Boy Scouts of America v. Dale

In The Supreme Court of the United States
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL,
BOY SCOUTS OF AMERICA, Petitioners,

v.

JAMES DALE, Respondent.

On Writ of Certiorari to the Supreme Court of New Jersey


BRIEF OF AMICUS CURIAE AMERICAN PSYCHOLOGICAL ASSOCIATION
IN SUPPORT OF RESPONDENT


JAMES L. McHUGH
 GENERAL COUNSEL
NATHALIE F.P. GILFOYLE
AMERICAN PSYCHOLOGICAL
 ASSOCIATION
750 First Street, NE
Washington, D.C. 20002
(202) 336-5500

March 29, 2000
 PAUL M. SMITH
NORY MILLER
JENNER & BLOCK
601 Thirteenth Street, NW
Washington, D.C. 20005
(202) 639-6000
 

Counsel of Record


TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE

INTRODUCTION AND SUMMARY OF ARGUMENT

ARGUMENT

I. THE NATURE OF SEXUAL ORIENTATION

A. What Causes a Particular Sexual Orientation?
B. Can Sexual Orientation Be Changed?

II. THE SEXUAL ORIENTATION OF ADULTS DOES NOT ADVERSELY AFFECT THE CHILDREN IN THEIR CARE OR THE CARE THEY PROVIDE

A. Homosexuality Is Not a Mental Disorder And Does Not Affect Someone's Ability To Be a Responsible Member of Society
B. Gay Adults Do Not Present a HeightenedDanger of Sexual Abuse
C. Sexual Orientation Is Not a Predictive Factor For Parenting Skills or Children's Outcomes

1. Parenting skills and philosophies
2. Sexual and gender development
3. Psychological and social adjustment

III. THE CONTINUING PREJUDICE AGAINST GAY PEOPLE REQUIRES, AND WILL BE ABATED BY, ANTI-DISCRIMINATION LEGISLATION

A. Gay People Face Prejudice and Discrimination
B. Anti-discrimination Laws Can Reduce Prejudice as Well as its Effects

CONCLUSION

FOOTNOTES


INTEREST OF AMICUS CURIAE 1/

The American Psychological Association (“APA”), a voluntary, nonprofit, scientific and professional organization founded in 1892, is the major association of psychologists in the United States, with more than 155,000 members and affiliates. Among the APA's major purposes is to increase and disseminate knowledge regarding human behavior, and to foster the application of psychological learning to important human concerns. Issues at the heart of this case -- prejudice, sexual orientation, child development -- have been the subject of significant research by psychologists.

The APA submits this brief to present relevant scientific knowledge 2/ that provides a context for this Court's review of whether the Boy Scouts's policy of excluding gay youths and adults survives state law aimed at reducing prejudice and discrimination against homosexuals. The APA has urged elimination of discrimination against gay, lesbian and bisexual people, and adopted resolutions recognizing the “profound psychological consequences” of “hate crimes” motivated by anti-gay prejudice, urging governmental action to reduce such bias-related crimes and to eliminate “policies that perpetuate them,” 3/ and declaring that discrimination against gay people “is detrimental to mental health and the public good.” 4/

INTRODUCTION AND SUMMARY OF ARGUMENT

The Boy Scouts claim a broad right of association that relieves organizations from following anti-discrimination laws, and potentially any statutory requirements, if it adopts a “moral position” or makes an “expressive decision” that is incompatible. Such a rule confers an unlimited power for organizations to insulate themselves from legislation because every decision reflects the decisionmaker's point of view. 5/

Focusing solely on decisions reflecting a “moral position” does not provide a useful limit. Prejudice and “moral” judgments have historically been closely intertwined. Entire races have been condemned as being of a lesser moral character. Until quite recently, South Africa prohibited sexual interaction between a white person and an African, Indian or person of mixed background under legislation that was called the “Immorality Amendment.” The current meaning of “sinister” derives from a much earlier prejudice against the left-handed. 6/ Members of minority religions have historically been regarded as immoral. In some circles, they are still.7/

The decision to exclude people on the basis of sexual orientation is not different in nature than a decision to exclude people on the basis of race, gender or religion. It is a decision based on the status of those excluded, albeit often disguised by unfounded allegations of dangerous or antisocial behavior. 8/

The considerable body of relevant scientific research provides a context in which to assess the issues in this case. The research, for example, demonstrates that sexual orientation bears no relation to someone's ability to contribute to the community and to influence children to become responsible members of society. Although there is no direct research on gay troop leaders, or gay men in precisely analogous roles, there is extensive scientific research on closely related subjects such as the parenting abilities of homosexual adults and their partners and the psychological and social development of their children. Any assumption that a homosexual orientation adversely affects the ability of an adult to provide responsible leadership for children and youths is contrary to that research. The research also indicates that for most people -- especially men -- sexual orientation is not “voluntary.” The core aspects of sexual orientation typically emerge by early adolescence and are highly resistant to change.

