WASHINGTON (BP)–Attorneys for the Boy Scouts of America filed a response Dec. 6 in the U.S. Supreme Court to attorneys representing a homosexual who has been barred from being a Boy Scout leader. Briefs also have been filed in behalf of the Boy Scouts by several organizations, including the Southern Baptist Convention.
The Boy Scouts’ Dec. 6 filing responded to a Nov. 26 filing by attorneys of the Lambda Legal Defense Fund to counter an Oct. 26 Boy Scout petition for a hearing before the Supreme Court.
In its October petition, the Boy Scouts asked the court to sanction its stand against homosexuals as Scout leaders by reversing a New Jersey Supreme Court ruling earlier this year.
In its filing, the Boy Scouts chides the homosexual’s attorneys for attempting to try what they have called a very important case in the court of public opinion while at the same time saying the case isn’t worth being heard.
“After trumpeting its importance for months in the national media, respondent now declares this case a routine application of ‘clear and well-established’ law, not warranting this court’s attention,” wrote George Davidson of the New York City law firm of Cerrato, Dawes, Collins, Sake, Brown & Wilder, which represents the Boy Scouts. “It is anything but. The decision to require Boy Scouts of America, perhaps this nation’s premiere private youth organization, to appoint leaders who do not accept the organization’s moral code is an unprecedented intrusion into the autonomy of private organizations, throwing aside constitutional principles of free speech and association.”
Davidson also wrote in his Dec. 6 filing that the Lamba Legal Defense Fund’s “principal theme is that our petition rests on the ‘false premise’ that Boy Scouts of America has a moral code that is inconsistent with affirmation of homosexual conduct. Indeed, respondent goes so far as to tell Boy Scouts of America that its policy violates the Scout Oath and Law.
“It is not the business of governments or hostile litigants to decide what a private organization’s message is,” Davidson wrote. “The Oath and Law belong to Scouting, and Scouting has the sole right to interpret them.”
Davidson further argued, “Even if Scouting did not consider homosexual conduct immoral, it would still have the right to select a leader whose moral agenda the organization chose to endorse. That is the only way it can control its message. Even if Scouting had not wished to take a formal stance against homosexual conduct, it could not be forced to appoint leaders who openly advocate in favor of the morality of homosexual conduct, or whose public position may dilute or distract from the organization’s chosen message. Scouting is entitled to shape its own message, and if it believes that an individual who seeks to be a uniformed Scout leader will not represent that message, it is entitled to decline his offer to volunteer services.”
A number of friend-of-the-court briefs have been filed in support of the Scouts, while one was filed in support of the would-be homosexual Scout leader, James Dale, a former Eagle Scout who is an AIDS activist and has served as co-president of the Rutgers University Lesbian/Gay Alliance.
The Southern Baptist Convention’s Ethics & Religious Liberty Commission filed one of the friend-of-the-court briefs supporting the Boy Scouts, along with Jay Sekulow of the American Center for Law and Justice.
“This is a case the Boy Scouts must win, but even if they don’t, … those of us against the gay agenda are not going away,” said ERLC President Richard Land.
“Private organizations with a moral viewpoint must retain the right to select their own leaders,” Land said. “If a government entity is allowed to impose on such organizations who or who may not be their leaders, what will stop them from doing the same to religious organizations?”
Land said a ruling by the Supreme Court against the Boy Scouts could mean that “homosexuals could not be kept from teaching at religious seminaries and religious colleges and grade schools. The same argument that applies against the Boy Scouts would apply against religious institutions.”
The homosexual rights agenda being promoted by dozens of pro-homosexual organizations is so insidious that it affects nearly every aspect of life, Land said. “If this case did not involve homosexuality, this would be a slam-dunk case in favor of the Boy Scouts. But because of the bizarre and special untouchable political hot potato the homosexual issue has become, the homosexual and lesbian lifestyle and its impact on society is not held to the same minimum standards as is the heterosexual lifestyle.
“I am never confident in predicting what this court will do,” Land said, referring to the Supreme Court’s current makeup. “It has become so politicized and intimidated by the same homosexual lobby that seems to be affecting all the cultural elites of this nation more than any other segment of our society.
“But the bottom line is, if we lose here, we are not going away. But the same, alas, is true for the other side. This appears to have become a never-ending battle.
“If, by the way, the Republicans lose the upcoming presidential election,” Land added, “look for the homosexual lobby to gain even more clout with another liberal, pro-homosexual Democrat administration in power.
“This is the most important election in our nation’s history since Lincoln was first elected in 1860,” Land continued. “Two mutually exclusive worldviews, the Judeo-Christian worldview and the postmodernist relativist worldview, are coming into full engagement in this election.”
Next year’s election and the possibility the Supreme Court will decide on or about Jan. 10 that it will hear the Boy Scouts’ case in April give the Scouts’ case an ever-greater import in the battle to uphold moral standards, Land said. If the court rules against the Boy Scouts in April, he said, the result could be that those supporting a high moral standard will either be energized to fight on, working hard to elect a pro-family president in November, or disillusioned by the defeat.
