Should the Boy Scouts Be Pariahs?


For the large number of gay organizations that seek to remain exclusively gay or gay-controlled, this decision could sound a death knell.
—from an amicus brief to the Supreme Court in Boy Scouts of America v. James Dale by Gays and Lesbians for Individual Liberty, supporting the Boy Scouts

Since the June 28 Supreme Court decision allowing the Boy Scouts to expel assistant scoutmaster James Dale, there has been an air of celebration among so-called liberals.

They rejoice as the retaliation continues around the country against this First Amendment victory by the Boy Scouts. The Scouts have been stripped of funding by some private organizations, and they have been banned from some previously available public facilities, including schools. And now this city’s schools chancellor, Harold Levy, has also barred the Boy Scouts from most of their involvements with the schools.

James Dale had been dismissed from the Scouts for having publicly declared himself to be gay. The New Jersey Supreme Court emphasized that this punishment of Dale because of his sexual orientation violated the antidiscrimination section of the state’s public accommodation statute.

The United States Supreme Court, however, ruled that the Scouts had exercised their First Amendment right of expressive association. The Scouts, said the Court, cannot be forced to accept a member they do not desire. But Harold Levy, the city’s head teacher, issues an edict without even discussing in any detail the Supreme Court’s decision with the city’s students. And, by denying the Boy Scouts even a public hearing, he has flunked Due Process 101.

This is a conflict of rights, which is not unusual in constitutional law. On James Dale’s side, there is the Fourteenth Amendment’s guarantee of “equal protection of the laws.” New Jersey equally protects gays from discrimination.

“A society in which every organization must be equally diverse is a society that has destroyed diversity.”

In this case, the Supreme Court referred to its 1995 decision Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. A private organization, dedicated to the teachings of the Catholic Church, had sponsored a St. Patrick’s Day parade on the public streets of Boston. A gay and lesbian organization wanted to march in that parade collectively, with banners and other forms of identification. The Supreme Court upheld the First Amendment expressive right of the sponsors to decide whom to include in the march.

That decision was in line with one of Alexis de Tocqueville’s comments in Democracy in America: “The right of association seems to me by nature almost as inalienable as individual liberty.” He added that attacking it impairs the foundation of society.

As in 1995, now the gay and lesbian community, except for the minority gay organization quoted at the top of this column, profoundly disagrees with the James Dale decision.

But, does not the right to associate also mean the right not to associate with those who do not share your core beliefs? Should the NAACP or the Urban League be forced to have members of the White Citizens’ Councils or the David Duke Appreciation Society in leadership positions?

In the Boy Scouts’ petition for review to the Supreme Court, there is this warning: “A society in which every organization must be equally diverse is a society that has destroyed diversity.” (Emphasis added.)

Stuart Taylor, a former Supreme Court reporter for The New York Times, has written in the September 11 Legal Times that while he disagrees with the Boy Scouts’ discrimination against gays, the Supreme Court decision was “clearly right because of the paramount importance of allowing private, noncommercial organizations to choose their own members without government oversight.”

It is true that the Boy Scouts can be denied a truly special benefit by a city or state. For example, as Taylor notes, “cities that grant the Boy Scouts $1-a-year leases to public campgrounds” can cancel them.

But the Boy Scouts cannot constitutionally be discriminated against for exercising their First Amendment right of expressive association, especially when other private groups are allowed to use the city’s school facilities and participate in governmental activities. The chancellor has ruled, for instance, that the Scouts are barred from “special benefits.” He also barred them from bidding on contracts with city schools. That is not a special benefit, because many other groups bid for contracts with the school system.

What about, however, previous Supreme Court decisions that private groups can’t refuse to allow women members? In the July 10 Legal Times, Thomas Baker—who holds Drake University’s James Madison Chair in Constitutional Law—pointed out that “commercial groups like the Jaycees and the Rotary Club” were compelled to admit women by the Supreme Court in 1984 and 1987 because the Jaycees and the Rotary Club “were not [First Amendment-protected] expressive associations. . . . They did not advocate [such] values in their members. They existed to promote business activities.” That is, bias against women was not one of their core beliefs. Women were already involved in their activities, but not as members.

In Boy Scouts of America v. Dale, the Court said, “We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong. Public or judicial approval of a tenet of an organization’s expression does not justify the State’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message. . . . The fact that an idea may be embraced by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different opinion.”

On November 3, at the chancellor’s invitation, I presented this First Amendment case to Harold Levy and members of his staff. Obviously, I failed. His message now to the city’s students is that the First Amendment can be expelled if it’s the politically correct thing to do—and that the Supreme Court’s views are not even worth exploring with the city’s students.

But, as Thomas Baker says, “We cannot limit the Boy Scouts’ First Amendment rights . . . without limiting everyone’s First Amendment rights.” If he’d had the courage, Harold Levy could have sent that First Amendment message to the nation.

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