In addition, the research strongly supports New Jersey's concern with the effects of discrimination on those who are excluded. Exclusion, and other forms of discrimination, based on sexual orientation present the same risks of psychological and other harms as discrimination on the basis of race, or religion, or gender. Further, the research provides considerable support for anti-discrimination legislation, such as N.J.S.A. 10:5-1 to 5-49, as a means to reduce prejudice in addition to reducing overt discrimination, by increasing interpersonal contact between members of the majority and minority groups.

Conferring broad-based organizations with a readily available means to insulate themselves from anti-discrimination legislation thwarts state policy aimed at alleviating the potentially significant negative psychological, as well as physical and economic, effects of discrimination and prejudice.

ARGUMENT

I. THE NATURE OF SEXUAL ORIENTATION

A. What Causes a Particular Sexual Orientation?

Scientific research and clinical experience indicate that sexual orientation is not “voluntary” for most people. Most people -- especially men -- do not experience their sexual orientation as the result of conscious choice. 9/ The available studies of gay men indicate that the core feelings and attractions that form the basis for adult sexual orientation typically emerge by early adolescence. 10/ For some people, adult sexual orientation is predictable by early childhood. 11/ “By the time boys and girls reach adolescence, their sexual preference is likely to be already determined, even though they may not yet have become sexually very active.” 12/

Scientific investigation into developmental precursors of adult sexual orientation has not yet consistently identified those factors for the population as a whole. 13/ It is not yet clear to what extent and in what way genetic, other biological traits, or early childhood experience may contribute to its development. Studies of identical twins have found that “heritabilities were substantial under a wide range of assumptions.” 14/ However, molecular studies of one aspect of DNA have reached inconsistent conclusions with respect to a linkage with sexual orientation. 15/ Another study, as yet unreplicated, reported differences between heterosexual and gay men in the volume of a cell group in the anterior hypothalamus, a brain structure involved in sexual behavior. 16/ Results of a study of women suggests that women who were exposed to certain prenatal estrogens are more likely to be lesbian or bisexual. 17/ Other researchers, critical of this research, have proposed an “interactionist” model, in which genetic factors are conceptualized as indirect influences on the development of sexual orientation. 18/

B. Can Sexual Orientation Be Changed?

Once established, sexual orientation is highly resistant to attempts to change it. 19/ Although some therapists report that their clients changed their sexual orientation in treatment, no scientific comparison with a control group has been reported. Closer scrutiny has shown that such changes were more likely among bisexuals who were highly motivated to reject a homosexual behavior pattern. Many interventions aimed at changing sexual orientation have succeeded only in reducing or eliminating homosexual behavior rather than in creating heterosexual attractions. One scholar concluded upon review of reports on “conversion therapy” that there is no reliable evidence that “sexual orientation is amenable to redirection or significant influence from psychological intervention.” 20/

II. THE SEXUAL ORIENTATION OF ADULTS DOES NOT ADVERSELY AFFECT THE CHILDREN IN THEIR CARE OR THE CARE THEY PROVIDE.

A. Homosexuality Is Not a Mental Disorder and Does Not Affect Someone's Ability to Be a Responsible Member of Society.

The psychiatric, psychological, and social work professions do not consider homosexual orientation to be a disorder. That conclusion is based on extensive empirical research demonstrating that earlier assumptions about homosexuality cannot be justified by scientific observation. A quarter century ago, the American Psychiatric Association removed “homosexuality” from its list of mental disorders, 21/ declaring that “homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.” 22/ Following a rigorous review of the scientific evidence, in 1975, amicus adopted the same position, urging all mental health professionals to work to dispel the stigma of mental illness long associated with homosexual orientation. 23/ In the classic study on the subject, a researcher administered Rorschach tests to homosexual and heterosexual men matched for age, IQ, and education. The two independent experts evaluating the results could not distinguish the sexual orientation of the subjects at a level better than chance, leading the researcher to conclude that “homosexuality as a clinical entity does not exist.” 24/ Dozens of studies since support the conclusion that there is no inherent association between someone's sexual orientation and level of mental health. 25/

Research has demonstrated that “gay people have an overall potential to contribute to society similar to that of heterosexual people.” 26/ Empirical studies have shown that gay people are employed productively in a wide range of occupations and professions.27/ Researchers have found that many gay men also “participate actively in civic, church, neighborhood, and political life, most often alongside their non-gay neighbors and friends.”28/

