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TalkBack Live

Should Openly Gay Members be Allowed in the Boy Scouts?

Aired April 27, 2000 - 3:00 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

BOBBIE BATTISTA, HOST: What does morally straight mean to the Boy Scouts of America?

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

BATTISTA: James Dale is openly gay and Boy Scouts of America says he cannot be a troop leader. Dale sued. Now the Supreme Court will decide if the Boy Scouts can exclude homosexuals from leadership roles. The court's decision could be far-reaching, covering how other organizations, possibility even religious groups, choose their members and leaders.

(BEGIN VIDEO CLIP)

GEORGE DAVIDSON, BOY SCOUT ATTORNEY: The government doesn't have the power to, in the voluntary, to remake every organization in accordance with the political fashion of the day.

EVAN WOLFSON, LAMBDA LEGAL DEFENSE: It is the organizations that are covered by civil rights laws are those that extend an invitation to the entire public, but then try to segment out a group of people on a discriminatory basis.

(END VIDEO CLIP)

BATTISTA: How far can private organizations go to determine who can join the club?

Good afternoon, everyone. Welcome to TALKBACK LIVE.

It is a case with no easy answer, one that has a lot of implications, and as the Supreme Court judges began consider the case against the Boy Scouts yesterday, they spent the time questioning lawyers from both sides.

With us first today is CNN senior Washington correspondent Charles Bierbauer.

And Charles, as I had understood the situation yesterday, it seemed like the questioning between the lawyers and the justices was quite lively, but yet the justices ended up the day being a bit adrift as to what direction to take.

CHARLES BIERBAUER, CNN SR. WASHINGTON CORRESPONDENT: Well, I think it is very hard to tell which direction the justices, at least a majority of the justices, will take, some you could pretty well predict their stance based on their questioning, but the magic number at the Supreme Court is always five. Can you get five justices to say either that James Dale should be admitted into the Boy Scouts and should not have been dismissed, or the other way around, that the Boy Scouts should be permitted to choose who should be a member.

Let me give you a couple examples of how the questioning went because I think it is, sort of, gives us a sense of what the issues may be here. Bear in mind that this is a New Jersey state anti- discrimination law which is involved in the Boy Scouts' dismissal of James Dale, and the New Jersey Supreme Court said: No, our law says, you've got to include him, that that's discriminatory.

The question posed by Justice Ruth Bader Ginsberg to the attorney for the Boy Scouts, if I recall it precisely, it was along the lines of: Is this policy "don't ask, don't tell"? Remember, that's the policy the military, the U.S. military has with regards to gays. And then she said: Or is it, if you are gay, you are not welcome, which is it?

And in essence, it seems to be a little bit of both because the Boy Scouts response was: We don't seek people out, we don't ask whether they are gay, but if they are openly gay, and that became the case with James Dale, then the Boy Scouts say we don't think that they should belong here, certainly not in a leadership position.

And then the justices raised a whole lot of other questions. Justice Sandra Day O'Connor said: Well, what about girls? Well, it seems fairly clear that we are talking about Boy Scouts here.

But Justice Steven Breyer, took a different tack saying: Well, would a Catholic organization, for example, have to admit Jews? or a Jewish organization have to admit Catholics? It seems odd, the justice said.

So you had a lot of hypotheticals that may or may not pertain, but what the justices really like to do is sort of stretch the envelope, see how far the lawyers before them are willing to take a case. This is not going to be an easy one, and as you indicated, we won't know the answer to this one probably until about the end of June -- Bobbie.

BATTISTA: All right, Charles, stay with us, if you will.

Joining us is James Dale's attorney, Evan Wolfson.

Mr. Wolfson, thanks for joining us. WOLFSON: Thank you for having me.

BATTISTA: Much of this argument does center around the part of that Boy Scout oath that talks about being "morally straight." How did you argue that point?

WOLFSON: Well, it is very clear, if the Boy Scouts or a scoutmaster or anybody else opens the Boy Scout handbook, and looks at the Boy Scouts' own definition of what "morally straight" means, it says "be honest and open in your relationships, respect and defend the rights of all people," that's what the Boy Scouts themselves say morally straight means, and that's what James Dale fulfilled and believes in.

BATTISTA: There is nothing in the oath that addresses the issue of homosexuality, but on the other hand, why can't the Boy Scouts choose to define morally strait the way they wish as a private organization?

