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Burden of Proof

Is the Boy Scout Ban on Homosexuals Unconstitutional?

Aired April 26, 2000 - 12:30 p.m. ET



JAMES DALE, FORMER BOY SCOUT LEADER: For 12 years, you're perfect, you're perfect, we're just what we want, you know, get involved, get more involved, we are happy to have you, it's a family, you are part of the family." And then they find one small thing about who you are and they kicked me out.

VINCE MCCARTHY, AMERICAN CENTER FOR LAW AND JUSTICE: The Boy Scouts really don't look under, you know, the sheets and under the beds and in the closets. They don't check.

EVAN WOLFSON, LAMBDA LEGAL DEFENSE: Now that's still discriminatory because it still forces me to live a lie, which of course the Boy Scout oath says you shouldn't do.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Do the Boy Scouts of America have a constitutional right to oust a troop leader just because of his sexual orientation? That argument is being heard today in Washington before the Supreme Court of the United States.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

Today is the last day of oral arguments before the U.S. Supreme Court in this term. The justices are hearing a case involving the Boy Scouts and one of its former troop leaders.

GRETA VAN SUSTEREN, CO-HOST: At issue, whether the organization is allowed to remove the scout leader based on the fact that he is gay. The Boy Scouts say they have a Constitutional right to oust James Dale.

COSSACK: But the New Jersey Supreme Court said that the Boy Scouts cannot violate state anti-discrimination laws.

Joining us today here in Washington is Patricia Ireland of the National Organization for Women. Here in our studio, Janet LaRue, senior director of legal studies at the Family Research Council, constitutional law professor Susan Low Bloch, and constitutional law scholar Bruce Fein.

VAN SUSTEREN: And in our back row, Eric Lincoln (ph) and Bridget Shanahan (ph). And joining us from the United States Supreme Court is CNN's senior Washington correspondent Charles Bierbauer.

Charles, first to you, what happened this morning during these oral arguments on this Boy Scout case.

CHARLES BIERBAUER, CNN CORRESPONDENT: Spirited arguments today, and it boils down pretty much to whether the Boy Scouts should be treated as a public accommodation, opening their doors to all boys, and young men, there are some five million of them, or whether they do have that First Amendment right of freedom of association. The New Jersey Supreme Court said, they are a public accommodation, and the anti-discrimination law prevents them from excluding the gay scout leader. The Supreme Court has to decide whether to uphold the New Jersey Supreme Court ruling or reverse on the First Amendment rights question -- Greta.

VAN SUSTEREN: Charles, was there any discussion as to exactly what public accommodations means?

BIERBAUER: Well, it's the question of how broadly and how openly an organization may be, when might they be able to exclude, a lot of questions as to where do you draw the line. For example, Justice Breyer said: Would a Jewish organization have to include Catholics? or vice-versa? Justice O'Connor asked: Would the Boy Scouts have to include girls, for example?

The answers to all of these were probably not. But this particular case then also comes down to: How do you treat gays? and those who are openly gay?

Justice Ginsberg posed an interesting question based on what the military has taken as its approach to handling gays, it is the: Is this a "don't ask, don't tell" situation? To which the lawyer for the Boy Scouts said: We don't make inquiries, but if a person becomes openly gay then we have the right to dismiss them.

Well, Justice Breyer weighed in on that one, saying: If you think this is such a bad behavior, maybe you should ask.

A very spirited discussion, very difficult to tell exactly where the court is going to come down on this one.

COSSACK: Bruce, the issue of whether or not a group is a public group is sort of a troubling issue. The Boy Scouts we know is chartered by Congress, receives benefits, receives special access to military groups, police groups, has all kinds of sort of public benefits that many groups don't have. Wouldn't it seem like they are a public group?

BRUCE FEIN, CONSTITUTIONAL LAW SCHOLAR: Not necessarily, Roger. I don't think the idea of a public accommodation is a constitutional dimension here the New Jersey Supreme Court just examines New Jersey state law, which had its own peculiar definition, and found that even a group, if it opened up access to a reasonably large number, constituted a public accommodation. But that doesn't decide the constitutional issue, so what? Is it in fact, because of its social cohesiveness and adherence to particular ideas, entitled to constitutional protection to limit its memberships just to those that subscribe to its own belief? It wouldn't be much different, in my judgment, than the NAACP saying: Well, if you are a member of the Ku Klux Klan and don't subscribe to our ideas, you can't be a member of the NAACP.

COSSACK: But isn't that the core -- the NAACP, the core benefit, or the core public statement of that is, is anti-discrimination. I mean the notion of having a Ku Klux Klan member in there would be ridiculous. But the Boy Scouts, the core benefit isn't anti-gay.

