The Boy Scouts' Day in Court
The Supreme Court hears a high stakes case over gay scoutmasters. Will freedom of association prevail?
Apr 24, 2000, Vol. 5, No. 31 • By JOE LOCONTE
On April 26, the Supreme Court will be told that one of America's premier character-building organizations, the Boy Scouts of America, has drifted dangerously into the woods of bigotry. By expelling an openly gay scoutmaster in New Jersey, the Scouts allegedly violated state anti-discrimination laws. The proposed remedy: Reinstate him.
Because the Boy Scouts has won nearly every major court challenge so far, it's easy to overlook what is at stake -- ultimately, the absorption of private associations into the bureaucratic state. At issue is not just one organization's 90-year tradition of grooming young boys to be "morally straight." If the Supreme Court upholds the decision for the gay plaintiff by New Jersey's highest court, it will rewrite the constitutional protections of free speech, free association, and free exercise of religion. "If the Scouts lose, then there is no freedom of association left," says Michael McConnell, one of the lawyers defending the group. And since most Scout troops are sponsored by churches, "nothing stands in the way of religious associations' being coerced to disband or violate their tenets," warns Nathan Diament in a brief filed by the Union of Orthodox Jewish Congregations of America. "This is not about the Boy Scouts," says Princeton political philosopher Robert George. "This is about the meaning of human sexuality. It's about the meaning of human life. This is as big as it gets."
Apocalyptic melodrama? Maybe, but it's not just social conservatives who see the horsemen over the horizon. "I don't like to see the law used as a battering ram," says Jonathan Rauch, writer-in-residence at the Brookings Institution. Richard Sincere, president of a gay rights group in Washington, D.C., warns the case "could back-fire": "If the New Jersey Court can assert for itself that kind of authority -- if they can redefine what your beliefs are -- then civil society is at risk."
The case of The Boy Scouts of America v. Dale goes back to 1990, when James Dale was a 20-year-old assistant scoutmaster in Matawan, New Jersey. After Dale was featured in a local newspaper as a leader of a gay rights organization, the Monmouth Council of the Boy Scouts ousted him. Dale sued and won, and last year the New Jersey Supreme Court unanimously upheld his reinstatement. Now the Boy Scouts of America has appealed to the Supreme Court. Lining up behind the Scouts is an unlikely coalition that includes the Mormon Church, the U.S. Catholic Conference, the Family Research Council, Agudath Israel, and Gays and Lesbians for Individual Liberty. Representing Dale in this microcosm of the culture war is the Lambda Legal Defense and Education Fund, joined by, among others, the American Civil Liberties Union, the National Organization for Women, People for the American Way, the American Federation of Teachers, and the American Psychological Association.
The briefs on both sides address the main arguments of the New Jersey ruling: that the Boy Scouts is not exempt from state laws requiring equal treatment of homosexuals because (1) it is not really a private organization, (2) it has not maintained a clear position against homosexuality, and (3) its mission will not be affected by its accepting gay leaders. Each of these arguments carries sweeping implications.
For 20 years, the Boy Scouts has fended off anti-discrimination charges by invoking exemption as a private association exercising its First Amendment rights. But not this time. The New Jersey court called the Scouts a "public accommodation" under a state law barring discrimination on the basis of sexual orientation. (Ten other states have similar laws, with loopholes for private and religious groups.) To reach this conclusion, the judges relied on the fact that a small minority of troops -- fewer than 10 percent nationally -- are chartered by public institutions such as schools and fire departments, which provide leadership and a place to meet. This, added to the Scouts' large membership -- 4.8 million -- and public recruiting, gives them what the Lambda brief calls "an extraordinary partnership with government."
The Boy Scouts has always insisted it is a private group. It takes no government money and is composed mainly of volunteers. The vast majority of troops have non-governmental sponsors -- nearly 65 percent are sponsored by religious bodies. Scouts meet in groups ranging from 5 to 30 boys. Troops are organized by parents, led by parents, and hosted in homes, churches, and synagogues as well as schools. "That's the genius of the Scouts," says Harvard law professor Mary Ann Glendon. "You're talking about very small troops here and very intimate relationships. It's as close to the family as you get."
