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
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.