WOLFSON: Well, first of all, you are correct that there's absolutely nothing in the oath, or the handbook or anything else, members of scouting don't come together for a purpose of discrimination or to be anti-gay or really even for anything about sex or sexuality or homosexuality or heterosexuality, that's just not what scouting is about, and that's what the record makes very clear.

But also the New Jersey civil rights law is not telling the Boy Scouts what they have to say or what they have to believe. What New Jersey is saying is: You can't discriminate against people because of who they are.

BATTISTA: Is the Boy Scouts a private organization or is there some argument over that as well?

WOLFSON: Well, the word "private" is a little misleading. They are private in the sense that they are not owned by the taxpayers, but so are hotels and restaurants and theaters and membership organizations like the Jaycees and the rotary club and others that are what are called "public accommodations." Public accommodations means something that opens itself to the public, that invites the public in, and the Boy Scouts are a multimillion member organization that advertises itself as open to all boys, that welcomes in the public, and also is an organization that operates through public entities like the public schools and that brings the government in. That kind of organization can't turn around and say: We need to be walled off from the government when it comes to the civil rights law after they have invited in the government to run their programs and to build the organization.

BATTISTA: Well, we heard Justice Ginsberg pose the question: Is it "don't ask, don't tell"? or is it a matter of: if you are gay, we don't want you? Which one is it? and should it be "don't ask, don't tell"?

WOLFSON: Well, it is very clear, as the record showed in this case, that James Dale was thrown out not for doing anything wrong or not for anything he said inside of scouting, but simply because they found out that he is gay. Policy targets gay people, it doesn't talk about expression, it doesn't talk about views, the policy is a discriminatory policy against gay people, and that's the kind of identity-based discrimination that the statute, that the law prohibits.

BATTISTA: Then that begs the argument if you can exclude girls, then why not gays?

WOLFSON: Well, first of all, the civil rights law in question, New Jersey's law against discrimination, has an exception for organizations that, in the words of the statute, are "reasonably restricted to people of the same-sex." So, in other words, even the legislature recognized that there may be some context in which some organizations might be reasonably restricted to single-sex groups. But, for example, the Girl Scouts organization doesn't discriminate against gay people, and neither should the Boy Scouts.

BATTISTA: How did it happened that the Boy Scouts found out that your client was gay? how did that come about?

WOLFSON: When James, who had been in scouting for more than half his life, and had won just about every award they had, including the Eagle Scout Award, and the Order of the Arrow, which is the award they give for the scouts who best exemplify the scout oath.

When James was in college, at the age of 19, he attended a seminar at Rutgers University on the needs of lesbian and gay youth, and how youth feel discriminated against, and they need the kind of support that organizations can offer them. Ironically, that article -- there was an the paper about that seminar, and he was shown in that article, and that's how they found out that he was gay, not because he said anything in scouting.

In fact, even at the seminar outside of scouting, he never even mentioned that he was involved with scouting.

BATTISTA: Was he? Was he a scout at the time or was he in a leadership role at the time?

WOLFSON: Yeah, at the age of 18, after you've been a youth member of scouting, many people progress to become what are called adult members or assistant scout masters, and that's what James had done, having spent more than half his life in scouting, alongside his brother, alongside his father, the Boy Scouts invited James at the age of 18 once he was an Eagle Scout to become an assistant scoutmaster or an adult member, and there are about a million adult members of scouting.

BATTISTA: Was he, during this time in college, a gay activists? and were the Boy Scouts concerned about mixing agendas so to speak?

WOLFSON: Well, the Boy Scout policy, itself, targets gay people. It does not talk about activism, it doesn't talk about views, it talks about even someone who is known to be gay, in their words, but never actually says anything about it, that person is discriminated against by the Boy Scouts' policy.

And so this is not a policy about activism or expression. In fact, the Boy Scouts' rules specifically say that members are free to engage in activities and to have their own freedom of thought and beliefs and activities outside of scouting, provided they conform to the messages and program inside scouting. And no one has ever accused James of doing anything wrong in scouting, he was thrown out simply because they found out he was gay outside of scouting.

BATTISTA: If your client wins this case, what are the ramifications? Will all private groups have to become inclusive?

WOLFSON: Well, again, the word "private" is misleading. What counts is public accommodations, which are private organizations that nevertheless invite in the public. New Jersey is not reaching out to every little group in this state, they are not talking about private clubs, for example, meeting in a tree house or meeting in a small place, they are talking about public accommodations, and that's what civil rights laws have been dealing with for the last several decades.

