THE NEW JERSEY Supreme Court ruled last week that the Boy Scouts of America is a "place of public accommodation" — like a diner or a motel — and that it therefore broke the state's antidiscrimination law when it expelled a scoutmaster, James Dale, because of his homosexuality.
 Private groups like the Boy Scouts have an absolute right to control their message, no matter how unfashionable. |
Moreover, said the court, the Boy Scouts may not take shelter in the First Amendment, for they have no message about gays that can claim constitutional protection. After all — hang on, reader, here comes a curve — it's not as if the Boy Scouts actively encourage the idea that there is something wrong with homosexuality. Only if they were more explicitly antigay, the justices reasoned, would the Constitution guarantee their right to keep homosexuals out.
Bizarre, no? Listen to the court:
"Boy Scouts' expulsion of Dale is based on little more than prejudice and not on a unified Boy Scout position. . . . Boy Scouts' activities are designed to build character and instill moral principles. Nothing before us, however, suggests that one of Boy Scouts' purposes is to promote the view that homosexuality is immoral. Accordingly . . . the LAD [ Law Against Discrimination] does not infringe upon Boy Scouts' right of expressive association."
In short, the Boy Scouts may not bar gays from being scoutmasters because they don't denounce homosexuality enough.
The court's weird logic is wrong on both counts. On the one hand, Boy Scouts of America has always made it clear that it disapproves of homosexuality. On the other hand, the fact that Scouts do not begin each troop meeting with an antigay diatribe doesn't mean that their view on the subject isn't constitutionally protected.
In March 1998, the California Supreme Court decided a similar case. Timothy Curran, a Boy Scout troop leader, decided to "come out" to his high school classmates by taking a male date to the senior prom. When a photo of the couple appeared in the Oakland Tribune, Curran was told that he could no longer take part in scouting activities. He, too, filed suit, arguing (like Dale) that in refusing to admit gays the Boy Scouts were violating California's civil rights law.
The case eventually reached the state's highest court. "Membership in the Boy Scouts is not simply a ticket of admission to a recreational facility that is open to a large segment of the public and has all the attributes of a place of public amusement," the court held. "Scouts meet regularly in small groups (often in private homes) that are intended to foster close friendship, trust, and loyalty, and scouts are required to participate in a variety of activities, ceremonies, and rituals designed to teach the moral principles to which the organization subscribes."
Among those principles: the Scouts' well-known view of homosexuality.
"The evidence introduced at trial," the justices wrote, "demonstrated 'that the Boy Scouts of America as an organization has taken a consistent position that homosexuality is immoral and incompatible with the Boy Scout Oath and Law' and that 'this is the view that is communicated whenever the issue comes up.' "
Now, it is true that Boy Scout literature shies away from explicit discussions of sexuality. In general, Scout leaders are discouraged from bringing up sexual topics. Sex, the organization believes, is a subject for the home. But the fact that an organization doesn't shout its opinions as loudly as possible does not mean that it loses its right to express those opinions. And the right to express an opinion entails the right not to provide a forum for those who contradict it. That was the point that the US Supreme Court underlined so emphatically in the South Boston St. Patrick's Day parade case in 1995.
In the Boston case, an Irish-American gay group, GLIB, wanted to march in the annual St. Patrick's Day parade. Like the Boy Scouts, the Boston parade is privately organized. The parade organizers insisted that GLIB's celebration of gay pride was incompatible with the parade's traditional themes. Under the First Amendment, they argued, no one should be able to force them to include an organization whose message they didn't want to promote.
GLIB sued. Like the plaintiffs in the Boy Scout case, it claimed the parade was effectively a place of public accommodation — like a diner or a motel — and so its organizers shouldn't be allowed to discriminate on the basis of sexual orientation. Every Massachusetts court ruled in GLIB's favor. But the US Supreme Court reversed, 9-0. Private groups have an absolute right to control their message, the high court said, no matter how blatant or muted that message may be.
In so doing, it stressed that the Constitution doesn't shield only parade organizers from having their views diluted. Even a dining club, which is hardly likely to express a message, has a constitutional right to "exclude an applicant whose manifest views were at odds with a position taken by the club's existing members." If that is true for a dining club, how much more so is it true for an organization founded to instill values in boys.
The New Jersey court went out of its way to blast the Boy Scouts' views as bigotry. It even conceded that it was ruling against them because not to "would be tantamount to tolerating . . . an act of discrimination." The California court, by contrast, stressed that its decision "does not turn on our personal views of the wisdom or morality of the [ Scouts'] actions or policies."
One court, in other words, based its judgment on the judges' personal beliefs. The other based its judgment on the law. On to the Supreme Court.
Jeff Jacoby is a columnist for The Boston Globe.
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