WASHINGTON, June 28 (JTA) — Most Jewish groups are condemning a Supreme Court ruling that allows the Boy Scouts to exclude a gay scoutmaster.
In a 5-4 decision, the high court ruled Wednesday in favor of a private organization’s right to exclude people from their group based on sexual orientation.
The justices said the Boy Scouts of America could exclude scoutmaster James Dale from the national organization because he is gay.
“We are stunned that in the year 2000 the Supreme Court could issue such a decision,” the Anti-Defamation League’s national director, Abraham Foxman, and its national chairman, Howard Berkowitz, said in a statement.
“This decision effectively states that as long as an organization avows an anti-homosexual position, it is free to discriminate against gay and lesbian Americans.”
But Orthodox groups are defending the court’s decision.
The Orthodox Union said in a statement that it supports the court’s recognition that a “civic organization is empowered to determine what its message is.”
The Boy Scouts of America had argued that requiring them to retain James Dale as a scoutmaster violates their bylaws and their First Amendment rights of freedom of expression.
The 5 million-member organization argued that a private, voluntary group ought to be able to create and interpret its own “moral code.” The policy of excluding gays does not appear in the organization’s official manuals but the group views homosexuality as morally wrong and therefore a violation of the Scout pledge to be “morally straight and clean.”
Some Jewish groups argued that the Boy Scouts is really a public organization and so cannot discriminate in their hiring or membership practices.
“The Boy Scouts is a huge national institution, very far from a club or sectarian group,” argues Michael Lieberman, Washington counsel for the ADL.
An appeals court had found the Boy Scouts to be a place of public accommodation because it has broad-based membership solicitation and it has partnered with various public entities and public service organizations.
Nevertheless, the high court said the organization was not a public association and applying a public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association.
“Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group’s internal affairs by forcing it to accept a member it does not desire,” Chief Justice William Rehnquist wrote for the majority.
Freedom of association is an important right, agrees Marc Stern, the co-director of the American Jewish Congress’ legal department, but if too many groups use the right too often there could be a real danger.
For example, some groups may use their right to associate as a means to defend their exclusion of Jews.
“The danger posed by today’s decision is that every effort to halt discrimination may be checkmated by an assertion of associational autonomy,” said Mark Pelavin, associate director of the Religious Action Center of Reform Judaism.
But Nathan Diament, director of the O.U.’s Institute for Public Affairs, said religious organizations are afforded little protection, so this ruling supporting the right of expressive association is critical.
The Orthodox Union, which filed a friend-of-the-court brief in support of the Boy Scouts, also had considered that if the Boy Scouts were forced to admit Dale, religious groups could be at risk and Jewish groups might be forced to accept a non-Jewish member as a result.
Agudath Israel of America said a ruling against the Boy Scouts could have been very damaging to religious groups.
“It could have opened up a can of worms,” said Abba Cohen, the organization’s counsel.