The Supreme Court debated the issue of allowing the Boy Scouts of America to exclude homosexuals from being scout leaders Tuesday, weighing whether the organization is a private or public entity.

James Dale was an assistant scoutmaster in New Jersey when he was dismissed from the Boy Scouts after leaders read comments he made in a local newspaper as co-president of Rutgers University’s Lesbian/Gay Alliance. Dale said he was discriminated against because of his sexual orientation.

The Boy Scouts said it is part of the organization’s code to be morally straight. The Boy Scouts said having a role model who is an open homosexual would be a contradiction and is a violation of their First Amendment rights.

We have a moral code that has been recited in unison . since 1910, said George Davidson, counsel for the Boy Scouts.

The New Jersey Supreme Court last year ordered the Scouts to reinstate Dale, defining the organization as a public accommodation that is not exempt from state law. The court said the Boy Scouts have a large membership that is inclusive, and therefore is not a sufficiently private organization.

Evan Wolfson, who represents Dale, said because views on sexual orientation are not central to the values of scouting, homosexuals have a right to participate.

Only organizations that can show a specific express purpose . ought to be considered for First Amendment protection, Wolfson said. Justice Stephen Breyer likened the situation to a religious organization that only followers of the religion can join.

The Scouts said the New Jersey decision violates the organization’s freedom of speech and freedom of association, and they have the right to determine who will speak for them and their viewpoints.

At issue for many of the justices was whether the Boy Scouts were excluding gay men in general or only homosexuals who advocate their lifestyle to the children. Justice Sandra Day O’Connor compared the stance to the military’s don’t ask, don’t tell policy toward homosexuals.

Davidson said the Boy Scouts does not inquire about scoutmasters’ sexual orientation, but if it comes to light, gay men would be excluded. In response to Breyer’s question, Davidson said even heterosexuals who openly espouse pro-gay sentiments would be ineligible to lead.

Boy Scouts is concerned about the message that gets to the boys, he said. If the scoutmaster made his opinions known to his troops, he would be in trouble.

Justices compared the rights of homosexuals in scouting to those of ax murderers and ex-convicts, both of whom would also be denied the right to lead a troop.

A lot of people have been removed from scouting for heterosexual activity, Davidson said.

Several justices asked whether viewpoints on homosexuality were central to scouting, and questioned why scouting manuals do not broach the subject. The justices questioned whether the Boy Scouts were more concerned about the perception of their viewpoint, as opposed to an actual threat to their members, if they were to allow homosexuals.

Wolfson said the Scouts have failed to show how their activities are burdened by having gay scoutmasters.

But Justice Antonin Scalia said by requiring Boy Scouts to make their viewpoints on this issue more known through publications and other means could have the effect of turning the organization more openly or more avowed against homosexuality.

They are afraid of losing non-gay people who do not agree with this policy, Wolfson said. This is not why they came to scouting.

Although the Boy Scouts is a private organization, it franchises its troops to sponsorship from local schools, churches and other groups, some of which are public. Davidson said the organization is willing to deal with the fallout of the court’s ruling, which may include some public groups pulling out of Boy Scouts sponsorship.

Our policies are not for sale, he said.

Davidson said although Dale did not discuss his orientation with his troops, he was expressing his pro-gay sentiments in ways that could have been easily seen by the youngsters.

He created a reputation that he’d be wearing around his neck every time he went to a scout meeting, he said.

Dale said he is following his definition of morally straight.

When I first learned the definition of morally straight, it said to protect the rights of all people, he said.

Several current scouts attended the hearing and spoke out on both sides of the issue.

Garrett Vogel, 14 from Richmond, Va., said he was proud of Dale’s efforts and hoped the Boy Scouts will appreciate the viewpoints of this generation of scouts.

I think he should be allowed to be a scoutmaster in the troop, Vogel said. The parents had their turn – it’s about us now.

Brian Keaney, an 18-year-old freshman at Catholic University, said he did not feel sex has a place in scouting.

Now that he is openly gay, I don’t feel it has a place (in the organization), he said. I would have a problem with a straight scoutmaster that discussed sex with his troops.