Like married people, gay couples form deep emotional attachments and commitments, that endure for decades. 29/ A 1991 review of the literature on gay and lesbian couples concluded that “[r]esearch has shown that most lesbians and gay men want intimate relationships and are successful in creating them.” 30/ A major study of heterosexual and gay couples in the United States concluded in the early l980s that “[c]ouplehood, either as a reality or an aspiration, is as strong among gay people as it is among heterosexuals.” 31/ Empirical studies have found that between 40% and 70% of gay men and between 60% and 80% of lesbians are involved in steady relationships at a given time. 32/ Because convenience samples tend to underrepresent older persons (who are more likely to be coupled), these figures are probably conservative.33/ Studies that have included older persons in the samples report relationships lasting decades. 34/

B. Gay Adults Do Not Present a Heightened Danger of Sexual Abuse.

One manifestation of prejudice has been the allegation that gay men pose a particular danger to children. However, all available research data and clinical experience indicates that gay men are not more likely than heterosexual men to sexually abuse children. A study of children seen for sexual abuse in a one-year period at a Denver children's hospital, for example, found that less than one percent of the identified adult offenders were gay or lesbian. Of the 219 abused girls, only one instance of abuse had been attributed to a lesbian. Of the 50 abused boys, only one instance of abuse had been attributed to a gay man. In contrast, 88 percent of the offenders had documented heterosexual relationships and most were heterosexual partners of a family member (77 percent of those who abused the girls and 74 percent of those who abused the boys). 35/

One source of confusion in this area is that many men who sexually abuse boys are not themselves homosexual. Rather, they are attracted, entirely or predominately, to children. These men have never developed a mature sexual orientation, either heterosexual or homosexual. 36/ One study of 175 adult males who had been convicted in Massachusetts for sexual assault of a child found that 47 percent were exclusively interested in children, 40 percent were regressed heterosexuals, and 13 percent were regressed bisexuals. 37/ None had an exclusively homosexual orientation, and none of those who were bisexual were primarily attracted to men. 38/

Assertions to the contrary by Family Research Council and others cannot be considered reliable. These amici seriously mischaracterize research 39/ and rely on dubious sources. 40/ Their presumption that homosexual men are pedophiles is contrary to the legitimate research in the field, just as any such presumption about heterosexual men would be. 41/

C. Sexual Orientation Is Not a Predictive Factor for Parenting Skills or Children's Outcomes.

The considerable body of research on the children, and the parenting abilities, of gay men and lesbians has consistently found that they are as good parents as their heterosexual counterparts and that their children do not differ appreciably from children raised by heterosexuals. 42/

1. Parenting skills and philosophies

Scientific research indicates that gay parents are little different from heterosexual parents. 43/ Several studies have evaluated the parenting philosophies and skills of gay men and have concluded that “gay fathers are similar to nongay fathers in their overall parenting abilities and skills.” 44/ Such research suggests that the “gay fathers are at least equal to heterosexual fathers in the quality of their parenting.” 45/ Indeed, two researchers reviewing the scientific literature in this area concluded: “It is evident . . . that both lesbians and gay men who are parents are as sufficient in the roles as heterosexuals, and that the home life they provide is at least of equal quality.” 46/ Some researchers have found that gay fathers make greater efforts to create a stable home environment and positive relationship with their children than heterosexual fathers. 47/

One study found no differences between homosexual and heterosexual fathers in their degree of involvement with their children or in the level of intimacy they had with their children. The differences the study did find were that homosexual fathers were more likely to set and enforce limits on their children's behavior, were more responsive to their children's needs, and were more likely to explain the reasons for rules. 48/

Another study comparing gay and heterosexual fathers' responses to standard measures of parental attitudes and responses concluded: “no discernible parenting style could be found to distinguish one group from the other.” 49/ Similarly, a study comparing gay and lesbian parents to heterosexual parents found “no significant differences in the relationships of the two sets of parents with their children.” 50/ With respect to sexual identity and sex role aspects of parenting, “no differences were found” on the parents' encouragement of same-sex friends or in their encouragement of gender-typed toys for their own children. 51/

There is an even larger body of research on lesbian mothers that compares their parenting skills and attitudes to those of heterosexual mothers. These studies consistently demonstrate a “remarkable absence of distinguishing features between the life-styles, child-rearing practices, and general demographic data” of lesbian mothers and heterosexual mothers. 52/ This research provides additional support for the conclusion that sexual orientation is not an important variable in predicting parenting ability. 53/

