Homosexuals and the Boy Scouts- Revisited

[DSYoungEsq]

In analyzing what the decision in BOY SCOUTS OF AMERICA v. DALE (99-699) means, it helps to understand what was decided. Clearly, some posters here don’t understand what was decided (specifically, for example, Esprix is incorrect in stating that the Court has held the BSA to be a ‘private’ organization). We will start with the issues presented by the case, and briefly review its history, then look at the actual decision and its meaning.

Originally the Plaintiff, Dale was an assisstant scoutmaster for a troup of Boy Scouts in New Jersey. He is gay, acknowledges his gayness, and according to the evidence not only openly advocates “gay rights” but also works as an activist to obtain such rights. The Boy Scouts of America (BSA) found out about his activities and terminated him from the position of assistant scoutmaster, claiming that homosexuality is inconsistant with the philosophies of the organization, which include being “morally straight” and “clean”. Dale sued in New Jersey state court, claiming that New Jersey’s law banning discrimination against gays by “public accomodations” was violated by the BSA’s action. The suit was initially dismissed by the trial court, but on appeal the appellate court reinstated it, and the New Jersey Supreme Court upheld that determination. In pertinent part, the New Jersey Supreme Court held that the BSA was a “public accomodation”, that firing Dale was a violation of the New Jersey law, that the right of the BSA to “expressive association” was not violated by this determination because the state has a compelling interest in stamping out discrimination against gays, and the application of the law was narrowly tailored to meet that interest. The New Jersey Supreme Court felt that forcing the inclusion of Dale in the BSA would not hinder the effort of the BSA to promote its message, neither by forcing it to promote Dale’s message, nor by stopping it from promoting its own official message.

The BSA applied to the United States Supreme Court for a Writ of Certiorari (they asked the USSC to review the decision). The USSC was not interested in the application of the “public accomodations” law to the BSA, since that was a determination of state law, and outside the jurisdiction of the USSC. But the BSA asserted that the application of the law in this instance violated a federal constitutional right, over which the USSC does have jurisdiction. Cert was granted, and the case heard, with the decision issuing Wednesday.

What the decision said

The USSC held that application of the New Jersey law in this case violated the BSA’s right of “expressive association”. This right has been read into the First Amendment since 1958 (see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), Justice Harlan writing for the unanimous court); a quick review of the First Amendment will show that it doesn’t exist there literally. [Poster’s side note: one of these days the USSC will stop its improper terming of constitutional rights; the right in question as regards federal action would be covered by the Tenth Amendment (all non-enumerated rights); as regards state action, the right is a Fourteenth Amendment right, selectively incorporated from the First Amendment] The first cases protected the right of the NAACP to associate without undue burdens being placed on them by southern states; application has been extended to political parties (Democratic Party v. LaFollette, 45 U.S. 107 (1981)) and student organizations (Healy v. James, 408 U.S. 169 (1972). One of the ways that right may be unconstitutionally burdened is by forcing the organization to accept a member it does not desire (Roberts v. United States Jaycees, 468 U.S. 609 (1984).

The Court first had to decide if the BSA was a group to which protection would be applied, that is, did it engage in “expressive association”. As was made clear in the Jaycees case, there is less protection if your association is not for the purpose of advocating certain opinions and ideas. The Court determined that the BSA does practice “expressive association” because the youth members are constantly inculcated with the organization’s credo. Next, the Court determined that forcing the BSA to accept Dale as a member would place a significant burden on this “expressive association”. This is where the main disagreement with the New Jersey Supreme Court occurred. The USSC decided that forcing the BSA to accept Dale as a member would force the BSA to accept Dale’s exposition of pro-gay opinions, which the BSA asserts is contrary to its organizational belief system, an assertion the Court accepted without much review. It didn’t matter that not all BSA members agree, nor did it matter that the BSA actually asks members not to talk about sexuality. As long as the BSA has as part of its credo that homosexuality is not right, and inculcates its members in that credo, it is burdened by accepting a member it does not want who espouses a different credo on the subject.

