The Boy Scouts and Its Policy of Excluding Gays: The Story Behind the Dale Case
by Douglas O. Linder (2018)
James Dale loved the Scouts. He tried sports, but wasn’t much of an athlete. But he sure excelled as a Scout. He earned 30 merit badges. By age 17, he was an Eagle Scout. He even was awarded the Boy’s Scouts “Vigil Honor,” given to only to those members of the Boy Scout’s national honor society that show “exceptional service” and “make distinguished contributions to Scouting.”
Dale said he was drawn to Scouting because it gave him “positive reinforcement, direction” and a sense of belonging. Dale said, “My fellow Scouts didn’t judge me because I couldn’t hit a home run. We were taught to appreciate each other’s strengths.” Scouting was so much a part of Dale’s life that when he turned 18, he asked to continue working with the Scouts as an assistant Scoutmaster.
Dale found a home in the Boy Scouts, but he faced an internal struggle in high school. He was coming to the realization that he was gay. But he pretended to be straight, hiding his homosexuality. Dale attended a military high school in suburban New Jersey. Like all his classmates, Dale was a member of the Naval Junior Reserve Officer Training Corps—this at a time in which gays were completely excluded from the military. He was the product of a conservative upbringing. His father was a military man.
In his sophomore year at Rutgers University, Dale came out as a gay man. But few in his hometown of Port Monmouth knew this.
In July of 1990, Rutgers held a week-long conference on the subject of how communities could better help teenagers confront the pressure and challenges of being gay. Dale was invited to speak on the difficulties of living a double life in high school—dating girls to gain acceptance, laughing at homophobic jokes.
A reporter and photographer for the Newark Star Ledger attended the conference. The Newark Star Ledger had the largest subscriber base of any paper in New Jersey. After Dale spoke, the reporter asked if she could quote him in her story. Dale, age 19 at the time, requested that his name not be used. But the reporter pushed back, noting that he had spoken at a public event about teenage homosexuality. And so Dale relented.
The story ran on page 11 of the Health and Fitness section of the Sunday paper. It ran under the headline, “Seminar Addresses Needs of Homosexual Teens.” Most of the story covered the remarks of the main speaker. It cited troubling statistics about suicide, homelessness, and the spread of AIDs among gay teens. But the story also included 3 sentences about Dale. And it included a picture of Dale talking with two other speakers.
The Boy Scouts of America had a national policy since at least 1978 of excluding gays. They also, by the way, excluded atheists. (And, of course at the time, they excluded girls.) Some people referred to this as “the 3 Gs” membership policy: no girls, godless, or gays. The exclusion of atheists seemed to make a certain amount of sense—at least it was consistent with the Scout Oath which begins with a pledge to “to do my duty to God.” And along with being brave, clean, and everything else—Scouts promise to be “reverent.”
But there isn’t a word to be found in the universe of Boy Scout literature about gays. The Scout Oath does say Boys Scouts should be “morally straight.” And the Scout Law says Scouts should be “clean” in thought. But when the Scouts first began booting out gays in 1978, no attempt was made to link the exclusion to those phrases. And there is nothing to suggest homosexuality was on the mind of the authors of either the Oath or the Scout Law. Instead, Scout officials simply declared that Scouting “was a privilege, not a right” and the Scouts had a right to establish their own membership standards. Discrimination of gays was said to have been “a longstanding policy.” The policy had the backing of key supporters and sponsors of the Scouts, including the Catholic Church and the Church of Latter Day Saints. A high-ranking official in the LDS said Mormons would—quote—“withdraw from the Boy Scouts” if the BSA ever let gays join their ranks.
Richard Ellis tells what happened next in his fine book about the Dale case, Judging the Boy Scouts of America. The story in the Star Ledger newspaper quoting James Dale was noticed by a number of people in and around Port Monmouth. And many of these readers took it upon themselves to report their discovery to James Kay, head of the Monmouth Council of the BSA, which oversaw 27 Boy Scout troops and about 8,000 boys.
Kay decided to call headquarters. He reported the news about Dale to the national office in Irving, Texas, outside Dallas. The office told Kay that Dale had to go—the policy was clear and contained no exceptions. They sent him a form letter to send Dale that would declare his expulsion.
Eleven days after the story about him ran in the paper, Dale got the letter. It told him Scouting was a privilege and that he had failed to meet “the high standards which the BSA seeks to provide for American youth.”
