Abbott Koloff

Staff Writer, @AbbottKoloff

A U.S. Supreme Court ruling that allowed the Boy Scouts of America to bar a gay man from being a Scout leader more than 16 years ago could be an impediment for anyone seeking to sue the Scouts or other private organizations over related issues, legal experts say.

But experts also said the 2000 ruling might not be an insurmountable bar in cases of children banned from Scouting because it involved a leader who had been outspoken about gay rights. The Supreme Court said forcing the Boy Scouts to hire that leader, James Dale of Monmouth County, violated the organization’s First Amendment right to express itself on the issue of homosexuality.

The Scouts have since reversed long-standing policies barring gay leaders and gay Scouts. But last month, Kristie Maldonado, the mother of an 8-year-old transgender boy from Secaucus, said that she was told by local Scout leaders that her child could no longer be a Cub Scout because he was born a girl.

The Dale decision "was about the right to choose leaders people see as role models,” said Jon Davidson, the legal director of Lambda Legal. “Here, we’re talking about an 8-year-old boy in the Cub Scouts. I’m not sure Dale would apply."

In the Dale case, the New Jersey Supreme Court ruled that the Boy Scouts had violated the state’s law against discrimination. The court ruled that while the Boy Scouts of America is a private organization, it is a public accommodation under the law and, therefore, subject to anti-discrimination laws because it “invites the public to join, attend or participate.”

The U.S. Supreme Court overturned that decision on the grounds that requiring the Scouts to accept Dale as an assistant scoutmaster “runs afoul of the Scouts’ freedom of expressive association.” It said the Boy Scouts had taken a position that “homosexual conduct is not morally straight” and that the presence of Dale, a “gay rights activist,” would “force the organization to send a message” that it "accepts homosexual conduct as a legitimate form of behavior.”

However, the decision was made more than a decade before the Scouts reversed a ban against gay Scouts in 2013 and then overturned a ban against gay Scouting leaders in 2015. And the Scouts have never taken a public stand regarding transgender people, LGBT advocates said.

In a statement this month, the Boy Scouts saidthey don't ask anyone about their sexual orientation and "don't believe this topic has a role in Scouting."

Davidson said the Scouts' reversal of the gay bans "means that the organization no longer believes being gay is incompatible with even being a leader in Scouting.” He added that before the Secaucus case, he had never heard of the Scouts' “excluding transgender individuals or having any policy about transgender people.”