Justices Say Scouts Can Bar Gays as Leaders : Rights: Appeals court rules that forcing organization to accept homosexuals as Scoutmasters would violate the 1st Amendment.

Ruling on an issue closely watched by gay-rights advocates and their opponents, a California appeals court has concluded that the Boy Scouts of America has the right to bar gay men from becoming Scout leaders.

In a 2-1 decision issued Tuesday, the 2nd District of the Court of Appeal found that a state law prohibiting job discrimination against gay men and lesbians does not apply to the Boy Scouts and does not prevent the organization from excluding gays from the ranks of Scoutmasters.

Forcing the Scouts to accept openly gay leaders would violate the organization’s First Amendment rights of association, the judges said.

The “Boy Scouts’ exclusion of an adult leader who openly models or advocates homosexual behavior is no more or less rational than its exclusion of a leader who modeled or advocated any other type of behavior that it seeks to discourage,” the judges wrote in a lengthy opinion.

“Unless scouting can determine its own standards of morality, it will be disabled as a teacher of moral views on any subject,” continued the opinion, issued in Los Angeles.

The ruling came in a 13-year-old lawsuit filed by Timothy Curran, who at the time wanted to become an assistant Scoutmaster for a Northern California troop.

In an Orange County case decided just last month, a separate appeals panel ruled that the Boy Scouts could not exclude two boys who do not believe in God. In that opinion, the judges found that the nonprofit Boy Scouts were a business and thus bound by state anti-discrimination statutes, specifically the Unruh Civil Rights Act.

Attorney James G. Randall, who represented his 12-year-old twin sons, William and Michael, in the Orange County case decided by the 4th District Court of Appeal, said that Wednesday’s contradictory ruling will force the California Supreme Court to sort out the issue.

“It’s clear that the Boy Scouts are a business,” Randall said.

“Quite frankly I am disgusted” with Wednesday’s ruling, he added. “The court hasn’t the foggiest idea of what’s going on.”

Officials with the Orange County Council of Scouts could not be reached for comment Wednesday.

Curran had been a Boy Scout for several years, attaining the rank of Eagle Scout, before he took a male date to his senior prom and was quoted in the local news media as proud to be gay. A few months later he expressed interest in becoming an assistant Scoutmaster but was rejected because he is gay.

Curran’s suit is one of several cases around the country challenging the Scouts’ exclusion of gay Scout masters. The lawsuits contend that the Boy Scouts are unconstitutionally discriminating against gays, while Boy Scouts officials say they are a private group and have the right to exclude homosexuals, whom they consider at odds with the organization’s basic moral tenets.

Curran’s attorney, Jon Davidson of the American Civil Liberties Union, called the opinion “extremely distressing.” He said the ACLU would seek a rehearing before the appeals court, and if necessary, take the case to the state Supreme Court. “The majority opinion,” Davidson said, “rules that the Boy Scouts and numerous other charitable organizations are exempt from California’s anti-discrimination laws and are free to exclude whomever they want, on any basis. This overturns decades of state law to the contrary. I cannot believe that the court would have reached this result if Tim had been excluded by the Boy Scouts because of his race or religious beliefs.”

In the Curran opinion, the judges concluded that “to extend the Unruh Act to scouting councils would transform numerous charitable organizations that are fundamentally different from business establishments and commercial or business clubs, such as the Rotary and Jaycees.

“Many charitable organizations,” the opinion stated, “direct their services to a distinct religious, cultural, gender, ethnic or age group in a way that would be unacceptable in a business, but is neither offensive nor improper in the case of a charity seeking to accomplish its particular mission.”

In a similar court case now on trial in San Diego, El Cajon police officer Chuck Merino has sued the Boy Scouts over his abrupt ouster in 1992 as a Scout leader, after the Scouts learned of his homosexuality.

As in the Curran case, Boy Scouts attorneys have argued that the organization is a private club, not a business, and thus not subject to the Unruh law. Merino is also suing under San Diego’s Human Dignity Ordinance, which prohibits discrimination on the basis of sexual orientation.

Superior Court Judge Anthony Joseph, hearing the case without a jury, has said he may make a decision when testimony ends today or Friday. He has also predicted that his ruling will be appealed regardless of which side he favors.