Who Gets to Be a Boy Scout?

Two California Supreme Court cases hinge on whether the Boy Scouts of America (BSA) is a business or a private organization. But the outcome is likely to go beyond who can join the gatherings of kerchief-garbed boys in church basements.

The legal knot confronting the nation's largest youth group could have implications for community and fraternal organizations ranging from the Kiwanis to 4-H Clubs here and in other states.

At issue in the cases heard by California justices this week is whether the Boy Scouts can legally exclude homosexuals or atheists. If the youth group is ruled a business, it's subject to civil rights laws that prohibit discrimination based on religious belief and sexual preference. But if it is a private organization, it may have the right to set any standards for admission it chooses.

In one case originating in 1991, twin 10-year-olds Michael and William Randall protested their expulsion from a Scouting organization in Orange County for refusing to take the Scout oath affirming the existence of God. Winning a preliminary injunction barring the BSA from expelling them until the case was settled, the twins are about to be considered for Eagle Scout badges, Scouting's highest rank.

Scout lawyer George Davidson argued that the organization is merely upholding its clearly stated tenets. "There's God on the front cover, there's God on the back cover," said Mr. Davidson, holding up a Scout handbook to the justices.

The other case originated in 1980 and concerns the exclusion of an Eagle Scout, Timothy Curran, from a troop in Berkeley California. Local Scoutmasters denied Curran a post as assistant scoutmaster because of a local newspaper article on gay teens indicating that Curran was homosexual.

Both suits claim that the BSA's attempts to curb the youngsters' participation violate California's Unruh Civil Rights Act, which prohibits discrimination by businesses.

American Civil Liberties Union attorney Jon Davidson argued that the BSA sells camping equipment, pays a full-time staff, and charges fees to its 5 million members. "Those factors point to it not being a private club," he said.

The ACLU has won two significant rulings from the California Supreme Court in recent years concerning enforcement of the Unruh act. In one, a female real estate agent won a landmark ruling by arguing the club could not discriminate against an entire class of people based solely on their gender. In another case, the court found that a landlord could not refuse to rent to an unmarried couple on the basis of religious belief.

But the BSA holds that they are not a business and therefore not subject to anti-discrimination policies of the state law.

"We are a voluntary association in which no one is forced to belong and are thus entitled to First Amendment protections guaranteeing us the right to association," says Gregg Shields, national spokesman for BSA. "The Bill of Rights gives us the prerogative to establish membership guidelines and standards as we see fit."

But legal experts are divided over the BSA's stand. Robert Pugsley, a constitutional scholar at Southwestern University School of Law, Los Angeles, predicts that the court will find the BSA is a business. It's "sufficiently like an educational institution that it will not be allowed to discriminate [in] membership on the basis of homosexuality or those who disavow a belief in God," he says.

On the other hand, Ralph Rossum, a law professor at Claremont McKenna College, says the ACLU has an "uphill battle." He compares the Scouts to Catholic Seminaries, which accept only men for the priesthood. "For [the Scouts] to exclude members who refuse to affirm the Deity is no different than a church excluding atheists or women from the priesthood," he says.

During the oral arguments, some of California's high court justices appeared to side with the BSA. A decision by the full court is expected by March.

"If the court finds in favor of the BSA, you can bet there will be more challenges against them in others states," says Herman Hattaway, a history professor and Scouts expert at the University of Missouri, Kansas City. "If the BSA loses, they will take it all the way to the US Supreme Court."