In Boy Scouts of America v. Dale, the U.S. Supreme Court upheld the right of the Boy Scouts to exclude gay leaders, dealing a blow to the efforts of gay rights advocates.
In the United States, the issue of gay rights has been the subject of debate since the 1960’s, when gay men and lesbians began to assert their rights to certain civil liberties, in part as a response to the gains of the Civil Rights movement. The U.S. Supreme Court has rarely ruled directly on gay and lesbian issues, and the Court made no such rulings until the late twentieth century.
One question related to the rights of gays and lesbians in American society is how much organizations are allowed to discriminate based on sexual orientation in such areas as hiring and membership; another is how sexual orientation is weighed against a person’s or a group’s rights. A related, implied question, rarely stated, involves whether sexual orientation is a choice or predetermined. Advocates for the rights of gay men and lesbians generally believe that it should not matter whether sexual orientation is a choice or a genetic predetermination. Others, however, believe that if sexual orientation is a choice, then homosexuals do not deserve legal protection, but if sexual orientation is genetically predetermined, then homosexuals deserve legal protection as minorities.
James Dale, who sued the Boy Scouts of America when he was dismissed from an assistant scoutmaster position because of his homosexual orientation, sits at his lawyer’s office in March, 1998, in New York City.
The state of New Jersey passed a law that prohibited discrimination on the basis of sexual orientation by any groups that use public places for their meetings. The Boy Scouts of America prohibited openly homosexual men from becoming Boy Scout leaders, and James Dale, an openly gay Eagle Scout, sued the Scouts, claiming that the organization violated New Jersey’s law when it refused to allow him to continue in the position of assistant scoutmaster. The question in the case, however, ultimately came down not to questions of gay and lesbian rights but to the question of whether New Jersey’s law violated the right of the Boy Scouts to control its own association through the right to freedom of association contained in the First Amendment to the U.S. Constitution.
The U.S. Supreme Court ruled for the Boy Scouts in the case of Boy Scouts of America v. Dale, holding that New Jersey’s law violated the organization’s right to “expressive association.” This right, located in the First Amendment’s freedom of association, has been construed to hold that groups engaged in public discussion of ideas have a right to pick their own members. The reason for this right is that if the government can force groups to admit people, then the government is interfering with the groups’ right to advocate positions. This right has not been held to be absolute, as a government can limit it, but only if there is a “compelling state interest.”
The Court’s decision was written by Chief Justice William H. Rehnquist, who first noted that the Boy Scouts of America, as an organization, was engaged in the expression of ideas—a requirement for groups that want to claim they are engaged in expressive association. He then looked at the policies of the Boy Scouts and held that the organization had a clear policy against homosexual leaders, which was a criterion for the Court to support the Scouts in this case. If no such policy had existed, then the organization’s desire to exclude all homosexual leaders would not have been clearly sincere, and its application in Dale’s case might also have been arbitrary.
The question then became whether New Jersey’s claimed interest in the public accommodations statute outweighed the right of the Boy Scouts to control its own membership and whether forcing the Boy Scouts to admit Dale would limit the organization’s right to expressive association. In the past, U.S. courts had ordered private groups to admit women, but in those cases the courts had held that admitting women to groups such as the Jaycees did not harm the groups’ right to expressive association. In this case, Rehnquist held that admitting Dale would harm the right of the Boy Scouts of America to advocate its values, which the organization believed to be at variance with homosexuality.
The Court also held that the positions of the state and federal governments regarding the view of the Boy Scouts organization that homosexuality is immoral were irrelevant to the group’s right to expressive association. Rehnquist used this argument as part of his response to the dissent’s argument that homosexuality was becoming more accepted and so New Jersey should be allowed to force the Boy Scouts to admit gay leaders.
The dissent, written by Justice John Paul Stevens,
The Supreme Court decision in the Dale case, which legitimated the right of certain kinds of groups to exclude homosexuals, was a blow to the efforts of gay rights activists. The decision also represented another check by the Rehnquist Court against government efforts in some states to encourage equality by protecting the rights of homosexuals.
In 2003, the Supreme Court, in Lawrence and Garner v. Texas,
-
Koppelman, Andrew. The Gay Rights Question in Contemporary American Law. Chicago: University of Chicago Press, 2003. Critiques arguments on both sides of the gay rights issue, discussing whether or not discrimination against gays is legally or morally defensible. Also provides some history regarding court decisions concerning on gay rights. -
Mechling, Jay. On My Honor: Boy Scouts and the Making of American Youth. Chicago: University of Chicago Press, 2001. Examines masculinity in the Scouts through extensive study of a summer camp. Argues that the Boy Scouts aim to produce “normal” boys—meaning heterosexual ones. -
Pinello, Daniel R. Gay Rights and American Law. New York: Cambridge University Press, 2003. Examines the development of gay rights throughout the American legal system, including both the Supreme Court and appellate courts. Covers nearly four hundred court decisions between 1980 and 2000. -
Rosenthal, Michael. The Character Factory: Baden-Powell and the Origins of the Boy Scout Movement. New York: Pantheon Books, 1986. Looks at the original goals of Robert Stephenson Smyth Baden-Powell in the creation of the Boy Scouts, among which were the development of honor and character. -
Warren, Mark E. Democracy and Association. Princeton, N.J.: Princeton University Press, 2001. Discusses the fundamental freedom defended in the Dale case, freedom of association. Focuses extensively on the benefits of associations and those who participate in them.
U.S. Supreme Court Bans Discrimination in Hiring
Civil Service Decides That Gays Are Fit for Public Service
U.S. Supreme Court Rules on Affirmative Action Programs
U.S. Supreme Court Upholds Seniority Systems
U.S. Court of Appeals Upholds the Navy’s Ban on Homosexuality
U.S. Supreme Court Rules That Laws Can Force Groups to Admit Women
U.S. Supreme Court Strikes Down Colorado Antigay Law