If the Boy Scouts could legally bar "avowed homosexuals", California Supreme Court Justice Kathryn Werdegar wondered, couldn't they also bar African Americans? But if the Scouts had to admit gays, a colleague asked, couldn't an all-women's college be forced to admit men? In recent years, the Boy Scouts of America has spent millions of dollars fending off law suits from gays, girls, and atheists intent on joining the organisation.
Conservatives say it is a prime case of America's legal system run amok. But the issue reached California's highest court this week, after lower court judges had jumped both ways. The technical question was whether the Boy Scouts, by selling uniforms, camping equipment, and other items required to Be Prepared, qualified as a business.
If so, they were clearly covered by anti-discrimination laws. The judges, it appeared, were inclined to agree with the Scouts that they remained a private charitable group. But they were clearly troubled by the Boy Scouts' right to keep new recruits "morally straight", under rules written at the turn of the century, in a famously permissive state where the gay community is a powerful political voice.
Controversy has swirled around the Boy Scouts of America since at least 1991, when twins William and Michael Randall, aged nine, refused to recite the words of the Cub Scout Promise promising to "do my duty to God and my country". Living in deeply conservative Orange County, they were expelled from Pack 519, and their father, a lawyer, filed suit. The court yesterday heard from James Randall and lawyers in another case, brought by a Los Angeles Scout master who was barred because he is gay.
Any ruling would extend to several similar suits in California, including one from a 12-year-old girl. Katrina Yeaw has sued to join because she wants to learn canoeing, camping, and other outdoor skills with her twin brother Daniel, who is a member.
The Randall twins - self-declared agnostics - having won the earlier rounds in the courts continued Scouting, and at the age of 16 they are about to qualify for their Eagle Scout badges, the Scouts' highest honour. James Randall, their father, told the court that the Scouts "acts like a business, operates like a business, and it runs a business. If it operates like, talks like, thinks like a duck, then it must be a duck."
Jon Davidson, a lawyer for former assistant Scout master Timothy Curran, made a more emotional appeal. Mr Curran was expelled shortly after bringing a male date to his high school prom. But his client did not enlist in an organisation called "The Heterosexual Boy Scouts of America," Mr Davidson said. "In addition to being a perfect role model and leader, he was also gay."
The Scouts argue that changing the rules for membership would lead religious groups to end their affiliation. On other other hand, businesses such as Levi Strauss have withdrawn support because of the organisation's ban on atheists and gays. Their attorney, George Davidson, held up a Boy Scout book in court, saying: "There's God on the front cover, and God on the back cover."
The court is due to rule in March.Reuse content