And what New Jersey is saying is that public accommodations, whether they are privately owned or not, may not discriminate against people on the basis of sexual orientation. Those opportunities, those important programs that Boy Scout offers have to be available, particularly when it is the public schools that are running those programs.

BATTISTA: Let me take a question from the audience -- Cecilia (ph).

CECILIA: Yes, hi. I was wondering, do you think that they put the bar on the Boy Scouts because they feel that your client would harm the children?

WOLFSON: Actually, Boy Scouts was asked that question in court and they made very clear, as they have really for the last 10 years throughout this case, that this policy has nothing to do about protecting children against abuse or anything like that, which of course we are all against. The Boy Scouts make clear that they don't need this policy in order to protect children, and of course, we all know that the idea that gay people are any more likely to harm children is simply not true, and the Boy Scouts were very quick to tell the Supreme Court that's not what this is about.

BATTISTA: Let me take an Internet question here, get it up on the screen for you: "Is this court case about homosexual rights or admission to private organizations?"

WOLFSON: Well, I think we touched on that already. But what I will add is that this case is about equality of opportunity in a public accommodation. And that's the very important civil rights principle that doesn't just protect gay people, but protects all Americans against discrimination based on race, or religion or sex or sexual orientation and so on. And for that reason, every leading civil rights organization in the country, every leading women's rights organization in the country, the 4H. Club, the American Bar Association, the American Psychological Association, 11 states, and others all filed briefs on our side in this case, saying that if the Boy Scouts' arguments in this case were permitted, it would chop a hole in civil rights laws that protect all of us, not just gay people.

BATTISTA: And Charles, say question to you from the Supreme Court.

BIERBAUER: I wanted to add something there because often a case, as it comes before the Supreme Court, appears to be about one thing, and it is really about something else, as it is interpreted in the law. My view and understanding of this would be that it is about whether the Boy Scouts have the ability to determine their membership. Certainly, gay rights become an ancillary question here, but we could simply be talking about vegetarians as well or just about any other category that might or might not be excluded for one reason or another that doesn't mesh with the objectives of a particular group.

So the answer I think to your viewer's question is that it is really about the membership aspect, rather than the rights aspect that the court will have to make its determination on.

BATTISTA: All right, we have to take a quick brave here. Evan Wolfson, we thank you very much for joining us today.

WOLFSON: Thank you.

BATTISTA: And we invite you to participate in our on-line vote at CNN.com/Talkback. Today's question is: Should the Boy Scouts of America allow openly gay members?

The Boy Scouts of America, by the way, declined to participate in today's discussion. But coming up in a moment, we have an unusual viewpoint: gay people who agree with the Boy Scouts. We will be back in a second.

(COMMERCIAL BREAK)

BATTISTA: We put that comment from the Internet back up on the screen because Charles Bierbauer wanted to address that quickly -- Charles.

BIERBAUER: Well, it poses an interesting dilemma that this case creates when it says that the Boy Scouts should be excluded from government facilities, bear in mind that across the country police departments, fire departments, as well as churches, schools and other organizations are sponsors of scout troops. And there are a couple of important aspects to this in the sense that if, for example, the Boy Scouts were allowed to exclude gays some of those troops might have to decide whether they could remain as sponsors, particularly the governmental organization, and in fact, when that question was posed to attorney for the Boy Scouts in court yesterday, he said: If we lose sponsorship, so be it.

Flip the coin the other way, and some of the religious organizations may object if the Boy Scouts are required to include gays in their membership. BATTISTA: Since so many scout troops often meet at churches too, yeah.

All right, joining us now is Matthew Berry, an attorney at the Institute for Justice. He authored a friend of the court brief filed on behalf of gays and lesbians for individual liberty.

Mr. Berry, welcome to the program.

MATTHEW BERRY, INSTITUTE FOR JUSTICE: Good to be with you, Bobbie.

BATTISTA: This is an interesting viewpoint. You represent a gay organization, but you do think that the Boy Scouts should be able to exclude anyone they want; why?

BERRY: Well, this case, as you said, isn't about whether gays should be able to be scoutmasters, my clients and I think that they should be. The question is: Who gets to decide the rules, the Boy Scouts or the government? And it would set a very dangerous precedent if the government could tell the Boy Scouts who their leaders can and can't be. It could then tell a gay organizations it has to straight leaders. It could be able to tell a Jewish organizations it has to have Catholic members. And it could tell the Boy Scouts that they have to have female scoutmasters. So we think it is very important to preserve the freedom of association, not only for the Boy Scouts, but for all Americans.

