The Continuing Saga of the Scouts

Sometimes, you may win by losing. In the aftermath of the Supreme Court’s decision in Boy Scouts of America v. Dale, strange and promising things are happening.

Sometimes, you may win by losing.  In the aftermath of the Supreme Court’s decision in Boy Scouts of America v. Dale, strange and promising things are happening.
For those of you have been off-planet recently, the case arose in New Jersey, under a statute forbidding discrimination on the basis of race, religion, sexual orientation, etc. in “public accommodations.” A “public accommodation” is a public venue or organization—one that is open to everyone except members of the class of people being discriminated against. If your group is a public accommodation, you may only engage in discrimination if it is of a sort protected by the First Amendment.  Churches, for example, may hire only those who are believers; a club for Irish-Americans may restrict membership to those who are of Irish origin; Boy Scouts may bar girls. In other words, if the discrimination is essential to your mission, an integral part of who you are, it is an associational freedom protected by the First Amendment.
The New Jersey Supreme Court found that the Boy Scouts are, for purposes of New Jersey law, public. The Boy Scouts appealed to the United States Supreme Court, but did not—could not—dispute that portion of the decision. The appeal was based upon the argument that being anti-gay was central to Scouting. That is, in order to prevail, the Scouts had to convince a majority of the Court that homophobia was a core Scouting value, one of the values that define the organization.
The Scouts won. They convinced five justices (against the evidence of their own better history) that Scouting is fundamentally “about” being anti-gay.
Now, however, they must live with the consequences of a victory that may prove to be very hollow.
By insisting that exclusion of gays is not an unfortunate but incidental aspect of Scouting, but rather a critical element of its identity, a part of the very essence of the organization, BSA has created a real dilemma for many of its traditional supporters and funders. Public schools, United Ways and those who support United Ways, are all re-thinking their relationship with the Scouts. Already, United Way of Monroe County has voted to discontinue funding of the Scouts, and United Way of Central Indiana is reviewing its own support. At IUPUI, where I teach, the Vice-Chancellor has recently reported on the controversy to the Faculty Council, acknowledging that a substantial portion of the University community is uncomfortable with continued support of United Way so long as United Way continued to fund the Scouts. The issue is “under advisement.”
Across the country, Eagle Scouts are mailing back their badges in protest. A California Scouting Council recently “disassociated” from the national organization over the issue. A new entity, called “Scouting for All” has been formed, to compete with BSA by establishing a parallel, inclusive organization. None of this could have been foreseen, and it is immensely heartening.
While it is unfortunate that an organization that has done so much good over the years, that has meant so much to so many young boys, is experiencing such turmoil, I cannot help believing the outcome will be immensely positive. In some ways, what is happening now is preferable to winning the lawsuit, because the sort of reaction we are seeing is entirely voluntary. It isn’t enforcement of a decree issued by a court; it is the response of numerous individuals who have seen something distasteful and unfair, who are recoiling  from bigotry and injustice.
When my undergraduate class was discussing the First Amendment, the Boy Scout case came up and we discussed the basis of the ruling. After class, one of my students approached me—a bright young man who is a bit older than the average. “You know, Professor,” he said, “I don’t know any gay people. But I have a six year old son who really wants to join the Scouts, and I don’t see how I can allow him to belong to an organization that discriminates against people. I hate to tell him no, but I’m just not comfortable with it. It would be like I’m endorsing bigotry.”
If my student’s reaction is a sign of things to come, we may yet see the end to the thoughtless and heartless discrimination that has made life so difficult for so many children whose only offense was to be born with a different capacity for love.