WASHINGTON -- Confronting emotional issues of free expression and homosexuality, Supreme Court justices joined in a spirited debate Wednesday over whether the Boy Scouts can bar gays from serving as troop leaders.
The outcome of the case could determine whether the LDS Church remains a sponsor of Scouting."Boy Scouting is so closely identified with traditional moral values that the phrase 'he's a real Boy Scout' has entered the language," said lawyer George A. Davidson, arguing that the Scouts had a constitutional right to oust New Jersey troop leader James Dale after learning he is homosexual.
"Mr. Dale had created a reputation for himself" by becoming publicly known to be gay, and that would harm his ability to be a role model to Scouts, Davidson said.
But Dale's lawyer, Evan Wolfson, said the Boy Scouts are not an "anti-gay organization" and therefore Dale's presence did not burden the group's message.
Wolfson added that Dale did not seek to use his position as a Scout leader to advocate homosexuality. Dale and his parents listened to the arguments from the courtroom audience.
The justices had pointed questions for both sides.
Justice David H. Souter told Davidson, "Mr. Dale is not asking to carry a banner; he's saying, 'I'm not going to carry a banner.' "
"He put a banner around his neck" by leading a college campus gay-rights organization, Davidson responded.
Justice Antonin Scalia asked Wolfson why the Scouts should be required to accept as a leader "someone who embodies a contradiction of their message, whether the person wears a sign or not."
Justice Stephen G. Breyer wondered aloud how courts should be expected to determine whether the Boy Scouts' opposition to homosexuality is fundamental to their message. The Scouts require members to promise to be "clean" and "morally straight."
Justice Anthony M. Kennedy asked, "Who is better qualified to determine the expressive purpose of the Boy Scouts -- the Boy Scouts or the New Jersey courts?"
Wednesday's argument was the last day for the current term, and the justices will decide by July whether the Scouts had the right to oust Dale.
New Jersey's highest court ruled that the Boy Scouts' ban on gay troop leaders violated a state ban on discrimination in public accommodations. But the Scouts say the state law violates the organization's rights of free speech and free association under the Constitution's First Amendment.
Scouting officials aren't sure of what will happen to the organization if the court sides with Dale, but it is clear the organization could lose some of its largest sponsors.
The Church of Jesus Christ of Latter-day Saints --the largest single sponsor of Scouting units in the United States -- filed a brief in the case saying it "would withdraw from Scouting if it were compelled to accept openly homosexual Scout leaders."
The National Catholic Committee on Scouting; the General Commission on United Methodists Men of the United Methodist Church; the Lutheran Church-Missouri Synod; and the National Council of Young Israel, which joined the LDS Church in the friend-of-the-court brief, would also consider the same.
"Government cannot regulate Scouting without unconstitutionally entangling itself in religion, for the simple reason that Scouting and religion are themselves so deeply intertwined," the brief states.
"To be coerced to install a Scout leader who openly acknowledges his homosexuality would fundamentally disrupt the norm (that the faiths) seek to instill in their impressionable youth. Yet that is precisely what the decision . . . would force BSA to do."
The brief, written by Von G. Keetch with the Salt Lake law firm of Kirton & McConkie law firm, noted the LDS Church sponsors more than 400,000 Scouts (second only to the Methodists) and 30,000 Scouting units nationwide (the most of any group).
Together, the five faiths joining the brief sponsor nearly half of all Scouts and Scouting units in America --about 1.2 million Scouts and more than 50,000 Scouting units.
Boy Scouts of America spokesman Brian Thomas said he could not speculate on the impact the organization would have if the organization should lose its LDS members.
"That's an issue to take up when the decision day comes. We've got to let the Supreme Court rule on this," Thomas said. "This is the position we wanted to be in all along, to get a definitive decision on this matter, and once the Supreme Court has made its decision in late June or July, we will go on to the next step."
At least two of the BSA's 69 executive board members are LDS -- President Thomas S. Monson, first counselor in the First Presidency, and Elder Robert K. Dellenbach, a member of the First Quorum of the Seventy.
When asked what influence the church has had on Boy Scout policy over the years, Thomas said simply that the church is one of many sponsors.
"It's an organization based on all of its members," Thomas said of Boy Scouts of America. "I don't think any one organization has more sway than the next."
K. Hart Bullock, director of LDS Scouting relationships for the Boy Scouts of America, said both BSA and the LDS Church are pleased that the case is being heard by the Supreme Court.
"We welcome the opportunity for the court to reach a definitive decision in this matter," he said. "We are confident that the court will support us and defend our right to establish standards for leadership and membership as a private organization."
Deseret News staff writers Hans Camporreales, Zack Van Eyck and Douglas D. Palmer and Deseret News Washington correspondent Lee Davidson contributed to this story.