New Jersey High Court Says Ban on Gays in Boy Scouts Must Go

Affiliate: ACLU of New Jersey
August 4, 1999 12:00 am

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TRENTON, NJ — In a unanimous decision, the New Jersey Supreme Court today said that the Boy Scouts of America’s practice of excluding or dismissing a member solely on the basis of sexual orientation is illegal under the state’s anti-discrimination law. The Court also rejected the Scouts’ claim that the First Amendment gives them the right to discriminate.

The American Civil Liberties Union, which filed a friend-of-the-court brief in the case, hailed the decision as a tremendous victory for lesbian and gay rights. The ruling upholds a March 1998 state appeals court decision that prohibited the Boy Scouts from banning gay members.

“This decision debunks the notion that just because someone is gay means he or she is unfit to serve in the Boy Scouts or any other civic group for that matter,” said Lenora Lapidus, Legal Director of the ACLU of New Jersey. “The Court did the right thing in denying the Scouts’ claim that the First Amendment gives them the right to discriminate. People have the right to believe what they want, but that is no more a justification for discrimination now than it was in the South 40 years ago.”

The case arose in 1990 after James Dale, a Matawan assistant Scoutmaster, was ousted from the Boy Scouts when leaders discovered he was gay. Prior to his expulsion, Dale, an Eagle Scout, had risen successfully through the ranks and earned 30 merit badges and other awards during his 12 years in the organization.

“Goverments and local charities have been increasingly unwilling to fund and sponsor Scout programs because the Scouts insist on discriminating,” said Matthew Coles, Director of the ACLU’s National Lesbian and Gay Rights Project. “This decision is bound to accellerate the trend against anti-gay policies.”

The court ruled that because the Boy Scouts of America are “places of public accommodation” that “emphasize open membership,” they must adhere to New Jersey’s anti-discrimination law and cannot deny any person “accommodations, advantages, facilities and privileges” because of sexual orientation.

While the Boy Scouts vowed to appeal today’s ruling to the U.S. Supreme Court, the ACLU’s Coles expressed doubt that they would hear the case.

“The Court rejected a very similar argument that the United States Jaycees, a business association, made to justify excluding women,” Coles said. “That was 15 years ago, and the Court ruled unanimously. I doubt they would revisit the issue now.”

Today is not the first time the ACLU has taken legal action to halt unfair practices of the Boy Scouts. In May 1998, the ACLU blocked an Oregon school district from actively recruiting Cub Scouts since they are required by the Boy Scouts of America to refuse membership to boys who do not “profess a belief in God, recognize an obligation to God and declare a duty to God.”

For similar reasons, this past April, the ACLU sued to end government sponsorship of Boy Scout programs in Illinois because they violated the constitutional requirement of separation of church and state. The ACLU has been involved in other challenges to Boy Scout bans in California and Washington, DC.

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