Dale was stunned and he was devastated. Scouting had been a big part of his life since he joined Cub Scout Pack 242 when he was just 8 years of age. Dale would say later, “I felt very, very betrayed.” Dale said, “I took all my Scouting stuff, my merit badges, my uniform, knapsack, every bit of paraphernalia and put it in a box, and put the box in the attic.”
But what could he do about it? The letter said he could appeal to the Regional Director of the Boy Scouts within 60 days. But that seemed like a lost cause. And he was just a college student with few resources and could scarcely afford the cost of a legal fight. Moreover, it was a volunteer job he was out of—and it was really the Boy Scouts who were the losers here, depriving themselves of the services of an exemplary Scout.
Dale never had thought of himself as an activist of any kind. Protesting and filing lawsuits was not in his nature. But the policy as just so….wrong. He decided to talk to a lawyer.
The lawyer told him that he should first make his internal appeal to the Boy Scouts Regional Director. Any judge was likely to insist that he do that. And so he did. He wrote to director of the northeast region and requested an opportunity to attend a review hearing on his expulsion. But he never got the chance. He simply got a short letter back a few months later declaring that his termination from the Scouts had been affirmed.
Dale had learned from friends of a public interest law firm in New York City that took on gay rights cases. It was called the Lambda Legal Defense and Education Fund. Established in 1973, Lambda had been busy fighting AIDs discrimination cases. They liked to take on cases that they thought they could win and which might establish good precedent. Dale decided to drive into the City and have a talk.
Attorneys at Lambda were not optimistic about their chances of winning. A recent Supreme Court precedent had held that laws criminalizing homosexual conduct did not violate the Constitution. Although the vote was 5 to 4, the Court had become—if anything—even more conservative since the decision. It was hard to see where a fifth vote for Dale might come from.
But there are other reasons to bring a lawsuit. Dale was, by all accounts, an earnest and upstanding young man. His background and behavior was conservative. In many ways, he would challenge the popular stereotype of the time as gay men as flamboyant, risk-taking hedonists.
Many people might see Dale’s exclusion from the Boy Scouts as unjust. He did everything anyone could ever ask for. He was a model scout. Bringing Dale’s case, in other words, might have PR benefits, even if the case were ultimately lost. Lambda took Dale’s case.
Dale’s case got a boost a couple of months later when New Jersey became the fifth state in the country to ban discrimination in public accommodations on the basis of sexual orientation. If Dale’s attorneys could convince a state court that the BSA was “a place of public accommodation” within the meaning of the law, then Dale’s exclusion would seem to be illegal. Public accommodations are generally agreed to include hotels, restaurants, theaters, stores, and the like. It was a bit of stretch to interpret the law to cover a private association like the Boy Scouts.
James Dale filed his complaint against the Boy Scouts in July 1992. Almost immediately, it became a national news story. A photo of Dale appeared in the New York Times under the headline, “From Eagle Scout to Person Non Grata.”
By this time, Dale had graduated from Rutgers. He was one of only 18 students, in a class of over 2000, to be inducted into the Cap and Skull Society for his outstanding leadership and academic achievement.
But the Boy Scouts dug in against Dale and others who were filing similar suits around the country. The Boy Scouts had, the year before, issued a policy statement called “Homosexuality and the BSA.” The statement said: “We believe that Homosexual conduct is inconsistent with the requirements in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts.” The statement ended with the declaration, “As a private member organization, we believe our right to determine the qualifications of our members is protected by the Constitution of the United States.”
Whenever the question arose, BSA spokesmen were quick to say “homosexuality is inconsistent with the traditional family values that Scouting teaches.” But, in fact, Scouting never really had been about teaching family values, traditional or otherwise. Scouting had always prided itself in its inclusiveness. The first Scout patches proclaimed, “Scouting for all boys.”
Scout meeting and activities—and I speak here as a former Scout myself—centered around outdoor activities, learning Morse code, tying knots, and serving your community through charitable work. I’m quite sure now Scoutmaster I ever knew once used meeting as an opportunity to talk about sex or conservative politics.
Dale’s lawyers asked the court to award damages for the emotional pain and suffering he experienced after his termination from the Scouts. They also requested the court to order the BSA to reinstate Dale as an assistant Scoutmaster.
In their brief, they made several points. First, they pointed out that Dale had a spotless record in Scouting and had never advocated for gay rights or even revealed his sexual orientation. Second, they argued that the BSA was a place of public accommodation: it had a large and mostly unselective membership, it advertised for new members, it was primarily educational or recreational in nature. And it had a close relationship with government entities. To emphasize that last point, the brief noted that every president since William Howard Taft had served as the honorary president of the Scouts.
