Gay Scoutmaster Loses Court Battle

The Boy Scouts of America has won a big one at the U.S. Supreme Court.

The high court ruled Wednesday in a 5 to 4 decision that the Scouts do have the right to ban homosexuals from serving as troop leaders.

The ruling places a limit on how far the courts should go to force open admissions upon private organizations.

The decision said forcing the Scouts to accept gay troop leaders would violate the organization's rights of free expression and free association under the Constitution's First Amendment.

The narrowness of the vote and suggests this issue, as well as Wednesday's decisions on abortion, will eventually find their way back to the Supreme Court, reports CBS News Correspondent Jim Stewart.

The only thing certain then is that there will be a new president and very likely an entirely new look to the most powerful court in the land.

The next president will have three or four appointments to the court.

The ruling reversed a New Jersey Supreme Court holding that the Scouts wrongly ousted assistant scoutmaster James Dale when the organization learned he is gay. The state court had said the scouts' action violated a New Jersey law banning discrimination in public accommodation.

"This decision affirms our standing as a private organization with the right to set our own membership and leadership," Gregg Shields, national spokesman for the Boy Scouts of America, told CBS News in an interview just after the ruling. "The Boy Scouts of America have taught traditional family values and we feel that an avowed homosexual is not a role model for those values."

"This decision," Shields continued, "allows us to continue our mission of providing character-building experiences for young people, which has been our purpose since our founding."

CBS ews Legal Consultant Andrew Cohen says the scouting decision "isn't really a surprise. The majority apparently determined that the Boy Scouts were a private-enough organization that they were entitled to associate, or not, with whomever they please."

Dale, who was an Eagle Scout, had sued the Scouts under New Jersey law. But the Supreme Court said Wednesday that law must yield to the Scout organization's right of "expressive association" under the Constitution's First Amendment.

The Mormon church also became involved in the case, telling the U.S. Supreme Court that it would withdraw from the Boys Scouts of America, taking more than 400,000 Scouts with it, if scouting were forced to accept gay scoutmasters.

Salt Lake City attorney Von G. Keetch filed a brief with the Supreme Court on behalf of The Church of Jesus Christ of Latter-day Saints and four other religious organizations in support of the Scouts' ban on homosexuals

Rehnquist's opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Writing for the four, Stevens said the New Jersey law "does not impose any serious burdens" on the Boy Scouts' goals, "nor does it force (the Boy Scouts) to communicate any message that it does not wish to endorse. New Jersey's law, therefore, abridges no constitutional right of the Boy Scouts."

Dale was 19 and an assistant scoutmaster of a Matawan, New Jersey, troop when in 1990 he was identified in a newspaper article as co-president of a campus lesbian and gay student group at Rutgers University.

The Scouts' Monmouth Council revoked Dale's registration as an adult leader, telling him the organization does not allow openly gay members. Dale sued, contending the Scouts violated New Jersey's anti-discrimination law.

The New Jersey Supreme Court ruled in his favor, saying the expulsion of Dale was based "on little more than prejudice."

During oral arguments in April, the Scouts' lawyer, George Davidson, said the group had a right "to choose the moral leaders for the children in the program."

The Scouts relied on a 1995 Supreme Court decision in which the justices let the private sponsor of the Boston St. Patrick's Day Parade exclude a group of gays and lesbians, saying parades are a "form of expression."

Dale's lawyer, Evan Wolfson, said giving public accommodations the broad freedom to exclude people who do not match their message could swallow the civil rights laws.

Dale's attorneys cited Supreme Court decisions during the 1980s that let states force the Jaycees and Rotary International to admit women as full members. The court also let New York City bar large private clubs from discriminating against women and minorities.

Rehnquist's opinion said "it appears that homosexuality has gained greater societal accptance" in recent times.

"But this is scarcely an argument for denying First Amendment protection to those who refuse to accept those views," the chief justice wrote. "The First Amendment protects expression, be it of the popular variety or not."

The Supreme Court has dealt with gay rights infrequently. In 1996, the justices struck down a Colorado measure that barred ordinances giving gays legal protection from discrimination, such as in housing or employment. But the court also has repeatedly turned away challenges to President Clinton's "don't ask, don't tell" policy on gays in the military.

Dale now lives in New York City and is advertising director for a magazine for people who are HIV-positive.

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