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The Globe and Mail

Boy Scouts of America can exclude gays, court rules

In a landmark decision on gay rights, the United States Supreme Court ruled yesterday that the Boy Scouts of America can refuse to allow homosexuals to serve as troop leaders.

The high court ruled, in a 5-4 decision, that the Boy Scouts is a private organization that has the right of free association and free speech, guaranteed by the First Amendment of the Constitution, in choosing its leaders.

Because scout leaders are usually chosen from within, the much-anticipated decision suggests that the Boy Scouts can bar homosexuals not only from leading them but also from joining them, too.

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"The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," said Chief Justice William Rehnquist in the majority opinion. Forcing the group to accept a gay scoutmaster "would significantly burden the organization's right to oppose or disfavor homosexual conduct."

The U.S. Boy Scouts organization has long argued that it has the sole right to choose its leaders and its members. While it demands that scouts and scoutmasters vow to be "morally straight," it does not expressly forbid homosexuality. But it does argue that homosexuality conflicts with that oath, and it has also barred atheists and agnostics.

In Canada, by contrast, openly gay scouting is accepted. Earlier this month, the world's first gay and lesbian troop, two women and four men of Rover Troop 129, was inaugurated in Toronto with the blessing of Scouts Canada.

"I am saddened by the decision," Bonte Minnema, the Toronto troop leader, said of yesterday's ruling.

"Anyone who wants to exclude anyone else from scouting is denying a young person the benefit of the program. Let's be diverse. Let's be fair."

The U.S. case was fought by James Dale, 29, a former Boy Scout from New Jersey who was expelled without explanation from the organization 10 years ago when his sexual orientation was reported in a newspaper article.

A New Jersey trial court supported the Boy Scouts. But last year the state Supreme Court called the Boy Scouts "a public accommodation" and ruled that its policy on homosexuals violated New Jersey's antidiscrimination law.

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The federal Supreme Court rejected that yesterday. "We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong," the court said.

Still, it said that "public or judicial disapproval" of a group's expressed beliefs does not justify the state's effort to compel the group to accept members if such acceptance would derogate from the group's expressed message.

The minority opinion, written by Justice John Paul Stevens, argued that prejudice against gays and lesbians has caused serious harm and "that harm can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers."

By all accounts, Mr. Dale was an exemplary Boy Scout. He won 32 merit badges and had risen to become an Eagle Scout, one of scouting's highest honours, won by only 3 per cent of its 6.2 million members.

As a student at Rutgers University, he became involved in the gay-rights movement. When the Boy Scouts learned in 1990 that he had become co-president of a gay and lesbian association, it dismissed him from his position as an assistant scoutmaster of a troop in Matawan, N.J.

In 1992, he sued the organization and spent the next eight years fighting the case in the courts. He lives in New York City, where he is an advertising director for a magazine for people diagnosed with AIDS.

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