Civil Liberties

Scout Law


"People have a right to believe what they want," says Lenora Lapidus, legal director for the American Civil Liberties Union of New Jersey. But if they happen to believe that homosexuality is immoral, they'd better not act on that belief–at least, not in New Jersey.

At the urging of Lapidus and other alleged civil libertarians, that state's Supreme Court recently ruled that the Boy Scouts of America (BSA) have no right to exclude avowed homosexuals from leadership positions. BSA is a "public accommodation," the court said, and therefore bound by a state law prohibiting discrimination based on sexual preference.

The ruling came in response to a lawsuit by James Dale, a former Eagle Scout and assistant scoutmaster. Dale's BSA membership was revoked in 1990, after a newspaper article identified him as co-president of the Rutgers University Lesbian/Gay Alliance.

The court rejected BSA's argument that it has a First Amendment right to set its own membership criteria. The organization said those criteria reflect its values, including the conviction that homosexuals do not make good role models.

First of all, said the court, you don't really believe that: There's nothing in the Scout Oath or the Scout Law that explicitly addresses sexual behavior, and the phrases "morally straight" and "clean" cannot reasonably be interpreted as condemnations of homosexuality.

Anyway, said the court, you're wrong: Homosexuality is not immoral. The unanimous opinion declared that BSA's position "is based on little more than prejudice" and "the invocation of stereotypes." A concurring opinion said "one particular stereotype that we renounce today is that homosexuals are inherently immoral."

So the Boy Scouts lost? No, according to Evan Wolfson, the Lambda Legal Defense and Education Fund attorney who argued Dale's case, they actually won.

Wolfson called the decision "a victory for all members of scouting, who join because they value honesty, community service, self-reliance, and respect for others, not discrimination." Similarly, Dale said "the decision vindicates everything I have learned through scouting: to be true to yourself, to be helpful to others, and to believe that justice and goodness will prevail."

The court likewise suggested that the Boy Scouts' "stance on homosexuality appears antithetical to the organization's goals and philosophy. The exclusion of members solely on the basis of their sexual orientation is inconsistent with the Boy Scouts' commitment to a diverse and 'representative' membership."

Apparently, the Boy Scouts don't even know what their own organization is all about. Luckily, the New Jersey Supreme Court is happy to tell them.

But maybe the court was too quick to assume this role. Maybe a private, voluntary organization should be allowed to decide for itself which ideas it represents, even if–and here is the really radical part–those ideas turn out to be wrong.

Last year, when it considered a similar lawsuit by an openly gay former Eagle Scout, the California Supreme Court recognized that "the resolution of this matter does not turn on our personal views of the wisdom or morality of the actions or policies that are challenged in this case." Rather, the court had to decide whether California's anti-discrimination law applied to the Boy Scouts and, if it did, whether enforcing it would violate BSA's First Amendment rights.

That case was resolved without reaching the constitutional issue, because the court decided that the Boy Scouts were not "a business establishment"under the Unruh Civil Rights Act. But in a concurring opinion, Justice Joyce Kennard noted "grave constitutional difficulties" with compelling BSA to change its policy.

Quoting Oliver Wendell Holmes, Kennard observed that "what the First Amendment protects is not just 'free thought for those who agree with us but freedom for the thought we hate.' " And she posed a couple of hypotheticals: "Could the NAACP be compelled to accept as a member a Ku Klux Klansman? Could B'nai B'rith be required to admit an anti-Semite?"

More to the point, perhaps, should the Klan be forced to admit blacks? Should the American Nazi Party have to let Jews be members? If not, then even those who equate disapproval of homosexuality with bigotry have to admit that something important is at stake here: freedom of conscience and its corollary, freedom of association.

Purging society of "discrimination" means forcing people to conform to the approved view of things, to act contrary to their deeply held beliefs, to redefine themselves as the government demands. All in the name of tolerance.