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Anthony Sebok  

Open To All Boys? The Boy Scouts And Gay Rights

(FindLaw) -- Few entities are more sacred in mainstream America than the Boy Scouts. With more than five million youth and adult members, the Scouts are an integral part of American childhood. By their own terms, the Scouts are "open to all boys." Yet the Boy Scouts have now gone to the U.S. Supreme Court to fight for their right not to be all-inclusive.

The Scouts claim that because their creed holds that homosexuality is immoral, they must be free to exclude gays from membership. Their case, to be argued in April, highlights a fundamental tension between First Amendment rights and equality. In this instance, equality should prevail and the Scouts should remain "open to all boys."

The case the Court will hear concerns James Dale, an exemplary Boy Scout for 12 years before he was expelled in 1990 at the age of 19.

The Boy Scouts knew of Dale's exemplary record and demonstrated commitment to Scouting values and principles. But when they learned that Dale was gay, the Scouts expelled him. Scouting rules, the claimed, "specifically forbid membership to homosexuals."

But New Jersey law forbids "public accommodations" from discriminating on the basis of sexual orientation. The Scouts are a "public accommodation" because they are open to the public, much like the Little League. So Dale sued and last year the New Jersey Supreme Court unanimously ruled in his favor.

In the Supreme Court, the Scouts assert that compelling them to accept gay "leaders" violates their rights of speech and association. The Scouts argue that they speak through their leaders, and therefore, state control of their leaders is the same as state control of their speech. The Scouts ask: How can we effectively express our message that homosexuality is immoral if we are legally required to tolerate leaders who by their very lifestyle contradict that message? If freedom of association means anything, they maintain, it must protect a private organization's right to limit its leaders and members to those who reflect its values and beliefs.

The right to associate certainly includes the right not to associate - just as the right to speak includes the right not to speak. But the right not to associate, if unchecked, could lead to rampant discrimination. All prohibitions on segregation, for example, intrude on the right of persons not to associate. So do prohibitions on sex and race discrimination in employment. Yet the Supreme Court has long said that Congress can tell private entities - from employers to schools to restaurants and hotels - not to discriminate.

How should we strike a balance between the right to associate (and not to associate), and the principles of equality and nondiscrimination? The Supreme Court has dealt with this issue by drawing a bright line. Laws that prohibit status-based discrimination (discrimination based on who a person is) are generally deemed constitutional. But the Court has struck down laws that limit private groups' ability to discriminate based on a person's speech or views.

Consider, for instance, the 1976 Runyon v. McCrary decision. In that case, private schools claimed a right to exclude African-American students. This right, they argued, derived from their rights of association and from white parents' rights to direct their children's education. The Supreme Court agreed that private schools have a First Amendment right to teach racial segregation, no matter how noxious that idea may be. But the Court ruled that the schools could not engage in segregation. In short, it was okay to preach segregation, but not to practice it by excluding people on the basis of racial identity. At the same time, the Court has said that a group's First Amendment rights allow it to exclude members if it disagrees with their ideology or political views. Thus, the Court held in 1995 that a private St. Patrick's Day parade organizer could exclude a gay marching contingent. The exclusion was not based on the marchers' identity as gay and lesbian. Instead, it was based on their desire to express a message contrary to the message of the parade organizers. As the Court put it in an earlier decision, the First Amendment allows private organizations to "exclude individuals with ideologies or philosophies different from those of its existing members."

The rule, then, is that the state cannot control the speech or messages that private groups convey, but it can force them to stop discriminating against potential members based on status alone. Under this rule, the State of New Jersey should win the Boy Scouts' case because the Scouts are discriminating based on status, not speech.

New Jersey law does not require the Scouts to say anything they do not want to say. It does not bar them from excluding anyone who expresses a view contrary to the Scouts' own. All it prohibits is status-based discrimination. The Scoutsclaim the law will nonetheless indirectly infringe their ability to express the view that homosexuality is immoral. But their own practices undermine this argument.

The Scouts do not require Boy Scout members or leaders to agree with Scouting's view on homosexuality. The organization does not express the view that homosexuality is immoral - at least, not in any Boy Scout literature provided to members, leaders or the public. Heterosexual troop leaders, and an entire troop, have stated publicly that they believe homosexuality is moral, and the Scouts have done nothing to expel them. So clearly, the Scouts are interested only in ridding themselves of gay members - not members who voice pro-gay messages.

In short, the Scouts have not even taken advantage of the constitutionally-protected opportunities they have to express their anti-homosexuality message directly. In light of this fact, it is disingenuous for them to claim that simply having gay members is unconstitutional because it indirectly undermines their ability to express this message.

What the Scouts have done is to exclude persons based on their status as gay, not based on their views or message. That is the essence of discrimination, and does not deserve constitutional protection. James Dale should have remained a Scout, and the Scouts should remain "open to all boys."

David Cole, a professor at Georgetown University Law Center and legal affairs correspondent for The Nation, co-authored an amicus brief for the Society of American Law Teachers with Nan Hunter in Boy Scouts of America v. Dale.

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