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Boy Scouts of America

Court cases: 1998 to 1999-OCT

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Basis of court cases:

To our knowledge, all of the court cases involving BSA membership or employment discrimination revolve around the nature of the organization. Two options are: 

bullet Is BSA a private group, like a church or a chapter of the Masonic order? It would be called an "expressive association" in legal language. Such organizations can discriminate freely against women or minorities, even if human rights legislation exists which normally prohibits discrimination based on sex, religion, sexual orientation, etc. Analogies would be the Mormon church which once prohibited African-Americans from being ordained, or the Roman Catholic Church which still discriminates on the basis of gender. The BSA takes the position that it is distinctly private. In support of this argument BSA states:
bullet It is basically a collection of small, local, intimate groups, called troops or packs or posts.
bullet Forcing the BSA to accept homosexual members would be like requiring the NAACP to accept a Klansman into their group. 
bullet Gays, Atheists, etc. who bring lawsuits against the BSA are not really sincere members of the BSA. They are "testers" with a personal agenda.
bullet Is it a "place of public accommodation" which attempts to make scouting available to every boy who wants it. In favor of this argument:
bullet The BSA is the largest youth movement in the world. Between 1992 and 1996, the BSA total assets in the U.S. increased from 277 million to 441 million dollars.
bullet BSA's federal charter obligates them to serve all boys.
bullet Other than discriminating on the basis of sexual orientation and religious belief, BSA has no barriers to membership. It aggressively recruit new members.
bullet Many troops are sponsored by government agencies (e.g. public schools, military base, fire department) and thus cannot discriminate on the basis of religion.
bullet Federal laws have been passed to allow the military to provide transportation for Scouts and to loan them equipment without charge. Every national Boy Scout jamboree since 1981 has been held on a military base.
bullet All recent presidents of the U.S. have been honorary presidents of the BSA.
bullet Many local councils receive substantial funding from the United Way. Such United Ways have a national and local policy of not ordinarily funding any charitable organization which discriminates on a basis of religion or sexual orientation. Some United Ways have stopped funding the Boy Scouts.  However, many still continue such funding.
bullet BSA operates and licenses retail stores to sell Scouting materials and literature to both BSA members and the general public.
bullet Groups that are much smaller and private than the Boy Scouts have been recognized as public accommodations. One example is Big Brothers of the National Capital Area.

One source lists some criteria which determine whether a group is "distinctly private": its selectivity in admitting members; its advertising for members; its history; its commercial nature; the use of its facilities by nonmembers; and the use of public facilities by its members. 1

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Results of recent court cases, and reactions to them:

The BSA policy of excluding persons with unacceptable religious beliefs and persons with homosexual or bisexual orientation has been the topic of many court cases, starting in 1981. There has been no clear pattern of wins or losses in lawsuits before the courts, and cases before human rights commissions. 

