should deliver about
homosexuality. ... If the Supreme Court had ruled the other way, it could have forced the NAACP to accept a Ku Klux Klan member, the B'Nai Brith to accept Catholics, and the Knights of Columbus to accept Jews as members and leaders. Every private association would have had to look like and believe whatever the government said." 2
Ralph G. Neas, spokesperson for People For the American Way
"The court’s decision permits the Boy
Scouts to hide their discrimination behind the First Amendment and
rejects the right of New Jersey to create a just society for its
citizens. The Court has allowed freedom of association to become a
tool by which groups unfairly exclude a group of Americans.
"Moral claims have been used to try to justify nearly every form of discrimination against minority groups. The Court has struck down the right of New Jersey to enforce its civil rights laws and upheld the Scouts' blatantly unfair and unlawful practice of excluding gay boys and men on 'moral' grounds."
"Close rulings [by the Supreme Court] this year highlight the precarious future of our constitutional rights and liberties. The results of the  November election will likely change the focus of this Court and either preserve our constitutional and civil rights or turn back the clock for all Americans." 2
2013: Later developments that might impact the Supreme Court decision:
In mid-2012, a secret committee of the BSA reviewed their policy of actively discriminating against lesbians, gays, and bisexuals (LGB). They decided that it was in the best interest of the organization to continue it unchanged. However, by this time, acceptance of equal rights for the LGB community had undergone a rapid increase throughout the U.S.
A surprise development occurred during late 2013-JAN. The BSA announced that is was considering dropping their national discrimination policy against sexual minorities. Instead, they would be adopting a local option by allowing local Scout troops the freedom to either welcome lesbians, gays, and bisexuals, or continue to reject and expel them.
An editorial in the New York Times speculated that if this local option to discriminate is adopted, it might have an unexpected impact on the BSA's vulnerability with respect to states' human rights legislation. The editorial said:
"The new policy would, however, undermine the rationale the Supreme Court voiced in 2000 when it affirmed the right of the Scouts to discriminate against gay people. The 5-to-4 ruling turned on the court’s acceptance of the Scouts’ claim that being antigay was a 'core' part of its mission and that its freedom of association right trumped any state nondiscrimination rules. Of course, much has changed since that decision — including the growing acceptance of same-sex marriage and the ability of gay people to serve openly in the military.
Now that the group is on the verge of making discrimination optional, it can no longer claim that discrimination is a 'core' purpose — and therefore state nondiscrimination rules should apply to the Scouts. The halfway policy change would inevitably invite litigation." 4
A new lawsuit similar to Boy Scouts of America v. Dale might result in a reversal of the U.S. Supreme Court's year 2000 decision. The retirement of one conservative/strict constructionist Justice on the court and their replacement by a Justice who views the U.S. Constitution as a living document could easily change the Court's ruling of a future lawsuit from 5 to 4 in favor of discrimination to 5 to 4 against.
Related essays on this site:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Boy scout -- public or private -- discrimination,"
- "Boy Scouts Not Forced to Pitch a Bigger Tent According to Supreme Court Ruling," The Free Library, 2000-JUN-28, at: http://www.thefreelibrary.com/
- "Supreme Court Allows Boy Scouts to Hide Discrimination Behind First Amendment Close Ruling Raises Troubling Questions About Future of Civil Rights Laws," Progressive Newswire, 2000-JUN-28, at: http://www.commondreams.org/
- "Editorial: The Boy Scouts Fall Short," The New York Times, 2013-JAN-29, at: http://www.nytimes.com/
- "Excerpts From the Supreme Court's Ruling on Gays and the Boy Scouts," New York Times, 2000-JUN-29, at: http://www.nytimes.com/
Copyright © 1999 to 2013, by Ontario Consultants on
Originally published on 1999-AUG-9
Latest updated: 2013-FEB-01
Author: B.A. Robinson