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Supreme Court says Boy Scouts can bar gay troop leaders


June 28, 2000
Web posted at: 2:18 p.m. EDT (1818 GMT)

WASHINGTON (CNN) -- The Supreme Court ruled Wednesday that the Boy Scouts of America can bar homosexuals from being troop leaders.

The justices by a 5-4 vote overturned a New Jersey Supreme Court ruling that the dismissal of a gay Scout leader had been illegal under the state's anti-discrimination law.

The Boy Scouts, which also exclude atheists and agnostics as leaders, said it has the right to decide who can join its ranks.

Forcing it to accept gays would violate its constitutional right of freedom of association and free speech under the First Amendment, it said.

Boy Scouts of America and Monmouth Council, et al., Petitioners v. James Dale
Open To All Boys? The Boy Scouts And Gay Rights
Do you think the Boy Scouts should be allowed to ban gay members and troop leaders?

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Chief Justice William Rehnquist agreed. He said for the court majority that applying a state public accommodations law to require the Boy Scouts to admit a gay troop leader violates the group's constitutional right of expressive association.

He added, however, "We are not, as we must not be, guided by our views of whether the Boy Scouts' teaching with respect to homosexual conduct are right or wrong."

Rehnquist's opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The case was brought by James Dale, who wanted to become an adult leader of the local Boy Scouts after distinguishing himself as a member. He was admitted to Order of the Arrow honor camping society and earned the Eagle Scout badge, Scouting's highest honor and one that only 3 percent of Scouts receive.

When he was fired as assistant Scout master of the Matawan, New Jersey, troop in 1990, Dale was 20.

Now 29, he sued the Boy Scouts in 1992 after the Boy Scouts of America rejected his application for the adult leadership position and subsequently fired him. The Boy Scouts told him in writing that homosexuality was contrary to the organization's values.

The Scout oath requires members to be "morally straight." The organization "takes the position that homosexual conduct is inconsistent with the Scout oath ... and contrary to the Scout Law to be 'clean' in word and deed," according to Thomas E. Baker, a constitutional scholar at the Drake University Law School in Des Moines, Iowa, who wrote an impartial analysis of the case for the American Bar Association.

The Boy Scouts found out that Dale was gay after a newspaper article revealed that fact. Dale, as co-president of Rutgers University's Lesbian/Gay Alliance, gave a speech in July 1990, which was the subject of the article, and later that month, he received a dismissal letter from the Boy Scouts.

Dale sued under New Jersey's anti-discrimination act, which bars discrimination based on race, national origin or sexual orientation, among others, in places of "public accommodation."

Last year, the New Jersey Supreme Court held that the Boy Scouts illegally terminated Dale in violation of the "public accommodation" provision and ordered the organization to reinstate him.

The court ruled that the Boy Scouts, whose membership is vast and varied, is not essentially a private club that can exclude members based on this criterion or that.

The court ruled that the anti-discrimination law applies because "Scouting was not sufficiently personal or private," according to Baker's analysis.

In other words, the New Jersey high court rejected the Boy Scouts' arguments that it was a private group and therefore the anti-discrimination law does not apply in the case.

Boy Scouts' arguments based on First Amendment

The Boy Scouts appealed to the U.S. Supreme Court, which accepted the case on January 14 of this year and heard oral arguments on April 26, the last day for arguments this term.

james dale
The Supreme Court has ruled that James Dale can be barred from serving as a Boy Scout leader because he is gay  

The Boy Scouts argued that its First Amendment free speech and freedom of association rights were violated by the New Jersey high court.

The Boy Scouts insisted that it is up to them, not to any court, to decide who will be an adult Scout leader and who will not and who is an appropriate role model for younger Scouts and who is not.

The Boy Scouts have been sued many times before in state courts, but the organization has consistently won judgments that say it does not fall under state public accommodations laws.

State courts in California, Connecticut, Oregon and Kansas have ruled in the Boy Scouts' favor in similar public-accommodation cases brought by girls, atheists, homosexuals and the like. The U.S. Court of Appeals for the Seventh Circuit has also ruled similarly, according to Baker.

Oral arguments before the U.S. Supreme Court

During oral arguments, George A. Davidson, an attorney for the Boy Scouts, argued that the Scouts were right in firing Dale because he "had created a reputation for himself" by publicizing his sexual preference and that his being gay hampered his ability to be a role model for Scouts.

Evan Wolfson, Dale's lawyer, argued that because the Boy Scouts are not specifically an "anti-gay organization," Dale's presence did not taint the group's message. He added that Dale did not seek to use his position as a Scout leader to advocate homosexuality.

"For 12 years they said, 'You're perfect, just what we want, get involved, it's family,'" Dale said before the case was argued. "Then they found one small thing about who you are and kicked me out."

CNN Senior National Correspondent Charles Bierbauer and Reuters contributed to this report.

Supreme Court hears arguments over ouster of gay leader from Boy Scouts
April 25, 2000

Lambda Legal
  • Lambda Legal : U.S. Supreme Court Overturns New Jersey Rejection of Gay Boy Scout Ban

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