BATTISTA: So you really just want them to change their policy, but how likely is that to happen?

BERRY: Well, that's a matter for the group to decide. There are many sponsoring organizations that disagree with the policy, but that's a member for the Boy Scouts to work out. I'm not a member of the Boy Scouts. I don't have a right to tell them how to select their members or their leaders, and the government doesn't have that right either. I don't want the government telling the organizations I belong to how to select leadership, and so I think the same principle has to apply to the Boy Scouts.

BATTISTA: Well, how do you feel about that part of the oath that discusses being "morally straight," and I would assume then that any organization can define something like that the way they want to?

BERRY: Yet the purpose of the Boy Scouts is to instill moral values in youth, and it's their right to choose what moral values they want to instill. They've issued four policy statements stating that homosexual conduct is incompatible with being morally straight. Now I don't agree that, but it's up to the Boy Scouts to interpret their own rules, not the state of New Jersey and not Evan Wolfson, and that's what this case is really about: Do we want the court telling the Jewish synagogues how to interpret their rules? Do we want the courts telling gay organizations how to interpret their rules? That's what the case is about.

BATTISTA: Comment here from Adrian in the audience. ADRIAN: Yes, you mentioned earlier in your statement that you were worried about the ramifications if they decided, the government decided to -- if they decided to let the Boy Scouts not decide their own membership. What about the flip side of that coin? What if they didn't allow them -- what if they did allow them to decide their own membership? Where would it stop? Would the stipulation just be on homosexuals or would it go into race, and religion, so on and so forth?

BERRY: Well, what I think the principle is the distinction between public entities and private entities. The government should not be able to discriminate to basis of race, on the basis of sexual orientation, et cetera, but private organizations should. The Ku Klux Klan shouldn't be forced to admit African Americans, and a gay organization shouldn't be forced to admit straight Americans. It should be up to private organizations to decide, and that is what makes America so great, that we have this healthy civil society with a variety of different organizations. We have room in our society for the Boy Scouts, which don't have gays, and we have room in our society for the Gay Men's Chorus, which only has gays.

BATTISTA: So I would assume that you don't have a problem with defining the Boy Scouts as a purely private organization, that you don't see the gray area there that Mr. Wolfson was talking about.

BERRY: I do and I don't. It's true that public schools sponsor many Boy Scout troops, less than 10 percent, but some, and if you have a problem with that, if the public schools have a problem with that, they should withdraw that sponsorship. But what they can't do is tell all of the other Boy Scout troops that are sponsored by churches or private organizations that they have to admit gays. It's kind of like luring them in with the offer of government support, and then once you have them, forcing them to change their message. You can't do that in America, and I think that's what the U.S. Supreme Court is going to say.

BATTISTA: So let me ask you then, if the court does rule that the Boy Scouts discriminated, what are the ramifications of that do you think?

BERRY: Well, if they say that the Boy Scouts can't choose their own leaders, that would be very, very damaging, and a state like New Jersey, for instance, is very hospitable to gay Americans, but there are other states, such as Utah, which aren't, and if the Boy Scouts can't choose their own leaders, then the gay organizations in states that are hostile won't be able to choose their own leaders and won't have as much freedom of association as they used to, and that's very bad, for instance, for gay students in the public high school in Orange, California that are right now trying to form a gay student association at their high school. It'll make it much harder for them to have their freedom of association if the Boy Scouts' freedom of association isn't respected here.

BATTISTA: And, Charles, one quick question to you before we go. The Supreme Court ruling either way, what effect does that have on other state ruling in these matters? BIERBAUER: Well, this is New Jersey's law that we're talking about, but there is always the ripple effect, as I like to call it, when the Supreme Court makes a ruling in one instance. It has the potential of affecting other states, other institutions. If you had another state with a similar law and this is found to be enforceable against the Boy Scouts, well then, you would know in another state that your law would be enforceable in the same way, and the courts would have to honor it.

BATTISTA: All right, Charles Bierbauer and Matthew Berry, thank you both very much for being with us.

BERRY: A pleasure to be here.

BATTISTA: Coming up in a moment, the battle continues. We'll hear from a gay rights activist and the Family Research Council, as well as the audience, right after this.

