New Jersey's Highest Court Soon Will Rule on Boy Scouts' Anti-Gay Ban

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Lambda represents outstanding Eagle Scout thrown out for being gay
June 21, 1999

(NEW YORK, June 21, 1999) -- While marking the 30th anniversary of the Stonewall riots, Lambda Legal Defense and Education Fund also awaits what could be another history-making event -- an upcoming ruling in its case challenging the anti-gay policy of the Boy Scouts of America on behalf of James Dale, the exemplary Eagle Scout thrown out of scouting solely because he is gay.

The New Jersey Supreme Court could issue its decision in Dale v. Boy Scouts of America at any time.

Already, a state appeals court has struck down Boy Scouts of America's (BSA) discriminatory policy against gay people; now, a much-anticipated ruling from the state's highest court could finally result in Dale's reinstatement, as well as end the notorious anti-gay ban, hopefully even beyond New Jersey.

"This case is about keeping the Boy Scouts of America true to itself -- for all boys, gay or non-gay," says Evan Wolfson, senior staff attorney at Lambda Legal Defense and Education Fund. Lambda represents Dale, now 28, who was thrown out of his New Jersey troop for being gay.

Notes Wolfson, "The decision in this case either will carve a hole in the state anti-discrimination law, or return the Boy Scouts to what its members consider its true mission of teaching young boys the virtues of honesty, community service, and respect for others."

Background on the Legal Issues
Lambda is urging the New Jersey Supreme Court to reject the BSA's appeal of a March 1998 ruling in which an appeals court said that the BSA violated the Law Against Discrimination (LAD), the state civil rights law banning discrimination on several bases, including sexual orientation.

The appellate court found that:

  • the BSA is a "public accommodation" subject to the LAD;
  • Dale's expulsion violated the LAD; and
  • the LAD's protections against discrimination do not infringe upon the First Amendment.

    The 1998 decision -- a ringing affirmation of gay youth and adults in scouting -- was the first test of the LAD's protections for lesbians and gay men in New Jersey and also was the first in the country to strike down the BSA's anti-gay ban.

    The appellate court wrote:

    "There is absolutely no evidence before us...supporting a conclusion that a gay scoutmaster, solely because he is 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 .... [Dale's] exceptional journey through the BSA ranks is testament enough that...stereotypical notions about homosexuals must be rejected."

    "The Boy Scouts' members are not unified by their common fear or hatred of gay people," says Lambda Staff Attorney David S. Buckel, who also worked on the case. He adds, "The Boy Scouts of America is not a hate group like the Ku Klux Klan; civil rights laws do not interfere with the Scouts' message or program."

    In appealing the ruling, the BSA put forward a two-pronged defense. First, it claimed that the New Jersey anti-discrimination law could not apply to the group because it insists the BSA is not included in the law's definition of a public accommodation.

    Second, the BSA argued that, even if it were covered by the LAD, it should have a license to discriminate under the First Amendment because its core expressive purposes allegedly conflict with the anti-discrimination law in other words, the BSA claims that one of its key purposes is to exclude gay people.

    Noting that 20% of the Boy Scout troops in the state are sponsored by public schools while other troops are sponsored by religious groups with differing views on gay people, the appeals court concluded that the BSA's first amendment rights would not be injured by the New Jersey civil rights statute because promoting anti-gay discrimination and prejudice is clearly not the group's core mission.

    Background on James Dale
    "Throughout my 12 years of scouting, never was the Boy Scouts about discrimination. Instead, it was and continues to be about being true to yourself and giving to others," says Dale.

    The former Eagle Scout adds, "Being 'morally clean' and 'straight' has nothing to do with sexual orientation. It means all Scouts must strive to be leaders in their communities, be respectful of others, and most of all, be honest at all times. It is no accident that the Boy Scout manual never says anything against being gay."

    Notably, the BSA Handbook states:

    "To be a person of strong character, guide your life with honesty, purity and justice. Respect and defend the rights of all people. Your relationships with others should be honest and open. Be clean in your speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help you become virtuous and self-reliant." [emphasis added]

    Originally from Middletown, New Jersey, Dale joined the Cub Scouts in 1978 when he was eight years old. He became a Boy Scout in 1981, earned his Eagle Scout badge in 1988, served as an assistant scoutmaster, and was a member of the prestigious Order of the Arrow. His mother, father, and brother also were involved in the organization.

    Dale, who actually was a "poster scout" for the BSA, was kicked out by national BSA officials in July 1990 while attending Rutgers University, after a newspaper reported that Dale had spoken at a conference for high school teachers, guidance counselors and administrators about the needs of lesbian and gay teenagers.

    Lambda Executive Director Kevin M. Cathcart says, "Thirty years after resistance to anti-gay abuse opened the door to the modern gay civil rights movement, at a time when our country is grappling with difficult questions about youth and violence, the Boy Scouts would do a great service to all young people if it embraced its members' values of inclusion and respect for all Americans."

    Lambda first filed the case in 1993. Dale is also represented by the New York firm Cleary, Gottlieb, Steen & Hamilton, and local counsel Lewis Robertson. A number of professional associations, religious groups, and gay organizations supported Dale by filing friend-of-the-court briefs.

    (James Dale v. Boy Scouts of America, No. 45761)


    Contact: Peg Byron 212-809-8585 x 230, 888-987-1984 (pager); Evan Wolfson 212-809-8585 x 205

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