But both Davidson and his partner, Carla Kerr, of the law firm representing the Boy Scouts, voiced confidence the court will hear the case and will rule in the Scouts’ favor.
“Being that our case relies on the recent precedent of the Hurley decision by the Supreme Court, we are confident our argument will prevail,” Davidson said. In the Hurley case, the court ruled homosexual groups can be excluded from being allowed to participate in the annual St. Patrick’s Day parade in Boston.
“The basic argument is a tenet of the Constitution, that free association means that groups have the right to exclude unwarranted messengers from their membership,” Davidson said. The Lambda Legal Defense Fund, however, will argue that the Boy Scouts has a unique federal charter, much like the American Legion, and thus is not a private group.
“That argument is preposterous,” Davidson said. “All corporations have charters. Most of them are state charters, but there is nothing that makes a federal charter any different in cases such as this from a state charter. Being federally chartered does not make them part of the federal government or any such nonsense.”
The ERLC’s Land is correct that religious groups should be very concerned about how the court reacts to the Boy Scout petition and how it rules if it decides to hear the case, Davidson said. “The Boy Scouts invoke God throughout their practices. The last point of the Scout law is reverence for God. Scouts pledge to do their best by God. God lives throughout the Boy Scouts organization. If a group inimical to God’s purposes is allowed in, what can that mean for churches and other religious organizations?”
Those supporting the homosexual lifestyle fear having the case heard in the Supreme Court, preferring to win in lower courts and through sheer intimidation of groups that exclude homosexuals by threatening to file lawsuits against them, Davidson said.
“Lambda is working overtime to keep this case out of the Supreme Court,” Davidson said. “They know that the basic question regarding free association is so much in our favor that they expect to lose.”
Lambda’s sole friend-of-the-court brief is a joint filing with the United Methodist Church’s General Board of Church and Society; the United Church Board for Homeland Ministries of the United Church of Christ; the Religious Action Center of Reform Judaism; the Diocesan Council of the Episcopal Diocese of Newark; and the Unitarian Universalist Association. The brief defines the Methodist group as the public policy and social action agency of the United Methodist Church, but Davidson said other Methodist leaders have contacted him to say the general board does not fairly represent the church hierarchy or most members of Methodist churches.
United Methodists are the nation’s largest single sponsor of Boy Scout troops. The organization within the United Methodist Church authorized to direct and coordinate Boy Scout activities throughout the domination, however, filed a brief in support of the Scouts.
The Lambda brief defines Homeland Ministries as the domestic mission arm of the United Church of Christ. The Religious Action Center is defined as the official representative of the Union of American Hebrew Congregations, the governing body of Reform Judaism, North America’s largest Jewish body.
In addition to the SBC and Sekulow, those filing briefs supporting the Boy Scouts were Agudath Israel of America, the American Civil Rights Union, the Claremont Institute for Constitutional Jurisprudence, the Individual Rights Foundation, Liberty Counsel and Liberty Alliance, the Lincoln Institute for Research and Education; a joint brief filed by the General Commission on United Methodist Men, the National Catholic Committee on Scouting, the Church of Jesus Christ of Latter-day Saints (the Mormons) and the Missouri Synod of the Lutheran Church; and a filed by the Pacific Legal Foundation.
Agudath Israel is a national Orthodox Jewish organization with constituents and constituent religious bodies in the United States which sponsor youth organizations. In its brief, Agudath Israel said it all of its youth organizations “would regard a homosexual activist as an inappropriate role model for children.”
The American Civil Rights Union (ACRU) is a nonpartisan legal policy organization dedicated to defending all the rights enumerated by the Bill of Rights and the 14th Amendment, not “just those that might be politically correct for a time, or fit a particular ideology,” as stated in the ACRU’s amicus brief. Members of its policy board include former U.S. Attorney General Edwin Meese and other former Reagan Administration officials, former Federal Appeals Court Judge Robert Bork, the former editor-in-chief of the Reader’s Digest and the former director of Voice of America.
The Claremont Institute is a nonprofit education foundation whose stated mission is to “restore the principles of the American Founding to their rightful and preeminent authority in our national life.” One of the principals it holds is that “the inculcation of virtue in the citizenry was deemed by the founders to be essential in a republican form of government.” The institute recently published a paper, titled, “On the Front Lines of the Culture War: Recent Attacks on the Boy Scouts.”
The Individual Rights Foundation is dedicated to educating the public about the importance of the First Amendment’s free speech and associational guarantees. Liberty Counsel is a nonprofit civil liberties education and legal defense organization which educates the public regarding civil liberties and the role of law in the judicial process in preserving and implementing individual freedoms and the democratic process. The lead attorney for Liberty is Jerry Falwell Jr. The Lincoln Institute is a nonprofit educational organization devoted to what it calls the “proper construction of the constitution and laws of the United States.”