2. Sexual and gender development

Research into the three aspects of sexual identity -- gender identity, gender role, and sexual orientation -- consistently demonstrates no differences between children of gay or lesbian parents and children of heterosexual parents. 54/ Research involving children of gay fathers indicates that these children develop gender role identifications (self-identification as male or female) that are consistent with their biological sex. 55/ Similarly, comparisons of children raised by lesbian and heterosexual mothers found no appreciable differences. 56/ Most children in both groups identified with their biological sex 57/ and indicated satisfaction with their gender.58/ Likewise, the comparisons revealed no appreciable differences in gender role behavior (tendency to engage in activities traditionally regarded as masculine or feminine). 59/

Research indicates that the same prevalence rates for heterosexuality and homosexuality holds for children of gay and lesbian parents as for children of only heterosexual parents. 60/ For example, a study of 82 sons (17 years or older) of 55 gay or bisexual fathers concluded that 91 percent of those whose sexual orientation could be rated were heterosexual. Furthermore, the sons' sexual orientations were unrelated to the amount of time they spent living with their fathers, the frequency of their contact with their fathers, the degree to which they accepted their father's sexual orientation or the quality of the father-son relationship. 61/ Another study of 40 gay fathers and their children determined that, of the 21 sons who were old enough for sexual orientation to be assessed, only one was gay. 62/ These findings corroborate other research indicating that the sexual orientation of the father or the relationship between child and gay father is not predictive with respect to the child's sexual orientation.63/

Similarly, studies of children raised by lesbian mothers have found that these children “are generally no more likely than their peers from heterosexual mother families to identify themselves as gay or lesbian or to be attracted to someone of the same gender.” 64/ Thus, researchers have concluded: “The truth is that most children of homosexual men and women turn out to be heterosexual.” 65/ A reverse study of the sexual orientation of 702 parents of gay men and lesbians revealed that 90 percent of the parents were heterosexual, 4 percent were bisexual, and only 6 percent were homosexual. 66/

3. Psychological and social adjustment

As relatively few single fathers generally, including gay fathers, have historically received custody of their children, research on children raised by homosexual parents has focused mostly on children being raised by a lesbian mother (and in many cases her partner). The consistent conclusion drawn from these studies is that the children demonstrate no appreciable differences in intellectual development 67/ or in psychological well-being or social adjustment from children raised by heterosexual parents. 68/ Fewer studies have been made of children of gay fathers, but the results of those studies are consistent with the studies of children of lesbian parents. 69/

Although concern is sometimes voiced that children of gay men and lesbians will suffer dysfunction as a result of their parents' sexual orientation, research does not bear this out. 70/ Two scientists reviewing studies in this area have commented:

[A] striking feature of the research on lesbian mothers, gay fathers, and their children . . . is how similar the groups of gay and lesbian parents and their children are to the heterosexual parents and their children that were included in the studies. 71/

The more extensive research on children being raised by lesbian parents provides consistent evidence that the sexual orientation of parents is not a predictive variable in the psychological and social development of children. In studies of single-parent households produced by divorce, children raised by lesbian mothers and by heterosexual mothers demonstrated largely identical levels of psychological adjustment. 72/ No statistically significant differences were found in the prevalence of emotional or behavioral problems such as unsociableness, emotional difficulty, hyperactivity, or conduct problems. 73/ Similarly, a study of children raised by divorced mothers in two-adult households concluded there was no difference in the self-concepts and levels of self-esteem of adolescents who lived with a lesbian mother and her same-sex partner and adolescents who lived with a mother and her opposite-sex partner. All fell within the normal range. 74/

Following such children into adulthood, researchers found that those raised by lesbian mothers were no more likely to experience anxiety or depression, no more likely to have sought professional help for mental health problems, and no more likely to have experienced periods of unemployment than adults raised by heterosexual mothers. 75/ Another study of adult daughters found no higher incidence of emotional problems among those who had been raised by a lesbian mother than among those raised by a heterosexual mother. 76/

Consistent with the results of research on children of divorced parents, the research on children raised from birth in lesbian households has also found psychological parity between these children and their peers from heterosexual households. In a recent study comparing children raised from birth in lesbian households with matched children raised in heterosexual households, the researchers found it “impossible to distinguish” between the groups of children on the basis of social competence or behavior problems. 77/ The study concluded that “[p]resent data are consistent with the notion that parenting ability and sexual orientation are unrelated.” 78/ A study comparing children raised from birth by a lesbian couple with matched children raised by married heterosexual parents, found no differences in behavioral functioning, cognitive abilities, developmental progress, social skills, or school performance. 79/ And a study comparing children raised from birth by a lesbian mother with children raised by a single heterosexual mother also found no differences in the children's psychological well-being or behavior. 80/

