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[EDITORÆS NOTE: In this Nov. 3, 1995 ruling, New Jersey
Superior Court Judge Patrick McGann Jr. uses biblical imagery in
deciding that the stateÆs anti-discrimination law does not prohibit
the ouster of a gay assistant scoutmaster from the Boy Scouts of
America. McGann notes that the cities of Sodom and Gomorrah
were "destroyed by fire and brimstone rained down by the Lord
because of the sexual depravity (active homosexuality) of their
male inhabitants," He further states that "[i]t is unthinkable that in
a society where there was universal governmental condemnation of
the act of sodomy as a crime, that the [Boy Scouts] could or would
tolerate active homosexuality if discovered in any of its members."

This document is posted in the Court TV Law Center:
http://www.courttv.com]


SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
MONMOUTH COUNTY
Docket No. MON-C-330-92

_____________________________

JAMES DALE,
Plaintiff,

 v.


THE BOY SCOUTS OF AMERICA
and THE MONMOUTH COUNCIL
BOY SCOUTS OF AMERICA,

Defendants

_______________________________

Civil Action

FINDINGS OF FACT AND OPINION

Donna Costa for Plaintiff (Cleary, Gottlieb, Steen & Hamilton,
Thomas Moloney on the brief - New York Counsel admitted pro
hac
vice); (Evans, Osborne & Kreizman, Lewis H. Robertson,
attorneys,
and on the brief.)

George A. Davidson for Defendants (Hughes, Hubbard & Reed,
Mr.
Davidson and Carla Kerr on the brief - New York Counsel
admitted
pro hac vice); (Cerrato, Dawes, Collins, Saker & Brown, attorneys,
Sanford D. Brown, on the brief).

Marsha Wenk filed a brief, amici curiae for American Civil
Liberties Union of New Jersey and the American Civil Liberties
Union Foundation, (Ruth E. Harlow of the New York bar, on the
brief).

Decided: November 3, 1995

McGANN, JR., J.S.C.

This matter came before the court on cross-motions for Summary
Judgment. The many certifications supplied by the parties; while
voluminous and informative, present no substantial issues of
material fact. The briefs submitted by both sides have likewise
been fulsome, nonetheless, but clearly and competently delineate
and argue the issues. Accordingly, summary judgment is apt.


THE FACTUAL BACKGROUND

Plaintiff, James R. Dale (born August 2, 1970 as James R. Dick)
was a youth member in the Scouting movement continually from
age
eight until age 18, He began his scouting career as a Cub Scout
and, as a Boy Scout, proceeded through the seven badge levels of
advancement from Tenderfoot to Eagle Scout. [l] He was
thoroughly
immersed in scouting during his formative years and compiled a
most commendable scout record.

His leadership ability during those years was recognized by his
adult scoutmasters and his peers. He was appointed Assistant
Patrol Leader in his troop in 1982; Patrol Leader, in 1983; Bugler
from 1984 through 1988; and Junior Assistant Scoutmaster from
1985
through 1988.

He received the Arrow of Light Award for his work on behalf of
the
environment and the World Conservation Award based on his
concern
for protection of wildlife. In the years from 1984 through 1988 he
held various offices in the Order of the Arrow - a national
brotherhood of honor campers of Boy Scouts of America
(hereinafter
referred to as BSA). [2] He was, at various times, Banquet
Chairman, Vigil Honor Chairman, Camping Promotions Chairman
and
Ceremonies Chairman of the Order. The last-mentioned office
involved the induction of new members into the Lodge, the Ordeal,
and the Brotherhood and challenging them to live up to the Scout
Oath and the Scout Law. He was very active in recruiting new Boy
Scout youth members.

Over the years, James Dick attended various BSA leadership
training programs including Brownsea Junior Leader Training,
Order
of the Arrow National Leadership Conference, and the annual
leadership retreat for the Order of the Arrow, Na-Tsi-Hi Lodge No.
71.

All of these activities brought him to the attention of the
Monmouth Council. Because of his exemplary record and public
speaking ability he was asked to speak on behalf of Scouting at
various functions and fund-raising events. In 1987 he was the
featured youth speaker at the annual Joshua Huddy Distinguished
Citizenship Award Dinner of the Monmouth Council.

Shortly after receiving his Eagle Badge in July of 1988, James
Dick turned 18; his status as a Boy Scout automatically terminated
as provided in the By-Laws of BSA. Thereafter, he was invited to
apply for adult membership in BSA as an Assistant Scoutmaster.
He
did so in early 1989; was accepted and given a commission as an
Assistant Scoutmaster by the BSA on recommendation of the
Monmouth
Council and assigned to Troop 73 Matawan, New Jersey,
sponsored by
the Matawan First United Methodist Church. That was the troop of
which he had been a member during all of his scouting career.

In September 1988, James Dick (now using the name James Dale)
[3]
enrolled in Cook College of Rutgers University. By that time he
had acknowledged to himself, to his friends and to his family that
he was homosexual. [4] On campus he became co-president (with a
female) of the Rutgers University Lesbian and Gay Alliance. '- In
July 1990 an on-campus seminar sponsored by the Alliance drew
newspaper coverage. The Newark Star-Ledger ran an article on
July
8, 1990 captioned "Seminar addresses needs of homosexual teens."
In an accompanying photograph, Dale's picture appeared with that
of the featured speaker and the co-president of the Alliance. He
was identified as co-president of the Lesbian and Gay Alliance in
both the photograph and text.

That article came to the attention of the Executive of the
Monmouth Council, BSA - Mr. James W. Kay. He sent the
following
letter dated July 19, 1990 to Dale:

"Dear Mr. Dale:

After careful review, we have decided that your registration with
the Boy Scouts of America should be revoked. We are therefore
compelled to request that you sever any relations that you may
have with the Boy Scouts of America. [5]

You should understand that BSA membership registration is a
privilege and is not automatically granted to everyone who
applies. We reserve the right to refuse registration whenever
there is a concern that an individual may not meet the high
standards of membership which the BSA seeks to provide for
American youth.

If you wish to have this decision reviewed by a BSA regional
review committee, please write to the Regional Director within 60
days of the date of this letter, explaining your version of the
facts supporting your claim that your registration as a BSA
member
should be reinstated. The procedures for a review of this decision
are attached."

Dale wrote asking the reason for that action. In his reply of
August 10, 1990, Kay stated "The grounds for this membership
revocation are the standards for leadership established by the Boy
Scouts of America which specifically forbid membership to
homosexuals." Despite the repeated requests by Dale and later by
his counsel, for a copy of those "standards" none was ever
supplied. A reply to Dale's counsel from the national counsel of
BSA dated December 21, 1990 states BSA's position as follows:


"As your client is apparently an avowed [6] homosexual and the
Boy
Scouts of America does not admit avowed homosexuals to
membership
in the organization, no useful purpose would apparently be served
by having Mr. Dale present at the regional review meeting."

Dale appealed that decision through the various procedural avenues
accorded by the structure of BSA, to no avail.

It is quite clear that, although a framework of "procedural due
process" is available within the structure of BSA, no serious
hearing was ever accorded to Dale on the merits of whether an
actively homosexual Assistant Scoutmaster could be or should be
compatible with the goals of scouting - as Dale was prepared to
argue had the opportunity been presented to him. In other words,
the governing powers of BSA had made their own irrevocable
decision which they would not change but for the compulsion of a
court order. This action then followed.

It is stipulated that Dale is homosexual not only by inclination
and preference but that he is a sexually active homosexual.

Dale takes the position, sincerely, that his Boy Scout training
instilled in him the belief that "honesty is the best policy"
including, among other matters, his sexual orientation. He was
never aware, he states, of any written policy in any of the many
publications of BSA that "avowed" homosexuals are not permitted
in
the BSA. He made no inquiries. Affirmatively he states that he is
aware of other homosexuals active in scouting against whom no
adverse action has been taken because they have not "gone public"
with their sexual orientation as did he. He can perceive no per se
conflict between the ideals and goals of BSA and his homosexual
orientation, "avowed" or not.

We are left then with the fact that the defendants did
discriminate (in the broad sense) against plaintiff because of his
homosexual "affectional or sexual orientation". Is, then, Dale
entitled to an order restoring him to adult membership in BSA and
to his former position based on 1) the New Jersey Law against
Discrimination (hereinafter NJLAD) or 2) common law policy
considerations, or 3) equitable estoppel? Should he, in addition,
be awarded compensatory and punitive money damages, counsel
fees
and costs?

Plaintiff's Complaint seeks relief on the following specified
grounds; to wit, that

I. Defendants violated the NJLAD, N.J.S.A. 10:5-1 to 19, and
specifically the rights accorded by N.J.S.A. 10:5-12(f) in that,
as a "place of public accommodation," BSA discriminated against
plaintiff by withholding or denying him "the accommodations,
advantages, facilities and privileges" of BSA - as a place of
public accommodation - on the basis of his "affectional or sexual
orientation".


II. Defendants violated N.J.S.A. 10:5-12(a) in that, as employers,
they "discharged" Dale, "as an employee", because of his
"affectional or sexual orientation".

III. Defendants violated N.J.S.A. 10:5-12(1) in that BSA "refused
to do business" with plaintiff based on his "affectional or sexual
orientation".

IV. Defendants' actions in expelling plaintiff from membership in
BSA on the basis of his affectional or sexual orientation violated
the public policy of New Jersey as codified in the NJLAD.

V. Defendants' intentional revocation of plaintiff's membership in
BSA without according him procedural due process violated New
Jersey common law governing membership organizations; caused
him
emotional distress for which he is entitled to compensatory and
punitive damages.

VI. Defendants should be estopped from revoking plaintiff's
membership in BSA because they never informed plaintiff of their
policy against admitting or retaining homosexual boys and men as
members and thereby led him into a commitment of time and effort
to an organization which he would have voluntarily left years
before, had he known.

THE NATURE OF SCOUTING IN THE UNITED STATES

A. THE HISTORY OF SCOUTING

The Boy Scout movement was founded in England in 1907 by
Lieutenant General, Sir Robert S. Baden-Powell. His book
"Scouting
for Boys" published in 1908 furnished the basis for all that
scouting became, and it remains so to the present day. In 1910,
with the assistance of his sister, Baden-Powell founded the Girl
Guides (now Girl Scouts). Both movements spread rapidly
throughout
the civilized world. By 1920 the First International Scout
Jamboree was held and continues to be held on a quadrennial basis.

Since Baden-Powell was a military leader, the organization for
boys which he conceived and created has many military attributes.
Members wear uniforms with insignia and  badges; there is a chain
of command; organizational units are called Posts, Troops and
Patrols; there is achievable upward movement within the ranks
based on merit.

Fundamental to becoming a boy scout was, and continues to be, the
promise of the boy that on his honor, he will do his best to do
his duty to God and his country; to help other people at all times
and to obey the Scout Law. That oath - expressing a chivalrous
code of behavior easily understood by a young lad - is taken by
each scout candidate in a solemn fashion.


In every country of the world where Boy Scouting is present, the
same basic pattern outlined by Baden-Powell is followed, with but
small variations as national traditions and culture may require.
The world-wide activities of scouting are overseen by the Boy
Scouts International bureau established in 1920. Except for
necessary professional and administrative personnel, Boy Scouting
from top to bottom is conducted by adult volunteers. They receive
no compensation or material reward of any kind. [7]

B. THE STRUCTURE OF BOY SCOUTS OF AMERICA

Boy Scouts of America was first incorporated in 1910 as a
not-for-profit corporation in the District of Columbia. Support
for the aims and principles of scouting was so strong, nationwide,
that on June 16, 1916 a new corporate charter was issued to Boy
Scouts of America by Act of Congress.

In the Report of The House Committee on the Judiciary in support
of the Act, Congress stated:

"The Boy Scout movement is ... intended to supplement and
enlarge
established modern educational facilities in activities in the
great and healthful out of doors where may be the better developed
physical strength and endurance, self-reliance, and the powers of
initiative and resourcefulness, all for the purpose of
establishing through the boys of today the very highest type of
American citizenship.

