The California Supreme Court, hearing arguments in Los Angeles in two discrimination cases, appeared reluctant Monday to force the Boy Scouts of America to accept gays or atheists.
The state high court must decide whether the Boy Scouts of America, the nation's largest youth organization, is a business subject to a state anti-discrimination law, and if so, whether the group can bar gays and atheists on constitutional grounds of freedom of association. A decision is expected within 90 days.
Although some members appeared uncomfortable with the Boy Scouts' ban on gays, Justice Joyce Kennard and Chief Justice Ronald George both expressed concerns that a ruling against the Scouts could have unintended consequences for other groups.
If the court ruled that the Boy Scouts must admit gays, would an all-women's college then be forced to admit men? Kennard wondered. Justice Stanley Mosk suggested that fraternities and sororities might be required to accept members whom they otherwise would reject.
George repeatedly stressed that the Boy Scouts are different from other sorts of clubs that the state high court has found to be businesses. With the Scouts, "we're talking about attending meetings at members' houses," George said.
The justices expressed even stronger reservations about requiring the Boy Scouts to admit boys who refuse to cite the organization's oath to God.
That was the subject of a second discrimination case reviewed by the high court during arguments in Los Angeles on Monday. The case was brought by twin brothers from Anaheim who were ousted from the Cub Scouts after refusing to recite the oath to God. The boys, now 16, have since been reinstated by lower courts, but the Scouts have continued to appeal those rulings.
Despite their concerns about forcing the Boy Scouts to accept atheists and gays, some justices clearly seemed troubled Monday by the organization's defense of excluding gays.
In the other case before the court, former Eagle Scout Timothy Curran was denied a post as an assistant Scoutmaster for a Northern California troop because of his sexuality.
Under the group's legal rationale, the Boy Scouts could bar African Americans, Justice Kathryn Werdegar said. "Although they haven't chosen to, they could exclude African Americans" if the court accepts the group's reasoning on gays, she said.
Mosk asked a lawyer for the Scouts: "Wouldn't the Boy Scouts benefit by being a diverse organization rather than a monolithic organization?"
Scouting officials learned of Curran's sexuality after he brought a male date to his high school prom and was featured in a local newspaper article about young gays.
Curran, now 35 and a documentary director in Florida, had been a Scout for four years and said he never knew there was a rule against gays. The issue came up when he applied to a regional scouting council to attend a national jamboree as an assistant Scoutmaster.
The council informed him that the Scouts prohibit "avowed homosexuals" from holding leadership positions and told his Berkeley troop that its charter would be revoked if Curran continued to participate in its activities.
Jon Davidson, an American Civil Liberties Union lawyer representing Curran, told the court that the Boy Scouts would not be significantly affected if required to accept gays.
"People do not join the Boy Scouts in order to send some message about heterosexuals," Davidson said. "It is not the Heterosexual Boy Scouts of America."
The Boy Scouts contend that homosexuality is inconsistent with the group's belief that Scouts must be "morally straight." A divided Court of Appeal in Los Angeles sided with the Scouts and found that the organization was not a business.
At Monday's hearing in Los Angeles, some of the court's seven members said the Boy Scouts operate like a business in the selling of camping equipment and other goods at stores. However, at least two justices noted that the primary purpose of the Scouts was not to make money or rent camping facilities but to inculcate certain values in boys.
In the Orange County case before the court, Michael and William Randall were expelled from the Cub Scouts in 1991 because they did not believe in God.
A Court of Appeal ruled in favor of the boys. They were readmitted to the Scouts and have applied to be Eagle Scouts, the group's highest ranking.
Several members of the state high court suggested in their questions that requiring the Scouts to admit boys who don't believe in God might violate the group's constitutional rights.
George noted that if the Scouts allowed members to excuse themselves from taking the oath to God, other members could ask to be excused from learning to tie knots or wearing a uniform.
"How about the right of an organization to determine which message it wants to convey?" Kennard asked.
Other discrimination suits have been filed against the Scouts. In another case pending before the state high court, a girl contended that she was discriminated against when the Boy Scouts refused to admit her to her brother's troop. She argued that the Boy Scouts had better programs and opportunities than the Girl Scouts. Her case probably will be resolved by rulings in the two cases heard Monday.