Finally, the Court determined that the application of the state law was not sufficiently limited to curtail a compelling state interest. Interestingly, the Court glosses over this issue in its opinion [likely because if it addressed it head on, it would be fed its opinion in the Jaycees case and forced to either conclude in writing that protecting women from discrimination is more important that protecting gays, or to conlcude the BSA had to accept Dale]. Relying mostly on the decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), where it refused to require that a parade accept gay marchers, the Court refused to force the BSA to accept a member with contrary views regardless of whether the law in question promoted good conduct instead of harmful behaviour.

In short, the USSC simply said that the BSA asserts it is anti-gay in its beliefs, organizes for the purpose of associating to communicate and promote those views (among others), and can’t be forced to accept a member who openly espouses a contrary viewpoint, even under a law designed to reduce discrimination against gays. It did not address whether the BSA was a ‘public’ or ‘private’ organization, because that ‘issue’ was not before it; it was not germane to the discussion of the Fourteenth Amendment right of the organization.

NOW, knowing this, one can get into all SORTS of interesting discussion as to the meaning of this decision. Does it apply only to a situation as narrow as the one presented (e.g., a member who espouses an opposite viewpoint)? Does it mean that homosexuals get treated differently by the court than women, or was the result in the Jaycees case different solely because that organization wasn’t felt to be involved in “expressive association”? If so, just how many groups would be covered, and do they simply have to openly avow a discriminatory position to get the same result?

[pldennison]

Same for this issue with the Boy Scouts. Are you going to let the organization make their own decisions, or force them to do things your way?

If I’m a member, don’t I get to have a say in the decision that ultimately gets made? Or do I simply have to sit and watch my fellow Scouts who are gay or atheistic get kicked out?

[SouthernStyle]

Exprix, read the words.

I made no claim that the BSA has never excluded boys from the organization for arbitrary, capricious, prejudicial, or any other reason.

The claim that I did make is that the decision by the BSA to exclude homosexuals from positions of leadership and the Supreme Court’s endorsement doesn’t impact the ability of a boy to join.

Two different things.

Thanks for the post DSYoungEsq

[Polycarp]

Though I am interested in the main thrust of this thread and don’t want to divert it too far from its original point, I need to make a fuss at DS Young on one point.

It has been my experience that lawyers as a profession seem to have a very difficult time making the distinction between rights and powers. As an American citizen, I have the right to freedom of speech, the right to buy (or if I choose publish) a newspaper that is free of constraints, the right to freely choose with whom to associate, and the right to believe what I choose, and express it as my faith calls for. (Each of these rights is delimited by some commonsense boundaries: I do not have the right to express graphically to a 13-year-old girl my state of horniness, for example; nor, if I claim that my religion requires the sacrifice of a rhinoceros on the Senate floor, do I have the right to proceed there with a rhino. But the general principle is sacrosanct.) Those rights are guaranteed me by the First Amendment. That amendment restricts the powers of Congress. The Fourteenth Amendment restricts the states from infringing on my rights as an American citizen; the USSC has seen fit to apply it selectively as various rights are brought up. The Ninth Amendment protects my unenumerated rights, and it’s a fair argument whether “expressive association” is under the penumbra of “free association” in the First or one of the unenumerated ones in the Ninth. The Tenth Amendment simply restrains the Federal government from taking over areas not delegated to it (or did until 1937:D); except for the handful of things the Constitution proper and the Fourteenth Amendment restrains states from doing, it is another fair question whether those powers belong to “the several states, or to the people.”