It tends to conserve the moral, intellectual, and physical life of
the coming generation, and in its immediate results does much to
reduce the problem of juvenile delinquency in the cities...The
importance and magnitude of its work is such as to entitle it to
recognition and its work and insignia to protection by Federal
incorporation.

The Scout scheme is based upon the methods involved in
educating
the boy. It is a scheme of placing the boy on honor. In addition
to requiring him to live up to a standard or code of laws which
insure development of character along proper lines, it requires
him to study in order to pass certain tests of qualification. The
passing of these various tests ~ is recognized by the award of
appropriate badges or medals and insignia.

If any boy can secure these badges without meeting the required
tests, the badges will soon be meaningless, and one of the leading
features of the Scout program will be lost. Likewise, with the
uniform which designates a Scout. At the present time this is
protected by the use of insignia--a seal woven or stamped into the
cloth. All of these various badges and insignia are at present
protected by the patent laws, but under the patent laws such
protection is available for a limited period only. The passing by
Congress of this bill will, it is believed, provide the
organization with proper protection for its distinctive insignia,
the integrity of which is essential to the maintenance of the
movement, and protect it from those who are seeking to profit by
the good repute and high standing and popularity of the Scout
movement by imitating it in name alone.

The corporate charter of BSA grants the following powers:

Section 2. That the name of this corporation shall be "Boy Scouts
of America," and by that name it shall have perpetual succession,
with power to sue and be sued in courts of law and equity within
the jurisdiction of the United States; to hold such real and
personal estate as shall be necessary for corporate purposes, and
to receive real and personal property by gift, devise, or bequest;
to adopt a seal...to make and adopt bylaws, rules, and regulations
not inconsistent with the law of the United States of America, or
any State thereof, and generally to do all such acts and things
this Act and promote the purposes of said corporation.

Section 3. That the purpose of this corporation shall be to
promote, through organization, and cooperation with other
agencies, the ability of boys to do things for themselves and
others, to train them in Scout craft, and to teach them
patriotism, courage, self-reliance, and kindred virtues, using the
methods which are now in common use by Boy Scouts.

Section 4. That said corporation may acquire, by way of gift, all
the assets of the existing national organization of Boy Scouts, a
corporation under the laws of the District of Columbia, and defray
and provide for any debts or liabilities to the discharge of which
said assets shall be applicable; but said corporation shall have
no power to issue certificates of stock or to declare or pay
dividends, its object and purposes being solely of a benevolent
character and not for pecuniary profit to its members.

In Section 5 the charter provides that "the governing body of the
said Boy Scouts of America shall consist of an executive board
composed of citizens of the United States. The number,
qualifications, and terms of office of members of the executive
board shall be prescribed by the by-laws..."

The By Laws of BSA establish its national office in Irving, Dallas
County, Texas. The Purpose of BSA (Article I, Section 2) is stated
as follows:

Section 2: The purpose of the Corporation is as set forth in the
original certificate of incorporation under the laws of the
District of Columbia, dated February 8, 1910, and restated in the
Act of Incorporation enacted by the Congress of the United States
of America on June 15, 1916, as follows: "The purpose of this
Corporation shall be to promote, through organization and
cooperation with other agencies, the ability of boys to do things
for themselves and others, to train them in Scout craft, and to
teach them patriotism, courage, self-reliance, and kindred
virtues, using the methods which are now a common use by Boy
Scouts." In achieving this purpose, emphasis shall be placed upon
its educational program and the oaths, promises, and codes of the
Scouting program for character development, citizenship training,
mental and physical fitness.

As created by the By-Laws and Rules and Regulations which
flesh them out, BSA is structured - proceeding from top to bottom
in the following manner:

I The National Council

II Regional Committees

III Area Committees

IV Local Councils

V Local Units (Packs, Troops, Varsity Teams or Posts)

I. THE NATIONAL COUNCIL. The National Council is
comprised
of the following members:

a) all members of its Executive Board;

b) members of the Regional Executive Committee;

c) Local Council Representatives (president and council
commissioner plus an additional member for every 5,000 youth
members);

d) members at large elected by the National Council for 1 year
terms;

e) Honorary (non-voting) members as elected by the National
Council for 1 year terms.

It meets annually at the call of its Executive Board for the
reception of reports of various officers and committees and to
elect members both at large and honorary as well as to transact
such business as presented by the Executive Board.

Its officers include a President, Executive Vice-President, one or
more Vice Presidents, Treasurer and Assistant Treasurers, the
National Commissioner (who is the chief morale officer and who
represents BSA in national affairs); the International
Commissioner (who represents BSA in international affairs) and
the
Chief Scout Executive who is designated as "the chief executive
officer of the Corporation and shall have general direction of the
administrative work of the corporation". He is
required to prepare an annual report of BSA to transmit it to
Congress and to present it to the annual meeting of the National
Council.

The Executive Board is the governing body of BSA. Members (not
to
exceed 64) are elected for 1 year terms at the annual meeting of
the National Council. Regional presidents are ex officio members
of the Board. The chairman of the Advisory Council (to the
Executive Board) and chairman of the Board of Regents of the
National Eagle Scout Association, are likewise ex-officio
members.
Up to five registered Youth Members from around the nation may
be
appointed by the President with approval of the Board to a one
year term. Regular meetings of the Board occur three times each
year.

The Executive Committee of the Board consists of the President of
the Board, the executive vice president, the vice presidents,
Regional presidents, the international commissioner, the national
commissioner, the treasurer, the assistant treasurers, the
Chairman of the support committee of the Executive Board,
Chairman of the Advisory Council, the Chief Scout Executive and
the immediate past-President.

It meets at the call of the President and may exercise all the
powers of the Executive Board during the intervals between Board
meetings.

Various Standing Committees of the Board are provided for, to
wit:
Support, Nominating, Audit, Finance and Contract Review.

An Advisory Council to the Board also exists. It is large in
number consisting of the National Council together with "United
States citizens who, because of experience, have a particular
expertise that would benefit the national movement." Those
members
have no specified term. They are elected by the Board. The
chairman of the Advisory Council is appointed by the President of
the Board and serves a term of 1 year. One annual meeting of the
Advisory Council is mandatory. It advises "on matters of major
national concern."

All of the foregoing are volunteers except for the National
Commissioner, International Commissioner and Chief Scout
Executive.

II REGIONAL COMMITTEES. For ease in administration the
Executive
Board is empowered by the By Laws to divide up the United States
into various regions. Each region is subject to governance of the
Regional Committee (composed of members of the National
Council
residing in the region plus youth members as appointed by the
regional president). Each region must implement national BSA
policy and program. The Regional Committee must meet once a
year.

A Regional Board exercises the authority and responsibility of the
Regional Committee whenever the Regional Committee is not in
session. Its membership consists of the Regional Executive
Committee, the regional vice-presidents plus not more than
50-members at large elected annually by the Regional Committee.
The-Regional Board may also have up to five youth members with
1
year terms appointed by the regional president. The Board must
meet annually to plan events and activities for the region and to
train members of the various standing committees. All of its
members are volunteers.

The Regional Executive Committee conducts the affairs of
Scouting
in the region on a day to day basis in conformity with regional
committee and board policy. It consists of the regional president
and vice-president, area presidents, chairmen of the regional
standing committees and the regional director. The last 'named
person serves as secretary of the Regional Committee, the
Regional
Board, the executive committee of the Board and the Standing
Committees.

III AREA COMMITTEES. The various regions are then
geographically
subdivided into areas governed by an Area Committee. Each area
committee includes its executive committee (composed of the
president, area vice-president(s) and various committee chairmen
of standing committees), the regional council president and
National Council members residing in the area. They, too, are all
volunteers.

IV LOCAL COUNCILS. The smallest administrative structure
within
BSA is the Local Council. The defendant, Monmouth Council Boy
Scouts of America, is a local council. Local Councils are subject
to the governance of the Area Committee. They are "chartered" by
BSA. On application and approval by the Executive Board a new
charter will issue for a period of not more than one year ending
on June 30. The charter may thereafter be renewed annually
provided the council has met all responsibilities required
of it by the By-Laws and Rules and Regulations during the prior
year. Each Council must, therefore, report annually on its
operations for the preceding year. The charter may be terminated
by BSA if "it deems such action advisable in the interests of
Scouting." It is recommended that, when chartered, the Local
Council incorporate under state law as a non-profit corporation.
Most Local Councils (including Monmouth Council) do so.

Monmouth Council is one of 93 councils grouped together in the
Northeast Regional Council of BSA. Local Councils report to it on
finances, scouting membership, numbers of scouts attending camps
and on their review of charter renewal applications for the Troops
and Packs. The Regional Council in turn reports to the National
Council, BSA. The National Council, which approves all charters
and renewals as well as the appointment of adult members,
publishes all training materials and handbooks for members and
leaders.

Local Councils are responsible: 1) to insure that each Local Unit
(i.e. a Boy Scout Troop or Cub Pack) within its territorial area
carries out the general principles of advancement in Scouting; 2)
to insure the integrity of the merit badge requirements for
advancement in scouting; 3) to make Scout training available to
the Local Units and community groups using the Scouting
program;
4) to provide adequate leadership and leadership training for the
Local Units; 5) to insure that standards in Scout policies,
badges-and insignia are protected; and 6) to insure that
adequate financing exists for the support of the Local Units.

Membership of the Local Council (minimum age 21) is made up of
one
representative from each of the chartered local units within its
jurisdiction, together with representatives at large from various
business, civil, educational, labor, social and religious
interests in the community. A minimum membership of 100 adults
is
required. Each year the members elect 25 to 50 of their number to
serve as the local council executive board which is the governing
body responsible for the council's operations and assets. Officers
consist of a president, one or more vice-presidents and a
treasurer. The executive board may also (and usually does) elect a
commissioner and a Council Executive (a paid employee).

Monmouth Council is one of 14 Local Councils in New Jersey. It
oversees 80 Boy Scout Troops and 101 Cub Packs (comprising
some
2,038 Boy Scouts, 5,738 Cub Scouts and 2,950 adult members)
chartered to various religious, fraternal, civic and educational
organizations. 35 of the 80 Boy Scout Troops are chartered to
churches and church-related organizations.

Monmouth Council also provides the camping and program
resources
to advance the goals of Scouting. It maintains campsites at
Forestburg Scout Reservation in Sullivan County, New York, and
Quail Hill Scout Camp in Manalapan Township, New Jersey. It
assists the Local Units to recruit new members and to raise money
to support the Local Unit activities. For example, it holds an
annual Bowl-A-Thon, a Golf Tournament and the Joshua Huddy
Awards
Dinner as fund raisers. It also coordinates the annual Troop
Popcorn sale.

V. LOCAL UNITS. Local Units are designated as Packs (Cub
Scouts),
Troops (Scouts), Teams (Varsity Scouts) and Posts (Explorers).
Packs are organized in smaller groups of 3 to 8 boys designated as
Dens; Troops, in Patrols; Teams, in Squads. The leadership
structure and makeup of each are spelled out in the Rules and
Regulations. Cub Scouts, Boy Scouts and Varsity Teams are for
boys. Exploring is for young men and young women. A volunteer
adult member - Scoutmaster - heads the Troop (Pack, etc). Se is
assisted by other volunteer adult members - assistant Scoutmasters
- who attend, guide and instruct at the meetings of the Patrols
(Dens, Teams). Patrols meet twice a month, separately, and then
join together, twice a month, with the other Patrols at Troop
meetings.

A Local Unit is directly chartered to the sponsoring group by the
Executive Board of BSA based on a favorable recommendation
from
the Local Council. Once a Charter is granted, it is subject to
revocation by the Executive Board in the exercise of its sole
judgment. In most instances, charters are issued to existing
organizations (church, civic, etc.). In some instances a charter
may issue to a unit of interested and qualified citizens formed
specifically for that purpose. In either case (existing
organization or community unit) the applicant is obliged "to
provide adequate facilities, supervision and leadership for a
period of at least one year and to make an effort to provide youth
members with an opportunity for a quality program experience as
set forth in the official literature of the BSA."

