In the pending Supreme Court case of Scalise v. Boy Scouts of America, the essential facts are clear: John Scalise wanted his 9-year-old son, Ben, to become a Cub Scout. The Cubs didn't want Ben.
That was the situation in September 1997. Now the father and son, having lost in the lower courts of Michigan, have asked the Supreme Court to hear their appeal. It is unlikely that the high court will agree to return to this thicket, but the case presents interesting questions of private access to public places.
To get a hearing, the petitioners must persuade at least four justices to reconsider the court's 5-4 decision six years ago in the case of young James Dale. That case turned upon a Scout's pledge to keep himself physically strong, mentally awake and "morally straight." After years in which he quietly attained Eagle Scout ranking, Dale abruptly emerged as a homosexual activist and public advocate of gay rights.
What might have been a small embarrassment to the Scouts in New Jersey became a national story. After the Scouts expelled him, Dale sued under the state's public accommodations law: He had been the victim of discrimination "on account of sex." He won in the New Jersey courts, but lost on appeal.
Writing for the high court's majority, Chief Justice William Rehnquist ruled that New Jersey's law violates the Scouts' First Amendment right of expressive association: "The Boy Scouts of America is a private, not-for-profit organization engaged in instilling its system of values in young people. The Scouts assert that homosexual conduct is inconsistent with the values it seeks to instill."
Rehnquist drew upon the Supreme Court's 1984 opinion in a case involving membership in quasi-public organizations. Forcing a group to accept members "it does not desire" may impair its ability to express only those views it intends to express. The forced inclusion of an unwanted person, such as James Dale, infringes upon the group's "freedom of expressive association."
Justice John Paul Stevens, joined by his usual colleagues, filed a Dissent Interminable in the Dale case. Justice David Souter, joined by Justices Ginsburg and Breyer, filed a separate Dissent Impenetrable. Souter said: "It is entirely possible for an individual to become so identified with a position as to epitomize it publicly. When the position is at odds with the group's advocated position, applying an anti-discrimination statute to require the group's acceptance of the individual in a position of group leadership could so modify or muddle or frustrate the group's advocacy as to violate the expressive associational right." Whatever.