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.
Against that background, the Scalises, father and son, turned up at the Fancher Elementary School in Mount Pleasant, Mich., and signed on for the Cub Scout program. Then John read the Scout Oath and asked to be exempted: The oath, he explained, was repugnant to his beliefs as a secular humanist. The Scouts refused, revoked his membership and expelled the youngster. This was in January 1998. In October 2000, the Scalises sued the Boy Scouts, not for membership, but rather for injunctive relief and damages.
The gravamen of their charge is that the Scouts and the Mount Pleasant schools are promoting "a religiously oriented and discriminatory fraternity upon school premises as a school-related, extra-curricular educational program in violation of their constitutional and statutory civil rights guarantees against any establishment of religion, and equal protection of the laws prohibiting religious discrimination in the public schools."
That gummy complaint failed to move the Michigan courts. Last January the Michigan Court of Appeals ruled without a dissenting vote that Mount Pleasant had acted impartially and secularly in granting permission to the Scouts to meet on school premises. Dozens of other community groups are accommodated in the same way. The state of Michigan had not deprived father and son of anything to which the law entitles them.
Moreover, said the court, Scout meetings are not school "programs" from which Ben was unlawfully excluded. They are private meetings of members "who have a First Amendment right to disassociate from nonreligious persons." If the plaintiffs' feelings are hurt by their exclusion, "that is an onus that must be suffered in a democratic society."
Since the Dale case was decided six years ago, Rehnquist has died and Justice Sandra Day O'Connor has retired. If the reconstituted high court wants to reconsider the recurring issue of private rights on public facilities, it had better find a better case than this one.