Each local unit must be under the supervision of a unit committee
consisting of three or more qualified adults (at least 21 years
old) selected by the chartered organization. For each Pack, Troop,
Varsity Scout team or Explorer Post there must be one adult who
registers and serves as the unit leader. That person must be
approved by and registered with the Local Council.

Active adult leadership is required for each pack, troop, varsity
scout team and explorer post. Using the Scout Troop as an
'example
(the requirements are similar for each) the leadership consists of
the three members of the unit committee plus a ScoutMaster and
the
assistant Scoutmaster(s) .8 Collectively they are known as the
unit Scouters. All must be recommended by the Local Council and
then approved, commissioned and registered as adult members by
BSA. All must subscribe to the Declaration of Religious Principle
set forth in the By-Laws (below at p.31) and the Scout Oath and
Law (below at pp.29-30). Commissions of Scoutmasters and
assistant
scoutmasters are issued on an annual basis.

The Local Council, for ease in servicing the local units, may
subdivide its area jurisdiction into geographical Districts into
which local units are grouped. The District provides its Troops
with a volunteer Commissioner who trains, consults and advises
the
members of the Troop committees and other adult leaders. District
Committees are formed to help with training of leaders and to
coordinate District-wide events such as a Klondike Derby, Annual
Spring and Fall Camporees and the biennial Council Scout Show.
They also maintain regular contact with the sponsoring
organizations of the Scout Troops.

C. MEMBERSHIP

All persons with an active role in scouting are designated as
either "Scouters" or "Youth Members". "Scouters" are 'registered
adult members of BSA. A "Youth Member" is "one who, with the
approval of a parent or guardian, if necessary, becomes a member
of a unit; obligates himself or herself to attend the meetings
regularly; fulfills a member's obligation to the unit; subscribes
to the Scout Oath...; and participates in an appropriate program
based on the member's age as promulgated from time to time by
the
BSA."

D. ADULT LEADERSHIP (Scouters)

Adult Leadership is treated in Article VIII of the By-Laws.
Section 1 is pertinent. It reads:


Leadership Qualifications.

No person shall be approved as a leader unless, in the judgment of
the Corporation, that person possesses the moral, educational, and
emotional qualities deemed necessary for leadership and satisfies
such other leadership qualifications as it may from time to time
require.

The Rules and Regulations set forth those requirements in
detail.

Article VIII, Section 2, Clause 1 states:

Individuals serving in any official relationship with the BSA
shall subscribe to the statement of religious principle, as
prescribed in the By-Laws, and the Scout Oath and Law. They
shall

Section 3 of Article VIII provides:

Clause 1. All individuals in unit leadership positions...shall be
issued commissions by the BSA.

Clause 2. All individuals selected to serve as
commissioners...shall be recommended by the Scout executive and
approved by the council executive board. They shall be issued
commissions by the Boy Scouts of America on an annual basis.

Clause 3. Commissioned officials must be at least 21 years of age
with the exception of those individuals at least 18 years of age
who may be commissioned as assistant unit leaders...

Clause 11. Unit Leadership. All recommendations to serve as ...
assistant unit leader ... shall originate with the unit committee,
the chartered organization...The head of the chartered
organization or the chartered organization representative must
approve the registration of the leader on the appropriate form.
The local council must also approve the registration.

Adult leadership positions shall be filled by persons 21 years of
age or older, except the following, which may be filled by persons
18 years or older; ... assistant Scoutmaster...

Dale became commissioned assistant Scoutmaster seven months
after
reaching age 18.

All Scoutmasters and Assistant Scoutmasters receive a
copy of the Mission Statement and "The Scoutmaster Handbook".
The Mission Statement recites that:

It is the mission of Boy Scouts to serve others by helping to
instill values in young people and, in other ways, to prepare them
to make ethical choices over their lifetime in achieving their
full potential. The values we strive to instill are based on those
found in the Scout Oath and Law:

Scout Oath

On my honor, I will do my best To do my duty to God and my
country
and To obey the Scout Law; To help other people at all times; To
keep myself physically strong, mentally awake, and morally
straight.

Scout Law

A Scout is:

Trustworthy
Loyal
Helpful
Friendly
Courteous
Kind
Obedient
Cheerful
Thrifty
Brave
Clean
Reverent

The handbook is a how-to-do manual. The sense of what BSA
envisages for scoutmasters is conveyed by the message from the
Chief Scout Executive which serves as a prologue to the 1990
(current) edition of the handbook. It reads as follows:

As an adult leader in Scouting, you have a great opportunity to
help boys discover their potential. Through a vigorous program of
outdoor activities, your Scouts will learn to care for-themselves
in any kind of weather, set their own significant goals and reach
for them, and gain in strength and confidence. One of the greatest
joys of being a  Scoutmaster or assistant Scoutmaster is watching
boys develop into the kind of men our country needs - active
citizens committed to the principles of the Scout Oath and Law,
leaders who can fulfill important responsibilities in their
communities and the nation.

This handbook is designed to help you succeed.  The chapters take
you through a typical troop meeting and identify the people who
will help you do your job. They tell you how to train the junior
leaders who will run the troop with your help, using the patrol
method. Your handbook also takes you through the program
planning
process, gives you a ready guide to uniforms and insignia, and
explains the resources that are available to you.

You have an important job, but you are not  alone. Besides the
parents of your Scouts, some of the best people resources are your
Scouting professionals and volunteer commissioner staff. These
dedicated people and those at your local council service center
are prepared to help you make the Scouting adventure become a
reality in the lives of the boys in your troop.

In the years ahead, there's no telling how many men will look back
on their happy, productive days as Boy Scouts and recall their
Scoutmaster with a large measure of warmth and gratitude. This
will be your ultimate reward in Scouting.

As the handbook points out in Chapter 6, there are three Aims of
Scouting.

Aim I - To build character

Aim II - To foster citizenship

Aim III - To develop fitness.

That third aim recognizes four kinds of fitness,
physical, mental, -emotional, and moral. Each is discussed in
detail. That dealing with "moral fitness" - as a scouting aim-
bears on this case. The handbook for scoutmasters states:

Moral Fitness: Morality, says the dictionary, concerns the
"principles of right and wrong" in our behavior, and "what is
sanctioned by our conscience or ethical judgment." Scouting has
recognized the importance of moral fitness from the start: A Scout
who took the Scout Oath in 1910, for instance, promised to do his
best to keep himself "morally straight." A Scout who takes the
Oath today promises the same.

In any consideration of moral fitness, a key word has to be
"courage." A boy's courage to do what his head and his heart tell
him is right. And the courage to refuse to do what his heart and
his head say is wrong. Moral fitness, like emotional fitness, will
clearly present opportunities for wise guidance by an alert
Scoutmaster.

There is much more to be said about Scouting's aims in a dynamic
and changing world, in particular the problems to be faced by a
Scout generation approaching the turn of our century. How can
Scouting help this generation prepare for the ethical judgments
they will have to make, and develop the courage they will need to
make them?

We explore this more deeply in chapter 10, "Understanding
Youth."

In Chapter 10 - Understanding Boys - the BSA concept of
"moral fitness" is treated in more detail and as related to age
groups of 11 to 13 and 14 and older. Thus under the heading - Sex
Curiosity - the following suggestions are made:

Because boys of Scouting age are naturally curious about sex, you
may find sexually explicit magazines being circulated during a
camp-out, overhear sex talk among the boys, or discover or hear
about incidents of sexual experimentation among troop members.
Unacceptable publications should be removed from the scene, and
those who brought them told that you don't want them around, and
why.

Incidents of sexual experimentation call for a private and
thorough investigation, and frank discussion with those involved.
Such problems should be discussed with the Scout's parents and
the
troop committee. You might suggest counseling by the Scout's
religious leader or by a professional. However, every effort
should be made to keep the matter confidential.

Under the heading "Helping Adolescents With Problems", the
subheading "Health Risks" states the following:

Teenagers are more sexually active than ever, yet many do not use
any form of contraception. The result is more than 1.1 million
pregnancies per year. Roughly half of these pregnancies are
terminated by miscarriage or abortion. The trend is for girls who
give birth to keep their babies rather than give them up for
adoption. For boys, this increasingly means 18-21 years of
financial responsibility for their child. Another result of
increased teenage sexual activity is a corresponding increase in
sexually transmitted diseases among teenagers. Particularly
worrisome is the potential among sexually active teenagers for
contracting the deadly AIDS virus, which may not result in
symptoms for 5-7 years.

As Scoutmaster, you will have many opportunities to help Scouts
develop healthy lifestyles, avoid health risks, and adjust to any
health problems or handicaps they may have. The importance of
nutrition, exercise, and safety should be emphasized in all troop
activities. Scouting activities should be designed to help boys
develop the healthy self-concept, self-esteem, and self-respect
needed to make wise decisions and to assume responsibility for
themselves in their personal lives.

Being involved in an active troop may help boys avoid temptations
which might otherwise jeopardize their health and well being.
Guest speakers can provide information on developing a healthy
lifestyle, avoiding accidents, and making decisions regarding
substance use. If Scouts ask for information regarding substance
use or sexual activity, answer honestly and factually, but stay
within your realm of expertise and comfort. If a Scout has serious
concerns that you cannot answer, refer him to his family,
religious leader, doctor, or other professional. If you become
aware that a Scout is involved in substance use or abuse or is
sexually active, you will need to involve the Scout's family or
direct him to competent professionals.

Lastly, in discussing the subject of "Child Abuse" these
comments are made to the Scoutmaster:


Sexual abuse may be inflicted for a number of reasons. There are
individuals who have sexual fantasies about children. Such
individuals are referred to as pedophiles. All child molesters are
not pedophiles; children are sexually molested for other reasons.
The molestation may be an inappropriate exercise of power over
the
child, or the molester may be sexually indiscriminate and take
advantage of adults as well as children. While it is true that
most child molesters are male, there is a growing awareness of
sexual abuse of boys by women.

The BSA has developed materials for use in the Scouting program
that provide essential information to members and their families.
A detachable booklet in the front of The Boy Scout Handbook,
"How
to Protect Your Children from Child Abuse and Drug Abuse: A
Parent's Guide, provides information to help families to increase
self-protection skills. A Time to Tell is a video produced by the
BSA for showing at troop meetings that addresses the problem of
sexual abuse of boys 11 to 14 years old-. Boys' Life and Scouting
magazines have regular features providing up-to-date information
concerning the youth protection program of the BSA.

A critical element of the youth protection program is the training
of Scouting's volunteer leaders. "Youth Protection Begins with
You" is the theme of this training session. In less than 2 hours,
volunteer leaders receive information preparing them to conduct
Scouting activities in accord with your protection guidelines.


Because of the critical roles of the Scoutmaster and assistant
Scoutmaster, the selection of people to fill these roles is the
most important function of the Troop Committee, the group of
adult
volunteers that serves as governing board of the Troop. The
-position of Scoutmaster or assistant Scoutmaster is limited to
those who meet a host of formal and informal criteria. The Troop
Committee seeking a Scoutmaster looks not only at the candidate's
age, sex, religious beliefs, education, emotional health and moral
values but also at the candidate's maturity, judgment, leadership
qualities, ability to work with boys, ability to win the
confidence of parents, ability and willingness to devote the
necessary time, relevant knowledge and experience, and a number
of
other factors. The Troop Committee Guidebook lists "high moral
standards" as the most important characteristic to have in a
Scoutmaster or assistant Scoutmaster. Again, they are
commissioned
on an annual basis and must be re-commissioned each year.

E. YOUTH MEMBERSHIP

Article VII of the By Laws treats of Youth Membership in the
following fashion:

Section 1. Youth membership in Boy Scouts of America is open to
all who meet the membership requirements. Cub Scouting, Boy
Scouting, and Varsity Scouting are for boys. Exploring is for
young men and young women.


The basic BSA program is that of Cub Scouts and Boy Scouts for
boys from 8 to 18. The Scout Oath and Scout Law are the
foundation
of the program.

