The Magazine

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
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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.