Torn between two rulings: opposing Boy Scouts decisions put New Jersey and California in a legal tug-of-war.

Opposing Boy Scouts decisions put New Jersey and California in a legal tug-of-war

Can gays belong to the Boy Scouts? It all depends on where they live. In two opposing rulings in March, courts in New Jersey and California split in their conclusion about the Scouts' rights to keep their ranks purely heterosexual.

"They're two different rulings on two different laws," says Evan Wolfson, an attorney at Lambda Legal Defense and Education Fund who represented James Dale in his challenge to the Scouts in New Jersey. "One court gave a narrow interpretation of the law in one state, and another interpreted its state law differently."

Dale was an Eagle Scout and assistant scoutmaster in New Jersey when he was drummed out of the Scouts in 1990 after the group discovered he was active in the gay student group at Rutgers University. Dale, who had earned 30 merit badges, was ousted at a time when the Scouts were desperate for troop leaders; the troop in which he served was eventually disbanded.

In a lower court ruling, superior court judge Patrick McGann cited biblical condemnations for justifying the Scouts' policy and blasted Dale for "moral depravity." But the state appellate court ruled 2-1 that the Scouts fell well within the jurisdiction of the state's nondiscrimination law. Rejecting the organization's argument that it was a private group exercising its free speech rights, the majority ruled that the group was a "public accommodation." The Scouts have appealed to the state supreme court.

"To be a public accommodation doesn't mean you're public," Wolfson says. "A restaurant is a public accommodation. The word public really has more to do with holding yourself out to the public." Wolfson characterized the ruling as "an incredible victory" for gay rights. "Not only did the court rule for us but they did so in a very strong and powerful way and went out of their way to reject the stereo-types and insinuations that the Boy Scouts tried to play on."

By contrast, the seven members of the California supreme court focused on the narrow legal issue of whether the Scouts met the definition of groups covered under the state's civil rights law. California law applies only to "business establishments." Two weeks after the New Jersey court issued its decision, the California justices ruled that the Scouts were not a business and therefore dismissed the case brought by Tim Curran, a former Eagle Scout in Northern California who sued after the Scouts barred him for being gay.

"The court had previously said that that statute was to be interpreted very broadly," says Jon Davidson, an attorney at Lambda's West Coast office who represented Curran. "They had come up with a number of different ways that something could be considered a business establishment. I had always thought that was the easiest of the issues in the case and said so in the oral arguments. One of the justices pounced on me right away, and I thought, Oy."

The ruling seemingly contradicts past cases in California, including one involving a Boys Club chapter in Santa Cruz, which classified similar organizations as businesses. Indeed, while the Boy Scouts decision was unanimous, the reasoning behind it was not. Five of the seven justices wrote opinions explaining their votes and the apparent contradictions in the law. In the words of one justice, "The law is a mess."

The ruling ends Curran's case. Because the court's decision was based solely on state law, he cannot appeal it to federal courts. Nor can he bring a new case in federal court since sexual orientation, unlike race or religion, is not protected under federal statute. Thus, while the ruling effectively allows the Scouts to keep out virtually anyone they choose, people excluded for reason's other than sexual orientation would have recourse in federal court.

Conservatives in California had signaled that they would go on the offensive against the justices should they rule against the Scouts. "I'm sure the judges were aware of that," Davidson says, "but I don't want to believe that influenced their decision."

While a setback for gay activists, legal experts say, the California ruling may not have much effect outside the state's borders. "Because the California law is very idiosyncratic, I don't think the decision should be seen as a strong persuasive precedent in other courts," says Arthur Leonard, a professor at New York Law School. By contrast, he says, "the New Jersey ruling is interpreting a very standard public-accommodation law in terms of its wording and is likely to be very influential if it survives its reviews."

Davidson says that the larger issue is the effect of the Scouts' antigay policy on its own members. "Millions of boys are involved in the organization, and a significant percentage of them are going to discover at some point they are gay," he says. "To have the country's most powerful youth organization telling those boys they are unacceptable is a very damaging and frightening thing. And for the boys who discover they are heterosexual, the Boy Scouts are teaching them it's OK to discriminate. You have this incredibly important force in American society perpetuating prejudice and hostility toward gay people."

RELATED ARTICLE: CASE EXCERPT

New Jersey

The New Jersey court found the Scouts were wrong to oust James Dale because of his sexual orientation.

"There is absolutely no evidence before us, empirical or otherwise, supporting a conclusion that a gay scoutmaster, solely because he is a homosexual, does not possess the strength of character necessary to properly care for, or to impart BSA humanitarian ideals to, the young boys in his charge. Nothing before us even suggest that a male, simply because he is gay, will somehow undermine BSA's fundamental beliefs and teachings. Plaintiff's exemplary journey through the BSA ranks is testament enough that these stereotypical notions about homosexuals must be rejected."

RELATED ARTICLE: Boy Scouts cases nationwide

Highlights of other cases against the Boy Scouts' antigay policies

February 1996: The Commission on Human Relations in Chicago rules that the Boy Scouts violated the rights of Keith Richardson, a former Eagle Scout, when it rejected him for a job at the Scout's council because he is gay.

May 1997: A California appellate court rules that the Boy Scouts were within their rights in firing Chuck Merino, an openly gay police officer in El Cajon, as a troop leader in 1992.

January 1998: Bellport, N.Y., rescinds its offer to sponsor a Scout troop a gay resident objects to the plan. Mayor frank Trotta says, "I just felt that while Scouting is a wonderful thing, we as a board, myself as mayor, cannot be put in the position of knowingly discriminating."

January 1998: The D.C. Commission on Human Rights holds hearings in the cases of Roland Pool and Michael Geller, two gay men who were told to sever their ties with the Scouts in 1992. The former scouts allege that the action violates the city's nondiscrimination ordinance.

February 1998: Chicago agrees to end its sponsorship of Scout troops as part of a settlement in a federal lawsuit brought by Kevin Poloncarz, a gay man who wanted to volunteer in the group's mentoring program.

March 1998: The Oregon school superintendent office rules that the Portland Public Schools did not violate state law prohibiting Scouts to recruit there. (The Scouts also prohibit agnostics and atheists in their ranks.)

RELATED ARTICLE: CASE EXCERPT

California

The California court found state law allows the Scouts to discriminate.

"We emphasize at the outset that the resolution of this matter does not turn on our personal views of the wisdom or morality of the actions or policies that are challenged in this case. Instead, this case presents two legal issues: First, does defendant, in acting to admit or exclude members, come within the definition of those entities--i.e., "all business establishments of every kind whatsoever"--covered by California's public accommodation statute? Second, if defendant's membership decisions are subject to the Unruh Civil Rights Act, would enforcement of the statute, so as to prohibit defendant from rejecting plaintiff's application for the position of assistant scoutmaster, violate defendant's (or its members') right of association under the First and Fourteenth Amendments of the federal Constitution?

"[W]e conclude that, with regard to its membership policies and decisions, defendant does not fall within the category of "business establishments" .... Because our conclusion on this statutory issue is sufficient to resolve the matter, we have no occasion to address defendant's further claim that enforcement of the Act to require it to accept plaintiff's application would violate its constitutional right of association under the First and Fourteenth Amendments."