The point is, the government (monolithic for the nonce) has certain powers; the people retain certain rights. If the government passes a law making splurfing a felony, my right to splurf has been impaired. But unless I can persuade the court that I have the right to splurf under the Ninth Amendment, or that somehow a right contained in one of the other ones allows me to splurf, the government is within its powers to restrict me from splurfing. You might then get into the question of whether the power to regulate splurfing is a Federal, State, or concurrent power. And it might be discovered that even the interstate commerce clause cannot be extended to cover the regulation of splurfing. But the state is entitled to restrict me from splurfing unless the court can find that I have a constitutional right to splurf, or the state is restricted from regulation of splurfing. E.g., no state can pass a law now in 2000 that prohibits me from legally splurfing in 1999, or the Federal government has licensed me to splurf and has thus assumed exclusive jurisdiction, in the court’s opinion, over splurfing.

[MrSleep]

Polycarp said:

**
The Ninth Amendment protects my unenumerated rights, and it’s a fair argument whether “expressive association” is under the penumbra of “free association” in the First or one of the unenumerated ones in the Ninth.
**

You missed one: Freedom of Speech. If a group chooses to express its beliefs by whom they choose to associate with, any law requiring them to associate with people they do not wish to associate with is a violation of the first amendment because it abridges their freedom of speech.

At least that’s how I read it.

To your main point:

**
It has been my experience that lawyers as a profession seem to have a very difficult time making the distinction between rights and powers.
**

Isn’t this a little disengeous? Part of a lawyers job is to argue about where the people’s rights end and government power begins. It’s hard to make a distinction between them because we, as a society, have to decide what that distinction is.

Would you also point out that art critcs as a profession seem to have a very difficult time making the distinction between good art and bad art?

[doreen]

Southern Style-
I didn’t mention the atheist issue specifically because there is a significant difference- the Scout Law ( or Oath, I don’t remember which) refers to a duty to God. Since the position takien re: homosexuality is based on “morally straight”, I made comparisons to other issues that would be based on “morally straight” - adulterers,embezzelers, etc.Just as people ( and organized religions) may differ on whether they believe homosexuality is immoral,only homosexual conduct is immoral, or it’s not a moral issue at all,they might differ on what adultery is (think Catholicism) or whether a particular embezzeler is an immoral person in general. Those decisions are made on the local level, by the people most involved who know more ( sometimes much more, as in the Dale case) about the person applying than a someone in a council or national office.
Also, if leaders can be excluded because of homosexuality, I see no reason why boys couldn’t also be. The Law and Oath apply to them,too

[doreen]

tripoverbiff,
actually, no one can create the " alternative , nongendered scouts " ( or the Catholic scouts, the Jewish scouts, etc) in the USA Only BSA and GSUSA can use the word “Scouts” in their name ( I think it’s in the congressional charter)

[Dumb_Ox]

DSYoung, after reading your explanation, I still have a few questions. You said,

The USSC decided that forcing the BSA to accept Dale as a member would force the BSA to accept Dale’s exposition of pro-gay opinions, which the BSA asserts is contrary to its organizational belief system…

So this means that the USSC says that Dale was appropriately rejected by BSA for his political activity, not for his homosexuality? In other words, if he had been gay, but not politically active, then BSA would have had no grounds to dismiss him.

I’m not trying to make a point, I just want to understand the SC’s reasoning. Would the SC at least hold the BSA to their own stated beliefs? That is, if Dale had said, “I’m gay but celibate,” would BSA have been barred from expelling him? I guess I’m trying to figure out whether the SC views the moral opinions of BSA as relevant to Dale’s behavior or to his sexuality itself.

I realize I’m asking you to read minds here, but from your reading of the decision, what is your sense of their reasoning?

[MrSleep]

doreen said:

**
actually, no one can create the " alternative , nongendered scouts " ( or the Catholic scouts, the Jewish scouts, etc) in the USA Only BSA and GSUSA can use the word “Scouts” in their name ( I think it’s in the congressional charter)
**

Really, that’s pretty interesting in and of itself. I think I remember hearing the same thing. But, is the name what’s important? I appreciate that you are demonstrating the unique position that the BSA holds in our history, but is the name of the organization that important?

