Excerpts from the
Full opinion at http://lawlibrary.rutgers.edu/courts/supreme/a-195-97.opn.html
James Dale v. Boy Scouts of
"The sad truth is that excluded groups and individuals have been prevented from full participation in the social, economic and political life of our country. The human price of this bigotry has been enormous. At a most fundamental level, adherence to a principle of equality demands that our legal system protect the victim of invidious discrimination." (Justice Poritz)
"One particular stereotype that we renounce today is that homosexuals
are inherently immoral. That myth is repudiated by decades of social science
data that convincingly establishes that being homosexual does not, in itself,
derogate from one's ability to participate in and contribute responsibly and
positively to society. In short, a lesbian and gay person, merely because she
or he is a homosexual, is no more or less likely to be moral than a person who
(This paragraph by Justice Alan Handler.)
"To recognize the Boy Scouts' First Amendment claim would be tantamount to tolerating the expulsion of an individual solely because of his status as a homosexual -- an act of discrimination unprotected by the First Amendment freedom of speech."
The Supreme Court, in June 2000, upheld the Boy Scouts’ position by a 5-4 vote. Some of its reasoning is similar to what appears in the GLIL brief or in my own discussion below. For partial text, visit http://www.doaskdotell.com/content/bsaopn.htm.
On the surface, there seems to be one "legal" problem: whether a "private" organization may "discriminate" against a minority in order to express a particular point of view, or, rephrased with a different emphasis, whether a private organization may discriminate against individuals inclined to engage in certain kinds of private (but, to some people, immoral) conduct.
And there appears to be an associated cultural and political problem. That is, a "private" organization may be so successful in expressing a "moral" or cultural view that some people may perceive it to be part of an "oppressive establishment." Or, in the view of some people, some "moral issues" (especially those involving discrimination) should be regarded as "settled" at large and not be the subject of legitimate "free speech" claims. But these sentiments may have little significance as a matter of law, and they tend to invoke the notion of "political correctness."
Discussion of this case necessarily breaks down into a number of facets, both legal (or constitutional) and social. So I'll try to emphasize the main points.
All states have laws prohibiting discrimination against minorities by
"public accommodations." In some states (such as
But if BSA junked its government ties, should it still be able to exclude
"known" homosexuals from its ranks, in
There is also the troubling notion that the content of a group's message sometimes affects its "free speech" claims. For example, the original New Jersey 1995 Superior Court opinion referred to the BSA's "God-acknowledged, moral foundation." I would understand this view to include the (old-fashioned) notion that boys are supposed to grow up to be men who will accept the initiatory obligations of fatherhood and of defending and providing for women and children, as a prerequisite for pursuing their own ends. In Curran, the plaintiff was put into the position of contraposition, of having to show that homosexuality was not incompatible with Scout teaching. However in Dale the New Jersey Supreme Court went to the trouble to analyze the Scout manual for explicitly "homosexual-excluding" expression and devalued the BSA's claims according (when not finding them). We should note well that Congress took a similar tack in 1993 when trying to justify its statutory exclusion of open homosexuals from the military, and into trying to protect itself from claims that its reasoning could be applied to many civilians. Likewise, the speech content of the (homosexual) plaintiffs seemed to get inappropriate attention. Curran was criticize for wanting to "out" himself to the BSA, and James Dale, while not wanting to present his views directly as a scoutmaster, was penalized for media attention focused on other reports of his homosexuality and homosexual advocacy.
Gay libertarian and gay conservative writers, such as Rick Sincere and Queersoup, have pointed out that the New Jersey opinion could jeopardize the operation of "queer-safeplace" groups such as SMYAL (for gay youth), which may believe that they need to exclude non-homosexuals from presence. (In a similar fashion, NGLTF actually excluded whites from a session intended for "people of color"). In arguing this point, one point to remember is that social association (gathering in a gay bar, for example) does not have First Amendment protection (maybe it should!, considering the history of bar raids in many cities), where as expressive association does.
Some commentators have compared the BSA cases to the Hurley case, where a gay group was barred from marching as a group in a St. Patrick's Day parade. But in Hurley, the use of publicly owned facilities (streets) was infrequent, and the expressive speech only resulted in the barring of gays from marching as a group, not as individuals.
In general, I agree with the contention that BSA must not be allowed to exclude gays if it uses publicly funded resources or charters to any extent at all. But to the extent that it is a truly "private" organization, it must be allowed to present any view of sexual or motivational morality it chooses, and to exclude persons who would distract or undermine its cohesion and presentation. It is then up to BSA whether it will continue to enrich our culture or find itself cornered, shrinking away from the American mainstream into its own Schwarzchild radius.
