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As national debate rages over gay marriage, the Supreme Court will soon consider a throwback to an earlier gay rights issue: whether states may deny Boy Scouts access to government benefits or facilities because of the group’s policy excluding gays. The Court is expected to discuss Boy Scouts of America v. Wyman, No. 03-956, at its conference March 5. At that conference and at one on February 27, the justices will discuss whether to grant review in dozens of cases. “This case is really the tip of the iceberg — a relentless attack on the Boy Scouts for the sin of teaching virtues to boys,” says longtime Boy Scouts legal counsel George Davidson, partner at New York’s Hughes Hubbard & Reed. Davidson, speaking at a recent Federalist Society forum on the case, said the Scouts were victims of “viewpoint discrimination” based on their constitutionally protected view that homosexuals should not be Scout leaders. Officials in San Diego and Berkeley, Calif., as well as in Broward County, Fla., have barred Scout organizations from free use of city facilities because of the policy on homosexuals, Davidson said. In the case before the Supreme Court, Connecticut excluded the Boy Scouts from its state employee charitable campaign, which allows workers to make payroll donations to approved groups. C. Joan Parker, lawyer for Connecticut’s Commission on Human Rights and Opportunities, defends the Scouts’ exclusion. “Connecticut is not mandating that the Boy Scouts admit or accept anyone,” she said at the Federalist Society forum. Instead, she said, the state is refusing to be “a party to discrimination.” The Supreme Court in the 2000 case Boy Scouts of America v. Dale upheld the First Amendment associational right of the Scouts when it ruled that New Jersey could not require the Scouts to admit homosexuals under its public accommodations law. In spite of the ruling, government entities around the country continued to examine whether Boy Scouts would be allowed use of public facilities and whether they would have access to charitable campaigns. Davidson says that more than 150 government entities and state universities nationwide allow some kind of deduction or donation for more than 140,000 charities. Connecticut’s campaign allows employees to donate to more than 900 organizations, including advocacy groups such as Catholics for a Free Choice and Lambda Legal Defense and Education Fund, as well as groups that target membership categories such as the Girl Scouts and the Fellowship of Christian Athletes. After New Jersey’s Supreme Court ruled against the Boy Scouts in a decision that was later reversed in Dale, Connecticut began to examine whether the Scouts’ policy against admitting gays made it ineligible for inclusion in the charity campaign. The Connecticut human rights commission ruled that the Scouts’ continued participation would violate state anti-discrimination and gay rights laws. After the Supreme Court’s Dale ruling, state officials determined that Connecticut could exclude the Scouts so as not to further discrimination. The Boy Scouts sued state Comptroller Nancy Wyman but lost at the district court and appeals court levels. The U.S. Court of Appeals for the 2nd Circuit, in a July 2003 decision authored by Judge Guido Calabresi, found that removal of the Scouts was “triggered at least to some extent” by Scout policies that were protected by the First Amendment. The action was still permissible, the court found, because it did not compel the Scouts to change their policy, but merely made them “pay a price” for continuing the policy. The appeals panel found Connecticut’s policy to be viewpoint-neutral, aimed more at protecting homosexuals from discrimination than at punishing the Scouts. But the Scouts argue that government may not “condition an otherwise available benefit on abandonment of First Amendment rights,” Davidson writes. “The decision below furnishes hostile state officials with a roadmap for circumventing Dale and eviscerating freedom of association.” In amicus briefs filed at the high court, groups ranging from the American Legion to Agudath Israel of America support the Scouts. The Becket Fund for Religious Liberty accuses Connecticut, among others, of attempting to overrule Dale. Becket Fund President Kevin Hasson writes, “Allowing the lower court’s decision to stand would place a vast array of currently protected membership-based expressive associations at the mercy of the state.” OTHER CASES UP FOR REVIEW Feb. 27: • Newdunn Associates v. Army Corps of Engineers, No. 03-637. Whether jurisdiction of the Clean Water Act extends to wetlands that are not adjacent to open waters, but whose runoff may reach navigable waters. • Deaton v. United States, No. 03-701. Whether jurisdiction of the Clean Water Act extends to wetlands near a roadside ditch whose waters flow into navigable waters. • American General Finance Inc. v. Ashby, No. 03-772. Whether courts or arbitrators should decide if a clause of an arbitration agreement is unconscionable. • Anti-Defamation League v. Quigley, No. 03-778. Whether punitive damages are authorized under the Wiretap Act for defamatory use of illegally intercepted communications involving matters of public concern. • Crawford v. Martinez-Vazquez, No. 03-920. Whether arriving aliens who have been apprehended at the U.S. border and ordered returned must be released pending removal. March 5: • Goodine v. United States, No. 03-596. Whether drug quantity is an element of offense or a sentencing factor that should be determined by a jury. • Dura Pharmaceuticals Inc. v. Broudo, No. 03-932. Level of proof needed in fraud-on-the-market claims under securities laws. • American Gem Seafoods Inc. v. Zhang, No. 03-944. Appellate review of punitive damages in employment discrimination cases. • Kang v. Board of Supervisors of Louisiana State University, No. 03-967. Retaliatory action against employees for filing workplace discrimination claims with the Equal Employment Opportunity Commission. • Pappas v. Las Vegas Downtown Redevelopment Authority, No. 03-972. State eminent domain authority to transfer unblighted property from one owner to another for economic development. • Bloomberg v. Henrietta D., No. 03-986. Americans With Disabilities Act discrimination claim in state welfare program. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for review or that raise significant national issues. Thomas Goldstein of D.C.’s Goldstein & Howe selects cases from petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein represents the petitioner in Goodine v. United States, No. 03-596.

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