UMAction Briefing HomepageMark Tooley
Institute on Religion and Democracy


Mark Tooley;
Institute on Religion and Democracy
March 29, 1999

Last year, the United States Supreme Court declined to overturn the California Supreme Court’s defense of the Boy Scout ban on homosexual Scout leaders. Homosexual-rights activists vowed to try again. This year, the New Jersey Supreme Court is deliberating over another serious challenge to Scouting. And this time, some of America’s largest churches are siding with the Boy Scouts, who count 4.5 million American boys as members.

The case should concern all Americans who value First Amendment protections of free speech, religious liberty, and freedom of association. Should homosexual activists be allowed to judicially browbeat the Boy Scouts, and churches that sponsor them, into accepting their ideology?

"Scout leaders are supposed to be models for children in the program to copy," explained New York attorney George Davidson, who represented the Scouts before the New Jersey Supreme Court early this year. He defended the Scouts’ dismissal of Scout leader James Dale, whose defense of homosexual relationships in a Newark Star-Ledger article placed him at odds with Scout policy. An appellate court in New Jersey ruled last year that the Scouts must accept homosexual Scout leaders, but the Boy Scouts appealed to the state’s highest court.

This challenge to the Boy Scouts has aroused the attention of the nation’s largest sponsors of Scout troops. The National Catholic Committee on Scouting, the United Methodist Church’s men’s organization, the Church of Jesus Christ of Latter Day Saints and the Lutheran Church-Missouri Synod have all signed an amicus brief on behalf of the Boy Scouts’ case. Mormon churches are the largest sponsor of Scout units, while United Methodist churches are second only to public schools as a sponsor of individual Scouts. Roman Catholic Churches sponsor over 9,600 Boy Scout units and 355,000 Boy Scouts. The Catholic Church is the largest religious sponsor of Scouting in New Jersey.

Currently 65 percent of all Scout units in America are sponsored by churches, two thirds of them by the churches listed above. United Methodist leaders often lean to the left on social issues, while more conservative Roman Catholic, Mormon and Missouri Synod Lutheran leaders do not routinely adopt high profile positions on public issues regarding homosexuality. But they seem to have been provoked in this case by their historically close association with the Boy Scouts and by the threatening constitutional implications if "gay rights" laws are applied to private and religiously-affiliated organizations. These churches, along with most of America’s religious denominations, all have official policies that preclude the ordination of practicing homosexuals into their clergy ranks.

California’s Supreme Court recognized that the Boy Scouts are a "private association" not bound by homosexual rights legislation in that state. But the New Jersey appellate court ruled that Boy Scouts were a public accommodation similar to a hotel or a restaurant, and that James Dale’s removal as a Scout leader eight years ago violated his civil rights. Dale, who is now 28, has since become an employee of a magazine for people who are H.I.V. positive.

But he says he still would like the option of serving as a Scout leader. Dale’s lawyer and other defenders say his 11-year Scouting career was exemplary. Scout leaders raised no objection to Dale until, as a college student, he was quoted in the Star-Ledger as a leader in the Lesbian/Gay Alliance at Rutgers University.

At the January hearing, the New Jersey Supreme Court justices aimed hostile questions at the Boy Scouts’ attorney, George Davidson. They asked whether the Scouts’ had any clear "message on sexual orientation," whether any homosexual would fit within the Scouts’ definition of "morally straight," whether homosexual Scouts who are closeted would lose their positions, and whether a Scoutmaster could lose his position if co-habitating with a woman not his wife.

Davidson responded that "morally straight" included "sexual morality," that the Boy Scouts viewed homosexual conduct as "immoral," that the Scouts were concerned most about open homosexuals who might extol their conduct to Scouts, and that the Scouts had indeed removed Scoutmasters for heterosexual misconduct. The New Jersey Supreme Court will disclose its decision later this year. Similar cases against the Scouts are pending in Washington, DC and Chicago.

In their amicus brief, the four endorsing church groups recall that Scouting, from its inception, has been intertwined with religion and morality. "No man is much good unless he believes in God and obeys His laws," said Scouting founder Lord Robert Baden-Powell early this century. "So every Scout should have a religion."

According to the brief, the Constitution’s First Amendment guarantees that "social/religious movements and organizations like Scouting have an absolute right to advocate their ideals through messengers of their own choosing." Scouting’s close association with churches "raises additional concerns about the inevitable entanglement of the state with religion." Many Scout leaders are, in fact, selected by clergy of sponsoring churches.

Boy Scouts believe "the good of sexual intimacy [for men] is inextricably bound to being an honorable husband and loving father." But the amicus brief more strongly presses the point that the ultimate meaning and implementation of Scouting’s creeds is not for the government to decide: "It is a fundamental First Amendment law that government cannot dictate political and social orthodoxy."

Quite imperiously, the New Jersey appellate court evidently thought otherwise. In its ruling last year against the Scouts, that court suggested that Boy Scouts should honor the courage and honesty of a Scout leader’s "declaring his homosexuality publicly" rather than concern themselves with being "morally straight." Liberal magistrates and homosexual-rights activists are free to form their own private associations to promote their notions of the public good. The Constitution protects their rights, as well as the Boy Scouts’, to freedom of thought and speech, freedom of religion and freedom of association.

But enlisting the coercive powers of government to impose preferred ideologies and "lifestyles" on any private association, religious or otherwise, would establish a most dangerous precedent that should disturb Americans of all religions and political preferences. Hopefully the New Jersey Supreme Court will recognize this danger.

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