Reversal of Fortune

by Joseph Landau | March 10, 2004

On Monday, the U.S. Supreme Court refused to hear a challenge by the Boy Scouts of America to Connecticut's removal of the organization from a state-employee workplace charity drive. The Court's decision attracted little public notice, earning just a single paragraph in The New York Times and five in The Washington Post. But the Court's refusal to hear the case was more significant than the lack of media attention might suggest. Back in 2000, the Boy Scouts won a major victory when the High Court, in Boy Scouts of America v. Dale, allowed the organization to continue excluding gays from its ranks. But now it appears that decision--far from being a long-term boon to the Boy Scouts--actually sowed the seeds of the group's decline. Four years later, as more cities and states pass laws protecting gays and lesbians from discrimination, the organization appears likely to endure increasingly hostile relationships with local governments. Three days ago, the High Court basically told the Boy Scouts not to expect the judiciary to come to their rescue.

The Dale case involved a suit by a gay scout leader, James Dale, who was expelled from the organization after the Scouts learned of his participation and leadership role in a university gay and lesbian organization. (Full disclosure: The law firm where I currently work was counsel to Dale in that case. I was not employed there at the time.) The Scouts maintained Dale could not follow the scout pledge to be "morally straight" and "clean," and the Court--referring to Dale as a "homosexual activist"--deferred to the organization's view that the presence of a gay individual was incompatible with the group's mission and message. In the wake of the Dale litigation, numerous cities, states, and private entities began to cut ties with the organization; as a result, the Scouts have found themselves in a revolving door of litigation. The case at issue this week involved a decision by the Connecticut human rights commission to bar the Scouts from participating in a state-sponsored employee charitable giving campaign; the commission argued that including the Scouts would contravene the state's own law protecting gay rights. As Connecticut pointed out, it is precluded from "becoming a party to any agreement, arrangement or plan which has the effect of sanctioning discrimination."

The Boy Scouts, perhaps emboldened by the memory of their Dale triumph four years ago, challenged the Connecticut decision under First Amendment principles. But a trial judge ruled against them, and the Court of Appeals for the Second Circuit agreed. The Scouts again asked the Supreme Court to weigh in, arguing that the lower court rulings would allow states to unfairly punish private organizations "whose beliefs and membership policies do not conform to the orthodoxies of state officials." The Scouts also noted that their exclusion from the charitable campaign would strap them of desperately needed funds, roughly $10,000 a year from state-employee payroll deductions, without which they would "be forced to cut Scouting programs to youth." Unmoved, the Court declined to hear the appeal.

The group's woes are not confined to either Connecticut or the courts. During the past few years, a backlash against the Dale decision has hurt the Scouts' relationship with both local communities and with donors. Several states and a few cities have relinquished their ties with the Scouts. Chicago, San Francisco, San Diego, San Jose, and Tucson no longer allow them to hold meetings for free in public parks, city buildings, and schools. And school districts in Illinois, Massachusetts, Minnesota, and Dade County, Florida, no longer sponsor the Scouts or allow them to recruit members in their classes. Numerous corporations, from Bank of America to CVS, have severed ties with the Scouts as well, ending either monetary or in-kind donations. Unions have cut ties with the group, and churches and synagogues have condemned the group's anti-gay policies.

Monday's decision could mean the end of several other pending legal challenges brought by the Boy Scouts. In California, the Scouts sued San Diego for revoking their lease for public campgrounds. (The Bush administration has sided with the Scouts in this litigation.) And the Scouts are appealing a case to the California Supreme Court after an intermediate state court ruled that the City of Berkeley did not trample on the First Amendment rights of the Sea Scouts, a Boy Scouts affiliate, when the city discontinued the Sea Scouts' rent subsidy at the Berkeley Marina in 1998. While state courts are not required to follow the Second Circuit decision in the Connecticut case, the similarity of the issues and the legal claims involved certainly is not good news for the Scouts.

To be sure, the Scouts have enjoyed some isolated victories in recent years. In 2001, a federal court in Florida intervened to stop Broward County from barring the Boy Scouts from using any public school facilities. The court ruled that the county could revoke only special arrangements it had reached with the Scouts in the past. And in 2002, after the D.C. Human Rights Commission ruled that the Scouts had acted unlawfully in excluding two gay members of the group, Congress intervened to nullify the commission's decision. (The case was overturned on appeal anyway, rendering Congress's action more symbolic than substantive.)

But Monday's decision sends a clear message to a group that is already suffering through difficult times: If you discriminate, you do so at your own peril. It's a striking reversal of fortune for an organization that, just four years ago, effectively received Court permission to continue excluding gays. That ruling looks less and less like a triumph for the Boy Scouts by the day.

Joseph Landau is a former TNR assistant managing editor and an associate at the law firm of Cleary, Gottlieb, Steen & Hamilton.

 

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