(COMMERCIAL BREAK)

BATTISTA: Welcome back.

Let me get the audience in here just a little bit.

My microphone was going -- Aleska (ph).

ALESKA: Yes, what I was saying was that we as a homophobic society, if someone doesn't live up to our perfect standards, our straight standards, then we have a fear of them. You know, we try to make them run off and hide to the end of the Earth, and he spent majority of his life as a Scout, winning the majority of awards that the Boy Scouts offer. Now that he has an opportunity to take a leadership role, we find out that he's gay, we want him to move to the edge of the Earth. I don't think that's right. If he's done a good job so far, let him continue.

BATTISTA: And Carlos.

CARLOS: I feel that it is kind of not beneficial for the children, because they are so young, and being that that guy's in a leadership position, those kids look up to him. They look up to him for what he does, for what he says, for who he is, and being that he is openly gay, I mean, that influences the kids, you know, and if they haven't made up their mind on their lives or whatever they want to do their lives, their going to look up to this guy and they're not going to won't open their minds up to, you know, the way things should be, I guess you could say.

BATTISTA: All right, thanks.

Joining us now Janet Parshall, host of "Janet Parshall's America," a nationally syndicated radio show and chief spokeswoman for the Family Research Council.

Janet, thanks for joining us.

JANET PARSHALL, RADIO TALK SHOW HOST: Thanks, Bobbie.

BATTISTA: Also David Smith is with us, a senior strategist for the Human Rights Campaign, the nation's largest gay and lesbian advocacy organization.

David, thank you for joining us.

DAVID SMITH, HUMAN RIGHTS CAMPAIGN: Thanks for having me.

BATTISTA: David, let me start with you. If the Boy Scouts define homosexuality as immoral, why should they be forced to accept a leader into their organization who does not uphold that moral code?

SMITH: Well, I think there's enormous debate about whether being gay or lesbian is immoral. In fact I would debate vigorously it is not. So it's obviously something that's subject to interpretation, but what this case is about, is about New Jersey's anti-discrimination law and the strength and credibility of anti-discrimination laws throughout the country.

The fact is, is that New Jersey passed a law that said you can't discriminate against a person based on sexual orientation in employment and in public accommodations. And the fact is, is that the New Jersey Supreme Court ruled that the Boy Scouts is a public accommodation, it is open to all, it holds itself open to all boys, it receives government sanction, chartered in the early part of the century, and this is the strength of New Jersey's anti-discrimination law which is at issue.

BATTISTA: And Janet, on the other hand, you could say the oath doesn't mention anything, it doesn't address the issue of homosexuality at all, which leaves that open.

PARSHALL: Well, I was thinking about that except the phrase that kept popping to mind was the one that says: Swallowing camels and straining at gnats. If oath is that you are going to morally straight in thought, word and deed, the presumption there of course is that that behavior which is considered wrong, immoral by Judaism, Islam and Christianity, all the major religions of the world, really since the beginning of time, most people have understood this to be very wrong, chosen behavior. I don't think they had to put a long list of those items that they felt were wrong, we morally reprobate. So it was one of those understood.

BATTISTA: Would heterosexuals be held to the same standard in the sense that, if it were learned that a troop leader was an adulterer or something, do you think that he would be kicked out of scouts?

PARSHALL: You know, that would be something that the Boy Scouts would have to decide, but the Boy Scouts can say that they have gotten rid of pedophiles for a long, long time. They were formed in 1910, the last 20 years they have had thousands of individuals that they've had to have leave because these were grown-ups who decided that the purpose of little boys was not to teach them how to tie the boy scout knot, but how to put real knots in their lives. They have a right as a private organization.

Matthew had some brilliant observations in your previous segment. This is about who gets to choose the membership of this private organization, and I think the Boy Scouts do.

BATTISTA: David?

SMITH: Well, the fact is, is private institutions, such as businesses, clubs, clubs can choose who belongs to their organization if they are private and don't hold themselves open to the public to join. Businesses hold themselves open to do business with the entire public and should be subjected to anti-discrimination laws.

If I could just make a point about the morality question. The fact is, is gays being immoral is a myth, it is a stereotype, it is something from the past that our society is throwing by the wayside. And I think we should just get past that question. Gay and lesbian people live in society, exist in our world, we are fine upstanding citizens, we contribute in every faucet to society, and that should be respected. And we should not be subjected to unfair discrimination.