Clause I of Article VII of the Rules and Regulations enlarges on
what is generally required of a scout be considered an ' .~ active
youth member" of BSA. Thus

"An active youth member is one who, with the approval of a parent
or guardian if necessary, becomes a member of a unit; obligates
himself... to attend the meetings regularly; fulfills a member's
obligation to the unit; subscribes to the Scout Oath ... and
participates in an appropriate program based on a member's age, as
promulgated from time to time by the Boy Scouts of America."

In addition - in Article IF, Clause 3 of the Rules and Regulations
each scout must know and subscribe to the Scout Oath or Promise
and the Scout Law, which are:

The Scout Oath or Promise

On my honor I will do my best To do my duty to God and my
country
and to obey the Scout Law; To help other people at all times; To
keep myself physically strong, mentally awake, and morally
straight.

The Scout Law

A Scout is:

Trustworthy. A Scout tells the truth. He keeps his promises.
Honesty is part of his code of conduct. People can depend on him.

Loyal. A Scout is true to his family, Scout
leaders, friends, school and nation.

Helpful. A Scout is concerned about other
people. He does things willingly for others
without pay or reward.

Friendly. A Scout is a friend to all. He is
a brother to other Scouts. He seeks to
understand others. He respects those with
ideas and customs other than his own.

Courteous. A Scout is polite to everyone
regardless of age or position. He knows good
manners make it easier to people to get along
together.

Kind. A Scout understands there is strength in being gentle. He
treats others as he wants to be treated. He does not hurt or kill
harmless things without reason.


Obedient. A Scout follows the rules of his family, school, and
troop. He obeys the laws of his community and country. If he
thinks these rules and laws are unfair, he tries to have them
changed in an orderly manner rather than disobey them.

Cheerful. A Scout looks for the bright side of things. He
cheerfully does tasks that come his way. He tries to make others
happy.

Thrifty. A Scout works to pay his way and to help others. He saves
for unforeseen needs. He protects and conserves natural resources.
He carefully uses time and property.

Brave. A Scout can face danger even if he is afraid. He has the
courage to stand for what he thinks is right even if others laugh
at or threaten him.

Clean. A Scout keeps his body and mind fit and clean. He goes
around with those who believe in living by these same ideals. He
helps keep his home and community clean.

Reverent.. A Scout is reverent toward God. He is faithful in his
religious duties. He respects the beliefs of others.

All of the foregoing requirements for Adult Leadership and Youth
Membership are completely consonant with the Declaration of
Religious Principle contained in Article IF Section 1 of the
corporate By-Laws, which states:

 Clause 1. The Boy Scouts of America maintains
 that no member can grow into the best kind of
 citizen without recognizing an obligation to
 God. In the first part of the Scout Oath or
 Promise the member declares, "On my honor I
 will do my best to do my duty to God and my
 country and to obey the Scout Law." The
 recognition of God as the ruling and leading
 power in the universe and the grateful
 acknowledgement of His favors and blessings
 are necessary to the best type of citizenship
 and are wholesome precepts in the education of
 the growing members. No matter what the
 religious faith of the members may be, this
 fundamental need of good citizenship should be
 kept before them. The Boy Scouts of America,
 therefore, recognizes the religious element in
 the training of the member, but it is
 absolutely nonsectarian in its attitude toward
 the religious training. Its policy is that
 the home and the organization or group with
 which the member is connected shall give
 definite attention to religious life.
 Activities.
 Clause 2. The activities of the members of
 the Boy Scouts of America shall be carried on
 under conditions which show respect to the
 convictions of others in matters of custom and
 religion, as required by the twelfth point of
 the Scout Law, reading, "Reverent. A Scout is
 reverent toward God. He if faithful in his
 religious duties. He respects the beliefs of
 others."

 Freedom.

 Clause  3. In no case where a unit is
 connected with a church or other distinctively
 religious- organization shall members of other
 denominations or faith be required, because of
 their membership in the unit, to take part in
 or observe a religious ceremony distinctly
 unique to that organization or church.

Leaders.

Clause 4. Only persons willing to subscribe to these declarations
of principles shall be entitled to certificates of leadership in
carrying out the Scouting program.

Clause 5. Other major policies are set forth in article IF of the
Rules and Regulations.

Program Objectives (Article X, Section 1) are:

The program shall be one designed to achieve objectives in
character development, citizenship training, and mental and
physical fitness.

In its several phases the program shall be adapted to the groups
into which youth members are divided and shall be as set forth
from time to time in these By-laws and in the Rules and
Regulations of the Corporation.

In all activities, emphasis shall be placed upon practice in daily
life of the principles of the Tiger Cub Promise, the Cub Scout
Promise, The Scout Oath or Promise, and the Explorer Code. In
association with suitable adult leadership, members registered in
Scouting will be guided to develop traits of character which are
expressed in self-reliance, consideration of and help to others,
personal courage, and above all in lives of useful citizenship.

The "bible" for all Scouts is The Boy Scout Handbook."
As to what is required and what it means to be a Boy Scout it
remains essentially unchanged since the First Edition published in
1910. The current edition is the 10th (Fourth Printing). Since


1910 a total of-34,860,000 Handbooks have been printed.

The applicant for membership in BSA is told that he must
complete the following requirements to become a Boy Scout.

At your first troop meeting, your Scoutmaster will explain the
following joining requirements of the Boy Scouts of America:

Submit a completed Boy Scout application and health history
signed
by your parent or guardian.

Repeat the Pledge of Allegiance (page 468).

Demonstrate the Scout salute, sign, and handclasp (page 468).

Show how to tie the square know (also known as the joining know)
(pages 132-133, 141).

Understand and agree to live by the Scout Oath
(pages 549-551), the Scout Law (pages 553 561), the Scout motto
(page 562), the Scout slogan (page 563), and the Outdoor Code
(pages 55-59).

Describe the Scout badge (page 565).

With your parent or guardian, complete the
exercises in the pamphlet How to Protect Your
Children from Child Abuse and Drug Abuse.9

Participate in a Scoutmaster conference (pages
589-590).

When you have completed these, welcome! You
are a Scout! Your Scoutmaster will give you a
certificate of membership, and you can proudly
wear the Boy Scout badge and uniform. You may
also subscribe to Boy's Life, a monthly
magazine that is full of exciting articles for
and about Scouts.

In Chapter 22 of the Handbook which addresses Personal
Development there is the sub-heading "Good Judgment." The scout
is
told (passim):

Good judgment is the ability to make wise
decisions even under difficult conditions.
You don't need great knowledge in order to use
good judgment. You just have to do your best with what you
already
know.


Part of good judgment is choosing friends. You spend a lot of time
with the people you enjoy. You learn from them, have fun with
them, and want them to like you.

Hang on to friends who have attitudes and values you admire. Seek
out those with healthy interests. Share adventures with people who
want to make the most of themselves.

However, don't limit your opportunity to meet
someone new just because he or she is not
exactly like your other friends. Differences
of race, culture, and language can be the
basis of many close bonds. Some people are
shy, so it may be up to you to open the door
to friendship. Visit with them at school.
Invite them to join in with Scouting events,
ball games, and neighborhood activities. You
will be surprised how eagerly others respond
to your offers of friendship.

The language you and your friends use is a clue to how you think
about the world. Swear words, dirty jokes, and crude talk often
are used as weapons to hurt other people. Clean language is a mark
of intelligence, kindness, and respect for other people.

Once in a while, you may discover that some of the people you
know
are using tobacco, alcohol, or illegal drugs. They may pressure
you to use them, too. However, you know that real friends would
not want you to do. things that could harm your health or cloud
you mind. If smoking, drinking, or drugs are a part of your circle
of friends. you may need to find new friends who are more
interested in making the most of their lives. Don't worry, they
are out there. Look around and you will find them.

An entire subsection is devoted to Sexual Responsibility.
In itself it is a declaration of policy by BSA and is set forth in
its entirety.

As you grow into manhood, your friendships will change. People
around you are also changing. Girls you know are becoming young
women. They are growing both physically and emotionally. Your
relationships with them will become closer and more meaningful to
you and to them.

You are maturing sexually, too. As a young man, you are capable
of
becoming a father. That is a profound responsibility with powerful
consequences in your life and the lives of others. It is a
responsibility that requires your very best judgment.

Sex is not the most important or most grown-up part of a
relationship. Having sex is never a test of maturity. True
manliness comes from accepting the responsibility for your actions
toward others and yourself in the following ways:

Your responsibility to women. Whenever you like someone, you
want
the best for that person. A healthy relationship is supportive and
equal. You owe it to the women in your life to keep their best
interests in mind. You can have a terrific time together enjoying
life and growing emotionally. However, the difficulties created by
a pregnancy can be enormous. Don't burden yourself and someone
you
care for with a child neither of you is ready to bear.

Your responsibility to children. When you are fully grown and
have
become secure in yourself and in your relationship with another
person, the two of you may decide to marry and have a child. That
is a wonderful choice full of challenges and rewards. By waiting
until you are thoroughly prepared to be parents, you can give your
own child a close, loving family in which to grow.

Your responsibility to yourself. An understanding of wholesome
sexual behavior can bring you lifelong happiness. Irresponsibility
or ignorance, however, can cause a lifetime of regret. AIDS and
venereal diseases spread by sexual contact may undermine your
health and that of others. Having a baby before you are ready may
drastically limit your future chances for education, occupations,
and travel.

You owe it to yourself to enter adulthood without burdens. You
owe
it to yourself to enrich your life by learning what is right. Your
religious leaders can give you moral guidance. Your parents or
guardian or a sex education teacher should give you the facts
about sex that you must know.

Learn by asking, remember? If you have questions about growing
up,
about relationships, sex, or making good decisions, ask. Talk with
your parents, religious leaders, teachers, or Scoutmaster. They
have experienced much of life, and they are interested in what is
best for you. Let them know your concerns.

James Dale used the Boy Scout Handbook for years. He was
familiar
with the Declaration of Religious Principle and had subscribed to
the Scout Oath and Promise and Scout Law. When he applied for
adult membership as an assistant scoutmaster he stated that he
would adhere to the principles and policies of Scouting including
the Declaration of Religious Principle, the Scout Oath and Promise
and the Scout Law. He read the Scoutmaster Handbook. The
version
which he used was the 1972 edition. The subject of "Sex
Curiosity"
was treated therein as follows:

In the age span covered by the Scouting program, boys discover
sex
as one of the realities of living. They are naturally curious
about it, and they may have limited opportunity to find out about
it.

It seems to be general belief that boys should learn of sex and
family life at home, from their parents. While there are few
objections to this principle, it is not borne out in fact that
this teaching actually occurs.

You must respect the right of parents to teach their sons about
life. You must also recognize that many of them will not do this
very well, and some won't do it at all. Some of their failings
will come to light in your troop.

If you find magazines at practically any level of obscenity being
circulated during a campout.

You may have boys asking you for information or advice about
sexual matters.

You may overhear dirty stories or dirty talk, both informed and
uninformed, in the troop.

You may discover or hear about incidents of sexual
experimentation
among troop members.

How should you handle such matters?

Rule number 1: You do not undertake to instruct Scouts, in any
formalized manner, in the subject of sex and family life. The
reasons are that it is not construed to be Scouting's proper area,
and that you are probably not well qualified to do so.

Rule number 2: If Scouts come to you to ask questions or to seek
advice, you would give it within your competence. A boy who
appears to be asking about sexual intercourse, however, may really
only be worried about his pimples, so it is well to find out just
what information is needed.

Rule number 3: You should refer boys with sexual problems to
persons better qualified than you to handle them. If the boy has a
spiritual leader or a doctor who can deal with them, he should go
there. If such persons are not -available, you may just have to do
the -best you can. But don't try to play a highly professional
role. And at the other extreme, avoid passing the buck.

And now how about some of the questions we raised?

Publications that you judge unacceptable should be removed from
the scene, and those who brought them told that you don't want
them around, and why.