FEIN: But that, I think, is one of the core issues, Roger. You have hit on really the dispositive question. The gays -- excuse me, the Boy Scouts did say that being straight, so to speak, is an essential part of their creed. And the New Jersey Supreme Court, in my judgment, in some sense audaciously said: No, you can't have that part of your creed because it is outmoded.

VAN SUSTEREN: Let me bring Jan into this. Jan, let me talk to you. It was a nine -- it a unanimous decision out of the New Jersey Supreme Court, how does that bode for this case as it goes to the U.S. Supreme Court?

JANET LARUE, FAMILY RESEARCH COUNCIL: It shouldn't make a bit of difference to the U.S. Supreme Court because the court is not going to re-decide whether or not they are a public accommodation, what the court is going to look at is whether, as applied to the Boy Scouts, it infringes on their rights under the First Amendment in association, expression.

One issue that was not talked much about today is intimate association. I think he can make a case for that, we did in our belief. And also...

VAN SUSTEREN: What do mean "intimate association"?

LARUE: Intimate association in that we think of the Boy Scouts as a five-million member organization, whereas the real Boy Scout activity takes place not only in the troops of about 30 boys, but down at the patrol level where you've got five to eight boys, and 90 percent of these meetings occur in private homes.

VAN SUSTEREN: But wait a second, are you suggesting any improper -- I don't think there is any suggestion from anyone that this man who is in the Supreme Court, this guy who has been ousted, was not a great Scout, he was an Eagle Scout. No one has said he can't do his job. No one has criticized his actual performance.

COSSACK: Or that he did anything that would be improper.

LARUE: When he made his status a public issue, then he is the one who has set himself apart from the Boy Scouts core beliefs. He outed himself as a Boy Scout, and knew that it would bring it to the courts.

COSSACK: Susan, is it enough to, when you out yourself, to put yourself in an issue like that, does that mean you are out if you bring it? if you make yourself out?

SUSAN LOW BLOCH, CONSTITUTIONAL LAW PROFESSOR: He was very public in the sense that he was the president of the college organization for gay and lesbian, and when the Boy Scouts saw that in the newspaper that's when they took their action.

It is a difficult case because it really does pit two fundamental rights that we cherish dearly: one is the right not to be discriminated against; but the other is the right of an association to choose its members.

FEIN: And I think, Roger, one of the issues here is really captured by Justice Holmes, who said, "Freedom of association, like freedom of speech, is freedom to do the things that people might hate, as well as what they might like." And as much as we might disapprove of this particular policy, they've got their particular social organization.

VAN SUSTEREN: Susan, explain to me -- distinguish, if you can, Boy Scouts excluding Girl Scouts, Boy Scouts excluding Mr. Dale.

LOW BLOCH: Boy Scouts excluding girls.

VAN SUSTEREN: Can they do that?

LOW BLOCH: They probably can, but I don't know. I mean, that's going to be the -- you will have to have sort of -- if you fall under the public accommodation laws, and the New Jersey court has held that they do, then you can try and make a First Amendment right argument, as they are.

VAN SUSTEREN: Jan, can the Boy Scouts exclude Girl Scouts?

LARUE: Well, that's Justice O'Connor's question, and Mr. Wolfson did not answer it sufficiently, even for Justice Souter today because he tried to say: Well, they could then apply for an exemptions under the New Jersey law. And Justice Souter said: Well, that wouldn't stand.

And so, you know, four other Supreme Courts in this country have already said that the Boy Scouts are not a public accommodation. They have already litigated whether they can exclude girls and whether they can exclude atheists because it does go against their core of beliefs, and it doesn't mean you are anti-girl or anti-atheist.

VAN SUSTEREN: All right, we are going to take a break. Up next, the Supreme Court hears its first abortion case in eight years. Stay with us.


JonBenet Ramsey's parents now say they will not take a lie detector test. The Ramseys want a private company to administer the test; the Boulder police want the FBI to do it.

Because of the disagreement there will be no test conducted.



COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.


DON STENBERG, NEBRASKA ATTORNEY GENERAL: What it says specifically is that it's illegal for an abortionist to deliver all or a substantial portion of an unborn child into the vagina and then perform a procedure that is intended to kill and does kill the unborn child.

DR. LEROY CARHART, ABORTION DOCTOR: This puts the state between a patient and her physician. It would criminalize over 98 percent of the abortions performed in Nebraska today.


VAN SUSTEREN: The state of Nebraska has an abortion law that has been declared unconstitutional by a federal appeals court.

Yesterday in Washington, the United States Supreme Court heard arguments on whether or not the appeals court ruling was correct. The court case prompted picketing outside the United States Supreme Court.

Charles, you were there at the oral argument yesterday. Take us inside the Supreme Court and tell us what happened.