Dale’s attorneys regarded their steepest legal hurdle as showing that the Scouts did not have, under the First Amendment, a freedom of association right to exclude gays.
Here we should pause to consider what freedom of association means, at least according the Supreme Court. The words “freedom of association” appear nowhere in the First Amendment—or anywhere else in the Constitution for that matter. Yet the Court has held that the First Amendment impliedly protects the right of individuals to form groups for expressive activities.
And the Court is surely right about this. Without the ability of individuals to form political parties, it is hard to change the direction of the country. Without the ability of individuals to worship as a congregation, religious life would be the poorer.
And the right to associate carries with it the right to choose not to associate with individuals who don’t share your expressive purpose. Could the Republican National Committee perform as it might like to if it had to give equal opportunity for Democrats to serve on the committee? Or the DNC to Republicans? Many might think the Catholic Church should allow women to serve as priests, but should it be within the power of government to order it to do so? Should a group of Norwegians calling themselves the Sons of Knute open their doors to Swedes?
Even when we might belief a group to be pursuing a despicable mission, say a white supremacist organization, should government really have the ability to tell it that it cannot exclude members based on race? The power to dictate the membership choices of an expressive organization is the power to change the organization’s expression.
In the case of primarily commercial associations, most people would reach a different conclusion. A law firm, for example, cannot choose to hire only male associates. A restaurant cannot choose to serve only white customers. A private golf or athletic club, if state law so dictates, cannot exclude Jewish members.
At the time Dale brought his lawsuit, Supreme Court case law reflected these fundamental assumptions. The Court had considered in the 1980s three cases in which private associations denied membership to females. The Court examined, in these cases, whether the organization was significantly expressive? Did it take political positions or advocate certain public policies? If not, there was really no First Amendment freedom of association claim to worry about.
The case most relevant to Dale’s claim was a case called Roberts v US Jaycees. The US Jaycees had an all-male membership policy. In Roberts, the Court upheld a decision that required the US Jaycees to allow its Minneapolis and St. Paul chapters to admit women. The Court concluded that Minnesota had a compelling interest in eliminating discrimination against women, especially when the discrimination might allow the continuation of male-networking for jobs.
Dales’s trial judge was Patrick McGann. McGann was 64 and a conservative Catholic. Not exactly a great judge, from Dale’s standpoint. And his decision proved that to be true. When it was finally issued that is, 21 months after final arguments.
McGann’s decision reflected his own distaste for homosexuality. He quoted Genesis for the proposition that the “act of sodomy has always been considered a gravely serious moral wrong.” He called it “unthinkable” that the Boy Scouts would tolerate such conduct. He called Dale—quote—“an active sodomist.” Then he went on, as you might expect, to rule first that the BSA was not a place of public accommodation so that New Jersey’s anti-discrimination law didn’t apply. It was not “a place” and it was “not public.” And, second, that even if it did, applying the law to the Boy Scout’s would violate the BSA’s rights under the US Constitution.
McGann’s homophobic opinion helped build public sympathy for Dale. And the New Jersey Supreme Court, on appeal, would see the case very differently. All seven justices voted to reverse. Chief Justice Deborah Poritz wrote a 90-page opinion for the Court. She wrote that the Boy Scouts were in fact covered by the New Jersey anti-discrimination law. Moreover, she said, allowing gays to be Scouts would not significantly affect their ability to disseminate their message. The Scoutss First Amendment claim was rejected.
Dale appeared at a news conference in Manhattan after the decision. He said the decision taught him that you should believe in the system and goodness will ultimately prevail.
The attorney for the Scouts called it “a sad day when the state dictates to parents what role models they must provide for their children.” But, he said. at least the decision gave them the opportunity to go to the US Supreme Court “and put an end to these lawsuits.”
They broke out the champagne—or whatever Boy Scouts break out—when the Supreme Court announced they would hear the appeal. It takes the votes of at least four justices to grant cert. And the obvious reason four justices would want to take the case was to overrule the New Jersey Supreme Court. The other reasons to grant cert didn’t seem to apply here. There was no conflict among lower appellate courts. The New Jersey Supreme Court did not ignore key Supreme Court precedents or clearly misapply federal law. It seemed as though they simply wanted to use the case to extend freedom of association protection to the Boy Scouts—and other private groups like them.
