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N.J. high court says Scouts can't ban homosexuals

The Scouts plan to appeal to the U.S. Supreme Court the ruling that said New Jersey's anti-discrimination laws apply to them.

Equating the Boy Scouts of America with public accommodations such as restaurants, libraries, schools and theaters, the New Jersey Supreme Court on Wednesday ruled that the organization's 1990 expulsion of a gay assistant scoutmaster violated the state's anti-discrimination law.

In a 7-0 decision, the court first rejected the Boy Scouts' arguments that it is a private organization and that its decision to remove the assistant scoutmaster, James Dale, was protected by the First Amendment. The court also dismissed the Scouts' contention that homosexuality is immoral, comparing that argument with discrimination against women and blacks.

After concluding that Dale's dismissal was based on "little more than prejudice," Chief Justice Deborah Poritz declared: "The sad truth is that excluded groups and individuals have been prevented from full participation in the social, economic and political life of our country. The human price of this bigotry has been enormous. At a most fundamental level, adherence to the principle of equality demands that our legal system protect the victim of invidious discrimination."

In a separate opinion, Justice Alan Handler, who is widely considered the court's staunchest liberal, said he agreed with much of his colleagues' legal reasoning. Then Handler, who is retiring after this term, concluded his 44-page opinion with something of a sociological and philosophical lecture.

"One particular stereotype that we renounce today is that homosexuals are inherently immoral," Handler wrote. "That myth is repudiated by decades of social science data that convincingly establish that being homosexual does not, in itself, derogate from one's ability to participate in and contribute responsibly and positively to society. In short, a lesbian and gay person, merely because he or she is a homosexual, is no more or less likely to be moral than a person who is heterosexual."

The case of Dale, who is now 29, is the second one to have reached a state's highest court. But the New Jersey result is the opposite of the outcome of the earlier case. In March 1998, the California Supreme Court ruled that the Scouts could expel homosexuals. That court held that the Boy Scouts were a private organization not covered by California's civil rights law and that the organization had constitutional rights of freedom of association and freedom of expression to expel homosexuals. The U.S. Supreme Court refused to take up the case last year.

Paul Stevenson, a spokesman for the Boy Scouts of America, expressed disappointment with the New Jersey ruling and said the group planned to appeal it to the U.S. Supreme Court.

"The Boy Scouts of America is a private organization with the right to set our membership and leadership standards," said Stevenson. He argued that New Jersey's anti-discrimination law did not supersede the organization's First Amendment rights of association. Consequently, he reasoned, New Jersey's high court had used the state's anti-discrimination law to discriminate against the Scouts.

Dale, who was an assistant scoutmaster at Troop 73 in Matawan when he was expelled, said he was elated with the ruling. "The Supreme Court of New Jersey is wonderful," he said, as he appeared with his lawyer at the headquarters of the Lambda Legal Defense and Education Fund in Manhattan. "This is what scouting taught me: Goodness will prevail."

The lawyer, Evan Wolfson, said: "The decision we got today is a win/win decision. It's a victory for Jim Dale and it's a victory for other gay men like him."

Dale, who lives in Manhattan and helps arrange health fairs for people with AIDS, said he wants to return to scouting. The ruling ordered his reinstatement and instructed a lower New Jersey court to take up his request for compensatory and punitive damages against the Boy Scouts.

Dale joined scouting in 1978 at age 8, obtained some 30 merit badges and scouting's highest rank and honor _ Eagle Scout _ and eventually became assistant scoutmaster.

But in July 1990, his photograph appeared in a local newspaper, identifying him as co-president of the Gay/Lesbian Alliance at Rutgers University. Soon afterward, the Scouts sent him a letter, informing him of his expulsion and saying their standards for leadership forbade membership to homosexuals.

Dale said he would like to return to the Boy Scouts, but the promised appeals will likely stall that.

"When I was growing up, I didn't know I was gay, but the Boy Scouts made me feel good about who I was," Dale said. "Whether or not they know it, the Boy Scouts do wonderful things for gay kids across the country."

_ Information from the Washington Post was included in this report.

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