Twenty-two years ago, the Boy Scouts of America dismissed James Dale, a highly decorated Eagle Scout, from his position as an assistant scoutmaster when it was disclosed that he was a homosexual and gay rights advocate. The dismissal was consistent with the BSA’s ban on gay and nontheistic members.
Dale filed suit in the Superior Court, alleging the BSA had violated the New Jersey statute prohibiting discrimination on the basis of sexual orientation. The state Supreme Court unanimously held that the BSA is a “place of public accommodation” and as such violated the state’s law and policy regarding discrimination.
On certiorari, the U.S. Supreme Court ended the protracted litigation in a 5-4 decision reversing the New Jersey Supreme Court. The high court held that New Jersey had violated the BSA’s constitutional right of expressive association by forcing Dale’s membership. The BSA had won the discrimination versus the right of association battle.
This 2000 decision, which remains in place today, has been extensively criticized, even by present and former members of the organization itself. A number of Eagle Scouts have punctuated their displeasure by turning in their highly regarded certificates.
Recently, the BSA announced that after an intensive two-year review of its policy, presumably initiated in response to the criticism, it was nevertheless reaffirming its ban on gay and nontheistic members in the asserted belief that it is permitted to discriminate in selecting members because it is a private organization. This reaffirmation has reignited the opposition. “The Boy Scouts of America is one of the last cultural institutions to have discrimination as part of their policy,” said Richard Ferraro, vice president for communications with the Gay and Lesbian Alliance for Communications. He noted that similar organizations such as the Girl Scouts, the Boys and Girls Clubs, the 4-H Clubs and now the military forbid discrimination based on sexual orientation.
In addition to being a 501(c)(3) tax-exempt entity, the BSA enjoys substantial public and governmental support. As examples, U.S. presidents (including President Obama) have for more than a century served as honorary presidents of the BSA. The Department of Defense is authorized by statute to lend supplies, equipment and transportation for Boy Scout events and has directed all components of the department to promote scouting among military families. All branches of the military grant special promotional consideration to Eagle Scouts. In 2005, Congress encouraged the Department of Defense to support all BSA activities through the use of military personnel, federal land use and other assistance for jamborees (the 2005 jamboree is alleged to have cost taxpayers about $8 million). And in 2008, Congress passed the “Boy Scouts of America Centennial Commemorative Coin Act,” H.R. 5872, mandating the minting of as many as 350,000 one-dollar coins commemorating the Scouts’ 2010 Centennial — with a $10 dollar surcharge on each coin going to the BSA that might total as much as $3.5 million.
That the BSA is permitted to flaunt its court-given status as a “private” organization by engaging in its discriminatory conduct and at the same time enjoy tax-exempt status, and the enormous support of the government and the public at the expense of the taxpayers, including those persons that it rejects, should not be tolerated.
The BSA, so seriously lagging in social history, is an embarrassment to our country and should be required to eliminate its discriminatory practices or lose all of its special governmental and public privileges.