Scouts May Exclude Gay Men, Justices Say


The Boy Scouts of America have a right to exclude openly gay men from their ranks, the Supreme Court ruled on a 5-4 vote Wednesday.

Because the Scouts are a private group that seeks to instill its moral values in boys, the organization is free to bar those whose behavior or lifestyle conflicts with its message, the court said.

“We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong,” said Chief Justice William H. Rehnquist. Rather, he said, a private, nonprofit group has a 1st Amendment right to espouse its own message and select its own leaders.


Conservative groups praised the ruling and called it a victory for all private organizations.

“If the court had ruled the other way, it could have forced the NAACP to accept a Ku Klux Klan member, B’nai B’rith to accept Catholics and the Knights of Columbus to accept Jews as members and leaders,” said Janet La Rue of the Family Research Council, a conservative group formerly headed by onetime Republican presidential candidate Gary Bauer.

Gay-rights lawyers called the decision a “sad day in the history of Scouting.”

“They have won for themselves the dubious right to be bigoted and exclusionary,” said attorney Evan Wolfson, who defended the gay Scoutmaster whose case reached the high court. “The Supreme Court said [the Boy Scouts of America] has a right to discriminate but didn’t say that anti-gay discrimination is right.”

As a practical matter, Wednesday’s ruling directly affects only New Jersey.

There is no federal law that forbids discrimination based on sexual orientation. And while many states, including California, have enacted laws forbidding anti-gay bias in the workplace, housing and public businesses, only New Jersey has extended its civil rights law to the Boy Scouts.

The issue arose a decade ago when James Dale, a former Eagle Scout and an adult troop leader, told a Newark, N.J., newspaper that he is gay. A leader of the local Boy Scouts council wrote Dale a letter saying that his membership had been revoked because the organization has a policy of excluding gays.

That policy considers homosexuality a violation of the Scout oath, which pledges to be “morally straight.”

Adult Troop Leader’s Lawsuit Began in 1992

Dale sued in 1992 and, after a long court battle, won in the New Jersey Supreme Court.

But the national headquarters of the Boy Scouts appealed the issue to the U.S. Supreme Court and won the ruling, saying that the 1st Amendment shields the organization from complying with the state law.

Dale, speaking to reporters Wednesday in a teleconference, said that he was “definitely saddened by the decision.” But he added that, “overall, America is moving in the right direction” in its acceptance of gays.

Gregg Shields, a spokesman for the Boy Scouts, said that the ruling would “allow us to continue our mission of providing character-building programs for youth.”

In the past, private groups such as Rotary Clubs and the Jaycees appealed to the Supreme Court seeking to preserve their men-only policies. However, the justices said that states could enforce their antidiscrimination laws against these business-related groups.

The Scouts group is different, the court said, because it is a private, nonprofit organization that defines its mission as “helping to instill values in young people.”

Rehnquist’s opinion (Boy Scouts vs. Dale, 99-699), was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Dissenters Question Opinion on 2 Fronts

The four dissenters questioned whether the Scouts had a national policy of excluding gays before this litigation. They also doubted the wisdom of allowing the 1st Amendment to trump a state anti-discrimination law.

Justice John Paul Stevens said that unfounded prejudices against gays are being abandoned in this nation, but they are not gone yet.

The court should not intervene to create “a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers,” he said. He was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.