Of course, 4 nearly certain votes is not five. But 4 justices rarely vote to grant cert if they think they will ultimately lose the case. If swing Justice Anthony Kennedy could be won over, the decision was theirs. And no justice on the Court voted more frequently to uphold First Amendment claims than the Libertarian-minded Kennedy. Yes, he had made clear is sympathy for gay rights in an earlier decision, but that seemed unlikely to trump his belief in associational freedom.
In contrast, lawyers at Lamba were disappointed. They had strongly argued that the Court should not take the case. But there client, James Dale, had a different reaction. He was thrilled that the highest court in the land would hear his case. Ever the optimist, he had a hard time imagining the justices would rule against him when the injustice of his dismissal was so plain.
Lambda attorney Evan Wolfson knew he had his work cut out for him. He had never argued a case before the US Supreme Court. For the next few months, he would pour everything he had into it.
For its part, the Boy Scouts decided to turn the brief-writing reins over to one of the nation’s most prominent First Amendment litigators. Michael McConnell was both a constitutional law professor and an assistant Scoutmaster. Although he had clerked for liberal icon Justice William Brennan, McConnell worked in the solicitor general’s office in the Reagan Administration. He had argued and won the Supreme Court case of Rosenberger v University of Virginia, which found that the university had unconstitutionally withheld funds from a student evangelical publication.
McConnell’s brief focused squarely on the freedom of association claim. It contained nothing of the anti-gay language that appeared in previous BSA briefs. He quoted Alexis de Tocqueville who said voluntary association were “the heart of American civic life.” In his brief, he wrote that the right of association was “almost as inalienable as individual liberty” because only with that right can individuals combine their efforts with like-minded fellows and move the world. He admitted—quote—“that many people of good will believe the Scout’s position is misguided.” But, he went on, “that is not the issue in this case.”
Dale’s attorney relied heavily on the precedent of Roberts v US Jaycees. New Jersey, they argued, had a compelling interest in preventing discrimination against gays—an interest that trumped the Scouts’ claim of freedom of association.
On April 16, 2000, James Dale and his parents walked up the marbles steps of the Supreme Court building. It was argument day. A protester held up a cross and a sign that read, “”A Homosexual Boy Scout Leader is Like Asking a Fox to Guard the Chickens!”
The first question for BSA attorney George Davidson came from Justice Kennedy. He wanted to know if Dale was excluded because the Scouts believed he would advocate for gay rights. Davidson dodged the question. He suggested that. as an avowed gay person, Dale would not be a good role model for the Scouts. Then he added, inaccurately, that the Scouts only terminated the membership of those who were open about their sexual orientation. Kennedy pressed his question: Do the Scouts claim they have a right to exclude even someone who is not open about his sexuality? Yes, Davidson answered.
Justice Ruth Ginsberg asked whether the Boy Scouts had a “Don’t Ask, Don’t Tell” policy. Davidson answered with a qualified yes. It was not the practice of the Scouts to inquire into anyone’s sexual orientation. Justice Steven Breyer why, if the Scouts thought homosexual conduct was so awful, they didn’t ask Scouts about it? Justice O’Connor asked what would happen to a heterosexual Scout who argued that homosexuality was not immoral. Davidson suggested he could stay in Scouting—unless he advocated that position to Scouts.
By the time his thirty minutes were up, it was clear Davidson was happy to sit down and be out of the thicket of hypothetical questions.
Justice O’Connor hurled the first question at Evan Wolfson. The Boy Scouts also exclude girls. Was he taking the position that exclusion based on gender was equally unconstitutional? Justice Souter suggested the case for excluding girls might even be weaker, since they don’t take a position that being a girl is not “morally straight.” When Wolfson tried to argue that the Scouts identity was tied to its all-male history, Justice Ginsberg jumped in. RBG is never one to let a gender stereotype slip by without comment. Wolfson tried to bail out by suggesting that the policy of excluding girls “was not before the court.”
Justice Souter asked Wolfson whether the BSA should win if only they had taken a more open and strident position against homosexuality. Condemning it in the Scout Oath, perhaps? When Wolfson conceded that would make the BSA’s First Amendment argument stronger, Justice Antonin Scalia pounced. So, if you win, he said, you will have induced the Scouts and other organizations into taking stronger anti-gay positions.
At the end of the day, most courtroom reporters said it was hard to predict who would win. Both sides were hit with hard questions. The Court was clearly split. It would probably all come down to the votes of Kennedy and O’Connor.
