James Dale became a Cub Scout at age 6 and graduated to Boy Scouts four years later. He went on to earn 30 merit badges and achieve Scouting's highest honors: Eagle Scout and the Order of the Arrow.
As a young man, Dale wanted to continue as a Scout leader. But the Boy Scouts council in Monmouth, N.J., summarily expelled him in 1990 when it learned from a newspaper story that Dale is gay.
Today, Dale is locked in a high-profile legal dispute with the Boy Scouts of America (BSA) that pits anti-discrimination principles against freedom of speech and association. The U.S. Supreme Court will hear arguments on April 26 in the Boy Scouts' effort to overturn a New Jersey Supreme Court ruling that Dale's expulsion violated the state's law against discrimination on the basis of sexual orientation in “public accommodations.”
Dale's attorneys say the case, Boy Scouts of America v. Dale, is important not only for Dale but also for gay youths generally. “Gay youths need the same opportunity for socialization and fun and community service as their non-gay brothers and sisters do,” says Evan Wolfson, senior attorney with the Lambda Legal Defense and Education Fund.
But BSA national spokesman Greg Shields says homosexuality is inconsistent with Scouting. “The Boy Scouts of America have long taught traditional family values based on the Scout oath and law,” Shields says. “The Boy Scouts of America believe that an acknowledged homosexual would not be a role model for those values.”
Former Eagle Scout James Dale (Lambda Legal Defense and Education Fund/Bob Pileggi)
Dale, now 29, came out as a homosexual while attending Rutgers University in Newark, N.J. While co-president of the gay and lesbian student organization, he attended a seminar in July 1990 on psychological and health needs of homosexual teenagers. The local newspaper ran a story on the seminar along with Dale's picture and a caption identifying his role in the gay organization.
Days later, the Monmouth Boy Scouts council sent Dale a letter that revoked his membership. When Dale asked for a reason, BSA officials responded by saying the organization “specifically forbids membership to homosexuals.” Two years later, Dale sued the Scouts under New Jersey's Law Against Discrimination.
The Boy Scouts have won five similar cases after courts decided that states' civil rights laws did not apply to private, membership organizations. A lower court in New Jersey reached the same conclusion in Dale's case. But in August the New Jersey Supreme Court unanimously ruled that the BSA is a “public accommodation” for purposes of the state's civil rights law and that forcing the organization to accept homosexuals as leaders would not violate its First Amendment right of freedom of speech or association.
In two rulings in the 1980s, the U.S. Supreme Court did uphold the enforcement of state civil rights laws to require private organizations -- the Jaycees and Rotary clubs -- to admit women.
In his legal arguments, Wolfson relies heavily on those two decisions, stresses the Boy Scouts' broad membership policy and purposes and discounts O'Connor's passing reference to the Scouts. The Boy Scouts counters in its brief with a more recent Supreme Court decision that upheld the right of the organizers of Boston's St. Patrick's Day parade to exclude a gay group.
The opposing briefs differ not only about legal precedent but even about the factual context of the Scouts' policy on homosexuality. In its brief, BSA contends that homosexual conduct is “not 'morally straight' under the Scout Oath, or 'clean' under the Scout Law.” But Wolfson says there is “literally nothing” about homosexuality in the Scout Handbook's explanation of “morally straight.”
Boy Scout officials and lawyers voice confidence that the Supreme Court will back their position. “We're confident that the court will find in our favor, and that we'll be done with these 20 years of litigation,” Shields says.
Wolfson hedges on making a prediction, but other gay-rights advocates concede they are worried. “Most of us are feeling not so certain, to say the least, that the Supreme Court is going to uphold the New Jersey Supreme Court's ruling,” says Paula Ettelbrick, director of the Family Law Project of the National Gay and Lesbian Task Force.