bullet 1998: The American Civil Liberties Union sued the City of Chicago over both the religious and sexual orientation issues in the Scouting units that the city entities sponsored. The city ended its affiliation with the BSA. The Parent/Teacher Association has adopted a national policy of not permitting its chapters to sponsor Scouting units.
bullet 1999-APR - Illinois: The ACLU initiated a suit against the Chicago public schools and the Scott Air Force Base in southern Illinois. The ACLU position is that "Schools, military bases and other publicly funded groups have no business sponsoring Boy Scout troops so long as Scouts are required to take a religious oath...public funding of Boy Scouts of America troops violates the constitutional requirement of separation of church and state." 2
bullet 1999-AUG-5 - New Jersey court case: The New Jersey Supreme Court  "unanimously struck down the Boy Scouts' policy banning gays from being members or leaders in the organization..." 3 George Davidson, attorney for the Boy Scouts vowed to appeal the case to the Supreme Court. The case was brought by James Dale, 29, of Matawan, NJ. He had been in the BSA for 12 years, had earned about 30 merit badges, and was an assistant Scoutmaster. 
bullet The ruling read, in part, ''To recognize the Boy Scouts' First Amendment claim would be tantamount to tolerating the expulsion of an individual solely because of his status as a homosexual - an act of discrimination unprotected by the First Amendment freedom of speech.'
bullet Another part of the ruling said that the BSA policy is "based on little more than prejudice...The human price of this bigotry has been enormous.
bullet BSA spokesman Paul Stevenson said: "The law against discrimination as applied to the Boy Scouts is unconstitutional...'The New Jersey law against discrimination applies [only] to public accommodations. The Boy Scouts is a private accommodation, and as such we're not covered.'' 
bullet Plaintiff James Dale said that his Scouting experience prepared him for the legal battle. "[This is] exactly what Scouting has taught me: to believe in the system and that justice will prevail...When I was growing up, I didn't know I was gay, but the Boy Scouts made me feel good about who I was. Whether or not they know it, the Boy Scouts do wonderful things for gay kids across the country.''
bullet The American Family Association Center for Law & Policy is a conservative Christian group. Their Chief Counsel, Steve Crampton, stated: "traditional moral values were placed squarely in the court's cross-hairs today when it pulled its rhetorical trigger-equating the reasons for BSA's revocation of Dale's membership with 'the cancer of discrimination.' The New Jersey Supreme Court's ruling is nothing less than an official indictment of all who believe homosexuality is immoral - it is a rejection of the moral teachings of over 2000 years of Western Civilization." Brian Fahling, Senior Trial Attorney stated: "the intrusion of the government into the affairs of private organizations is now complete. First we were prohibited from expressing our moral values in the public square, now we are told that we may not express them even among ourselves in private associations." 4
bullet 1999-AUG-11 - United Methodist Church troop sponsorship: 11,738 of the 37,000 congregations of the United Methodist Church sponsor Scout troops. They sponsor a total of 421,579 boys. Methodist churches currently sponsor about 12% of all of the BSA troops in the U.S. A drive has been organized to have a troop in every church. But the denomination has a ban on discrimination based on sexual orientation. Jane Hall Harvey, UMC assistant general secretary said: "We believe non-discrimination is the order of the day." The denomination will shortly be asked if its ban on discrimination based on sexual orientation applies to Scouting. If they pull out of the BSA the possibility exists for UMC Scout troops to form the nucleus of a parallel Boy Scouts organization -- one that does not discriminate on the basis of sexual orientation or religion.
bullet 1999-AUG-11 - Providence, RI decision: The Narragansett Council of the BSA in Providence RI announced a new policy on gays that was approved by the BSA head office in Irving TX. The council acknowledge publicly that a Scout can be a homosexual, as long as he doesn't advertise it. This is, in effect, the same don't ask, don't tell policy as is used by the U.S. military. This may signal the path for the BSA in the future: to adopt a type of local option concerning discrimination. Mary Bonauto, a spokesperson for the Gay and Lesbian Advocates and Defenders in Boston MA commented: "It sounds to me like the Boy Scouts are in retreat...They acknowledge the sexual orientation of their members is none of their business." The Westboro Baptist Church, owner of the homophobic web site, announced that they will be picketing both Irving and Providence on 1999-SEP.
bullet 1999-AUG-17 - BSA Study: The executive committee of the BSA had received a resolution which would authorize a study by a 12-member panel to review "the scientific and medical basis for the determination of sexual orientation." They would also review "The moral and religious basis for defining homosexuality as a moral issue." The panel would call for input from medical experts and religious leaders. Part of the mandate of the panel would be to consider changes to the BSA membership policies. Gregg Shields, a BSA spokesperson, was keen to point out that "This is a resolution. It's not a study, and it's not a policy" The resolution was referred to the "relationships committee...The nation [sic] executive committee is dedicated to the polices that we have in place, and we don't foresee those changing
bullet Ongoing - San Diego CA: The American Civil Liberties Union and the Tom Homann Law Association have asked the city of San Diego to end its financial subsidies to the Boy Scouts until the BSA ends its discrimination based on sexual orientation and religion. The legal groups are also asking that the city council end its $1.00 annual lease to the Boy Scouts council for their headquarters office in Balboa Park. An end to the rent-free use of city-owned property on Fiesta Island was also sought. The city and ACLU settled the case in 2004. The city will pay almost $1 million in legal fees and court costs; the Boy Scouts will be evicted.