I was a Boy Scout for awhile, and as far as I was concerned it was a group of thirty or so boys and a few adults who actually bothered to give a shit to get together to go do fun stuff. We didn’t worry about the national organization at all. For all I know, we may have had gays in my troop, and I just never knew about it.

Some previous posters have pointed out that the Boy Scouts have a monopoly on scouting, I think that’s a load of crap.

The Boy Scouts don’t act as a monopoly, they don’t use their monopolistic powers to stop other scouting groups from going camping. They don’t prevent others from forming groups of kids to go do fun stuff. The Boy Scouts should not be punished just because no one else gives enough of a damn about boys in American society to see that they are brought up correctly.

Let’s face it, the most dangerous creature on the face of the planet is a boy between the ages of 14 and 18. We should all be down on our knees that there is a formal organization willing to take the young men in this age group and teach them to be at least half-way decent men (obviously it would better if they were taught to appreciate all people equally, but can we really afford to complain?).

We shouldn’t be attacking the Boy Scouts because they don’t accept gays. We should be wondering why no one who does accept gays has bothered to worry enough about teenage boys to form their own group to teach them how to become men.

The sad fact of the matter is that the Boy Scouts of America is the only organization for teenage boys worth noting because they are the only one that really gives a shit. They are the only thing out there. It’s a damn shame that the only people concerned with perserving this great heritage are also people that are not enlightened enough to recognize that gay boys need as much guidance as straight ones.

Where are the enlightened people? Assuming they ever cared in the first place, why did they stop?

I’m as guilty as anyone, I haven’t payed much attention to scouting since I left, maybe if enough people like me had stuck around they never would have adopted this stupid policy. Can those of us who consider ourselves enlightened really hold our heads high in this matter?

Can we really look down on the Boy Scout leadership for their anachronistic policies when the very goal they seek (ensuring the moral guidance of young men) is seemingly anachronistic to our current culture?

Wow, I had a lot more to say, but I think this post is long enough.

Sleepy time!

[tripoverbiff]

MrSleep makes some good points. At least they’re doing SOMETHING. And Doreen, if it’s true that no one else can use the term “Scout” in a name, I don’t see how that matters. Surely you recognize “Alternative Nongendered Scouts” as a jest. Call it what you like, anyone is still free to create another national organization that teaches kids outdoor skills and leadership ability and respect for their country, etc etc while embodying whatever political ideals they see fit to base it on. The name is the least important part of all.

If I suggest that traditional “God and Country” Judeo-Christian ethics are a crucial part of what has made the Boy Scouts great, I’ll probably be flamed… so anticipating rants like “oh and your wonderful traditional ethics make gay-bashing okay, do they?” I won’t. I’ll say it this way: the Boy Scouts, like the United States, is not specifically religious in nature. However, both base their foundation on religious ideas. Note that the entire justification of the revolutionary war was that God alone gave us rights (“endowed by the Creator with certain unalienable rights…”), and therefore no king could take them away. That idea was the crux on which the arguement rested. So while the U.S. doesn’t, and shouldn’t, promote a particular religion, without an idea of a just God, its original justification for existing is moot.

I think the Boy Scouts are sort of the same way. I was never taught anything religious there, but there was sort of an unspoken idea that it was fitting for all of us to go to church and know our Maker. If a campout ended on Sunday, we often had a mini service that morning, at which we would pray and sing and perhaps read from the Bible. Shocking? No one was forced to participate, and no one was evangelized. If anyone disagreed, they weren’t harmed by it, any more than I would be harmed by attending a religious service run by Buddhists.