Briefs for the Scouts also note that the 1964 Civil Rights Act and most states define the word "place" in public accommodation law to mean, for the most part, places -- buildings, lodges, and other facilities. Four state supreme courts and the 7th U.S. Circuit Court of Appeals have ruled that Scouting is not a place of public accommodation. The briefs also cite Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, a crucial 1995 case in which the Supreme Court ruled that Massachusetts' public accommodation law could not be used to force the organizers of a St. Patrick's Day parade to admit gay marchers. Even though the parade took place on public streets, its organizers were exempted from the law on First Amendment grounds.
The second rationale for subjecting the Scouts to anti-discrimination laws is that the organization isn't really opposed to homosexuality. Under the New Jersey decision, a civic group could be compelled to accept gays in leadership positions unless its opposition to homosexuality functioned as a "unifying associational goal." The Scouts, however, lacked a "clear, particular, and consistent message concerning homosexuality."
True, the judges conceded, the Scout oath -- to keep oneself "physically strong, mentally awake, and morally straight" -- is recited at nearly every meeting and ceremony; and a 1994 national position paper plainly stated, "The Boy Scouts of America has always taught youth the traditional values of Scouting families. We do not believe that a person who engages in homosexual conduct provides a role model consistent with those values."
Nevertheless, the attorneys for Dale simply deny that "morally straight" implies anything about sexuality. They also claim that statements about gays haven't circulated outside Scout leadership circles. "To just take a person and throw him out on the basis of a policy no one has seen, that's discrimination," says the Lambda Legal Foundation's Evan Wolfson, lead counsel for Dale. "Most members would be shocked to learn about the policy."
Actually, what might shock parents of Boy Scouts more is the suggestion that they have entrusted their children to an organization ambivalent about traditional morality. It's true the Boy Scouts takes a "don't ask, don't tell" approach to gays; there is no witch hunt to ferret them out. Yet whenever Scout leaders have openly announced their homosexuality, they have been dismissed.
The charge that the Boy Scouts lacks a "consistent message" on gays appears to mean they simply aren't loud enough about their anti-homosexuality to merit First Amendment protection. By that reasoning, venomous hate groups would qualify for exemption, while those that quietly affirm traditional marriage wouldn't -- not exactly a recipe for a kinder, gentler nation. Says Rauch: "That strikes me as fairly perverse: If you're going to be anti-gay, do it right. Great."
But it is the third argument -- that the forcible inclusion of gay scoutmasters won't affect the group's message -- that invites the most grievous attack on civil liberties. For Dale and his defenders would give government the right to reinterpret the beliefs and mission of a private organization.
Thus, the Lambda brief issues this bald assertion: "Dale or another openly gay scoutmaster can fully teach the positive message of family values and sexual responsibility that BSA emphasizes." The Boy Scouts of America finds this claim mystifying: Its approach to "family values" is to stress abstinence, fidelity, and traditional marriage as the ideal for young boys growing into manhood. Scout officials contend that openly homosexual scoutmasters cannot "fully teach" what they do not even partially believe.
The way the organization teaches, furthermore, is through relationships: adults befriending and mentoring young boys. The Boy Scout Handbook explains that Scouts will come to know their scoutmaster as "a wise friend to whom [they] can always turn for advice" -- whether they're sharing a tent, stoking a fire, or hiking through the woods. Scout documents call the selection of leaders "the most important decision to be made" by would-be sponsors. How could it be otherwise? The principle behind Scouting -- which founder Lord Robert Baden-Powell called a "character factory" -- is that the wise adult friend will deliberately model the organization's most basic values.
Lambda lawyers, following the New Jersey court, simply refuse to accept the Boy Scouts' own understanding of its mission -- and have rewritten it to their own liking. And this goes to the heart of First Amendment protections. "If there is any star in our constitutional constellation," said the Supreme Court in a 1943 case, "it is that no official, high or petty, can prescribe what shall be orthodox." In the Hurley case, the Court ruled that parade organizers were engaged in "expressive conduct" and could exclude voices they found distasteful. Lambda's reasoning represents a frontal assault on the free speech and free association rights of all who participate in Scouting.
And it signals even more. Because the Boy Scouts has a root connection to religion, a ruling against the organization would muzzle participants' free exercise of religion. The practical business of sponsorship already has been noted. Most of the roughly 145,000 Boy Scout units are chartered by the Catholic Church, the Lutheran Church-Missouri Synod, the National Council of Young Israel, or other religious entities. The United Methodist Church alone sponsors 424,000 Scouts. Church sponsors typically provide meeting space, while ministers help choose leaders or organize volunteers. The Mormons have incorporated Scouting into their priesthood training for young men.
