To the New Jersey Supreme Court and The New York Times editorial page, the refusal of the Boy Scouts of America to accept avowed homosexuals as Scouts or Scout leaders is a simple matter of "bigotry" — and illegal bigotry at that.
To other judges and legal scholars (as well as to the Boy Scouts), it is a matter of First Amendment freedom of association: In their view, states and judges may not force a private, quasi-religious group (like the Scouts) that considers homosexual conduct immoral to admit gays. By designating openly gay adults as Scout leaders, say the Boy Scouts, they would muddy the message they send to youngsters.
To anyone who (like me) supports gay rights, and would like the Boy Scouts to admit gays voluntarily — but who also believes in what Justice Oliver Wendell Holmes Jr. called "freedom for the thought that we hate" — the New Jersey lawsuit that may be headed for the U.S. Supreme Court is a hard case.
Do the Scouts have a constitutional right to expel a (hypothetical) 14-year-old boy merely because, on being asked, he admits to having homosexual desires? I would say no, because expulsion would be not only hard on the kid but hardly necessary; to keep the boy would not amount to a symbolic endorsement of homosexuality. Should the Scouts be able to expel a (hypothetical) scoutmaster who has urged his young charges to try engaging in homosexual conduct with one another? I would say yes.
How about an assistant scoutmaster who has proudly become a gay activist in college but has not sought to discuss matters sexual with the Scouts? That’s the New Jersey case, brought by former Eagle Scout James Dale.
On the face of it, it did not seem that challenging a case to the seven justices of New Jersey’s Supreme Court. In an Aug. 4 opinion by Chief Justice Deborah T. Poritz (an appointee of Republican Gov. Christine Todd Whitman, who applauded the ruling), the court held unanimously that the Boy Scouts — like hotels, restaurants, libraries, country clubs, and other institutions — were a "public accommodation" covered by a state civil rights law barring discrimination based on sexual orientation. The court also unanimously rejected the Scouts’ claim that they have a First Amendment right to exclude gays.
But state courts in California, Connecticut, Kansas, and Oregon have reached different conclusions. In March 1998, for example, the seven justices of the California Supreme Court unanimously rejected two lawsuits against the Boy Scouts, one brought by an openly gay former Eagle Scout who wanted to be an assistant scoutmaster, and another by twins who had been expelled for refusing, as 9-year-old Cub Scouts, to recite the part of the "Scout’s Oath" that affirms a belief in God. (Their father said they were agnostics.) All three, like James Dale, had exemplary records.
The California court held that the state’s civil rights law did not cover the Scouts — who have 4 million boys in uniform and more than a million adult member-leaders in the United States — despite the court’s own prior decisions applying the same law to other private groups, including a boys’ club and an exclusive country club.
And in a concurring opinion, moderate Justice Joyce L. Kennard stressed that "it is highly doubtful that a state may, consistent with the First Amendment guarantees of freedom of speech and of association, compel an organization like the Boy Scouts to accept as a member someone who actively opposes one of that organization’s basic precepts and who seeks membership in order to promote those contrary views." She was referring to a statement by the would-be assistant scoutmaster that he wanted to make sure that the kids understood that there was nothing wrong with the gay lifestyle.
The New Jersey court’s conclusion that that state’s civil rights law can be applied to the Boy Scouts is final and seemingly unappealable: The U.S. Supreme Court does not second- guess interpretations of state laws by a state’s highest court.
But the Boy Scouts have vowed to appeal on the federal constitutional ground that the New Jersey law, as it was applied in this case, violates the First Amendment. The Justices may well decline to tackle the case until the lower courts have more fully aired the issue. But if the Justices do take up the New Jersey decision, they should and very likely will rule for the Boy Scouts. That’s because the Court’s precedents suggest that the Scouts’ unchallenged right to condemn homosexuality as immoral includes a right not to appoint openly gay adults as Scout leaders.
To be sure, the freedoms of speech and association, which include the rights not to speak or associate with people whose views one disdains, are far from absolute. No business, say, could refuse on free-association grounds to hire African- Americans — or gays, in states that protect them from job discrimination.
Nor do large, business-oriented private groups like the Jaycees and Rotary Clubs have a First Amendment right to exclude women: The Supreme Court has upheld state laws prohibiting such exclusions as sex discrimination. If asked, the Justices would also probably uphold a law requiring the Boy Scouts to admit girls and the Girl Scouts to admit boys (as the New Jersey law apparently now does). But the Supreme Court’s rulings against sex discrimination by large private clubs have stressed that women who wanted in did not have "ideologies or philosophies different from those of [the Jaycees’] existing members," as the Court put it in a 1984 decision.
And in 1995, in Hurley vs. Irish-American Gay, Lesbian and Bisexual Group, the Court agreed unanimously that Massachusetts could not use its public accommodation law to force the sponsor of Boston’s St. Patrick’s Day parade to admit a contingent that wanted to march behind a banner proclaiming its gay identity.
Justice David H. Souter, citing the First Amendment freedoms of both speech and association, held that the state could not "trespass on the [parade sponsor’s] message" by forcing it to include marchers who would proclaim their homosexuality. Similarly, the Boy Scouts argue that the state cannot trespass on their message by forcing them to accept Scout leaders who have publicly proclaimed their homosexuality.
Although marching in a parade may be a more inherently expressive (and public) activity than acting as a Scout leader, Souter also asserted — in an aside quite pertinent to the Boy Scouts — that "a private club could exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members."
This is not to say that openly gay people should be faulted for affirming the morality of their lifestyle. Far from it: Expressions of gay pride are quintessentially protected political speech. But the right to engage in such speech does not include a right to be admitted to a group that has diametrically opposed core beliefs.
In rejecting the Boy Scouts’ First Amendment claim, the New Jersey court argued that moral objections to homosexuality were not central to the organization’s mission and message, because it had not been a vocal public critic of homosexuality; because the vow in the "Scout Oath" to be "morally straight," as well as the injunctions in the "Scout Law" and "Boy Scout Handbook" to be "clean" in "body and mind," do not on their face condemn homosexuality; because the Scouts’ fealty to God is nonsectarian; and because not all of the Scouts’ religious sponsors consider homosexuality immoral. Thus, wrote Chief Justice Poritz, the "organization’s ability to disseminate its message is not significantly affected" by forcing it to have an openly gay Scout leader.
This is too clever by half. It should not be for the courts to tell the Scouts, or any other organization, which of its beliefs are paramount.
The New Jersey court also suggests that intolerance of homosexuality "is inconsistent with the Boy Scouts’ commitment to a diverse and ‘representative’ membership" — not to mention the rule that a Scout should be "a friend to all" who "respects those with ideas and customs that are different from his own."
That seems right. So does the court’s assertion that homosexuals should enjoy "full participation in the social, economic, and political life of our country." I hope that further debate over the New Jersey decision will prompt Scout leaders around the nation — many of whom have acquiesced in the Scouts’ anti-gay policy through inertia rather than moral conviction — to push for change and embrace tolerance.
But that doesn’t justify governmental or judicial coercion to muddy the message that the Boy Scouts have (so far) chosen to send. The First Amendment includes a right to be wrong.