The Supreme Court will hear arguments this month in the case an Eagle Scout and former assistant scoutmaster who was kicked out of the Scouts organization when it learned he was gay, The New York Times reports.
The Boy Scouts of America argue that as a private, voluntary organization, it has the right to create and interpret its own moral code.
“A society in which each and every organization must be equally diverse is a society which has destroyed diversity,” the Boy Scouts says in its brief.
The Scouts say the logical conclusion of its opponents’ argument is that a Croatian cultural society could be forced to admit Serbs or a gay rights group might be forced to admit Christian fundamentalists.
The argument is based on the First Amendment right to freedom of association.
Eagle Scout James and his lawyers argue that Americans have always had the right to associate freely for a purpose, a cause or a belief.
Some organizations may have come together for the purpose of opposing homosexuality, but the Boy Scouts is not one of those organizations.
There are precedents for both positions.
The Supreme Court ruled in 1995 that the organizers of the Boston St. Patrick’s Day parade could not be forced to accept a gay pride group into the parade.
In the mid-80’s, however, the court forced all-male organizations, including the Jaycees and the Rotary Club, to admit women.
Given the precedents, the case may turn on whether the court sees coming out as simple self-description or as an inherently expressive act, the Times says.
The Boy Scouts argue that being openly gay conveys a built-in message of dissatisfaction with the organization’s values.
Dale says that being openly gay doesn’t imply any particular moral, religious or political beliefs on his part.
Dozens of organizations have filed briefs in the case, including medical and education professionals, bar groups and state and local officials. The religious right has supported the Boy Scouts, and organizations such as the American Bar Association have supported Dale.
Religions have split on the issue: Orthodox Jewish groups have supported the scouts, while Reform Jews have supported Dale.
The United Methodist Church has supported Dale, but a dissident Methodist group has come out in favor of the Boy Scouts.