High Court sides with anti-gay bigots: Boy Scout ruling shows need for further struggle

By Gery Armsby, Workers World, 5 July 2000

The U.S. Supreme Court issued a ruling June 28 that gives the green light for an all-out ban on gay troop leaders by the Boy Scouts of America. The 5-4 decision overturned a unanimous 1999 New Jersey Supreme Court judgment that had prohibited the BSA‘s discriminatory policies.

The case involved James Dale, a gay student activist and long-time scout member and leader, who the BSA ousted in 1990 after scouting officials learned about his campus activism. In 1992, after New Jersey had amended public accommodation laws to prohibit discrimination on the basis of sexual orientation, Dale filed a lawsuit against the BSA.

The New Jersey Superior Court dismissed Dale‘s original lawsuit, saying that the BSA is not a public organization. Dale sought an appeal.

While the case was tied up in the New Jersey Appellate Division for over five years, similar cases in California, Maryland, Connecticut and elsewhere highlighted the BSA‘s discrimination against gays. During this period, more and more lesbian, gay, bi and trans people and other supporters rallied around Dale‘s case.

Under popular pressure, the Appellate Division ruled that, due to its congressional charter and its almost unfettered access to most public facilities, the BSA did fall under the definition of a public accommodation and was subject to New Jersey non-discrimination laws. Then in 1999 the New Jersey Supreme Court unanimously affirmed the Appellate Division‘s judgment, rejecting the First Amendment claims of the BSA.

The 1999 New Jersey decision was enormously significant for lesbian, gay, bi and trans people, showing that a genuine movement for equality could exert the necessary political pressure on the system to defeat discrimination, even when the anti-gay Boy Scouts were hiding behind the First Amendment and their American-as-apple-pie image.

But the BSA appealed the 1999 decision to the U.S. Supreme Court on the basis of its claim as a private club with First Amendment rights to free expression and association. A narrow majority of high court justices this time agreed with the BSA‘s claim.

In briefs submitted to the court, the BSA went out of its way to demonstrate the organization‘s anti-gay values. In order to justify the exclusion of gay leaders, vague references such as those in the Scout Law and Oath suggesting members should be morally straight and clean were not sufficient. The BSA explicitly documented its anti-gay policy, digging up obscure memos and transcripts of executive meetings held in the 1970s.

The Boy Scouts don‘t need to prove their anti-gay record on paper. It‘s already widely known. Many scout troops are backed by the Mormon and Roman Catholic churches, both of which have lent the BSA vocal support in the dispute over gay leaders.

Of the two bigots who brutally murdered Matthew Shepard in Wyoming in 1998, one was an Eagle Scout.

Thousands of gay scouts and former scouts have attested to being discriminated against within the organization. Several gay scouts are reported to have committed suicide. Clearly, Boy Scout bigotry is no secret.

The Supreme Court didn‘t have to side with anti-gay discrimination. It could have issued a popular judgment condemning the BSA for its track record of egregious backwardness.

Instead, the highest court in the U.S. delivered an opinion that said, The fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.

Where can someone like James Dale go for justice if the court has just declared that it will go out on a limb to support a reactionary minority‘s right to discriminate?

COURT DEFENDS `RIGHT‘ TO DISCRIMINATE

Though the Supreme Court found the BSA to be a private organization with First Amendment entitlements to discriminate, there still remain several questions.

If the BSA is a private organization that not only discriminates against gays but also bans young women from membership, what should be done about the organization‘s privileged use of and access to public lands, public schools, the military, etc.?

What about the more than 130,000 scouting troops that utilize government and municipal personnel as scout leaders and receive surplus goods and supplies from the military and other publicly-funded agencies at absolutely no cost whatsoever?

What about the BSA‘s Federal Congressional Charter of 1916, which stipulates that the BSA must adopt by-laws, rules, and regulations not inconsistent with the laws of the United States of America, or any State thereof?

What about BSA programs like Learning for Life, held around the country in public schools during school hours, that espouse scouting‘s religion-centered, discriminatory values, holding young women and girls as well as gay students as a captive audience?

Don‘t these things warrant another look at the BSA? As far as private clubs go, this one has a lot of public privilege.

In recent years, the BSA‘s policies have resulted in the loss of some support from the United Way and certain government sources. In Connecticut, the organization was taken off a list of causes that public employees could support through payroll deductions.

The anti-gay establishment has won this battle. But the fight to end discrimination against lesbians, gays, bisexuals and trans people will continue in legal arenas and in the daily struggles of gay youths and leaders within organizations like the BSA.

Most importantly, the fight continues in the streets, where popular support and solidarity with the struggle for lesbian, gay, bi and trans equality is ever growing.