LEGAL BRIEFS by susan murray & beth robinson Supreme Court Says Boy Scouts Can Discriminate Against Gays A few months ago we reported that the New Jersey Supreme Court had unani- mously ruled that the Boy Scouts had violated New Jersey’s anti-discrimination law when it kicked scoutmaster James Dale out of the Boy Scouts simply because he was gay. Now we’re here to report that the United States Supreme Court believes otherwise: by a narrow five to four vote, the highest court in the land has upheld the Boy Scouts’ right to discriminate against gay scouts and scoutmasters. The First Amendment to the United States Constitution grants all of us the right to “freedom of association.” Essentially, the Scouts argued that they have a First Amendment right not to have to associate with gay people, because opposition to homo- sexuality is a core belief of the Boy Scouts, and the Court agreed. In doing so, the Court ignored one small factual prob- lem: when the Boy Scouts kicked Dale out of the Scouts, they did not even have an express anti-gay message or purpose — in fact, none of their publications or policies even mentioned homosexuali- ty, and they had never given any instructions condemning homosexuality! The Scouts argued that their “policy” against gay scouts was expressed in the Scout’s Oath that scouts must be “morally straight,” and in the Scout’s Law that scouts must be “clean in word and deed.” Believe it or not, based on these vague “oaths,” the Court concluded that the Scouts’ First Amendment freedom to express who it wants to associ- ate with would be significantly burdened if it had to include gay scouts in its midst. The four justices in the minority complained that the majority had taken an “astounding view of the law” by simply deferring to the Scouts’ unsupported claim that one of its fundamental associa- tional messages was to disap- prove of homosexuality. The fear is that state laws, like Vermont’s, which outlaw dis- crimination in public accom- modation, will now be severely undermined, since now a defendant will be able to get around the law simply by mak- ing a sham claim that its free- dom of association rights allow it to exclude gay people. Will a Vermont restaurateur or hotel owner now be able to exclude gay people simply by claiming his or her freedom of associa- tion rights will be violated ifhe or she is forced to “associate” with a gay person by letting the gay person into the restaurant or hotel? The Court’s decision to let the Boy Scouts discriminate against gays seems to be anoth- er example of what many GLBT legal experts call the “gay exception” to Constitutional law. If the Jaycees’ right to freedom of association does not allow them to exclude women (a decision this very Supreme Court made a few years ago), then why does the Boy Scouts’ right to freedom of association allow them to exclude gays? There seems to be no logical reason for the discrepancy. As Justice Stevens stated in his critical dissenting opinion, the matrimonial and family law majority’s decision sends a message that it’s okay to exclude gay people, and that being a homosexual is a “con- stitutionally prescribed symbol of inferiority.” The bottom line is that James Dale, who had joined the Boy Scouts when he was eight years old and earned dozens of badges and awards, cannot be a scoutmaster to his local troop of boys. And in a last bit of irony, Dale’s troop has apparently disbanded. Why? Because of a shortage of adult scout leaders. Unbelievable. Susan Murray and Beth Robinson are attorneys at Langrock Sperry & Wool in Middlebury, Vermont whose practices include employment issues, family matters, estate planning, personal injury and worker is compensation cases, and general commercial and civil litigation. This column features timely information about legal issues of interest to our community. We hope to provide information about important laws and court cases that may affect our rights, as well as practical nuts and bolts advice for protecting ourselves and our families. If you ‘d like to see us cover a particular topic, please feel free to write OlTM or call us at 388- 6356. V 131 CHURCH STREET £401 P. ao2.8e4.a12o F. 802.864.3635 www.vermontfamiiylaw.comA_ info@vAermontfamily|aw,com E August 2000 | Out in the Mountains I21 Laurie S. Rosenzweig Attorney at Law 18 South Main Street, P.O. Box 1455, Rutland, VT o57’o1 802-786-2251 _e-mail: Sabu234@AOL.com hp Real Estate, Wills &Trusts, General Practice @O"‘%1$ /V‘/\ 6° 9.0’ ‘(ban . 6 ’ db @025 ,,t~»'\° BLACKWOOD ‘ea? «:9, Ass<)..‘9“§’.fi1e‘J1,=.,s,Pc ‘o ‘J blackv,v,dlaw@aol.com . fax: 802-863-0262 Employment and Spedal Education Law, Civil Riglm Law, Wills and Mediatiorn, LGBT Adoptions and Domestic Issues, Personal Injury Law and other litigation Good legal advice can make all the difference. V Langrock Sperry & Wool offers the services of 22 lawyers with over 300 years combined experience in all areas of the law — including two lesbian attorneys with special expertise serving the legal needs of the g/1/b/t/q community. SUSAN MURRAY & BETH ROBINSON With offices in Middlebury and Burlington Middlebury (802) 388-6356 Burlington (802) 864-0217 smurray@langrock.com brobinson@langrock.com Langrock Sperry & Wool, LLP ATTORNEYS AT LAW