Court to Review Boy Scout Ban on Gays, Atheists

The state Supreme Court granted review Thursday of cases brought by Anaheim Hills twin brothers and by a former Eagle Scout that will decide whether the Boy Scouts can exclude gays and atheists.

Despite adding the two cases to its docket, however, the court may not actually decide them. The justices suspended further action on the cases until they rule on another pending case, about whether a private country club is covered by California’s anti-discrimination laws.

The court took the country club case in March, 1993, but hasn’t yet scheduled a hearing. After that case is decided, the court may take up the Boy Scout cases; but if it follows its usual practice, the court will instead tell lower courts to reconsider the question of whether the Scouts are covered by the same law and, if so, whether they have a constitutional right to discriminate.

In the meantime, 12-year-old twins Michael and William Randall can remain Cub Scouts in Anaheim Hills, where the Scouts sought to exclude them because they do not believe in God. And Timothy Curran, a former Eagle Scout, is editing film documentaries in Washington, 13 years after a Scout council in Contra Costa County rejected his application to be an assistant Scoutmaster because he is gay.

The Randalls’ lawsuit, filed by their attorney father, James G. Randall, in 1991, argued that the brothers’ First Amendment rights were violated when they were ousted from the Scouts for refusing to swear an oath to God.

In 1992, Orange County Superior Court Judge Richard O. Frazee Sr. ruled that the boys could remain in the Scouts. Earlier this year the 4th District Court of Appeal in Santa Ana upheld the verdict 2 to 1.

The supreme courts of Oregon and Connecticut have ruled that the Boy Scouts are exempt from anti-discrimination laws in their states. But American Civil Liberties Union lawyer Jon Davidson said California’s 1959 civil rights law, the Unruh Act, is broader.

The Unruh Act forbids discrimination by “business establishments” in a wide range of categories, including religion and sexual orientation. The state Supreme Court has interpreted the law broadly in the past, applying it to a Boys Club in 1985, but the current conservative majority has shown signs of a narrower view.