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James Dale is not the sort who usually is asked to speak at law schools. So when Wilmington, Del.’s Widener University School of Law asked him to speak, one might ask whether the appearance stemmed from his notoriety. No, it had nothing to do with his widespread reputation, as he expressed it, as “the gay Boy Scout.” It had everything to do with his role as a litigant — and not a lawyer or professor or judge — and a well-rounded scholarly assessment of a case, even one as emotionally charged as this one was. “We don’t usually invite parties to litigation to come talk [about their cases],” said Alan Garfield, a Widener professor of First Amendment issues. He appeared with Dale to offer the academic approach to Boy Scouts of America v. Dale. As Garfield explained, the upside in seeking out legal analysts as speakers is the detached perspective they provide, but the downside is that audiences may miss out on the human side of the law Not even an ivory-towered audience could resist the opportunity to hear from one of the most famous litigants to appear last year on the U.S. Supreme Court’s docket. Dale spoke on February 19 to about 200 people from the well of Widener’s Ruby R. Vale Moot Courtroom — which, he told them, seemed to be about the same size as the Supreme Court Justices’ courtroom. The Boy Scouts of America expelled Dale in 1990 after his sexual orientation became public. A local newspaper had mentioned his participation as a Rutgers University student in a seminar for gay and lesbian teen-agers. Dale was 19. He found it rather jarring to be kicked out of a group he had joined when he was eight, he said. He hated being rejected by an organization supposedly as American as apple pie — one whose very name stands for good deeds. It stood for helping little old ladies cross the street, Dale said, and it did not want him. Dale went to the Lambda Legal Defense and Education Fund, which handles gay rights cases. Lambda teamed up with Cleary Gottlieb Steen & Hamilton of New York, and Dale filed in New Jersey court. N.J. SUPREME COURT RULES Eventually the case reached the New Jersey Supreme Court, which in 1999 decided 7-0 that the Boy Scouts are a place of public accommodation and must not discriminate based on sexual orientation. The Boy Scouts appealed, and the U.S. Supreme Court reversed, deciding last June that the youth organization’s First Amendment rights of association and free speech would be harmed if it were forced to accept someone openly gay. The U.S. Supreme Court was split 5-4. Widener professor John G. Culhane, who served as the moderator for Dale’s appearance, imparted a barbed shorthand for remembering the justices in the majority — “the Bush-Gore Five, as you might call them.” James Dale is now 30 years old, lives in New York City, and works as an associate publisher for Poz, a magazine about HIV health issues. His battle with the Boy Scouts lasted from 1990 to 2000, one-third of his time so far on earth. Yes, he said, the case changed his life. He thought maybe it hadn’t, until he realized most people don’t iron their shirts at four in the morning so they can be interviewed on the early news shows or have front-page stories written about them in The New York Times. Furthermore, the case came at a time Dale had just left home for college and was trying to be independent, only to find himself tethered to lawyers who monitored him, warning him that anything he said or did could be used against him. Even for someone who is an Eagle Scout, or was, this is a high standard. “Anything and everything you do is under scrutiny, and that definitely changed my life. It brings out the paranoid side in all of us,” Dale said. Today Dale thinks of his case as one of those legal convolutions in which the loser is the winner. “You can lose before the Supreme Court and win in the court of public opinion, because America is saying no,” he said. Dale also believes the lawsuit is a watershed for the Boy Scouts. “Everybody loves the Boy Scouts, but that’s changing,” he said. Now “nobody can think of the Boy Scouts without thinking of discrimination.” Dale says the positive response came from the mainstream, not especially from gay and lesbian groups, some of who hesitated to champion Dale. Such hesitation could come from a fear of public backlash against the involvement of openly gay and lesbian adults with youth — Dale was an assistant scoutmaster when he was banished. CONSTITUTIONAL CLASH From a legal perspective, professor Garfield found that the case presented a constitutional clash of fundamental values: equality and expression. The courts were asked to decide whether a group must offer membership to someone it would rather exclude. The question was this: Is there a compelling interest in furthering equality by protecting someone from discrimination, or is that interest trumped by the group’s right to send the message it wants and to associate with whom it wants, with a concomitant freedom not to associate? Garfield suggested equality should prevail unless it places a burden on a group’s expression. In this case he was persuaded that the Boy Scouts’ overarching sense of inclusiveness and networking, along with a federal charter that gave it quasi-public status, should outweigh what was at best an oblique policy of excluding gay members. Garfield argued the Supreme Court majority set a low threshold for the Boy Scouts by accepting their assertion that they had such a purpose and had a right to express it, rather than regarding the group, as the New Jersey court had, as a place of public accommodation. “The Boy Scouts are not just any organization. The Boy Scouts are unique,” Garfield said. “It’s not just that you could go to some other group.” Dale, for his part, is prepared to be patient — with the Boy Scouts and with the Supreme Court. He thinks the Boy Scouts will realize that if they persist in excluding gay members, they will be marginalized — “they won’t be the Boy Scouts ‘of America’ anymore.” As for the court, it actually gave him a measure of comfort. “A 5-4 decision from the Supreme Court shows me how far we’ve come and how far we have yet to go,” Dale said, noting with some satisfaction how close the justices collectively seem to retirement.

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