Incidents of sexual experimentation that may occur in the troop
could run from the innocent to the scandalous. They call for a
private and thorough investigation, and frank discussion with
those involved. It is important to distinguish between youthful
acts of innocence, and the practices of a confirmed homosexual
who
may be using his Scouting association to make contacts. A boy of
15 or so cannot be assumed to be acting out of innocence, and
should be separated from the troop for the protection of younger
boys. Emphasis supplied)

Thus, when Dale states that he did not know that BSA had a policy
against commissioning a sexually active homosexual assistant
scoutmaster he is not worthy of belief.

LEGAL ANALYSIS

It is abundantly clear from the proofs presented by BSA that from
its inception Scouting has excluded from membership and adult
leadership any person who openly declares himself a homosexual
and
that such policy has continued unchanged, to the present. Such
policy applies, a fortiori, to one who engages in homosexual
conduct. It is the firm position of BSA that such conduct is not
"morally straight" under the Scout Oath nor is it "clean" under
the Scout Law.

Homosexuality is defined in the American Heritage Dictionary of
the English Language (1969) as "1. Sexual desire for others of
one's own sex. 2. Sexual activity with another of the same sex."
That is an acceptable working definition for the purpose of this
case. Plaintiff is a homosexual by inclination and by action. In
its secondary meaning homosexuality becomes sodomy i.e. "anal
copulation of one male with another." id. "Buggery" is a vulgar
equivalent of sodomy.

"Sodomy" is derived from the name of the biblical city, 'Sodom,
which, with the nearby city of Gomorrah, was destroyed by fire
and
brimstone rained down by the Lord because of the sexual depravity
(active homosexuality) of their male inhabitants. Genesis 18:16 to
19:28 (King James Version.)

In the Judeo-Christian tradition the act of sodomy has always been
considered a gravely serious moral wrong. That is likewise true of
the Muslim and Hindu religions. The criminal laws of Western
civilization and of our nation, and, until recent times, those of
this state, imposed penal sanctions in addition to moral
culpability. Such laws sprang from the power of government to
protect "public morals" as well as public health, safety and
welfare. Under those laws consensual sodomy was a crime
attributable to both participants, whereas only the aggressor was
at risk in a non-consensual situation.

>From the founding of BSA in 1911 and until 1961, sodomy was a
serious criminal offense in every state in the Union and in the
District of Columbia . Bowers v. Hardwick, 478 U.S. 186, 193-4
(1986). In New Jersey, sodomy was a crime (and actively
prosecuted) until repealed by the enactment of the New Jersey
Criminal Code effective September 1, 1979. N.J.S.A. 2C:98-2. [10]
Thus, the former statute (N.J.S.A. 2A:143-1) stated that "Sodomy,
or the infamous crime against nature, committed with man or
beast,
[1l] is a high misdemeanor, and shall be punished by a fine of not
more than $5,000, or by imprisonment for not more than 20 years
or
both." If committed with a child under 16 years of age, sodomy
was
punishable by imprisonment for not more than 30 years. N.J.S.A.
2A:143-2. As of 1986, the U.S. Supreme Court found that 24 states
continued to view sodomy as a criminal offense and it affirmed
their right to do so. Bowers, 478 U.S. at 193-4.


To suggest that the BSA had no policy against active
homosexuality
is nonsense. It was an organization which from its inception had a
God-acknowledged, moral foundation. It required its members,
youth
and adult, to take the Scout Oath that they would be "morally
straight". It is unthinkable that in a society where there was
universal governmental condemnation of the act of sodomy as a
crime, that the BSA could or would tolerate active homosexuality
if discovered in any of its members. In this State that is surely
correct from 1910 to 1979. BSA did not change its moral stance
thereafter simply because the criminal law changed.

The criminal law has changed. The moral law - as to the act of
sodomy - has not. The numerous certifications submitted by
various ministers, priests and rabbis attest to that. Individual
religious persons may distinguish between the moral culpability of
a psychological tendency (perhaps innate) or sexual attraction to
a person of the same sex, (a state of mind) but all religions deem
the act of sodomy a serious moral wrong. The act is something
deliberate and intentional; the thought might not be. An analogy
with adultery and fornication is apt. The thought may or may not
be morally culpable; the acts were, until 1979, considered
criminal by the State of New Jersey.

Human beings with homosexual tendencies or thoughts have
existed
since the beginning of the human race and undoubtedly will
continue to exist until its end. Dale argues that he is aware of
others in BSA with such tendencies. He may well be correct. BSA
is
a vast organization. But when the tendency turns to action, the
bible story of Sodom, the common law penal laws, the laws of
New
Jersey up to 1979 and universally held religious positions,
condemn that act. Today in New Jersey the moral law as espoused
by
the major religions continues to declare the act of sodomy to be a
serious wrong. Government no longer does.

BSA is a moral organization. Recognition of that basic reality
explains the sponsorship of Boy Scout troops by all of the major
religions. They believe, as the certifications demonstrate, that
the BSA is compatible with and supportive of the moral principles
which they espouse. That is why so many troops throughout
the-country, in New Jersey and in the Monmouth Council,
are sponsored by churches and invited to meet in church
facilities.

According to its mission and purpose, BSA has determined that an
assistant scoutmaster who is an active sodomist is simply
incompatible with scouting and is not "morally straight". Does the
NJLAD require a fundamental, court-imposed, change in its
policies? The short answer is No.

Dale argues that he was legally damaged by the revocation of his
commission as an adult volunteer assistant scout master by virtue
of the July 19, 1990 letter. Under BSA By-Laws all commissions
are
issued on an annual basis. Dale's would have expired on December
31, 1990 unless renewed for 1991. It is clear that BSA would not
have renewed it.

There were no legally remediable adverse consequences to him
from
his termination. He had outgrown being a Boy Scout when he
turned
18. BSA has not taken away any of the awards and honors
bestowed
on him as a boy scout. Until the day he dies he can proudly claim
that he was an Eagle Scout. He was, for a short time, an unpaid
volunteer whose services were terminated. By virtue of that
termination he lost neither economic benefits, nor socially
valuable status. The work of scoutmasters and assistant
scoutmasters brings no measurable public recognition.
Recompense
is found in the gratitude of boys and parents for a job well done.
These, as is true of most volunteers in our society, are truly
"unsung heroes". Neither BSA nor Monmouth Council made any
public
announcement of his termination or the reason for it. If there is,
presently, any public interest, it arises from this law suit. Dale
has lost nothing of compensable value.

Clearly, if Dale had engaged in criminal activity such as using or
dealing in controlled dangerous substances; if he were a rapist or
murderer or pederast there could be no basis to claim a violation
of NJLAD in revoking his commission as an assistant scoutmaster.
To do less would fail to keep faith with the avowed purposes of
Scouting and with the parents who entrust their boys between 8
and
18 to BSA and the principles it espouses. It would also defy
common sense. Men who do those criminal and immoral acts
'cannot
be held out as role models. BSA knows that. Active
homosexuality,
as noted, is no longer a crime. BSA and the major religions of the
civilized world all deem it immoral. Should NJLAD be read to
compel BSA to accept that form of immorality when it is perfectly
clear that NJLAD could not protect from adverse treatment, one
whose immoral activity violates the criminal law as well?

Dale wishes to pursue his own life-style. He has a constitutional
right to do so, now that the act is no longer criminal. But he
cannot compel BSA to continue his volunteer adult leadership
status when he is not in compliance with the Scout Oath, the Scout
Law and the Statement of Religious Principle.

It is worthy of note that Dale's termination as an adult volunteer
assistant scoutmaster does not rise to the level of an "expulsion"
of a member of a professional or social service organization.- In
the latter class of cases members usually pay dues and membership
brings with it recognized professional status or economic
benefits. In such organizations expulsion of a member is legally
proper, but only after the organization accords the affected
person fundamental due process. Sibley v. Carteret Club
of New Jersey, 40 N.J.L. 295 (Sup. Ct. 1878); Higgins v. American
Society of Clinical Pathologists, 51 N.J. 191 (1968); Zelenka v.
B.P.O.E. of the U.S., 129 N. J. Super. 379 (App. Div. 1974), Cert.
denied, 66 N.J. 317 (1974); Calabrese v. Policemen's Benevolent
Ass ' n Local No. 76, 157 N. J. Super. 139 (Law Div. 1978).;
James
v. Camden County Council No. 10, 188 N.J. Super. 251 (Ch. Div.
(1982); Rutledge v. Gulian (Masons), 93 N.J. 113 (1983)

As pointed out in Loigman v. Trombadore, 228 N.J. Super.
437, 449-50 (App. Div. 1988):

Deference has always been afforded to the internal decision
making
process of private associations. These associations must have
considerable latitude in rulemaking in order to accomplish their
objectives and generally, their private law is binding on those
who wish to remain members. See Higgins v. American Soc. of
Clinical Pathologists, 51 N.J. 191-202 (1968). See also, Calabrese
v. Policemen's Benevolent Ass ' n Local #76, 157 N.J. Super. 139,
146-147 (Law Div. 1978).

 ...

There can be no question but that a non-profit corporation is
authorized to adopt or amend the bylaws for the administration and
regulation of the affairs of the corporation. N.J.S.A. 15A:2-10
and 15A:3-lA(11); See Moorestown Mgmt. v. Moorestown Book
Shop/ et
als, 104 N.J. Super. 250, 260 (Ch. Div. 1969). Further, the
constitution and by-laws of a voluntary association become a part
of the contract entered into by a member who joins the
association. Leeds v. Harrison, 7 N.J. Super. 558, 570 (Ch. Div.
1950); accord Delmarmo Associates v. N. J. Eng'g & Supply Co.,
177
N.J. Super. 15, 17 (App. Div.1980). "[I]t is well established that
a voluntary association may, without direction or interference by
the courts, draw up for its government and adopt rules,
regulations and by-laws which will be controlling as to all
questions of ... doctrine or internal policy." 6 Am Jur 2d,
Associations and Clubs,   5 at 433 (footnote omitted).

Generally, judicial intervention into the affairs of a non-profit
association is justifiable "only when the complaining parties have
suffered an invasion of their civil rights, of persons or of
property." Leeds v. Harrison, 9 N.J. at, 215; 6 Am Jur 2d, supra,
 28 at 453-454. Non-profit corporate associations such as the
Association are given the utmost latitude in their regulation and
management of intra-corporate affairs. Leon v. Chrysler Motor
Corporation, 358 F.Supp. 877, 855 (D.N.J.) aff ' d, o.b. 474 F. 2d
1340 (3rd Cir. 1973). " The general rule is that there is no legal
remedy for exclusion of ... an individual from admission to a
voluntary association no matter how arbitrary or unjust
the exclusion." Trautwein v. Harbourt, 40 N.J. Super. 247, 268
(App. Div. 1956).

Here, the BSA and Monmouth Council "terminated" rather
than "excluded" Dale from adult membership. It was done
peremptorily. He sought a "due process" hearing and was denied.
It is clear that all of the hearings which might have been
accorded would not have changed the result. Procedural niceties
are not at issue here.

As a matter of law the public policy of New Jersey which
Dale claims to have been violated is that established by the
NJLAD; it is not some prior common law policy. Erickson v.
Marsh &
McLennon Co., 117 N.J. 539, 561-2 (1990); Shanner v. Horizon
Bancorp., 116 N;J. 433, 453 (1989).

Therefore, absent a public policy as established under the NJLAD,
plaintiff has no cause for action by the court.

The NJLAD is contained in N.J.S.A. 10:5-1 through 42. Not all
sections are implicated by the issues raised in this case. Those
which are, are set forth as follows. [12]

10:5-2. Police power, enactment deemed exercise of.

The enactment hereof shall be deemed an exercise of the police
power of the State for the protection of the public safety, health
and morals and to promote the general welfare and in fulfillment
of the provisions of the Constitution of this State guaranteeing
civil rights.

10:5-3. Finding and declaration of legislature.

