Legal Affairs – Boy Scouts Vs. Gays: The System Is Working Just Fine

National Journal

A thousand points of pressure are being applied to the Scouts to yield to the emerging social consensus.

Upset by the Supreme Court’s June 28 ruling that the Boy Scouts of America have a First Amendment right to bar avowed homosexuals from becoming scoutmasters, some gay-rights advocates are pressing governments, big companies, the United Way, and others to hit the Scouts with the moral (and financial) equivalent of excommunication. And some governments, companies, and groups are cutting, or at least reassessing, their ties to the Scouts.

This, in turn, upsets people who respect the rights of the Scouts to not appoint avowed homosexuals as role models for their young members. George W. Bush expressed the concern (apparently unfounded) that the Clinton-Gore Administration might "shut [the Scouts] out of federal lands." Columnist Michael Kelly, who is also Editor in Chief of this magazine, wrote acidly: "We are so tolerant that, increasingly, we cannot tolerate any views that challenge our tolerance."

Before taking sides in this argument, let’s step back and celebrate the argument itself. More precisely, let’s celebrate the way that our laws and institutions are dealing with it. For the struggle between the Boy Scouts and gay-rights advocates exemplifies how finely calibrated our system is to enable a pluralistic society-riven by deep disagreements over fundamental values-to reconcile broad individual freedom with majority rule.

Attorney General Janet Reno quieted the controversy a bit on Sept. 1 by ruling that the Clinton Administration would not close federal lands to Boy Scout Jamborees. But that leaves plenty of questions unresolved: Should government bodies such as the military services, police groups, fire stations, and schools end their sponsorship of Boy Scout troops until the group stops discriminating? Should corporations and private groups such as the United Way cut off their contributions? Should Scout troops that want to admit gays defy the national organization’s policy? As debate rages on, gay-rights advocates accuse the Scouts and their allies of homophobic bigotry, and are themselves accused of dictating politically correct conformism.

It’s a messy business that leaves nobody fully satisfied. How to fix it?

Well, if what you want is an immediate ban on all discrimination against gay people (would you exempt churches, by the way?), you might wish for an enlightened despotism to ram your policy down the throats of the majority of Americans who feel otherwise, overseen by progressive thinkers such as (say) Hillary Rodham Clinton. (Her husband, the President, might not do: While expressing polite disagreement with the Scouts’ anti-gay policy, he calls them "a great group" and indicates no intention of resigning as their honorary president.)

If, on the other hand, your idea of enlightenment is to ban openly gay people from serving as scoutmasters, teachers in public schools, or other positions in which they might become role models for your children, you might wish for a despotism run by someone else. Phyllis Schlafly, perhaps? Or Tom DeLay?

But if you would rather stick with freedom, democracy, and the idea that governments derive their just powers from the consent of the governed-and at the same time see a thousand points of pressure brought to bear on groups like the Boy Scouts to yield sooner or later to the emerging social consensus (as I see it) that anti-gay discrimination is wrong-could you create a system much better than the one we have? I don’t see how.

The Supreme Court’s 5-4 ruling for the Scouts was clearly right, in my view, because of the paramount importance of allowing private, noncommercial associations-both religious and secular-to choose their own members and leaders without governmental oversight. "A society in which each and every organization must be equally diverse is a society that has destroyed diversity," as the Boy Scouts said in their Supreme Court brief. They added: "We can respect the plea of many gay and lesbian Americans not to have the majority’s morality imposed upon them. By the same token, we ask that a contrary morality not be forced upon private associations like the Boy Scouts of America, at the expense of its First Amendment freedoms of speech and association."

And in an amicus brief, a group called Gays and Lesbians for Individual Liberty added: "Diminution in the scope of freedom of association is not something that gay people should hail…. For the large number of gay organizations that seek to remain exclusively gay or gay-controlled, [a ruling against the Boy Scouts] could sound a death knell."

The Court’s decision means not only that governments cannot directly penalize the Boy Scouts for its constitutionally protected views and policies, as New Jersey had sought to do in the case at hand, but also that governments cannot indirectly penalize the Scouts by denying access to public lands or other benefits available to other private groups. Chicago, San Francisco, and San Jose may have done just that if you believe the (disputed) report in The New York Times that they are denying Scout troops access to parks and schools-a report hailed as "heartening" by the paper’s editorial page, formerly a guardian of First Amendment rights.

At the same time, "to the extent that [a state] sponsors Scouting units or provides special benefits, it is entitled to withdraw support if it now disapproves of Scouting." So said the Scouts themselves, in their brief. This means that (for example) cities that grant the Boy Scouts $1-a-year leases to public campgrounds can, if they choose, end such special subsidies.

In this context, the Administration’s review of federal ties to the Boy Scouts-which sent some Republicans into a fury-seems an appropriate sequel to the President’s June 23 executive order barring discrimination on the basis of sexual orientation in federally conducted education and training programs. It was only prudent for agencies like the Interior Department to examine how the June 23 order might affect their various ties to the Scouts.

Reno’s Sept. 1 ruling was that Boy Scout Jamborees on federal lands are not covered by the executive order because they are not "federally conducted" programs. But federal-, state-, and local-government dealings with the Scouts run the gamut from the symbolic endorsement conveyed by the President’s ex officio role; to sponsorship by public schools, police groups, fire stations, and military services; to financial subsidies (of which there are very few, say the Scouts); to letting the Scouts use public lands-sometimes on special terms, sometimes on the same terms available to other groups. If Clinton was as devoted to gay rights as to his own popularity ratings, it might be appropriate to cut at least one of these ties: his honorary presidency.

Private companies and groups have even more latitude to protest the Boy Scouts’ anti-gay policy, if they are so inclined, by exercising their own freedoms of association (and disassociation). With apparent disapproval, Kelly notes that "some United Way chapters are refusing to give contributions to local Scout councils unless they sign statements disavowing support for the national association’s position." But if a United Way chapter strongly believes that it is intolerable for the Boy Scouts to exclude gays, should it not signal its disapproval by cutting off some donations? Although a total cutoff might have the effect of punishing kids and local troops for the national association’s sins, a partial cutoff might send just the right message.

If the Scouts had lost in the Supreme Court, such trade-offs could be resolved by whoever controls the government. Far better to leave the Scouts to the independent judgments of the thousands of private organizations and millions of individuals that deal with them. Those who disagree with a United Way chapter’s decision to cut off the Boy Scouts (or not to do so) are themselves free to cut off the United Way, and give their money directly to the Scouts (or a gay-rights group, or someone else).

Will the net impact of all these independent decisions by public and private actors be to persuade the Scouts to do what no government can order them to do? That will depend on public opinion. And given how rapidly it is moving toward broader acceptance of homosexuality, my prediction (and my hope) is that most Boy Scout troops will drop the anti-gay policy within three years.

While this would not be fast enough for many liberals, they should remember that gay rights did not become fashionable even in their own circles until the past 30 years or so. And as Justice Robert Jackson wrote in 1943, "Authority here is to be controlled by public opinion, not public opinion by authority."