U.S. Supreme Court Urged to Bar Anti-Gay Discrimination by Boy Scouts of America

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States, cities, dozens more organizations also file supporting briefs to U.S. Supreme Court
March 29, 2000

(NEW YORK, March 29, 2000) — Lambda Legal Defense and Education Fund filed its legal brief with the United States Supreme Court Wednesday, urging the justices to uphold the New Jersey Supreme Court’s unanimous ruling against the Boy Scouts of America’s all-out ban on gay members.

A prestigious array of amici, ranging from numerous states and cities, leading civil rights groups, and divinity and rabbinical school deans, to organizations such as the American Bar Association, American Psychological Association, the NAACP, and National Council of Jewish Women, also filed briefs in support of the New Jersey court ruling in the case, now called Boy Scouts of America v. James Dale.

“Boy Scouts of America has never been about teaching any kind of intolerance, including anti-gay bigotry,”said Lambda Senior Staff Attorney Evan Wolfson, who will argue the case before the Supreme Court on April 26.

Added Wolfson, “BSA is an important organization for youth. It is supported by, and identified with, government entities such as schools, police and fire departments, as well diverse religious groups. Above all, BSA holds itself out as open to all boys. And ‘all’ means ‘all,’ including gay kids.”

Last August, the New Jersey Supreme Court held BSA is a public accommodation and therefore subject to state protections against discrimination. Closely mirroring U.S. Supreme Court precedents, that ruling also made clear that enforcement of the law does not encroach on BSA’s first amendment rights since scouts do not come together to promote an anti-gay message. Now BSA urges the U.S. Supreme Court to find a first amendment conflict where one simply does not exist, Lambda said in its brief.

“In the past, other organizations like the Rotary Club and the Jaycees have tried to hide behind the First Amendment in order to exclude women and people of color. Time and time again, courts have rejected such attempts to assert a ‘right to discriminate’,” said Lambda Managing Attorney Ruth Harlow, co-author of Lambda’s brief.

In its brief, filed February 29, the BSA relied heavily on the Supreme Court’s decision in Hurley, the Boston parade case in which the Justices ruled that a state law against discrimination could not prevent parade organizers from excluding a gay and lesbian contingent from marching under its own banner.

Said Lambda Legal Director Beatrice Dohrn, “For parade organizers to say, ‘We don’t want to include your pro-gay message,’ is very different from the Boy Scouts saying, ‘We don’t allow gay people to participate.’ The Boy Scouts organization is not a parade. It cannot reject boys and adult volunteers who support the Scouting message but happen to be gay.”

The case began in 1990 after BSA ousted James Dale, an exemplary Eagle Scout, solely because he is gay. Then 20, Dale had been with the organization for 12 years, earning 30 scout badges and other honors. “Scouting was a central part of my life. I grew and learned so much as a member, I believe in the program, and I look forward to being able to give back to the organization I grew up in,” said Dale, now age 29.


“The diverse array of organizations supporting our case reflects its broad significance and the value placed on preserving both genuine first amendment freedoms and vital civil rights protections. Truly, a win for James Dale will be a victory for all,” said Lambda Executive Director Kevin Cathcart.

The friend-of-the-court arguments included warnings that a reversal of the New Jersey court threatens enforcement of the nation’s civil rights laws, which bar discrimination on the basis of gender, race, religion, and national origin as well as sexual orientation.

Among the amici filing briefs to support the New Jersey anti-discrimination law are an array of states, and cities, professional and religious-affiliated organizations.

Boy Scouts of America v. James Dale
Amici in Support of New Jersey Supreme Court

      New Jersey as well as California, Hawaii, Maryland, Massachusetts, New Hampshire, New York, Oklahoma, Oregon, Vermont, and Washington

    Youth and education organizations, including

      National 4-H Council, National Education Association, American Association of School Administrators, New York City Board of Education, Los Angeles Unified School District, San Diego Unified School District, San Francisco Unified School District, Laguna Beach Unified School District, Society of American Law Teachers, National Association for Multicultural Education, Matthew Shepard Foundation, Gay, Lesbian and Straight Education Network, Parents, Families and Friends of Lesbians and Gays, National Youth Advocacy Coalition

    Religious-affiliated groups and individuals

      General Board of Church and Society of the United Methodist Church, American Jewish Congress, Deans of a number of divinity schools and rabbinical institutions, Diocesan Council of the Episcopal Diocese of Newark, Religious Action Center of Reform Judaism, United Church Board for Homeland Ministries, and Unitarian Universalist Association


      Atlanta, Chicago, Los Angeles, New York City, Portland, Tucson, and San Francisco

    Professional organizations

      American Bar Association, American Counseling Association, American Federation of Teachers, American Public Health Association, American Psychological Association, National Association of Social Workers, and American Orthopsychiatric Association

    Leading civil rights organizations, including

      American Civil Liberties Union, Anti-Defamation League, Mexican American Legal Defense and Education Fund, NAACP, NAACP Legal Defense and Educational Fund, National Asian Pacific American Legal Consortium, National Council of Jewish Women, NOW Legal Defense and Education Fund, California Women’s Law Center, Center for Women’s Policy Studies, Equal Rights Advocates, Human Rights Campaign, National Gay and Lesbian Task Force, National Partnership for Women & Families, National Women’s Law Center, Northwest Women’s Law Center, and People for the American Way Foundation, Women Employed, Women’s Law Project

Dale is also represented by the New York firm Cleary, Gottlieb, Steen & Hamilton, and local counsel Lewis Robertson. Lambda is the nation’s largest legal organization for lesbians, gay men and people with HIV/AIDS. Headquartered in New York, Lambda has offices in Los Angeles, Chicago and Atlanta.

(Boy Scouts of America v. James Dale, No. 99-699) –30–

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