November 15 1999

ARTICLE TOOLS

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In a stunning decision, the New Jersey Supreme Court has ruled against the Boy Scouts for dismissing a homosexual scoutmaster. The case will inevitably go to the U.S. Supreme Court and, should the lower court's reasoning prevail, the consequences for nonprofits and Christian ministries across the nation could be devastating.

The case involved assistant scoutmaster James Dale, who was dismissed after a newspaper identified him as co-president of the Gay/Lesbian Alliance at Rutgers University. Dale sued, and in Dale v. The Boy Scouts of America the court ruled unanimously in his favor.

The decision should not be read merely as the latest attack on the Scouts. What makes it so pernicious is its reasoning. It effectively erases the distinction between private and public organizations—which could potentially affect all other private groups. Earlier decisions in other states had affirmed the right of Boy Scouts to define its mission and membership requirements as a private organization. But this time the court ruled that the group is a "public accommodation," like a restaurant, hotel, or department store—and thus is subject to state anti-discrimination laws.

The court's reasoning was that Scouting is so large and recruits so widely that it is not "selective" enough to qualify as a private group. (Never mind that Scouting programs are open only to boys, only to certain ages, and only to those willing to abide by the Scout Law.) Moreover, the court noted that some Scout units are supported by local government groups like fire departments and law-enforcement agencies.

By this reasoning, however, any large group that recruits widely and works closely with government agencies could be reclassified as a "public accommodation," ...