More on the Boy Scouts

[Jim Maule]

More in reply to Rick's query.

This article is the one that included observations about the oral
argument. Hope this is useful. Circulated for discussion purposes.

Boy Scouts in court fight to be exclusionary

The Scouts don't allow gays and atheists. The
Calif. Supreme Court will rule on the constitutionality.

By Maura Dolan
                           LOS ANGELES TIMES


    LOS ANGELES -- The California Supreme Court, hearing arguments in
two discrimination cases, appeared reluctant yesterday to force the
Boy Scouts of America to accept gays or atheists.

    The state high court must decide whether the Boy Scouts of
America, the largest youth organization in the United States, is
a business subject to a state antidiscrimination law, and if so,
whether it may bar gays and atheists on constitutional grounds of
freedom of association. Decisions are expected within 90 days.
Although some members appeared uncomfortable with the Boy Scouts' ban
on gays, Justice Joyce Kennard and Chief Justice Ronald George
expressed concerns that a ruling against the Scouts could have
unintended consequences for other groups.

      Kennard wondered whether, if the court ruled that the Boy
Scouts must admit gays, would an all-women's college then be forced
to admit men? Justice Stanley Mosk suggested that fraternities and
sororities also might be required to accept members they would
otherwise decline. And George repeatedly stressed that the Boy Scouts
are different from other sorts of clubs that the state high court has
found to be businesses subject to a state antidiscrimination law.
With the Scouts, "we're talking about attending meetings at members'
houses," George said.

    The justices expressed even stronger reservations about requiring
the Boy Scouts to admit boys who refuse to cite the organization's
oath to God. That was the subject of a second discrimination case
reviewed by the high court during arguments in Los Angeles yesterday. The case was brought by twin brothers
from Anaheim, who were ousted from the Cub Scouts after refusing to
recite the oath to God. The boys, now 16, have since been reinstated
by lower courts, and the Scouts have continued to appeal.

     Despite their concerns about forcing the Boy Scouts to accept
atheists and gays, some of the justices clearly seemed troubled yesterday by the organization's
defense of excluding gays.

    In the other case before the court, former Eagle Scout Timothy
Curran was denied a post as an assistant Scoutmaster for a Northern
California troop because of his sexual orientation. Under the
group's legal rationale, the Boy Scouts also could bar blacks,
Justice Kathryn Werdegar noted.

    Mosk asked a lawyer for the Scouts: "Wouldn't the Boy Scouts
benefit by being a diverse organization rather than a monolithic
organization?" Jon Davidson, an American Civil Liberties Union lawyer
representing Curran, told the court the Boy Scouts would not be
significantly affected if required to accept gays.

   The Boy Scouts contend that homosexuality is inconsistent with the
group's belief that Scouts must be "morally straight." A divided
Court of Appeal in Los Angeles sided with the Scouts and found the
organization was not a business.

Jim Maule
Professor of Law
Villanova University School of Law
Villanova, PA 19085
maule at law.vill.edu
http://www.cilp.org/~maule
(610) 519 - 7135