All I say is that I don’t think that the sort of philosophy that makes Scouting unique can be entirely seperated from a belief in God. Now whether that bears on the issue of homosexuality is not what I’m trying to establish and I don’t think it would be fruitful to try here. But I’m saying if someone wants to start the Alternative Nongenered NonScouts based on the idea that there’s no true religion but anything you believe is okay, and that morality is purely a matter of your personal convictions, etc, I don’t forsee a lot of success. It might have its own merits, but I don’t think it would have the merits of Scouting.

[doreen]

Using the word “scouts” is only important in terms of people knowing what type of organization it is. Take my example of the “Catholic Scouts” for example. Doesn’t that give you a different mental picture (Catholic group that camps, earns badges, teaches skills) than “Catholic Youth Group” , (Catholic group for kids which could be Scout-like, or very religious, or simply social - you just can’t tell from the name}? There are other youth groups ( Campfire, Boys and Girls clubs )

I'm not at all saying that the Boy Scouts ( or the Girl Scouts,who by the way are doing fine without having any position on homosexuality) don't have some religious basis, but it's a very general sort of "civic religion" that proclaims a duty to God, but leaves it to the individual and his/her faith to determine what exactly  that duty is , in all matters _except_ homosexuality. There was a big problem a year or two ago between BSA and the Unitarian Church. BSA does not itself give religious awards to boys, but authorizes awards granted by religious bodies to be worn on their uniform. The workbook for one of the Unitarian awards made some reference to not discriminating against homosexuals and as a result BSA would not authorize any Unitarian awards. That's what I meant about people and their religions differing on the morality of homosexuality. I didn't necessarily mean individual people. Some churches, I'm sure, teach that simply _being_ a homosexual is immoral, others ( probably most, and including Catholics), teach that homosexual activity,(not orientation) is immoral and I'm sure there are some ( I suspect Buddhism and Taoism would fit here) have no position at all.

[Northern_Piper]

DS, thanks for the excellent summary - now I don’t have to read it ;).

For those who’re interested, here’s a link to a short piece on the new gay-friendly troop in the Boy Scouts of Canada. Scroll down to Toronto.

[pldennison]

Mr Sleep:

We should be wondering why no one who does accept gays has bothered to worry enough about teenage boys to
form their own group to teach them how to become men.

Because as soon as they do, the reactionary religious loonies scream, “See? See? The gay mafia is trying to recruit your sons and turn them into homosexuals! It’s a front for NAMBLA!!” Then they would run them out of town on a rail?

tripoverbiff:

I’ll say it this way: the Boy Scouts, like the United States, is not
specifically religious in nature. However, both base their foundation on religious ideas.

Which religious ideas are those? “I am the Lord your GOD; though shalt have no other gods before me”? Or “Remember the Sabbath day, and keep it holy”? No, wait, I know–“Thou shalt not make unto thyselves any graven images!”

Note that the entire
justification of the revolutionary war was that God alone gave us rights (“endowed by the Creator with certain
unalienable rights…”), and therefore no king could take them away. That idea was the crux on which the
arguement rested. So while the U.S. doesn’t, and shouldn’t, promote a particular religion, without an idea of a
just God, its original justification for existing is moot.

Oh, good heavens, this is so wrong, I don’t even know where to start. The principles of democracy are sound whether a god exists or not. Try here: http://www.infidels.org/library/modern/features/2000/carrier2.html

[Polycarp]

Tripoverbiff said:

Something interesting about folk who ask for “tolerance” is how quick they are to shout down with people they don’t perceive as practicing it. You don’t like the Boy Scouts’ policies? Oh. Well don’t join, then. You don’t like what a religious group says about your lifestyle? Well don’t become a member. Live and let live. The Boy Scouts include folks of all sorts of political and religious affiliation, and if the BSA leadership ever determines that it would like to change policy, it might. But until then, they have the freedom to decide how they choose leaders.

I have no real argument with the idea that the BSA has a right to set its own policies, including qualifications for leaders. But I do have some strong problems with (1) how they acted in this case, and (2) a couple of implications of your post.

