In 1999, a decision by the Supreme Court of New Jersey read as follows:

New Jersey has always been in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society … it is unquestionably a compelling state interest of this State to eliminate the destructive consequences of discrimination from our society. In 1991, the Legislature … extended New Jersey's historical commitment to the eradication of discrimination to that group of individuals who face discrimination because of sexual orientation.

Dale v. BSA, 160 N.J. 562, 619 (1999).

You probably will not be surprised to learn that James Dale is still upset that, in 1990, the Boy Scouts expelled him, a decorated Eagle Scout, from leadership in his Monmouth, New Jersey, Council, simply for being gay. However, pity for the organization now consumes his feelings about the landmark case that brought him before both the New Jersey and United States Supreme Courts.

Between 1990 and 2000, Dale waged a legal battle that in many ways remains unsettled to this day. The Boy Scouts ultimately squeaked out a narrow 5-4 victory in 2000 before the U.S. Supreme Court, after a resounding 7-0 defeat before the State's High Court in 1999. Dale's case, like several that have come after it, pits the religious beliefs of some against LGBTQ anti-discrimination laws affecting places of public accommodation. According to Professor Arthur Leonard of New York Law School, such protections have now been adopted in over 400 states and localities around the country.

By almost all appreciable measurements, the Boy Scouts' win in 2000 before the U.S. Supreme Court was actually their great defeat. The decision granting the Scouts a right to discriminate under the Expressive Association protections of the Constitution's First Amendment, set in motion a precipitous decline in Boy Scout enrollment (4.8 million in 1998 to 2.3 million in 2016) as well as donations. In recent years, only 1 in 7 Fortune 500 companies were giving to the Scouts—modestly so—while several companies like Lockheed-Martin and Caterpillar announced they ceased making donations due to the anti-gay stance of the organization.

In the past several years, the LGBTQ advocacy organization Human Rights Campaign (HRC) ratcheted up significant pressure in the wake of the Boy Scouts' continuing intransigence in refusing to rescind the ban on gay Scout leaders. They announced that donations to the Scouts would impact a company's HRC Equality Index score, a coveted ranking for national and international businesses, and a closely watched purchasing barometer in the LGBTQ community.

The U.S. Supreme Court decision, coupled with the refusal of the Scouts to fully refute the discriminatory stance the group staked out, has forced states and municipalities with discrimination protections to withdraw access to public facilities and funding due to the Scouts' formal embrace of discriminatory policies. While the 2002 passage of the Boy Scouts of America Equal Access Act, 20 U.S.C 7905 (within the No Child Left Behind Act), eventually helped restore some of the Boy Scouts' access to school facilities receiving federal funding, it did not include private and some other local government facilities that were unwilling to allow access for Scouting activities.

Through the prism of history, the Scouts' victory can be viewed as pyrrhic, an epic failure in strategy and crisis management for the organization. It not only destroyed a century of goodwill in the eyes of many, but it cemented the Boy Scout brand as that of exclusion of tolerance rather than one embodying the hallmarks of preparedness, courtesy, kindness, and loyalty that had been Scouting's educational mission.

(It is important to note that the Boy Scouts of America is not related in any formal way with the Girl Scouts of America and, indeed, the Girl Scouts have received high marks for their refusal to engage in discrimination or wade into the issue of exclusion of girls, young women, and leaders based on expressed LGBTQ identity.)

The U.S. Supreme Court was supposed to resolve these competing issues under last term's Masterpiece Cakeshop v. Colorado Human Rights Commission, 584 U.S. ___ (2018). However, the justices surprised many by dodging the issue altogether. Under an opinion by then-Justice Kennedy, the court adopted a 7-2 narrow holding that found that the Commission violated the defendant baker's right to an impartial tribunal based on incendiary comments of Commission members below.

Rather than remand the case and allow it to return, the court simply dismissed the case altogether, finding in favor of the Cakeshop due to a lack of religious neutrality in the tribunal below. Specifically, Justice Kennedy and the majority had their cake and ate it too under the ruling, setting forth a prophetic standard in dicta that "these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market." Masterpiece Cakeshop, supra.

In finding for the defendant baker, the Masterpiece Cakeshop decision buried the lede, with the majority engaging in a judicial sleight of hand that was largely lost on most major media outlets in initial reporting of the decision. Indeed, the 7-2 majority opinion—joined by the Chief Justice and Justices Alito and Gorsuch—delivered a stunning holding that extends full and unequivocal gay and lesbian equality:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth … [and that] the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.

The court added that, while "religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Id. Thus, even though the court ruled for the Cakeshop baker, they expressly established that gays and lesbians maintain Constitutional protections to access goods and services rooted in their right to equality, freedom, and dignity.

Where the U.S. Supreme Court goes now is a matter of intense discussion. As noted in my column last month, there are currently three Title VII cases pending before the High Court addressing whether discrimination against LGBTQ people is discrimination "based on sex." The cases were argued Oct. 8, 2019, with decisions expected in June 2020.

However, Dale is instructive that these cases do not present a simple "win" or "lose" scenario because of their polarizing effect. Litigants and counsels should be cautious and be schooled by the Boy Scouts' difficult lesson—because sometimes in winning, you lose.

Thomas H. Prol is a member of Sills, Cummis & Gross in Newark. He was the first openly gay president of the NJ State Bar Association. The opinions expressed are his own.