Beyond the practical, however, is a deeper alliance: a religious vision for life. True, the Boy Scouts doesn't call itself a religious organization and doesn't push a specific faith. The Scoutmaster Handbook says Scouting "encourages no particular affiliation, nor assumes functions of religious bodies." Nevertheless, the organization always has made belief in God its starting point. This is explicit in the Scout oath, which begins, "On my honor I will do my best to do my duty to God" -- repeated at virtually every meeting, every week, by every Scout. Atheists have been ousted for refusing to recite it.
As scoutmasters explain, the hook for boys is the chance to learn outdoor survival skills. But what they pick up in the process are old-fashioned virtues, grounded in reverence for the Creator. "We surely expect of every boy that he shall have some form or other of religion," Baden-Powell told an American audience, "and that he shall practice what he preaches." The Scout code of ethics plainly supports historic Judeo-Christian morality -- hence its strong church appeal.
This is precisely what the New Jersey court found so repellent: The Scouts' policy on gays is the product of what the judges contemptuously called "archaic moral views." They likened the exclusion of gays to white supremacy and the subjugation of women, then delivered a secular sermon on the evils of discrimination: "We are satisfied that the Boy Scouts' expulsion of Dale is based on little more than prejudice. . . . The sad truth is that excluded groups and individuals have been prevented from full participation in the social, economic, and political life of our country. The human price of this bigotry has been enormous."
The Supreme Court of New Jersey not only placed itself at odds with the millions of Scouting parents and supporters whose churches officially uphold biblical teaching about sexuality and marriage. It branded this teaching "invidious" -- and sought to outlaw it. "They think religious views of sex are as irrational as the racial views of Alabama restaurant owners in the 1950s," says Princeton's Robert George. "To them it's simple bigotry." The triumph of this view in the Supreme Court would be a major step toward a public culture that privatizes all religious conviction.
If that happens, here's a look ahead: State judges, emboldened by the Court and new anti-discrimination laws, would move against other organizations and institutions nurtured by religious values, against counselors at maternity homes, directors of homeless shelters, eventually teachers in parish schools. Bit by bit, religious freedom would be restricted to worship services and ceremonies. Nearly everything else a church did, or that religious believers did, would be constrained by public laws. "Once they establish the principle that you can't practice your dissent, they will undermine and attack these religious organizations directly," George says. "In the name of freedom they will wipe out freedom."
The case is already being made in the elite law schools. In a 1996 issue of the Cornell Law Review, for example, University of Michigan professor Jane Rutherford argues for equality as "the primary constitutional value." The policy implication: Employment discrimination laws must be applied to religious bodies. "When the government authorizes religious institutions to discriminate, it impinges on the constitutional rights of those excluded," writes Rutherford. "The First Amendment should not be permitted to be used as a shield to protect such subordinating conduct."
And there are signs that such thinking is taking hold. Catholic Charities has surrendered its hiring policies to state civil rights laws. The ACLU -- once a defender of civic groups against government meddling -- has filed suit after suit to get gays and atheists into the Boy Scouts. "The ACLU does cherish the right of a group to define itself," says Lenora Lapidus, legal director of the New Jersey ACLU, a shade defensively, "but the government has a compelling interest in eradicating discrimination."
But what else gets eradicated in the process? Neither free speech nor free association is an absolute right, yet both are grounded in what the Founders considered the touchstone of liberty: freedom of conscience. James Madison, the mind behind the First Amendment, called conscience "the most sacred of all property." For it is individual conviction that informs speech, motivates assembling, and shapes religious expression: For rulers to bully conscience, wrote Thomas Jefferson in his famous "Bill for Establishing Religious Freedom" in Virginia, is "impious presumption."
What a wiser generation rejected as tyranny, Dale's defenders hail as a "compelling state interest." Here is the problem with making anti-discrimination laws the weapon du jour in the culture wars. With a cache of compelling interests and a definition of "public accommodation" as spongy as the Stay-Puft Marshmallow Man, renegade courts will extend the reach of these laws indefinitely. The endgame is the flattening of civil society, as government remakes one institution after another in its own secular, egalitarian image. Now is a good time for the Supreme Court, in the name of conscience and common sense, to stop it.l
Joe Loconte is the William E. Simon fellow in Religion and a Free Society at the Heritage Foundation.