This week, after an internal review, the Boy Scouts of America (BSA), the nation’s foremost youth development organization for young men, opted to hold fast to its oft-derided position barring openly gay men and boys from participating in the scouting movement. The Supreme Court lent credence to this position in a controversial 5-4 decision in the summer of 2000.
The case was brought by openly gay Scoutmaster James Dale, who was drummed out of the organization after he revealed his sexual orientation. Dale's suit eventually found its way to the Supreme Court where the justices, led by then-Chief Justice William Rehnquist, blocked what he called an attempt to intrude “into the internal structure or affairs of an association” and ruled that no one should be able to force the Boy Scouts “to accept members it does not desire.”
To do so, the justices opined, would be an affront to the constitutional “freedom to not associate.”
I, for one, agree with this decision.
Let’s be clear: the BSA's policy is repugnant and is a contributing factor to the atmospheric peer pressure that tells young men of every color, stripe, and creed in this country that there is something wrong with same-sex attraction – leading to disproportionate rates of teen suicide, reduced self-esteem, homelessness, drug use and sex work among sexual minorities – and the ban should have been jettisoned this week instead of reaffirmed. Policies of this nature are predicated on the idea, given prominence in recent memory by those most resistant to racial integration, that the government should have no right to “tell a man who his friends should be.”
Having said that, gays, lesbians, and Christian conservatives of all faiths should find the idea of forcing the members of America’s favorite moral training camp for young men to reverse their policy under threat of litigation equally troubling, though the intentions of such an action are understandable.
Liberals have long looked for ways to “replace prejudice with principle,” Justice John Paul Stevens said in his dissent to the Supreme Court BSA decision, by legally threading the needle and searching for ways that the law can help them to achieve their desired outcomes.
Progressives used the Commerce Clause of the Constitution to upend segregation. Public accommodation laws, like the one used in the suit to overturn the BSA's ban on openly gay scouts, are used to prevent discrimination in the public sphere throughout the country.
But the Boy Scouts are not engaged in commerce, per se, and carry out activities that do not always take place on public property or make use of taxpayer-funded facilities. They are a private association entitled to all of the rights and privileges that should be afforded to any similar group fashioned on the model of the He-Man Woman Haters Club – no girls, or in this case gays, allowed.