Boy Scouts lose gay exclusion case.

The Boy Scouts of America, effectively under court order to admit gay scouts to their ranks in New Jersey, will trek to the marbled halls of the U.S. Supreme Court to seek First Amendment shelter for its exclusionary membership policy.

In August, the New Jersey Supreme Court unanimously ruled the national scouting organization is a public entity that must comply with that state's Law Against Discrimination Act. Upholding a lower appellate court decision, the supreme court said the Boy Scouts' policy of excluding homosexuals violates members' civil rights. (Dale v. Boy Scouts of America, No. A195/196-97, 1999 WL 565900 (N.J. Aug. 4, 1999).)

"The sad truth is that excluded groups and individuals have been prevented from full participation in the social, economic, and political life of our country," Chief Justice Deborah Poritz wrote. "The human price of this bigotry has been enormous. At a most fundamental level, adherence to the principle of equality demands that our legal system protect the victims of invidious discrimination."

Concurring, Justice Alan Handler wrote, "One particular stereotype that we renounce today is that homosexuals are inherently immoral. That myth is repudiated by decades of social science data."

Evan Wolfson, senior attorney at Lambda Legal Defense and Education Fund who helped represent Dale, was elated by the decision.

"This was not just one judge ruling," Wolfson said. "This was a unanimous opinion written by the chief judge of one of the most respected state courts in the nation. It is a solid, mainstream decision. The New Jersey Supreme Court got it right."

He expressed confidence the Boy Scouts will fail in its attempt to win over a majority of the U.S. Supreme Court should it agree to hear the case. He said the state court carefully crafted its decision based on the framework set by the Supreme Court in a line of "public accommodation" civil rights cases in the 1980s.

Boy Scouts spokesman Greg Shields said the organization will petition the Court for review by a required November deadline.

James Dale joined a New Jersey Boy Scouts troop in 1978, when he was eight years old. He attained the prestigious status of Eagle Scout in his teens and became an assistant scoutmaster as an adult member in 1989.

The Boy Scouts leadership revoked Dale's membership more than a year later, after a local newspaper published a story and photograph identifying him as an officer of the Rutgers University Lesbian/Gay Alliance. The organization told him that the revocation decision was made based on his sexual orientation.

Dale sued and lost at the trial court level, then won on appeal to the New Jersey Appellate Division of Superior Court. The Boy Scouts challenged that decision, arguing the organization is exempt from the New Jersey law because it is "distinctly private" and is protected by the First Amendment's freedom of association guarantee.

On appeal, the supreme court rejected the organization's arguments, finding, first, that its partnerships with schools, government, and public service entities precluded it from claiming the "distinctly private" moniker. Second, the court found no infringement of the Boy Scouts' constitutional rights.

"We reject the notion that Dale's presence in the organization is symbolic of Boy Scouts' endorsement of homosexuality," Poritz wrote. "The reinstatement of Dale does not compel Boy Scouts to express any message. To recognize Boy Scouts' First Amendment claim would be tantamount to tolerating the expulsion of an individual solely because of his status as a homosexual--an act of discrimination unprotected by the First Amendment freedom of speech."

Wolfson said the New Jersey decision is significant "because it is one in a long line of cases vindicating the reach of civil rights law, and because it furthers the national discussion around the existence of and needs of gay youth. They should be given the same opportunities and services as all youth."