BIERBAUER: Well, Greta, you know, this question seems to be, in many ways, more a political issue than it is necessarily a legal one. We've, for some time now, seen the opponents of abortion focus on what's sometimes called the "partial birth" abortion. That's not a medical term, but it is a highly politicized one. And that's what's at issue in the Nebraska state statute which was passed a couple of years ago but has never been instituted. The question is whether that particular ban on the "partial-birth abortion," which is a midterm procedure, sometimes erroneously called a "late-term" procedure. And that was part of the discussion yesterday, whether that is, in fact, an undue burden upon a woman.

VAN SUSTEREN: Charles, you -- yes, go ahead.

BIERBAUER: I just want to say that this -- what the discussion was, what the arguments were, were harking back to the last time the Supreme Court addressed abortion. That was the 1992 ruling in Planned Parenthood versus Casey in Pennsylvania where the court said that a woman still has a right to an abortion. States may place some limits, but may not impose that undue burden. That's much of what this is about.

VAN SUSTEREN: Charles, you might be a little bit amused to know there were some young children who joined your live shot behind you during your comments.

BIERBAUER: Well, we've got a lot of classes on class trips this time of year here at the Supreme Court. And it was a very emotional issue, a lot of concern that the Nebraska statute may have been just too broadly written. Whenever Justice O'Connor, who usually asks that question, suggests that it's too vague or too broad, you sort of get a hint of where she's going.

COSSACK: Patricia Ireland, are you concerned that the Supreme Court may use this case to take an attack or reverse Roe versus Wade?

PATRICIA IRELAND, NATIONAL ORGANIZATION FOR WOMEN: Well, it certainly has that possibility, although based on the arguments yesterday, I am a little bit comforted. The Nebraska law would do two things that would really eat the heart out of Roe versus Wade. First, it would eliminate any distinction between pre-viability and post- viability abortions. And it also would do that without any exception for a woman's health. They do have an exception for life, and they say they don't need one for health because there's another procedure that could be used and that this is not necessarily, medically speaking, but it may be the most appropriate and, for some women, the safest way for them to have an abortion. And so the concern for women's health is one that O'Connor also raised.

VAN SUSTEREN: Patricia, correct me if I'm wrong, but under Nebraska statute there are two procedures that are outlawed. One is called a DNE. The other is called a DNX. Everyone agrees DNE is a constitutional procedure. It's the DNX that seems to be the problem. If the state rewrote this statute to simply make the correct distinction and not lump both those procedures together, would it then pass constitutional muster?

IRELAND: Well, we have two problems. One is that the hypothetical is not what actually happened. They voted down an amendment that would have specified that they were talking about the DNX procedure. That's the one that they pull out their photos of or drawings of. And number two, it still would not have an exemption for women's health. And when quizzed about that, the attorney general of Nebraska suggested that if there is a difference of medical opinion, we ought to leave it to the lawyers; that is, leave it to the legislators to decide what's best for a woman's health.

If I were a woman who needed a midterm abortion, I would prefer, for example, perhaps, not to have instruments put in my uterus to preserve fertility, to avoid the possibility of perforation of the uterus, to avoid possible infection. So there are many reasons that many doctors feel this is best for a woman's health. And if there is an alternative procedure that's just as good, why make an exception for her life?

COSSACK: Jan, doesn't this get right to the heart of the woman's right to choose, this argument?

LARUE: It gets right to the heart of a woman's right to choose infanticide, to kill a baby right up to the moment of birth in the most cruel and inhumane way imaginable. If this procedure were used on cats and dogs, you'd hear the outcry on Mars.

VAN SUSTEREN: But, Jan, you're talking about infanticide.

LARUE: We're terminating the life of a baby here by puncturing its skull, opening it up, suctioning out the brain, crushing the head and removing it from the body of a woman. And it can happen right up to the moment of birth.

Actually, in Nebraska, that's illegal.

VAN SUSTEREN: Go ahead, Susan.

BLOCH: Nebraska does not allow post-viability abortions unless they're necessary for the health and life of the mother, which is constitutionally required.

VAN SUSTEREN: But, Susan, isn't that one of the issues you were there for the argument? Wasn't that one of the issues that one of the justices raised, that we're talking about pre-viability, we're not talking about post-viability, and the term "infanticide" was almost -- they're like fighting words almost, a little bit.

BLOCH: That's right. And the problem is that -- I mean, abortion is not any procedure that any of us particularly like, but we have the constitutional right to choose it if we need to, pre- viability. And if -- the problem with calling this infanticide is abortion always does terminate the pregnancy and the potential life.