The Legislature finds and declares that practices of
discrimination against any of its inhabitants, because of race,
creed, color, national origin, ancestry, age, sex, affectional or
sexual orientation, ... are matters of concern to the government
of the State, and that such discrimination threatens not only the
rights and proper privileges of the inhabitants of the State but
menaces the institutions and foundation of a free democratic
State...

The Legislature further declares its opposition to such practices
of discrimination when directed against any person by reason of
the race, creed, color, national origin, ancestry, age, sex,
affectional or sexual orientation,...-in order that the economic
prosperity and general welfare of the inhabitants of the State may
be protected and ensured.

The Legislature further finds that because of discrimination,
people suffer personal hardships, and the State suffers a grievous
harm. The personal hardships include: economic loss; time loss;
physical and emotional stress; and in some cases severe emotional
trauma, illness, homelessness or other irreparable harm resulting
from the strain of employment controversies; relocation, search
and moving difficulties; anxiety caused by lack of information,
uncertainty, and resultant planning difficulty; career, education,
family and social disruption; and adjustment problems, which
particularly impact on those protected by this act. Such harms
have, under the common law, given rise to legal remedies,
including compensatory and punitive damages.

The Legislature intends that such damages be available to all
persons protected by this act and that this act shall be liberally
construed in combination with other protections available under
the laws of this State.

10:5-4. Obtaining employment, accommodations and privileges
without discrimination; civil right.

All persons shall have the opportunity to obtain employment, and
to obtain all the accommodations, advantages, facilities, and
privileges of any place of public accommodation, ... without
discrimination because of race, creed, color, national origin,
ancestry, age, marital status, affectional or sexual orientation,
familial status, or sex, subject only to conditions and
limitations applicable alike to all persons. This opportunity is]
recognized as and declared to be a civil right.

10:5-5. Definitions

1. "A place of public accommodation" shall include, but not be
limited to: any tavern, roadhouse, hotel, motel, trailer camp,
summer camp, day camp, or resort camp, ... any producer,
manufacturer, wholesaler, distributor, retail shop, store,
establishment, or concession dealing with goods or devices of any
kind; any restaurant, eating house, or place where food is sold
for consumption on the premises; any place maintained for the sale
of ice cream, ice and fruit preparations or their derivatives,
soda water or confections or where any beverages of any kind are
retailed for consumption on the premises, any garage, any public
conveyance operated on land or water, or in the air, any stations
and terminals thereof; any bathhouse, boardwalk, or seashore
accommodation; any auditorium, meeting place, or hall; any
theater, motion-picture house, music hall, roof garden, skating
rink, swimming pool, amusement and recreation park, fair,
bowling
alley, gymnasium, shooting gallery, billiard and pool parlor, or
other place of amusement; any comfort station; any dispensary,
clinic or hospital, any public library; any kindergarten, primary
and secondary school, trade or business school, high school,
academy, college and university, or any educational institution
under the supervision of the State Board of Education, or the
Commissioner of Education of the State of New Jersey. Nothing
herein contained shall be construed to include or to apply to any
institution, bona fide club, or place of accommodation, which is
in its nature distinctly private; nor shall anything herein
contained apply to any educational facility operated or maintained
by a bona fide religious or sectarian institution, and the right
of a natural parent or one in loco parentis to direct the
education and upbringing of a child under his control is hereby
affirmed ...

v. "Public facility" means any place of public accommodation and
any street, highway, sidewalk, walkway, public building, and any
other place or structure to which the general public is regularly,
normally or customarily permitted or invited.

hh. "Affectional or sexual orientation" means male or female
heterosexuality, homosexuality or bisexuality by inclination,
practice, identity or expression, having a history thereof or
being perceived, presumed or identified by others as having such
an orientation.

ii. "Heterosexuality" means affectional, emotional or physical
attraction or behavior which is primarily directed towards persons
of the opposite gender.

jj. "Homosexuality" means affectional, emotional or physical
attraction or behavior which is primarily directed towards persons
of the same gender.

10:5-12. Unlawful employment practice or unlawful
discrimination.

It shall be an unlawful employment practice, or, as the case may
be, and unlawful discrimination.

(f) For any owner, lessee, proprietor, manager, superintendent,
agent, or employee of any place of public accommodation, directly
or indirectly to refuse, withhold from or deny to any person any
of the accommodations, advantages, facilities or privileges
thereof, or to discriminate against any person in the furnishing
thereof, or directly or indirectly to publish, circulate, issue,
display, post or mail any written or printed communication,
notice, or advertisement to the effect that any of the
accommodations, advantages, facilities, or privileges of any such
place will be refused, withheld from, or denied to any person on
account of ... affectional or sexual orientation, ... or that the
patronage or custom thereat of any person of any particular ...
affectional or sexual orientation is unwelcome, objectionable or
not acceptable, desired or solicited...

(a) For an employer, because of the ... affectional or sexual
orientation ... of any individual, ... to refuse to hire or employ
or to bar or-to discharge... from employment such individual or to
discriminate against such individual ... provided further that it
shall not be an unlawful employment practice for a club
exclusively social or fraternal to use club membership as a
uniform qualification for employment, or for a religious
association or organization to utilize religious affiliation as a
uniform qualification in the employment of clergy, religious
teachers or other employees engaged in the religious activities of
the association or organization, or in following the tenets of its
religion in establishing and utilizing criteria for employment of
an employee; ...


(1) For any person to refuse to buy from, sell to, lease from or
to, license, contract with, or trade with, provide goods, services
or information to, or otherwise do business with any other person
on the basis of the ...

I. PLAINTIFF IS ENTITLED TO NO RELIEF UNDER N.J.S.A.
10:5-12(f)

BSA is not a "place of accommodation" under N.J.S.A.
10:5-12(f) and as defined in N.J.S.A. 10:5-5(1). The lengthy list
set forth in the definition is a list of places - not one of
organizations. A physical place to which one may point is clearly
intended. See, Sellers v. Phillips's Barber Shop, 46 N.J. 340
(1966); Kiwanis International v. Ridgewood Kiwanis Club, 806
F.2d
468, 471 (3rd Cir. 1986), cert. denied, 483 U.S. 1050 (1987).

N.J.S.A. 10:5-5(1) provides a lengthy list of establishments and
facilities which solicit customers or patrons as places "of public
accommodation." The doctrine of edusdem generis requires that in
deciding whether a non-enumerated place or facility should be
included in the general term "place of public accommodation" a
court should find that it is "similar in nature to those
enumerated" See BOC Group v. Lummus Crest, 251 N. J. Super.
271, 277-280 (Law Div. 1990), which considered what was
includable
in the definition of "merchandise" under the Consumer Fraud Act.
In Frazier v. Robin Dee Day Camp, 44 N.J. 480 (1965), the court
refused to rule that the list of "places of public accommodation"
under the statute was all-inclusive, but concluded that " the
listed places...are merely illustrative of the accommodations the
Legislature intended to be within the scope of the statute. Other
accommodations, similar in nature to those enumerated, were also
intended to be covered." (Emphasis supplied.) Id. at 486.

Boy Scouts of America is not a place; it is an entity which
embraces and projects through its organization certain moral
concepts and values. It neither owns or controls a "place" from
which Dale has been excluded. The same is true of the Monmouth
Council.

A Boy Scout troop bears no similarity to the enumerated places of
public accommodation. It consists of a small group of boys and
their adult leaders who meet together in various places, viz.
their regular meeting hall, in tents during summer camp or at
other scout gatherings on scout-owned properties. None of those
activities or places are open to the public. The benefits to the
boys spring not from the "facility" but from their interaction,
training and experiences as a group. Those goals and objectives
are totally different from "places" to which the public is
invited. Seabourn v. Coronado Area Council. Boy Scouts of
America,
891 P.2d 385 (Kan. 1995). Boy Scouts of America was held not to
be
a place of public accommodation under federal law in Welsh v.
Boy
Scouts of America, 787 F.Supp. 1511 (N.D. Ill. 1992), aff ' d, 993
F.2d 1267 (7th Cir. 1993).

Dale is no longer assistant scoutmaster of Troop 73 Matawan.
Troop
73 meets in a hall provided by Matawan First United Methodist
Church - its chartered sponsoring organization. That hall is, of
course, a "place" under the statute. Is that "place" one of
"public accommodation"? It is not. It is private property which
Troop 73 uses by virtue of invitation and sufferance.

Dale would seem to suggest that wherever Boy Scout troops hay
meet, throughout the nation, that "place" is one of public
accommodation because the "public" (read age-eligible boys) have
a
standing invitation to attend. The only ones invited to be boy
scouts are those who are willing to take the Scout Oath or Promise
and who agree to be bound by the Scout Law. To be an adult leader
of scouting one must agree to be bound not only by the Scout Oath
or Promise but also by the Declaration of Religious Principles.
Neither is an invitation to the public to participate in the
affairs of scouting.

BSA is entitled to structure its organization in a fashion it
deems appropriate. It is a private organization which has done so.
Membership is-limited. It is not "public" in the sense of N.J.S.A.
10:5-12(f); it is not a "place" within the legislative intent.
Plaintiff is entitled to no relief under that section.

However, plaintiff seeks an "expansive" interpretation of "place
of public accommodation" and points to the holding in National
Organization for Women v. Little League Baseball, 127 N.J.
Super. 522 (App. Div. 1974). That case held that Little League
could not continue to discriminate against females as
participants. The matter involved an appeal from the order of the
Division of Civil Rights ordering Little League to admit girls to
participation in the same manner as boys. The appellate Court
relied heavily on medical testimony opining that in the age
bracket in question (8 to 12 years) girls' athletic and physical
ability was the equivalent of that of boys. It held that "[l]ittle
League is a public 'accommodation because the invitation is open
to children in the community at large, with no restriction (other
than sex) whatever." id. at 531. It then stated that "the 'place'
of public accommodation in the case of Little League is obviously
the ball field at which tryouts are arranged, instructions given,
practices held and games played." id.

In apparent recognition that under the rules and regulations of
Little League, the "public" was not invited to participate since
only able boys between the ages of 8 and 12 were eligible), the
court found added support for accommodation finding in stating
that "[i]t (i.e. Little League) is public in the added sense that
local government bodies characteristically make the playing areas
available to the local leagues, ordinarily without charge." id.
Query, if the playing areas were on church-related property would
Little League then become a place of private accommodation?

Little-League and Boy Scouts are similar in that both are
not-for-profit and both are organized on a national level. In New
Jersey, at least, Little League is open to both genders of age
qualified children. Scouting maintains separate organizations for
the genders.

The differences are many. Scouting is a sustained program of
moral
character development for boys. Each activity (of the broad
spectrum of activities) is designed to provide opportunities to
practice and reinforce the values of the Scout Oath and Law. The
focus in Little League is primarily on the development of ability
in the sport of baseball in a competitive setting. In connection
with that, good sportsmanship and fair play are stressed. The
relationship among the troop members and adult leaders of
Scouting
is continuous on a year-round basis. It is personal and social.
There is no public attendance. Little League provides an
association of children and adults for the length of the baseball
season and solely for that purpose. It thrives on public (i.e.
family members and friends) attendance. Little League coaches
serve as teachers of baseball skills and are role models for good
sportsmanship, fairness and fatherly patience. Scoutmasters are
teachers and role models of "what a man should be like" in all
aspects of male adulthood. Lastly, the invitation of Little League
is open to all age-eligible persons who want to play baseball.
That of Scouting is limited to those who subscribe to the Scout
Oath and Law.

If a "place" meets the definition of "public accommodation" and
discriminates against members of the invited public based on
"affectional or sexual orientation" it runs afoul of the statute.
BSA is neither a "place" nor is there an invitation to the public
at large to enter, participate or make use of an "accommodation".

The defendants argue that they qualify under the exclusion
contained in the definition of "a place of public accommodation"
in N.J.S.A. 10:5-5(1) and therefore that they are not bound by
NJLAD. The exclusion is in this language:

Nothing contained therein shall be construed to include or to
apply to any institution, bona fide club, or place of
accommodation, which is in its nature distinctly private; nor
shall anything contained herein apply to any educational facility
operated or maintained by a bona fide religious or sectarian
institution, and the right of a natural parent or one in loco
parentis to direct the education or upbringing of a child under
his control is hereby affirmed; ...

