The California Supreme Court, hearing arguments in two discrimination cases, appeared reluctant Monday to force the Boy Scouts of America to accept gays or atheists.
The state high court must decide whether the Boy Scouts of America, the largest youth organization in the United States, is a business subject to a state anti-discrimination law, and if so, whether the group can still bar gays and atheists on constitutional grounds of freedom of association. A decision is expected within 90 days.
Although some members appeared uncomfortable with the Boy Scouts ban on gays, Justice Joyce Kennard and Chief Justice Ronald George expressed concerns that a ruling against the Scouts could have unintended consequences for other groups.
Kennard wondered if the court ruled the Boy Scouts must admit gays, would an all-women’s college then be forced to admit men? Justice Stanley Mosk suggested that fraternities and sororities also might be required to accept members they would otherwise decline.
And George repeatedly stressed that the Boy Scouts are different from other sorts of clubs that the state high court has found to be businesses subject to a state anti-discrimination law. With the Scouts, “we’re talking about attending meetings at members’ houses,” George said.
The justices expressed even stronger reservations about requiring the Boy Scouts to admit boys who refuse to cite the organization’s oath to God.
That was the subject of a second discrimination case reviewed by the high court during arguments in Los Angeles Monday. The case was brought by twin brothers from Anaheim, who were ousted from the Cub Scouts after refusing to recite the oath to God. The boys, now 16, have since been reinstated by lower courts and the Scouts have continued to appeal.
Despite their concerns about forcing the Boy Scouts to accept atheists and gays, some of the justices clearly seemed troubled Monday by the organization’s defense of excluding gays.
In the other case before the court, former Eagle Scout Timothy Curran was denied a post as an assistant Scoutmaster for a Northern California troop because of his sexuality.
Under the group’s legal rationale, the Boy Scouts also could bar blacks, Justice Kathryn Werdegar noted. “Although they haven’t chosen to, they could exclude African-Americans” if the court accepts the group’s reasoning on gays, she said.
Mosk asked a lawyer for the Scouts: “Wouldn’t the Boy Scouts benefit by being a diverse organization rather than a monolithic organization?”
Scouting officials learned of Curran’s sexuality after he brought a male date to his high school prom and was featured in a local newspaper article about young gays.
Curran, now 35, had been an active Scout for four years and said he never knew there was a rule against gays. The issue came up when he applied to a regional scouting council to attend a National Jamboree as an assistant Scoutmaster.
The council informed him that the Scouts prohibit “avowed homosexuals” from holding leadership positions and told his Berkeley, Calif., troop that its charter would be revoked if Curran continued to participate in its activities.
Jon Davidson, an American Civil Liberties Union lawyer for Curran, told the court that the Boy Scouts would not be significantly affected if required to accept gays.
“People do not join the Boy Scouts in order to send some message about heterosexuals,” Davidson said.
The Boy Scouts contend that homosexuality is inconsistent with the group’s belief that Scouts must be “morally straight.”
And allowing gays and atheists into the Scouts, attorney George Davidson said, would be like expecting the NAACP “to give its services to white people” or to the Ku Klux Klan.
A divided Court of Appeal in Los Angeles sided with the Scouts and found the organization was not a business.
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