In the case in question, the BSA removed both from leadership and from membership a long-standing member who had “come up through the ranks,” attained Eagle Scout status, and then volunteered to serve as a leader, solely on the grounds that he was involved in (IIRC, in a leadership role in) a campus gay activist group. (Again IIRC, he was asked if he was gay, and affirmed that he was.)

Okay, my wife and I are longstanding members of the Episcopal Church and of our home parish. We are also a childless couple. If it were taken over by rightists quoting the Biblical passage to “Be fruitful and multiply” to condemn childless couples, and thrown out, would we have any recourse in the courts? Why or why not?

Now, the BSA is effectively the sole Scout organization for boys (noting that Camp Fire Boys and Girls does still exist and admits boys on an equal basis, something I learned here, having heard nothing of Camp Fire Girls since high school days some 35 years ago). They are entitled to set “goals” and “standards” for membership, but IMHO not to be exclusionary. If they admitted only white boys, or boys who were born in the US, or only Protestant boys, they would be slapped with a discrimination lawsuit that would stand up faster than you can say “certiorari.”

Excerpting from the quote above:

You don’t like what a religious group says about your lifestyle? Well don’t become a member.

Well, first, they are not supposed to be a religious group. They’re supposed to be an activity for boys aged 11-18. If you want to start a religious group that teaches boys woodscraft and discrimination, open up a program at your church; don’t subvert an existing organization to meet your ends.

Second, if I hear once more about “the homosexual lifestyle,” I propose to determine whether a human being can crawl through a T1 connector and out a modem. There ain’t no such animal. To be sure, there is a bar/club scene frequented by a lot of gay people. There is one of these for straight singles, too – but it is almost never referred to as “the heterosexual lifestyle.” And there are a lot of gay people who have no use for the club scene.

“Homosexuality” is an abstract noun. Some people who find that, without their having so chosen, they are attracted sexually and/or romantically to people of the same sex as themselves, consider themselves as gay. Many of these people but not all act on that attraction. Some of these, but not all, involve themselves in the abovementioned scene. If you cannot keep these distinctions clear, then you ought not be commenting on the subject at all.

There are a lot of people, including large groups considering themselves Christian, who consider that acting on gay impulses is sinful. Some but not all of these consider the orientation itself as sinful. And another large group, including many Christians, do not agree with either point. And I do not think the BSA, even if it has any legitimate ends in promoting religious attitude, has any grounds for choosing one religious viewpoint over another.

[SouthernStyle]

Let’s argue the flip side for a minute.

How long would the BSA last in court were it to allow a known and outspoken homosexual a position of authority over teenaged boys were this individual to seduce one of the boys over which he had responsibility? (Kind of surprised this hasn’t been discussed here.)

The argument today is that the BSA acted in a prejudiced and bigotted fashion. Were the above scenario to actually occur, the BSA would find themselves accused of being irresponsible.

How do they win? Let’s start by asking, “how do they make everyone happy?”

[pldennison]

Gee, I don’t know, SouthernStyle–what will they do when that happens with a STRAIGHT male adult in a position of authority? Oh, wait, what am I thinking? That NEVER happens. :rolleyes: You don’t live on that planet where all gay males are predatory pedophiles, do you?

[Polycarp]

Actually, I had thought of that, but because it is very easy for a straight person bringing up a question impugning any gay to be seen as homophobic, I chose not to raise it. Since you have, though:

Yes, a small proportion of gays are interested in boys of Scouting age. (I think the slang term is “chicken hawk.”) And it is to everyone’s interest to ensure that they are not put in a position where they can become predators on boys.

Likewise, a small proportion of heterosexual men are interested in young girls – the whole “Lolita” story. It therefore follows, based on your logic, that no heterosexual man should be allowed to become a clergyman, teacher, pediatrician or OB/GYN physician, etc., since he might find himself in a position where, if he were so inclined, he could prey sexually upon young girls.