Three exclusions are provided:

1) an "institution.... which is in its nature distinctly private",

2) an "educational facility operated...by a bona fide religious or
sectarian institution,

3) the right of a ... parent or one in loco parentis to direct the
education or upbringing of a child...

The defendants assert that they are excluded in all three
categories. They are correct as to the first and wrong as to the
other two. BSA is not an "educational facility" as contemplated by
the legislature. In the broad sense it does educate, but not in a
facility. Education-takes place in the troop wherever and whenever
the troop meets. Nor is BSA "a bona fide religious or sectarian
institution" within the plain import of those words as, for

example, would be the Southern Baptist, Presbyterian, Black
Muslim, Evangelical Lutheran, Orthodox Jewish or Roman
Catholic
churches, synagogues and temples. That is not to say that BSA
does
not espouse religious principles acceptable to all of its
religious sponsors - for it does. As will be seen in the
discussion of Freedom of Expressive Association, below, it is
quasi-religious in its nature (See, The Nature of Scouting,
above). However, it does not qualify for the exclusion.

BSA argues that parents entrust their boys to the training and
leaders commissioned by BSA and as a result BSA stands "in loco
parentis to direct the education or upbringing of a child." That
view stems from too broad a reading of the exclusion. "In loco
parentis", in context, does not apply to a private organization
but rather to a person such as a guardian or foster parent, or
even a state agency, having the legal right to direct education or
upbringing.

However, also as set forth above in explicating the nature of BSA,
it is an institution which is distinctly private not public. It
has membership requirements; its members wear distinctive
uniforms
and insignia; it has distinctive traditions and ceremonies; it
articulates values and goals. These characteristics are bona fide;
have existed since 1911 and are not feigned as a disguised form of
discrimination. Kiwanis International 806 F.2d at 476; Welsh v.
BSA 993, F2d 1267 (7th Cir. 1993); Clover Hill Swimming Club
v.
Goldsboro, 47 N.J. 25, 34 (1966). I find in, this exclusion, a
legislative recognition of the freedom of expressive association
discussed below and that BSA is protected by it.

II. PLAINTIFF IS ENTITLED TO NO RELIEF UNDER N.J.S.A.
10:5-12(A)

The cited statute precludes discrimination in employment. Dale
was
a volunteer, not an employee. He received no remuneration or
benefits. He did not work for BSA. His efforts were devoted to the
boys in the troop. BSA issued his "commission" which gave him
the
authoritative position of assistant scoutmaster. It did so on the
recommendation of the unit committee and Monmouth Council
neither
of which would have done so had they been aware that he was a
sexually active homosexual. Graves v. Women's Professional
Rodeo
Organization, 907 F2d 71, 73 (8th Cir. 1990).

N.J.S.A. 10:5-12(a) must be read in conjunction with the
legislative purpose expressed in N.J.S.A. 10:5-3, that is, to
prevent "personal hardships" such as "economic loss; time
loss....or other irreparable harm resulting from the strain of
employment controversies" for which there are "legal remedies
including compensatory and punitive damages".

The invidious discrimination against an individual precluded by
N.J.S.A. 10:5-12(a) is- that which affects "compensation
or...terms, conditions or privileges". None of that applies to
Dale.


Plaintiff has no cause for action under the statute.

III PLAINTIFF IS ENTITLED TO NO RELIEF UNDER N.J.S.A.
10:5-12(1).

The cited statute precludes discrimination based on a refusal to
"do business with any other person on the basis of, inter alia,
"affectional or sexual orientation. BSA was not doing business
with Dale. It simply commissioned him as a volunteer adult
assistant scoutmaster. There was no contractual relationship - no
quid pro quo. There was a unilateral authorization by BSA that
allowed Dale, as a volunteer, to act as adult mentor for a
specified time period to a patrol of scouts assigned to him for
guidance and tutelage - nothing more. Curran v. Mount Diablo
Council of the Boy Scouts, 29 Cal. App. 4th 192, 29 Cal. Rptr. 580
(1994) rev. granted 31 Cal. Rptr. 126 (1994); Seabourn v.
Coronado
Area Council, 891 p.2d at 403.

Plaintiff has no cause for action under that statute.

Therefore, for the foregoing reasons all relief sought by
plaintiff is denied.

IV THE DEFENSE OF FREEDOM OF EXPRESSIVE
ASSOCIATION

In Roberts v. United States Jaycees, 468 U.S. 607, 82 L.Ed. 2d
462, 104 Sup. Ct. 3244 (1984) Justice Brennan developed the
concept of First Amendment protection of a group's right to
freedom of expressive association in the following fashion
(beginning at 104 Sup. Ct. 3252) (citations omitted):

"An individual's freedom to speak, to worship, and to petition the
government for the redress of grievances could not be vigorously
protected from interference by the State unless a correlative
freedom to engage in group :effort toward those ends were also
guaranteed."


According protection to collective effort on behalf of shared
goals is especially important in preserving political and cultural
diversity and in shielding dissident expression from suppression
by the majority.


Consequently, we have long understood as implicit in the right to
engage in activities protected by the First Amendment a
corresponding right to associate with others in pursuit of a wide
variety of political, social, economic, educational, religious,
and cultural ends.


Government actions that may unconstitutionally infringe upon this
freedom can take a number of forms. Among other things,
government
may ...Try to interfere with the internal organization or affairs
of the group.


There can be no clearer example of an  intrusion into the internal
structure or affairs of an association than a regulation
 that forces the group to accept members it does not desire. Such
a regulation may impair the ability of the original members to
express only those views that brought them together.
Freedom of association therefore plainly presupposes a freedom
not
to associate.

 ...

The right to associate for expressive purposes is not, however,
absolute. Infringements on that right may be justified by
regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved
through means significantly less restrictive of associational
freedoms.

In her concurring opinion, Justice O'Connor, refined the
concept in the following fashion (p. 3258 Sup. Ct.):

enjoys First Amendment protection of both the content of its
message and the choice of its members. Protection of the message
itself is judged by the same standards as protection of speech by
an individual. Protection of the association's right to define its
membership derives from the recognition that the information of an
expressive association is the creation of a voice, and the
selection of members is the definition of that voice. "In the
realm of protected speech, the legislature is constitutionally
disqualified from dictating...the speakers who may address a
public issue." (citations omitted)


And at (p. 3259 Sup. Ct. ):


In my view, an association should be characterized as commercial,
and therefore subject to rationally related state regulation of
its membership and other associational activities, when, and only
when, the association's activities are not predominantly of the
type protected by the First Amendment. It is only when the
association is predominantly engaged in protected expression that
state regulation of its membership will necessarily affect,
change, dilute, or silence one collective voice that would
otherwise be heard. An association must choose its market. Once it
enters the marketplace of commerce in any substantial degree it
loses the complete control over its membership that it would
otherwise enjoy if it confined its affairs to the market-place of
ideas.

Determining whether an association's activity is predominantly
protected expression will often be difficult, if only because a
broad range of activities can be expressive. It is easy enough to
identify expressive words or conduct; that are strident,
contentious, or divisive, but protected expression may also
take-the form of quiet persuasion, inculcation of traditional
values, instruction of the young,  and community service.


Even the training of outdoor survival skills or participation in
community service might become expressive when the activity is
intended to develop good morals, reverence, patriotism, and a
desire for self-improvement. (The footnote reference for this is
the Girl Scout and Boy Scout Handbooks).

The court was unanimous in holding that the State of Minnesota
through its legislative power as interpreted by its Supreme Court
could vitiate a by-law of the Jaycees excluding women from voting
membership based on a finding that the Jaycees was essentially a
commercial association.

A similar result was reached in Board of Directors of Rotary
International v. Rotary Club of Duarte, 481 U.S. 537, 95 L.Ed. 2d
474, 107 S. Ct. 1940 (1987). Both the California appellate court
and the Supreme Court were of the opinion that the California law
against discrimination based on gender, vitiated Rotary's by-law
limiting membership to men and that, based on its essential
business - related nature, Rotary had no freedom of expressive
association right to be constitutionally protected in that regard.
The State's "compelling interest in eliminating discrimination
against women" (a goal not related to the suppression of ideas)
prevailed.

In the language of Justice O'Connor in the Jaycees case, Rotary,
too, fell into the category of a "predominantly commercial
association".

In New York State Club Association v. City of New York, 487
U.S.
1, 1-01 L..Ed. 2d 1, 108 Sup. Ct. 2225 (1988) the focus was
somewhat different. The New York City Human Rights Law had
an
anti-discriminatory provision containing language which parallels
that of N.J.S.A. 10:5-12(f). As originally enacted, it provided an
exemption for "any institution, club, or place of accommodation
which proves that it is in its nature distinctly private".
Thereafter, that exemption was amended to affirmatively extend
anti-discriminatory coverage to any "institution, club or place of
accommodation (that) has more than four hundred members,
provides
regular meal service and regularly receives payment for dues,
fees, use of space, facilities, services, meals or beverages
directly or indirectly from or on behalf of non-members for the
furtherance of trade or business." It further provided that any
such club "shall not be considered in its nature distinctly
private". The plaintiff, consortium of private clubs, challenged
the amendment as violative, on its face, of First and Fourteenth
amendment rights of "private" clubs.

Relying on its Rotary and Jaycees opinions the Court rejected the
facial First Amendment challenge. It left open the possibility
that an individual club might litigate the question on an "as
applied" basis.

The facial Fourteenth Amendment challenge was based on an
equal
protection argument stemming from the exemption of clubs
"distinctly private" in nature. For similar reasons that argument
was given rather summary disposition.

That case has no precedential value for this case save for the
concurring opinion of Justices O'Connor and Kennedy as well as
that of Justice Scalia which were sensitive to the First Amendment
rights of expressive association held by other organizations. For
the purposes of this case we are left, then, with the guidance
provided by Roberts quoted above.

No discussion of appellate court sensitivity to the rights of
certain organizations to protected freedom of expressive
association would be complete, here, without reference to Leeds v.
Harrison, 9 N.J. 202 (1952).

The defendants in that case were the board of directors of the
Young Women's Christian Association (YWCA) of Atlantic City,
a
corporation organized in 1915 as an "association not for pecuniary
profit." [13] The certificate of incorporation states the purpose
as "the improvement of the spiritual, intellectual, social and
physical condition of young women." It originally provided for a
governing body of five trustees. At the time the litigation
commenced it appears that the number of trustees had increased
and
that the trustees had provided in the By-Laws for a board of
directors and officers .14 A board of directors was authorized by
N.J.S.A. 16:19-3. It could consist of 8 or more. Those directors
together with the president of the association then constituted
the board of trustees.

The constitution, duly adopted, stated the purpose as the
association of "young women in personal loyalty to Jesus Christ as
Savior and Lord; to promote growth in Christian character and
service through physical, social, mental, and spiritual training
and to become a social force for the extension of the Kingdom of
God."

The By-Laws divided membership into "Active" and "Associate"
categories. Only active members could hold office and vote.
"Active" was defined as "those who subscribe to and will support
the purpose and who are members of Protestant Evangelical
churches." "Associate" members are those "who wish to identify
themselves in interest and service for the Association."

The constitution and by-laws also required that a confession of
the religious faith and beliefs be a condition of membership.
Although affiliated at one time with the national federation of
YWCAs, the defendant, in 1949, had disaffiliated itself precisely
because the federation had departed from the principles and
beliefs which it had once shared in common with defendant.

The court had no difficulty in understanding the reference to
"Protestant Evangelical churches."