BATTISTA: I've got to take a quick break. We will be back in just a moment.

(COMMERCIAL BREAK)

BATTISTA: Let me go Elizabeth in the crowd here. Elizabeth is from Europe.

ELIZABETH: Yes, I'm very impressed of whatever is being said here, but do homosexuals or lesbians have children? They don't. I do respect them, I have friends amongst them. There is nothing against. I have two little boys and I would not, I would certainly not, I'm very concerned when they are going to go camp there is a big discussion in the family about that, I would be very concerned if they would be exposed to a leader who is a homosexual. He might be the best person in the world, and yet it is known we have a lot of problems in Europe right now about homosexuals going after little boys, And I'm so so sorry that the situation is like this. This lady I cannot agree with her because she doesn't have children.

BATTISTA: Let me go down to this lady here quickly -- Dawn.

DAWN: You know what, I do have children, and actually my daughter is sitting right over there, but I won't embarrass her right now. I do have a child, and in terms of whether or not I would go after someone because they just happen to be a little girl, gay and lesbian people don't just look at children and say: I want to assault that child.

I came from straight parents, OK? My parents aren't gay. So, in terms of you thinking that because someone is gay or a lesbian that they can't impose moral values on children I just disagree.

BATTISTA: I'm curious about something, let me ask Janet and David this, as to how far this would go within the organization. For example, let's say that you had a 15-year-old who was a Boy Scout, and learns that his friend, who is also a Boy Scout, is gay and that becomes known, and he defends his friend, and thinks it's wrong that his friend is going to be asked to leave Boy Scouts, does he have to leave also because he's not holding up that moral code, Janet?

PARSHALL: Well, that is an interesting hypothetical, Bobbie. You know, the Boy Scouts have had a position, again, go back to the creed, this private organization has said that morally straight in thought, word and deed. There are, in fact, stories of members of the Scouting Association who have been boys themselves, who have acted out on their homosexuality and they have been asked to leave as a result of that.

If a young man decides to defend somebody else's position to be a homosexual that would be classic free speech, but then the Boy Scouts, as a private organization, would have a right to say: Well, your opinion might be your opinion, but if you choose to stay with us that is not a worldview that we encompass as a private organization.

SMITH: But isn't saying that I am gay a form of free speech. I mean, shouldn't it fall under the same protection, Janet?

PARSHALL: Are you asking me that question?

SMITH: Yes.

PARSHALL: Well, absolutely not. In fact, it was interesting, during the course of the discourse yesterday, during oral arguments, and there were some very interesting moments. And Bobbie, just for audience's sake, three of those Supreme Court justices yesterday were Boy Scouts, so I have a feeling they will be answering these big questions through the grid of having had that experience.

But you know, this was a man, and it was David himself, it was the attorney for the Boy Scouts who that said that James Dale didn't carry a banner. He put the banner around his neck, himself, and once it's on, he can't take it out. He self-disclosed. He proclaim what his association was. He put himself directly at odds with this private organization, when he chose to make that disclosure.

Then the private organization has the right to be able to say that particular behavior is anathema to us as a private organization, and because your position as a leader is just that, a leader, you role model the behavior we believe.

Scalia said it beautifully yesterday. He said: What you've done then is, you've asked this man then to be the very incarnation, if you will, the embodiment of everything that is antithetical to the code that you ask these young men to subscribe to. And you can't have that in a private organization.

SMITH: Bobbie, can I make just one quick point.

BATTISTA: Yes.

SMITH: The fact is Mr. Dale was not advocating homosexuality homosexuality or even talking about it while he was in the Boy Scouts, and I think that is an important distinction here. He was making a comment in another setting, as a president of a gay group on campus to a newspaper. He wasn't even discussing any of this with the Boy Scouts or with -- in any context while in the Boy Scouts.

And the fact is, is the Boy Scouts -- this man had joined the Cub Scouts at 7, he worked his way all the way up to an Eagle Scout to become an assistant scout master, he has over 30 merit badges, he is an upstanding citizen, he's a role model, he believes in truth, honesty, he has great integrity. He is everything that a Boy Scout should be and those values are sent clearly to all around him and the fact that he's discriminated against simply for something that's irrelevant to the Boy Scouts I don't understand, I think it's wrong.

BATTISTA: Let me take a phone call from Aracia (ph) in Texas, go ahead.

