The Gay Nineties

James Dale appeared to be the ideal Boy Scout. He achieved the Scouts' highest rank, Eagle Scout, and then became an assistant scoutmaster for Troop 73 in Matawan, New Jersey. But then Dale told a newspaper that he was a homosexual. Since its founding the Boy Scouts of America (B.S.A.) has believed that homosexuality is inconsistent with its requirement that members and leaders remain "morally straight." So when scouting officials read the article, they dismissed Dale from his leadership position. Dale sued and a New Jersey appeals court recently ordered the Boy Scouts to reinstate him as a troop leader. In the "gay nineties," it's becoming increasingly common for courts to side with homosexual plaintiffs. But in this case, the reasoning the court employed has profound implications that go far beyond the Boy Scouts or homosexual rights. Dale sued the Scouts under New Jersey’s anti-discrimination law. To win, he had to convince the courts that the Boy Scouts is not a private organization, but a public one, in part because its chapters meet in places of public accommodation. The Scouts won the first round. Superior Court Judge Patrick McGann ruled that the Scouts had a right to keep Dale out. But an appellate court then sided with Dale. It wrote that it had "no doubt" as to the public nature of scouting because the Scouts emphasize "open membership in order to maintain its visibility and to reach every aspect of society." What about the First Amendment’s guarantee of freedom of association? The court simply brushed this argument aside. It noted that the Boy Scouts have "five million members" and is "open to all boys." The Court also cited the fact that the Scouts engage in "aggressive advertising" and undertake "a variety of special interest activities in schools and other public forums." These facts, the court ruled, mean that the B.S.A. lacks "the distinctive qualities" that would give rise to a freedom of association claim under the First Amendment. Besides, the court said, because the Boy Scout troops meet in public places, they cannot be characterized as "distinctly private." In other words, the B.S.A. is public and not private because it’s big, it recruits members, tries to reach every area of society, maintains a high public profile, and meets in public places. The ruling is disturbing, because it’s hard to imagine how its application can be limited to the Boy Scouts. The court’s criteria describe the Church and every other high-profile private group that seeks to make a difference in the world. Think about it. Many churches are large, they meet in public places, they often advertise, and they try to reach every aspect of society. Why shouldn’t they be covered under New Jersey’s anti-discrimination law and similar state laws? And what is going to prevent judges from dictating to churches whom they should hire as pastors and youth leaders? Remember, some states already prohibit churches from excluding homosexuals or atheists from secretarial positions. Christians need to help their neighbors understand why this ruling is so dangerous. We have a tremendous stake in maintaining a clear distinction between the public and the private. If that distinction is not maintained, the courts of this country may soon require that gays like James Dale be given, not just a position in the Boy Scouts, but a place in our pulpits as well.  

03/4/98