Evangelical faith signifies full acceptance of the Gospel. The
standards of doctrine of Protestant Evangelicalism are embodied in
the Apostles' Creed and Gospels. We have been referred to the
dictionary for the terms of classification and the definitive
characteristics and differences. "Evangel" means the- message of
news of the Christian dispensation and the redemption of mankind
through Christ as revelation of the grace of God; hence, one of
the four Gospels. "Evangelicalism" signifies belief in the
Divinity of Christ and conformance to the spirit of the Gospel and
the teachings of the New Testament - a school among the
Protestants which holds that the essence of the Gospel consists
mainly in its doctrines of man's sinful condition and need of
salvation, the revelation of God's grace in Christ, the necessity
of spiritual renovation, and participation in the experience of
redemption through faith. See "evangel" and "evangelical" in
Webster's New International Dictionary, 2d ed. Evangelical belief
includes acceptance of the mystery of the Holy Trinity; hence, it
differs fundamentally from the Unitarian theology which rejects
the Trinity and holds that God exists only in one person, and also
sustains the right of private judgment in theological matters.
Thus, a bylaw conditioning membership upon adherence to the
articles of Christian faith expressed in the Apostles' Creed and
the doctrines of the four Gospels would be in keeping with the
essential object of the society. The very name assumed by the
Association and the declaration of purpose made in the corporate
charter plainly import an alliance of believers in the Trinity and
the Divinity and teachings of Christ to serve the spiritual,
temporal and social welfare of womankind. "Spiritual" has
reference to the soul and the Divine Will and sacred things. It
follows that the provision of the constitution limiting the voting
membership to professing believers in the Christian faith,
doctrine, worship and discipline comprehended in and practiced by
evangelical Protestantism does not involve a radical and
unauthorized deviation from the corporate charter of the
defendant society.

The court found such requirement for membership to be within the
legislative corporate grant.

The plaintiffs were 12 women non-members. They sought a
mandate from the court to direct the association to accept them
into membership free of any condition or requirement that they "be
members of any particular Christian church or religious sect" or
that they "subscribe to any statement of faith or dogma" and also
to compel abolition of the board of directors and reduction of the
board of trustees to the original number of five set forth in the
corporate charter; to revise the constitution and by-laws
accordingly and thereafter conduct a new election for trustees for
which the distinction in active and associate membership would no
longer exist. [15]

It is of interest to note that at the time that litigation
commenced, the NJLAD had been enacted L.1945 c. 169 and had
taken
effect on April 16, 1945. One of the prohibited grounds of
discrimination was that based on "creed". However, that possible
avenue of relief was not explored by the plaintiffs in the
Leeds case.

The court upheld the defendant Y.W.C.A.'s constitution and by-
laws
and dismissed the complaint. In so doing it first distinguished
between religious societies and quasi-religious societies (p .
214) .

While Young Men's and Young Women's Christian Associations
are not
formed for public religious worship and - exercise no
ecclesiastical control over their members, in New Jersey such
societies are deemed impressed with a "religious use" and
therefore quasi-religious in the view of the law. The Legislature
recognizes a kinship and identity between religious societies in
the strict sense and associations of the particular class. There
is sufficient similarity in spiritual conception for a common
classification. (Emphasis supplied)

And (at p. 215-6)

There is an essential and readily discernible difference between a
voluntary association of persons grounded in common religious
principles and beliefs for charitable and benevolent purposes and
the corporation formed to govern the society's temporalities; and
judicial interposition may not be had to work a basic alteration
of the bond of association in disregard of the rights of those who
hold membership on the faith of common adherence to the
fundamental creed and polity. III Stokes' Church and State in the
United States, p. 376. Questions of religious faith and doctrine
are left to the society itself. This policy of  the civil
jurisdiction is founded in the constitutional freedom of religion
and liberty of conscience. Generally, judicial intervention is
justifiable only where the complaining parties have suffered an
invasion of their civil rights, of person or of property...(citing
cases). Such religious and quasi-religious societies are the same
footing as other voluntary associations for benevolent
purposes: all "who unite themselves to such a body do so with an
implied consent to this government, and are bound to submit to
it." Watson v. Jones. 13 Wall. 679, 729, 20 L.Ed. 666 (1872). Such
"religious societies are regarded by the civil authority as other
voluntary associations, the individual members and separate bodies
of which will be held to be bound by the laws, usages, customs,
and principles which are accepted among them, upon the
assumption
that in becoming parts of such organisms they assented to be bound
by those laws, usages, and customs, as so many stipulations of a
contract between." First Presbyterian Church of Louisville v.
Wilson, 14 Bush 252 (Ky. Ct. Apps. 1878).

The society's constitution is essentially conventional in
character. The compact derives from the common consent of the
parties and is limited accordingly. It is a corollary that where,
as here, there has been long acquiescence in a by-law prescribing
qualifications of members, and the association is united in the
principles and beliefs thereby laid down as the standard of
membership, it is ordinarily not ground for judicial intervention
that the by-law has unduly narrowed the field of action prescribed
by the charter. And further, (pp. 216-17)

There is no reason in law or in equity why this fundamental
limitation on the character and object of the society declared at
the outset by its constitution and laws should now be overthrown
for want merely of a specification in the charter of the
qualifications of members. A subversion of the principle uniting
the membership for common action is beyond the judicial
province.
The common bond which underlies the compact is secure against
judicial interference. Such has been the motivating and cohesive
force of this society from the beginning. And until now this
fundamental tenet of the alliance has been free from challenge.
Religious and quasi-religious societies may adopt a constitution
and laws for the regulation of their affairs. if conformable and
subordinate to the charter and not repugnant to the law of the
land; and they are binding upon the membership until modified or
repealed in due course...And by their very nature. the right of
membership is not a justiciable question. (Emphasis supplied.)

Leeds v. Harrison spoke before Roberts v. United States
Jaycees. It does not use in so many words the First Amendment
right of "freedom of expressive association" yet the values
expressed in Roberts echo the state court's rationale of judicial
abstention from interference in the internal governance of the
affairs of a quasi-religious organization to force a change in its
requirements for membership. Had Roberts been in existence it
would have been cited in support of the result. See the dictum in
Hurley v. Irish American Gay, Lesbian and Bisexual Group etc..
115 U.S. 2338, 132 L.Ed.2d.487, (1995) in which the Court stated
that: "a private club could exclude an applicant whose manifest
views were at odds with a position taken by the club's existing
members." 132 L.Ed. 2d at 496.

Further, in Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25,
34
(1966) the Court recognized that if a private club did "owe its
existence to the associational preferences of its members" it
would be exempt from NJLAD.

Youth membership in scouting is restricted to boys between 11 and
18. To become a member, each must submit a 'completed Boy
Scout
application and health history signed by his parents; each must
repeat the Pledge of Allegiance; demonstrate the Scout salute, the
Scout sign and handclasp and how to tie a square knot. Each, with
his parents, must complete a child protection program; participate
in a Scoutmaster conference and pay the national dues. Each must
understand and agree to live by the Scout Oath, Law, motto, slogan
and Outdoor Code.

Similarly, Adult Leadership is not open to the public. One must be
a male citizen over the age of 21 (except, for assistant
scoutmasters, over 18). He must possess the moral, educational and
emotional qualities deemed necessary by BSA for leadership
before
he will be commissioned. He must be recommended by the Scout
Executive and approved by the Local Council executive board. He
must subscribe to the Statement of Religious Principle, the Scout
Oath and the Scout Law.

Each troop meeting begins with the recitation of the Scout Oath
and Law. On a regular basis there then follows a group discussion
of various parts of the Oath and Law stimulated by the Scoutmaster
or troop leader. Before the close of each meeting, it is the usual
practice that the Scoutmaster offer the boys a moral lesson, known
as the Scoutmaster's Minute.

At each level of advancement, the individual boy describes to his
Scoutmaster or review board of adult leaders how he is living his
life in accordance with the Scout Oath and Law.

Since its inception Scouting has sincerely and unswervingly held
to the view that an "avowed", sexually-active homosexual is
engaging in immoral behavior which violates the Scout Oath (in
which the person promises to be "morally straight") and the Scout
Law (whereby the person promises to keep himself "clean"). The
exclusion or termination of an adult leader who openly advocates
consensual homosexuality is no less rational than excluding one
who advocates any other type of behavior (such as promiscuous
heterosexual activity) which BSA holds to be morally wrong. The
consequences of restoring Dale to a position of adult leadership
would be devastating to the essential nature of scouting.

CONCLUSION

The Boy Scout movement is world-wide. Its founder, Baden-
Powell,
made its basic purpose the molding of the character of growing
boys in such a fashion that at age 18 they could move into an
adult world armed with strong moral principals for their own good
and for the good of those around them. That noble ideal (which our
society needs so desperately today) requires of them, as boys, a
belief in God (the benevolent and loving Creator) and, through the
Scout Oath, the Scout Law and the Scout Handbook an adherence
to
the Ten Commandments and the Golden Rule.

In the language of Leeds v. Harrison, BSA is a quasi-religious
organization. As distinguished from Leeds it is a nonsectarian
quasi-religious organization. It is not irreligious or religiously
indifferent. It has religious beliefs which it upholds as
intrinsic to its purpose. Adult leaders are critical to its
mission. The By-Laws and Regulations require careful selection
and
an affirmation commitment by the application to the Scout Oath,
Scout Law and Statement of Religious Principal. They also provide
for one year commissions to limit any harm which an inappropriate
appointment could cause. The presence of a publicly avowed active
homosexual as an adult leader of boy scouts is absolutely
antithetical to the purpose of Scouting.

BSA and Monmouth Council are both organizations which have
First
Amendment freedom of expressive association rights preventing
government from forcing them to accept Dale as an adult
leader-member.

Accordingly, plaintiff's motion for Summary Judgment is denied.
Judgment for no cause for action based on the cross-motion for
summary judgment is granted.

Mr. Brown will submit the appropriate form of Judgment in
accordance with R; 4:42-1 .

______________________________________________________
____________

Endnotes

     1 Those levels are Tenderfoot, Second Class, First Class,
Star, Life and Eagle. To advance from one badge level to the next
a certain number of merit badges must be earned. Those badges
cover a wide range of specified activities and subjects. Each step
involves learning, testing, reviewing and, finally, recognition of
achievement. In order to become an Eagle Scout, the boy must earn
a total of 30 Merit badges.

     2 The purposes of the Order of the Arrow are to recognize
those Scout campers who best exemplify the Scout Oath or
Promise
and the Scout Law in their daily lives, to develop and maintain
traditions and spirit; to promote Scout camping, and to crystalize
the Scout habit of helpfulness into a life purpose of leadership
in cheerful service to others.

     3 A judgment granting the name change was entered on October
21, 1988 based on a complaint filed August 5, 1988.

     4 He had not, however, told that to his Troop Committee
Chairman who sponsored him for adult membership. Had he done
so,
he would not have been sponsored nor commissioned as an adult
member by BSA."

     5 Dale was not stripped of any awards he had previously
earned as a Boy Scout. He remains on the records of BSA as a
former Boy Scout who attained the high rank of Eagle Scout.

     6 The context of the correspondence makes it apparent that
the use of the modifier "avowed" was intended to describe BSA's
understanding that Dale was a sexually active homosexual and it
was so understood by Dale and his counsel when they read the
letter.

     7 The Monmouth Council, for example, has approximately
2,950
adult volunteer leaders and employs 4 scouting paid professionals.


     8 Assistant Scoutmasters may be commissioned at 18 years of
age.

     9 A recently added requirement.

     10 Non-consensual sodomy is still a criminal offense under
the sexual assault statute (N.J.S.A. 2C:14-2) and punishable as a
second degree crime.

     11 This related offense is usually termed "beastiality."

     12 For clarity, particular language in the various sections
deemed not pertinent to the issues are elided by ... Bold type
does not appear in the statutes but are used here to emphasize
language deemed pertinent.

     13 Although incorporated under the predecessor of N.J.S.A.
15:11 et seq., as the court noted in opinion, the legislature had
clothed YWCA with all of the benefits and privileges accorded by
the corporations and Associations, Religious Act, N.J.S.A. 16:19-1
et seq.

     14 Part of the relief sought by plaintiffs was abolition of
the board of directors and reduction of the number of trustees to
five as provided in the original certificate of incorporation.

     15 The association had denied active membership but had
tendered associate membership to plaintiffs. That had been
refused.







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