Libertarian philosophical arguments against “hamstringing” property owners with anti-discrimination law notwithstanding, the legal fact is that states do, according to current constitutional law, have quite a wide latitude in defining “public accommodations,” even to the point of including “private” businesses open to the public, and that states have considerable latitude in protecting other classes beyond those of the 1964 Civil Rights Act. A state, however, would have to observe some “line in the sand” in recognizing the expressive association rights of a restrictive private membership group. Ultimately, people must have the right to express their own opinions (however “wrong”) about any issue, all the more an issue involving behaviors and values; otherwise we all live with the moral laziness of “political corretness.” Organizations with religious purposes are, in practice, going to enjoy more respect for their associative expression rights than will other groups, an observation that troubles me.
A column by Nat Hentoff in The Washington Times,
Refer also to Mother Jones, Nov-Dec 1999, "Scout's Honor," by William Saletan (p. 35).
Or to Richard Sincere's op-ed in
the Wall Street Journal,
Visit the Gays and Lesbians for Individual Liberty brief at http://www.gayliberty.org/
Or to Queersoup: “Boy Scouts: You Can’t Sleep in my Tent”
Here is an editorial on the Boy Scout brief from GLIL by Jeff Epperly, “Gay Libertarians Sell Out our Community,”
A letter by Barney Frank (D-MA)
I have seen the latest draft of a proposal that some are seeking to add to the Defense Authorization bill dealing with federal facilities being made available to a variety of youth organizations, which seems to be motivated in part by the concerns that have been raised over the Boy Scouts. In general, I think it is reasonable to have a policy of federal support for youth organizations, but there are specific parts of this which seem to me to make it wholly unsuitable to be simply added into an authorization of defense spending when it deals with many matters that go far beyond the scope of such a bill.
For example, on page 2 of the most recent draft I have seen, beginning on line 9, the proposed amendment says "No Federal law...shall be construed to limit any Federal agency from providing any form of support for a youth organization...that would result in the Federal agency providing less support to that youth organization...than was provided during the preceding fiscal year to that youth organization." First, why does this defense authorization deal with every single federal agency? And why is it a rule that federal agencies may never reduce the support they give to a wide range of organizations that are listed in this bill from year to year? What we have here is a classic one-way ratchet - whenever any federal agency does anything for any youth organization, that then becomes the floor for the future, and agencies that might have limited resources and wanted, for example, to rotate the extent to which they accommodate organizations would be prevented from doing so. I understand that people are trying to defend the Boy Scouts against those of us - myself included - who are very critical of their blanket exclusion of all gay males, even in the absence of any suggestion whatsoever that any of those males have ever done anything to transgress Boy Scout principles. But while I would myself oppose a narrowly drafted provision, the one that you have goes far beyond this, and seems to me a good example of why it is not useful to put this sort of thing into broader bills when they get no attention. Mandating that every federal agency that ever helps any youth organization must always help that organization - ad infinitum - at the exact same level at least that it had helped it before does not seem to me a very rational policy.
I do note that the legislation courageously argues that the provision I have just quoted "shall not apply to any youth organization that ceases to exist." But what about an organization that has substantially dropped in its membership, level of support, etc.? By excluding only those that have ceased to exist, if you adopt this, you will be insisting that the same level of support be provided even to organizations that have substantially withered, although not to the point of nonexistence. This is another example of why it is a mistake to put something so broad into this bill.
During debate on the House Floor, Congressman Frank said: "I just want to call attention to one wholly irrelevant provision, irrelevant to the defense. The Boy Scouts of America have been found by States and cities to be violating their anti-discrimination policies with regard to both sexual orientation and religion, and some cities have said that they do not want anyone who fails to follow their State or city's policy getting free facilities. That I suppose can be debated or not as to whether it is right or wrong, but it does not seem to me that there is any argument for having it in the Armed Services authorization bill in a Congress run by supposed States rights conservatives, a provision that says to every city in America you will let the Boy Scouts use your facilities for free whether or not you think they violate the law against discrimination based on religion or sexual orientation.
"Now, that is probably going to be found unconstitutional, but I find that to be way beyond the scope of this bill and an example of the degradation of the legislative process that it is in here," Rep. Frank concluded.
The relevant provision states:
"No state or unit of general local government that has a designated public forum, limited public forum or nonpublic forum and that is a recipient of assistance under this title shall deny equal access or a fair opportunity to meet to, or discriminate against, any youth organization, including the Boy Scouts of America or any group officially affiliated with the Boy Scouts of America, that wises to conduct a meeting or otherwise participate in that designated open forum, limited public forum, or nonpublic forum."
The provision was included in the final version of the Department of Defense authorization bill, which was approved in the House with minimal debate in the middle of the night this past weekend, and with no separate vote on this important provision. The Senate has not yet taken up the bill, but is likely to do so this week.
Congressman Frank tried unsuccessfully to remove the provision at a meeting of the conference committee appointed to work out a final version of the defense bill, but House and Senate negotiators denied his motion. In addition, he wrote letters to the negotiators asking that the language be deleted from the bill, noting in part, that the provision had nothing to do with the operations of the Department of Defense.
There is a somewhat similar case with a lawsuit against online dating service eHarmony in 2007 for not accepting gay-related business. Blogger entry: http://billonglbt.blogspot.com/2007/06/eharmony-dating-service-sued-for.html
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