I know this is a reductio ad absurdam. Like most such, it has a point. Rather than banning all gays on the basis that a few are pedophiles, do the same sort of record check and such that would assure that a pedophile of either persuasion does not have access to teens of his preferred sex. And of course, this goes for women, too: the Mary Kay LeTourneaus of the world are few, but they do exist.

And of course neither your post nor mine addresses the root question of whether it is legitimate to consider a gay orientation as “a bad influence” on these boys.

[SouthernStyle]

Pretty good response Polycarp, but it doesn’t answer my question. pldennison is on his soapbox so he wasn’t much help, either.

I was asking a straight (no pun intended) question. People being people, and civil court being civil court, I thought the question was legitimate.

A gay man suing to be placed into a position of authority over teenaged boys can certainly appear to have less than honorable intent. I don’t care than he’s not a pedophile. But in a court action, this would be played to the hilt and undoubtedly considered a “mitigating circumstance”. The award against the BSA just climbed into the ozone and the people to suffer are those paying membership fees/dues to have their kids in scouting.

So let’s go back to my questions. How does the BSA win? How do they make everone happy?

[oldscratch]

Don’t worry SouthernStyle, I actaully saw it as a legitimete question.

But, I am going to do what pldennison did.

**
A black man suing to be placed into a position of authority over teenaged girls can certainly appear to have less than honorable intent. I don’t care than he’s not a pedophile. But in a court action, this would be played to the hilt and undoubtedly considered a “mitigating circumstance”.

**
Notice that I changed gay man to black man. Of course this would be thought of as a ridiculous claim and would be tossed out by anyone who is not an open bigot. The same would be done for a suit against gay men. Most likely it would be taken up t the supreme court and be the basis for a ruling banning discrimination based on sexual orientation.

[Polycarp]

Hmmm…If Esprix or Sqrl (to take two resident gays rather than set up straw men) decided, hey, let’s show up the BSA for the homophobes they are and enter into a lawsuit, I would have quite different views on the relative merits of the situation.

What we have is a young man who had been a member for many years, received the group’s highest rank, volunteered as a leader, and then was removed for having a homosexual orientation and/or belonging to a gay activist group (terms not equivalent: many straights are pro-gay rights, and some belong to such groups, and of course many gays are not activists).

He was not suing to become a Scout leader; he was suing to recover his near-lifelong role as a Scout leader, which they had removed him from on finding that he was gay/pro-gay-rights, without any questions as to how his sexual orientation or activist stance might affect his work with the boys. That is why I used my off-the-wall childless couple analogy. He was an exemplary scout and leader, by all reports.

You said:

A gay man suing to be placed into a position of authority over teenaged boys can certainly appear to have less than honorable intent. I don’t care than he’s not a pedophile. But in a court action, this would be played to the hilt and undoubtedly considered a “mitigating circumstance”.

Yeah, if a gay man at random decided he wanted to lead a boy’s group I had any involvement with, I’d ask questions to ensure he was not pedophile. (Ensuring that he did not take my questions as making that obnoxious equation, but were concerned that his motives were good). But when someone who has been active in a group since before he hit puberty wants to continue his role in it, I’m not going to automatically assume he has “less than honorable motives.”

I think anyone who has kept any kind of an open mind for the last 25 years is going to know that gay does not equal pedophile. I don’t think anybody is warranted in automatically assuming James Dale is being pedophile in wanting to continue his relationship with an organization that means a great deal to him, while being open and honest about his sexuality.

I will grant that there are certain circumstances in which appearance of intent does matter. But these are (I believe) always cases in which one enters in full knowledge of the higher standard of conduct expected. A post hoc decision that his “appearance” as a gay person is contrary to scouting’s intent is not, in my opinion, grounds to push him out the door.

And I think Phil’s points, if a trifle snide, are most valid. That some people of a given category might commit some act is not to assume that all people of that category will, the same as those on the flip side of the equation (as Phil pointed out).