FEIN: The point that Justice Scalia was making, that there may be a particular method that was described, I think, accurately and gruesomely at the very, very last stages of viability, which a state might carve out, which Nebraska apparently didn't, as prohibiting abortion.

IRELAND: Bruce, you keep taking it to post-viability. This was very specifically not post-viability. In fact, it is a felony to perform a post- viability abortion in Nebraska.

FEIN: I understand. I agree with your observation, but I'm saying not post-viability. I mean, even pre-viability at the very last stages where it isn't actual infanticide but it approaches that, and the impact is very marginal. And if a Nebraska court itself construed the statute to say -- in order to save its constitutionality, I understand that. But it could go back there in order to save the constitutionality and confine it in this way.

COSSACK: But that's not what the Supreme Court is discussing.

VAN SUSTEREN: Patricia, you want to get in here on this? IRELAND: Well, I think that Bruce is basically opposed to abortion rights, period. And I think that is the problem, is that this was designed to frighten doctors with the threat of losing their medical license, but more important, going to jail for 20 years, where they don't know what procedures are really covered because the legislature used the political term that has no legal or medical definition. So I think we have to question the motivation of the legislature. They turned down an opportunity to make it medically accurate so the doctors would know what was prohibited and so that the women would know what their possibilities were in that state. And we're not talking post-viability.

VAN SUSTEREN: Quickly tell me: How many states have these statutes?

BLOCH: Thirty-something. Plus, Congress has enacted it twice. President Clinton has vetoed it twice, but it's coming up a third time.

COSSACK: All right, we have to take a break. Up next, the state of the U.S. Supreme court: Highlights from this term, the potential turnover in a political year. Stay with us.


Q: Why did a Louisville, Kentucky judge declare a mistrial after a jury found a man guilty of murder?

A: The jurors, who couldn't decide between murder and manslaughter, flipped a coin to arrive at their verdict.



COSSACK: We're back to discuss more on the abortion issues that were discussed before the United States Supreme Court yesterday.

Jan, let's suppose that the U.S. Supreme Court upholds the Nebraska decision and finds against your group.

What's your next step?

LARUE: We will continue to advocate that Congress still needs to pass the national ban on this under the federal law and we know that the president continues to veto this. He's done it twice before, he will do it again.

COSSACK: But in light of Roe vs. Wade, don't you think it would be unconstitutional?

LARUE: No, no, I don't think so. I think that perhaps the court here may say that Nebraska's is overly broad and make a distinction there, but the wording can be such to make it as clear as possible under the law that this is prohibiting a particular procedure used at a particular term of an abortion, and that it is -- that it is not a medical necessity. The American Medical Association has told Congress that this is not a recognized medical procedure, so why in the world...

VAN SUSTEREN: And let me just cut you off, we've got a few minutes...

IRELAND: That's not really what they said.

VAN SUSTEREN: And Patricia, I'm sorry to cut you off, but I need to turn the corner, before -- we'll wait to see what the Supreme Court says on this important issue.

But Charles, before we lose you, what's left to be decided by the United States Supreme Court this term?

BIERBAUER: Well, a lot of these big social issues. The ones we've just been talking about, Miranda rights, the rights to remain silent if you are accused by police of a crime.

But possibly the one that's still kind of intriguing for everyone, particularly in light of the Elian Gonzalez case: grandparents' rights, or specifically, a Washington state case which weighs the rights of parents versus the rights of grandparents to visit their grandchildren. That was argued a couple of months ago and we're waiting for that one. So it has turned into a rather big term in the way that the court has addressed a broad range of social issues -- Greta.

VAN SUSTEREN: Charles, what about any justices indicating that they may retire after this term?

BIERBAUER: I would not expect any justices to retire so long as they're all in good health. It would thrust an opening onto the court that everyone doubts that President Clinton could fill in the remaining months of his term and that would leave a vacancy going into the next session of court. I think they will all try and last at least another term up here -- Greta.

COSSACK: Bruce, in terms of the Supreme Court justices retiring, Justice Rehnquist has been on the court long time now, is there reason to believe that he may be going?

FEIN: No, I think the history of the court is most members like to fill out their term, which is life, until they approach senility and those who volunteer are -- you can count on your hand with fingers left over. So my own view is the next four years: no vacancies, the critical election will be 2004 for replacement.

VAN SUSTEREN: And we're going to hold you to that, we'll come back and visit that some time with you, Bruce.

But that's all the time we have for today. Thanks to our guests, and thank you for watching.

Log-on to for more on today's Supreme Court activity. And up next, our guest Susan Low Bloch, constitutional law professor at Georgetown University, will join our chat room and take your questions. At 1:30 p.m. Eastern, our own Charles Bierbauer will be on CNN's new law center site at

COSSACK: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then. What a mouth full.



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