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High court won't hear appeal from Boy Scouts

Tuesday, March 9, 2004

WASHINGTON -- The Supreme Court refused Monday to hear an appeal from the Boy Scouts over what the organization says is discrimination because of its policy against hiring gays.

The case revisited the gay rights fight surrounding the high court's ruling four years ago that the Boy Scouts have the right to ban openly homosexual scout leaders. This time, the question was whether states may treat the Scouts differently from other organizations because of that policy.

The Scouts asked the justices to hear a case from Connecticut, where officials moved to drop the group from a list of charities that receive donations through a state employee payroll deduction plan.

That's unconstitutional discrimination, the Boy Scouts argued.

"To exclude the Boy Scouts from a forum based on the values they hold and the conduct they require of their members is to exclude Boy Scouts based on viewpoint and identity," lawyers for the Scouts argued in their Supreme Court appeal.

The Scouts took in about $10,000 annually from the employee charity campaign, the filing said.

The Scouts lost two previous rounds in federal court, and Monday's action means the case is over.

"What the (lower appeals court) is saying is that government is entitled to make an organization that exercises its First Amendment right pay a price for exercising that right," said lawyer George Davidson, who represented the Boy Scouts.

"What if a church softball league wanted to get a permit to use a ballfield in the park for a couple of hours? The religious organizations to which most Americans belong have the same view of the morality of homosexual conduct as the Boy Scouts do. What happens to them?"

The Boy Scouts are pursuing a similar court fight in San Diego, where the American Civil Liberties Union is trying to end two leases it says give the organization preferential treatment for use of city-owned land. The Bush administration sided with the Scouts in the dispute last week.

A separate court fight from Berkeley, Calif., over Scouts' free use of public boat slips also could end up at the Supreme Court.

The Supreme Court ruled in 2000 that the right of association under the First Amendment meant the Scouts could expel a gay assistant scoutmaster in New Jersey.

In the Connecticut case, a state human rights commission had found that including the Boy Scouts of America in the State Employee Campaign Committee would violate Connecticut's gay rights law, state Attorney General Richard Blumenthal argued to the high court.

The law prohibits the state from "becoming a party to any agreement, arrangement or plan which has the effect of sanctioning discrimination," the state's legal filing said.

A federal appeals court ruled last year that Connecticut did not violate the Scouts' First Amendment rights. The Connecticut policy was intended more to protect gays than to silence the views of groups like the Scouts, the court said in upholding the ruling of a lower federal judge.

The Scouts' name has remained listed in the charitable campaign directory while the case was in court, and any donations since 2000 were placed in escrow, the Scouts' lawyer said. It is not clear what will happen to that money.

The case is Boy Scouts of America v. Wyman, 03-956.

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On the Net:

Supreme Court: http://www.supremecourtus.gov

Boy Scouts of America: http://www.scouting.org


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