A recent review of the research concluded that children raised by lesbian mothers or lesbian couples “have play and activity preferences that are similar to children raised in heterosexual households, and do not show heightened anxiety, depression, or behavior problems.” 81/ All the scientific research to date also indicates that children raised by lesbian parents do not differ appreciably from children of heterosexuals with respect to maternal ratings of the children's leadership qualities and popularity, the children's self-ratings of popularity, or overall social adjustment. 82/

III. THE CONTINUING PREJUDICE AGAINST GAY PEOPLE REQUIRES, AND WILL BE ABATED BY, ANTI-DISCRIMINATION LEGISLATION.

A. Gay People Face Prejudice and Discrimination.

New Jersey's anti-discrimination law addresses a genuine concern. Homosexuality has been subject to intense prejudice and discrimination. Extreme prejudice and even persecution were common in Europe from at least the Middle Ages. 83/ In America, prejudice and discrimination against gay men and lesbians has been widespread since colonial times. 84/ Indeed, “lesbians and gay males have been the object of some of the deepest prejudice and hatred in American society.” 85/ Until 1990, gay people were frequently excluded from emigrating to the United States under a statute denying entry to persons “afflicted with psychopathic personality, or sexual deviation,” 86/ even though the disciplines of psychiatry and psychology had rejected the view that homosexuality is a mental disorder in the 1970s. See, supra, pp. 8-9.

Intense prejudice against gay men and lesbians remained widespread throughout much of the twentieth century, and public opinion studies routinely showed that, among large segments of the public, gay people were the target of strong antipathy. 87/ Although a pronounced shift in public opinion occurred in the 1990s concerning homosexuality, 88/ hostility toward gay men and lesbians remains common in contemporary American society. 89/ Discrimination in such critical areas as employment and housing appears to be widespread. 90/ And even though eleven states, including New Jersey, and several cities have enacted applicable anti-discrimination laws, such discrimination remains lawful in most jurisdictions.

A particularly severe outcome of this prejudice is the consistently high rate of anti-gay harassment and violence. Numerous surveys indicate that verbal harassment is a nearly universal experience. 91/ Although physical violence is less common, substantial numbers report having experienced crimes against their person or property because of their sexual orientation. 92/ In 1998, the most recent year for which FBI statistics are available, there were 1,248 reported hate crimes against gay men, lesbians, or bisexuals. 93/ That figure likely represents only some fraction of such crimes because reporting of hate crimes by law enforcement agencies is voluntary, the thoroughness of police statistics differs widely among jurisdictions, and many victims do not report their experiences to police because they fear further harassment or lack confidence that the assailants will be caught. 94/ Gay people subjected to violence based on their sexual orientation appears to experience even greater psychological trauma than with other types of violent crime. 95/

B. Anti-discrimination Laws Can Reduce Prejudice as Well as its Effects.

The relevant scientific research supports the conclusion that New Jersey's regulatory approach is likely to ameliorate prejudice and discrimination against gay people. Although the specific forms of prejudice against minority groups differ, the psychological processes underlying heterosexuals' prejudices against gay people are similar to those underlying racial, ethnic, gender, and religious prejudices. 96/

Empirical research consistently demonstrates that having personal contact with an openly gay person is one of the most powerful influences on heterosexuals' tolerance and acceptance of gay people. Anti-gay attitudes have been found to be significantly less common among the one-third of the population who has a friend, relative, or acquaintance who is known by the person to be gay.97/ A meta-analysis of hundreds of studies of contact and prejudice, based on sexual orientation, nationality, race, age, or disability, found a highly significant inverse relationship between contact and prejudice for all studies, samples, and tests. 98/ The analysis found that more rigorous studies (based on observed contact rather than reported contact) yielded greater effects; that contact changed attitudes toward the entire “outgroup” not just toward those with whom subjects had contact, and that majority group participants experienced greater changes in attitude than minority group members. Of all the types of prejudice studied, interaction with homosexuals yielded the greatest reductions in prejudice. 99/

Exclusion by an institution like the Boy Scouts, which undertakes to serve the whole community and is sponsored in many places by government entities such as public schools and police departments, interferes with this process and serves instead to reinforce individual hostility against the excluded minority. It is precisely at such institutions that New Jersey' legislation is aimed, in order to further its purposes of reducing discrimination and prejudice.

CONCLUSION

For these reasons, amicus urges the Court to affirm the decision below. Respectfully submitted,