Chief Justice William Rehnquist announced the decision for the Court. The vote was 5 to 4. Rehnquist described the mission of the Scouts as “to instill values in young people." While instructing “in activities like camping, archery, and fishing, scoutmasters inculcate them with the Boy Scouts' values -- both expressly and by example.” There is no question, he concluded, that the Scouts engage in expressive activity protected by the First Amendment.
The majority said it accepted the Boy Scouts assertion that they teach homosexuality is “not morally straight” within the meaning of the Scout Oath. Rehnquist wrote, “A state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct.” As a result, he said, New Jersey had to provide a compelling justification for its “severe intrusion on the Boy Scouts' rights to freedom of expressive association.” That, he concluded, the state had failed to do.
Justice John Paul Stevens wrote for the four liberal dissenters. He called the willingness of the majority to accept the bare assertion that Dale’s sexual orientation would cause the Scouts harm “astounding.” Stevens said, “There is no evidence that the young Scouts in Dale's troop were even aware of his sexual orientation, either before or after his public statements at Rutgers University. It is equally farfetched to assert that Dale's open declaration of his homosexuality, reported in a local newspaper, will effectively force BSA to send a message to anyone simply because it allows Dale to be an Assistant Scoutmaster.”
Stevens called prejudice against homosexuals “atavistic.” Such prejudices, he wrote, “have caused serious and tangible harm to countless members of the class New Jersey seeks to protect,” harm that is “aggravated by the creation of a constitutional shield for a policy.” He concluded by quoting Justice Brandeis: "We must be ever on our guard, lest we erect our prejudices into legal principles."
At the time of the decision, Dale was working in New York City as an advertising director for a magazine focused on helping people living with AIDs. Dale expressed disappointment in the outcome. He worried that the decision might “teach gay kids to hate themselves. But he believed the country was headed in the right direction. He said the Scouts risk becoming “dinosaurs”—if they don’t evolve on this issue, they might go extinct. People will someday “look back on this decision with shame.”
James Kay, the Scout leader in Port Monmouth who had booted Dale out all those years ago had a different reaction. He said he was “delighted.” He added, “Hopefully, we can now put this behind us.”
But the Scouts could not put the issue behind them. In the decade that followed, they lost financial support from corporations. In certain cities and parts of the county, especially in the Northeast and the West, United Way chapters cut funding. They became embroiled in a number of lawsuits, as some local and state governments cut off access to schools, other public buildings, and public property. Supporters of the BSA called it a “war on Scouts.”
Meanwhile, increasing numbers of Scout leaders and executives were coming to the conclusion that the Scouts “were on the wrong side of history.” Key religious organizations, that once supported the gay exclusion policy, were having second thoughts. The Church of Latter Day Saints sponsored fully one-third of all Scout troops. It was by far the Scouts’ biggest financial contributor. And prominent Mormons like Mitt Romney, the father of three Eagle Scouts, said—quote—“all people should be able to participate in the Boy Scouts regardless of sexual orientation.”
In 2012, the Boy Scouts reaffirmed their exclusion policy. But then, just six months later, in January 2013, floated the idea of letting local chapters determine their own policy. The so-called “local option” compromise. Conservatives were outraged. Southern Baptist leaders expressed “tremendous dismay” at the proposed change. The American Family Association sent a flyer to its members urging—quote—“Ask the Boy Scouts Not to Allow Jerry Sandusky to Be a Scout Leader.” The flyer referred to a Penn State football coach who had abused boys for decades.
(Of course, Sandusky was not under consideration for such a position. And the Scouts kept what they called “the Ineligible Volunteer Files,” which listed several thousand suspected child molesters who were ineligible for positions in Scouting. Inappropriate conduct has always been, and still is, a basis for dismissal.)
The Scouts sent out two membership surveys to access attitudes. As it turned out 61% of the adult respondents in Scouting said they supported the current policy. On the other hand, in its survey of attitudes of the general public, only 42% did. But the surveys also showed that opposition to gays in Scouting was strongest when it came to Scout leaders. The majority of people, and the majority of Scouting’s largest sponsors, were okay with allowing gay teens to stay in Scouting.
Based on these findings, the BSA announced a proposal that said no youth would be denied membership in the Scouts because of his sexual orientation. But the ban on gay Scoutmasters would remain in place. No attempt was made to morally justify the distinction. The new policy became effective on January 1, 2014. A year and a half later, the ban on gay Scout leaders was also dropped.