The recent decision by the U.S. Supreme Court stating that the Boy Scouts of America has the right to exclude homosexuals based on their First Amendment right is likely to result in increased pressure on public schools and other sponsors to end their associations with the organization. The court ruled 5-4 on June 28 that a state law banning discrimination based on sexual orientation violates the Scouts’ right to "expressive association." This decision overturned a ruling by the New Jersey Supreme Court in favor of James Dale, who was removed as an assistant scoutmaster in 1990 after it was discovered that he was gay.
Chief Justice William H. Rehnquist, in the majority opinion, stated, "Dale’s presence in the Boy Scouts would, at the very least, send a message, both to the young members and the world, that the Boy Scouts accept homosexual conduct as a legitimate form of behavior." He argued that the state law does not justify such a significant intrusion on the Boy Scouts’ freedom of expressive association. Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas joined him in this opinion.
In dissent, Justice John Paul Stevens expressed that the Boy Scouts’ view on homosexuality is rooted in prejudice and a biased way of thinking about strangers. He was joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. Justice Stevens also mentioned that the state of New Jersey has recognized the right of individuals to be open about their sexual orientation and be given equal access to employment, including roles that serve as examples to children. According to Justice Stevens, the Boy Scouts’ association with schools and other organizations that employ openly gay individuals should not be understood as an endorsement or condoning of their activities.
The Boy Scouts celebrated the Supreme Court’s decision, considering it a validation of their efforts over the past 20 years to uphold their membership standards. They stated that their message is compromised when potential leaders present themselves as role models inconsistent with the organization’s understanding of the Scout oath and law. On the other hand, the Lambda Legal Defense and Education Fund, a gay-rights group that represented Mr. Dale, called on the public to encourage government sponsors of Boy Scout troops, such as public schools and fire departments, to withdraw their support. They argued that as a discriminator, the Boy Scouts should lose the privileges and benefits they have enjoyed for decades as an organization open to all boys.
The American Association of School Administrators, which supported Mr. Dale through a friend-of-the-court brief, stated that it is currently surveying its members to determine their actions following this decision. Judy Seltz, the AASA’s spokeswoman, mentioned that while they would have preferred a different outcome, the decision to continue associating with the Boy Scouts will be made locally by each school. This ruling may lead to tension between the Boy Scouts’ traditional ties to schools and the increasing implementation of anti-discrimination policies that include protections based on sexual orientation in public education.
Wiretapping Case
Meanwhile, in another development towards the end of its term, the Supreme Court announced its intention to address a significant First Amendment issue pertaining to a federal wiretapping law through a case originating from a labor dispute in a school district. The case, known as Bartnicki v. Vopper (No. 99-1687), originated from 1993 negotiations between the Wyoming Valley West district in Pennsylvania and the local affiliate of the National Education Association.
During these negotiations, an unidentified individual intercepted and recorded a phone conversation between a teacher and a union negotiator. In this conversation, the teacher made a remark implying the necessity to take drastic action against school board members who did not support the union’s salary increase demands – specifically, suggesting the idea of "blowing off the front porches." Eventually, the recording made its way into the hands of a leader of a taxpayer group, who subsequently shared it on a radio talk show.
Consequently, the teacher and the union official filed a lawsuit against the leader of the taxpayer group and the radio host under a federal law that prohibits the interception of telephone conversations. The central question before the Supreme Court is whether third parties can be held legally responsible under this law. A federal appeals court previously determined that third parties possess a First Amendment right to disseminate such information if they had no involvement in the interception of the phone call.
