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Boy Scouts ruling needs a review

New Jersey's Supreme Court has unanimously issued a ruling that deserves to be reviewed by the U.S. Supreme Court, which four years ago issued a unanimous ruling that may be incompatible with the New Jersey ruling that the Boy Scouts cannot discriminate against homosexuals. The controversy, with wide ramifications for American freedom, is not about whether the Scouts' policy is right but whether the Scouts has a right to it.

James Dale, now 29, became a Scout at age 8, earned Eagle Scout status and was an assistant scoutmaster in New Jersey when Scout officials saw a newspaper photo of him as a leader of a gay rights group at Rutgers University. The Scouts promptly expelled him, saying that homosexuality is incompatible with the Scout obligation to be "morally straight" and "clean."

Dismissing the Scouts' position (with which many religious denominations, and various other groups, agree) as "bigotry," New Jersey's chief justice, writing for the court, said the Scouts is (like a restaurant, which is open to the general public) a "public accommodation" and therefore covered by New Jersey's statute forbidding discrimination on the basis of sexual orientation. Another justice, the court's leading liberal, argued, with more length (44 pages) than legal relevance, that "decades of social science data" have refuted the "myth" that homosexuals are "inherently immoral."

The Scouts will take to the U.S. Supreme Court the argument that its constitutional (First Amendment) right of "expressive association" trumps New Jersey's statute. Addressing that argument, the New Jersey court said that the Scouts, with 5.8-million members, is not "selective" enough to qualify as "distinctively private."

In 1984 the U.S. Supreme Court ruled 7-0 (Justices Burger and Blackmun, both Minnesotans, had been Jaycees, so they recused themselves) that Minnesota Jaycees were required to admit women. This was because of a state statute forbidding denial, on the basis of sex, of "full and equal enjoyment" of a "place of public accommodation."

But the court limited the sweep of that ruling by noting that organizations make themselves "available to the public" in various ways. The court rejected the Jaycees' "expressive association" defense but stressed that the Jaycees are a primarily commercial organization whose "unselective criteria" (only age and sex) were not importantly related to the organization's message.

However, the Scouts, unlike the Jaycees, are a creedal organization with an explicitly moral mission, albeit one that conflicts with the moral philosophies of seven New Jersey justices. So the Scouts' "expressive association" claim is stronger than the Jaycees' was.

Furthermore, in 1995 the court unanimously held that organizers of Boston's St. Patrick's Day parade had a First Amendment right to exclude from the parade a group of Irish-American gays, lesbians and bisexuals. The group had been formed for the purpose of participating in the parade to express pride in their Irishness and their sexual orientation, and to express solidarity with similar people who had tried to march in New York's parade.

The court held that a parade is not mere motion, it is inherently expressive, and that the First Amendment protects a speaker's (in this case, the parade's) "autonomy" in choosing the content of his message. The court rejected the claim that the parade lacks "genuine selectivity" and therefore lacks an "expressive purpose."

Notice that the New Jersey justices have objected precisely to the fact that the Scouts are genuinely selective. By objecting to the Scouts' selection criteria, the justices have conceded the Scouts' expressive purpose.

The New Jersey court's ruling that the Boy Scouts' convictions about sexual morality cannot be tolerated has, of course, been praised by liberals as a blow for toleration. The court's ruling that the Boy Scouts must be made to bow to the state's orthodoxy on sexual morality has, of course, been praised by liberals for advancing diversity. The court's ruling that the Boy Scouts' convictions do not deserve respect has, of course, been praised by liberals as a luminous example of showing respect for others.

In several other states with statutes forbidding discrimination on the basis of sexual orientation, challenges to the Scouts' right to exclude homosexuals have failed. But now New Jersey's judicial authoritarianism has advanced, by the means preferred by contemporary liberalism (litigation rather than legislation; judicial fiat rather than democratic persuasion), the liberal agenda of breaking more and more institutions into the saddle of the state.

The legal reasoning (leave aside the moral exhibitionism) of the New Jersey justices _ two of whom, including the chief justice, were appointed by Republican Gov. Christine Todd Whitman, who applauded the decision _ is ripe for review.

George Will is a syndicated columnist with the Washington Post Writers Group.

Washington Post Writers Group