Commentary

Scouting the Issue

This article originally appeared in the Washington Times, April 30, 2000.
The Boy Scouts of America (BSA) doesn’t allow homosexuals in leadership roles in the organization. If you support their right to determine their own membership, does that make you an anti-gay bigot? No, because that’s not what the case before the Supreme Court concerning the BSA is about. It’s not about whether homosexuality is good, bad or indifferent. The case before the court is about the First Amendment and the right to freedom of association - nothing else. That has been carefully explained in an amicus brief filed by the Cato Institute and six other organizations.

That’s why there are plenty of gay people who support the BSA’s right to set its own policies. I’m one, and I’m not falling for the “only bigots support the BSA’s rights” line. When the New Jersey Supreme Court ruled last year that the BSA’s policies violated New Jersey’s anti-discrimination laws, some gay activists hailed the decision.

Kerry Lobel, executive director of the National Gay and Lesbian Task Force, praised the New Jersey court for striking down “another domino in the campaign against” gay people. Just for the sake of argument, let’s accept Ms. Lobel’s paranoid understanding of the BSA’s policies as a part of a coordinated campaign against gay people. Does Ms. Lobel actually believe the way to win an argument is to use force against the person with whom you’re arguing? That way lies great danger, especially for minorities. The dangers were explained to the Supreme Court by a gay organization in an amicus brief (available at www.gayliberty.org).

I have some questions for those who would use legal force to change the BSA’s policies. If they don’t like the policies of the Greek Orthodox Church concerning homosexuality would they take the church hierarchy to court to force them to recant? Would they take Hasidic Synagogues to court for their policies of educating girls separately from boys? Would they force Greenpeace to promote to leadership positions people who did not share their agenda?

The point is clear. The Boy Scouts of America always has rested on a program of inculcating a moral and religious creed among boys. It is a private organization that expresses the views of its members. The members of BSA should be free to express those views through their membership. At the same time, others should be free to criticize the BSA or to try to change their minds, as Eagle Scout Steven Cozza and his father Scott Cozza have done by founding Scouting for All, which is dedicated to changing the BSA’s policies about homosexuality. That’s how free societies work.

The New Jersey Court said that because the BSA interacts with the public to recruit members, it is a “public accommodation.” And the advocates of using legal force against the BSA sometimes point out that BSA affiliates often receive benefits from governmental agencies, such as sponsorship from local fire departments or meeting space in city halls, and conclude that the BSA should be subjected to the same non-discrimination rules that should apply to governments.

But if any group that seeks to recruit members of the public were converted into a public accommodation, what would become of freedom of religion, or of freedom of association of any sort? And if receipt of government benefits subjects you to the same non-discrimination policies as government agencies, what becomes of private association? If the local fire department puts out a fire at a Masonic Temple, does that subject the Masons to the same policies that should govern the fire department? That principle would effectively convert all organizations into agencies of government.

The New Jersey Supreme Court claimed that forcing the BSA to accept openly gay leaders would not “compel the Boy Scouts to express any message.” Hence, the court reasoned, the decision posed no First Amendment problems. But if that were true, then the efforts of generations of gay people to encourage others to be open and unashamed would have been pointless. Being openly gay does express a message; it happens not to be a message that the BSA wishes to express. And forcing the organization to express a message of which it disapproves is tyranny.

My grandfather was a Scout; my father was a Scout; I was a Scout.

When I was a boy I was elected troop quartermaster and then senior patrol leader. After that I was named a junior assistant scoutmaster. I was inducted into the Order of the Arrow. I learned valuable lessons that will be with me for my entire life. Scouting was good to me and to my family. I can understand why James Dale, the plaintiff in the New Jersey case, would want to give back to an organization that has exercised such a positive influence on his life. But if the Boy Scouts of America won’t have Mr. Dale and me, we have no right to force them to accept us.

Tom G. Palmer is a fellow in social thought at Cato Institute.