ARACIA: Yes, I just wanted to say he was already a member. He was not chosen as a leader when he was already an adult, he was a Boy Scout as a child and as a teen and they ask asked him to be a leader. He didn't volunteer. They asked him to be one. Someone just found a picture of him: they found a picture, they informed the Boy Scouts and then what happened to this guy? They kicked him out.

His own family -- quote, unquote -- the Boy Scouts kicked him out because they found out something and this is wrong because if a person was living with someone in an unmarried situation they would not have kicked him out, if somebody was committing adultery and then left their wife and then went to live with another woman and left their children as well they would not have kicked him out. That's not moral behavior either. So I really...

BATTISTA: All right, Aracia, thanks very much for your comments. I do have to take a quick break. We'll be back in a moment.

(COMMERCIAL BREAK)

BATTISTA: OK, here, let me go to John from Wisconsin first in the audience.

JOHN: My son was an Eagle Scout -- or is an Eagle Scout and if the scoutmaster would have been gay he would not have been the scoutmaster because we would have got rid of him because we elected him. So -- and my son would not have been a scout if we would have had to have him as a scoutmaster, if the scoutmaster would have been gay.

BATTISTA: Nancy.

NANCY: I just feel throughout our children's lives there are no guarantees, they are going to be exposed to people of all kinds and they're going to need to make some decisions, and homosexuality is just part of life and they are going to see people out there that are homosexual, that are heterosexual, that are killers, that steal, and they need to know what's right and what's wrong and they need to choose what's best for them. BATTISTA: Let me give a final word here to Janet and David before we run out of time. Final comments.

PARSHALL: Bobbie, if I can pick up on what the audience member just said, because she's right on and that speaks exactly again to the primary question in this, this is about whether or not a private organization can choose their members and some parents might say, you know, the Boy Scouts don't interest me at all, but since 1910 all kinds of boys of all kinds of ages, including Supreme Court justices, have said this is the kind of organization I want to be in, I believe that we should do a duty to God to be morally straight in thought, word and deed, and that behavior -- and I'm sure back in 1910 that wasn't even on the radar screen of the founders of the Boy Scout Association of America, never thought they would ever have to elucidate, that sex between men would be something that they'd have to talk about in the code, they'd have to clearly state that that's a problem.

This has far-reaching ramifications. Somebody said yesterday this is the most important case on association the Supreme Court has taken up on some time. The spill-over effect on this is profound for lots of private organizations, private religious organizations. What happens in private religious schools? What happens in clubs, churches, denominations? This is going to be a very, very important case and heavy is the head that wears the crown, in this case, wears the judge's robe.

BATTISTA: Let me do a...

SMITH: This is...

BATTISTA: I'm sorry, David. You know what? I don't have enough time in this block, so I'm going to give you the last block here before we go and...

SMITH: OK.

BATTISTA: But I'll do a couple of faxes as we go to break. Mark from Michigan says: "I would think in the U.S. the Boy Scouts are for all boys. By saying that the Boy Scouts are so moral that they can judge mankind as to who are moral and those who are not they are discriminating and hateful in the process." Frank from Maryland says: "Every boy regardless of age needs to have an openly homosexual man as a role model to emulate, right?" I think Frank's tongue is in his cheek.

We'll be back in just a moment.

(COMMERCIAL BREAK)

BATTISTA: David, I promised the time to you here at the end of the show -- go ahead.

SMITH: Thanks, Bobbie. I think this case is about one thing, truthfulness and honesty. Look at the moral weight behind Mr. Dale's case. You have the NAACP for the first time weighing-in on a gay civil rights case, supporting Mr. Dale's position. You have the American Bar Association, the American Public Health Association, the American Psychological Association, the churches, religious groups. This is mainstream off American thought, and they're all coming together and coalescing behind Mr. Dale in his quest.

And the key point here is that Mr. Dale is not advocating anything about homosexuality while he was in the Boy Scouts. That is something that's a fallacy. He simply was making comments in another context. Truthfulness and honesty is what this is about, and I believe Mr. Dale will prevail in the end.

BATTISTA: All right, David Smith, Janet Parshall, thank you both very much for being with us today.

PARSHALL: Thanks, Bobbie.

SMITH: Thank you.

BATTISTA: As we go, a quick look at our online vote: Should the Boy Scouts of America allow gay members? With about 600 votes, 42 percent yes, 58 percent no.

And that's all the time we have for today. Thanks to the audience, to our guests as well. See you again tomorrow.

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