bullet 1999-SEP: The Commission on United Methodist Men of the United Methodist Church criticized the New Jersey court ruling. 
bullet 1999-SEP-16: Presidential candidates: A newsletter that opposes equal rights for gays and lesbians, "Straight from the Heart," asked various Republican presidential candidates for their opinions on homosexuals in the Boy Scouts. A spokesperson for Governor George Bush wrote "He believes the Boy Scouts is a private organization and they should be able to set their own standards."  He added that the New Jersey Supreme Court erred when it struck down the Scouts' ban on homosexuals serving as scoutmasters. A spokesperson for Elizabeth Dole's campaign said that she "supports the right of private organizations to set their own membership rules."
bullet 1999-OCT-10 - United Methodist Church troop sponsorship (continued): The United Methodist board of Church and Society approved a statement on homosexuals within the Boy Scouts by a two-thirds vote. The statement said, in part: "While the General Board of Church and Society would like to enthusiastically affirm and encourage this continuing partnership of the church and scouting, we cannot due to the Boy Scouts of America's discrimination against gays...The United Methodist Church ... strongly condemns discrimination based on sexual orientation." The Boy Scouts' policy "conflicts with our [church's] Social Principles." According to the Washington Times, the board will support the Lambda Legal Defense Fund during the appeal of the New Jersey decision to the U.S. Supreme Court. The LLDF is a homosexual support group seeking equal rights under law for gays and lesbians. Any decision to disengage the UMC from the BSA would have to be made at the UMC General Conference.
bullet 1999-OCT - New Jersey court case (cont'd): The BSA filed an appeal of the New Jersey Supreme Court decision with the U.S. Supreme Court. Spokesperson Attorney Steve Crampton, of the American Family Association's Law Center, was pleased with the appeal. He commented: "As we understood it, there was some discussion and debate internally as to whether they would pursue the case on appeal." 
bullet 1999-OCT - New Jersey court case (cont'd): The Family Research Council discussed the New Jersey decision in its October issue of Washington Watch. Author and Senior Director of Cultural Studies, Robert H. Knight, raised some interesting points:
bullet Knight described an incident in his childhood when he was a Scout. Another Scout in his troop tried to sexually molest a fellow scout. The perpetrator was expelled by the Scoutmaster. Knight wrote that: "Under an August 5 unanimous New Jersey Supreme Court scoutmaster would be in hot water." [Author's note: This appears to be a non sequitur. The court ruling dealt with BSA membership entry rules. It did not touch in any way on the conditions under which a Scout could be expelled.
bullet Justice Allan B. Handler's mentioned in his ruling that a homosexual "is no more or less likely to be moral that a person who is heterosexual." Knight commented "This means that homosexual behavior must be inherently moral..." [Author's note: This also appears to be a non sequitur. The judge's seems to imply that some heterosexuals engage in moral acts, that some homosexuals do as well, and that the rate of moral acts is the same for gays and straights. Knight's interpretation of the ruling seems to imply that all homosexual behavior is inherently moral. It is not. Homosexuals can engage in coercive, manipulative, non-consensual and unsafe sex, just as heterosexuals can.]
bullet Knight commented that "In declaring the BSA to be a 'public accommodation,' Chief Justice] Poritz and her colleagues couldn't find any distinction between a Scout troop and, say, a bus station." [Author's note: This appears to be a misrepresentation of the facts. Some youth groups are private clubs; others are public accommodations. The court decided that the BSA was one of the latter. But anyone can see that the BSA does not resemble a bus station. Just about the only thing that they share in common is that they are both public accommodations.]
bullet Knight concluded by saying that "Judaism, Christianity and Islam all teach that homosexuality is wrong. If the judges are right...then religious people should expect their congregations to come under severe legal attack." He is apparently implying that if a minister teaches that homosexual behavior is immoral that they can expect to be sued by the state on civil rights charges. [Author's note: Again, this does not make sense. Ministers' free speech is protected under the 1st Amendment of the U.S. Constitution. In the past, some ministers have promoted slavery, opposed racial integration, opposed inter-racial marriage, promoted the unequal treatment of women, etc. without having been charged by the state. They will certainly be able to safely to include homophobia in their sermons if they wish.]

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Related essays on this site:

bullet Boy Scouts of America
bullet The U.S. Supreme Court decision and its aftermath
bullet Homosexuality and bisexuality
bullet Different religions, different beliefs

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  1. The brief in Boy Scouts of America v. James Dale is available at:
  2. Don Babwi, "ACLU sues public schools, military," Associated Press, 1999-APR-15. Online at: 
  3. A.E. Kronblut, "Boy Scout" The Boston Globe, 1999-AUG-5, Page A10. Online (at least for a while) at:
  4. "New Jersey high court orders Boy Scouts to share tent with homosexuals," American Family Association alert, 1999-AUG-4.

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Copyright 1999 to 2002 inc., and 2004 by Ontario Consultants on Religious Tolerance. 
Originally published on 1999-AUG-9. 
Latest updated: 2004-JUL-12
Author: B.A. Robinson

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