The Supreme Court and the Future of the Boy Scouts
by Maurine Jensen Proctor

In a highly charged debate, the Supreme Court is hearing a case that could impact the future of Scouting in America.

The Church of Jesus Christ of Latter-day Saints-the largest single sponsor of Scouting in the United States-would withdraw from Scouting if it were compelled to accept openly homosexual scout leaders. This is the contention in the brief submitted to the Supreme Court representing the Church and four other religious organizations that represent 2/3 of the 60% of scout troops sponsored by churches..

It is a bold assertion considering how intricately the Scouting program is woven into the teaching of the young men of the Church, but also an indication of the pivotal nature of the case concerning James Dale and the Boy Scouts that is currently being considered by the Supreme Court.

James Dale grew up in scouting, made his pinewood derby cars, smelled of campfire and served as an Assistant Scoutmaster for about sixteen months. When he went off to college at Rutgers University, however, he acknowledged his homosexuality and became active and visible in the gay-rights movement. The Boy Scouts severed their relationship with Dale, taking the position that his homosexual conduct is inconsistent with the Scout Oath to be “morally straight” and contrary to the Scout Law to be “clean” in word and deed.

Dale sued and the Supreme Court of New Jersey in a summary judgment, which did not allow the Scouts to present their case or how they set policy for their 3.4 million members, ordered him reinstated. Essentially, the New Jersey court redefined the Boy Scouts of America-not as a private, voluntary organization-but as a public accommodation, subject to the anti-discrimination laws of the state.

The concept of a public accommodation was instituted during the heyday of the civil rights era in the sixties and has served an important function. Before that period, black people had difficulty in traveling because certain hotels and transportation systems would not accommodate them.. Consequently, these places were defined as a public accommodation and obliged to serve all people without discrimination.

Only more recently have private organizations sometimes been labeled public accommodations because of their size or their scope. “We are being penalized for success,” lamented one scout leader.

Briefs Filed with the Court
Emotions have been high ever since the New Jersey ruling. Briefs filed with the Court on both sides of the issue read like the allies in a cultural war. In support of James Dale’s case are thirty-seven groups including the American Bar Association, the American Psychological Association, the American Civil Liberties Union, the NAACP, the Attorneys General of eleven states, and cities of Atlanta, Chicago, Los Angeles, New York, San Francisco, Portland, and Tucson.

The Boy Scouts are backed by several church organizations including Catholics, United Methodists, Lutherans and orthodox Jews as well as the Family Research Council, the Becket Fund for Religious Liberty and surprisingly a group called the Gays and Lesbians for Individual Liberty. While this last group does not agree with Scout’s stance barring gays, they see their own right to freedom of association threatened by the case.

To God and My Country…
(Photo courtesy of Boy Scouts of America)

A Constitutional Issue
The Dale case is not a so-called “gay rights” issue as much as a Constitutional one. “This case involves constitutional rights at the heart of our free society; the freedom of a private, voluntary, noncommercial organization to create and interpret its own moral code, and to choose leaders and define membership criteria accordingly,” the Scouts’ lawyers said in a court brief.

If a court can make a ruling that threatens to regulate and fracture a voluntary association then the gravest, constitutional and social concerns are raised.

Von Keetch, attorney for the Church quoted Alexis de Tocqueville in the Church’s brief. “The most natural right of man, after that of acting on his own, is that of combining his efforts with those of his fellows and acting together.” For a free people to be deprived of the right of voluntary association would be a great and deeply felt loss of liberty. Excessive government regulation of voluntary associations is a direct threat to a self-governing people. “A free and democratic polity depends on the right of voluntary associations to govern themselves-to decide what they believe and how they will advance those beliefs-free from governmental control.”

Thomas E. Baker, Director of the Constitutional Law Center at Drake University said, “Freedom of association logically presupposes a freedom not to associate. Individuals have a freedom to choose with whom to associate and with whom not to associate. Membership organizations afford groups of individuals the collective right to associate with fellow members on any variety of common interests and, at the same time, to disassociate themselves from nonmembers. This, in fact, is the whole point of forming a club or organization.

The Boy Scouts of America argue in brief, “Without First Amendment protection against intrusion of public accommodation laws into the voluntary sector, American society would be fundamentally transformed. A society in which each and every organization must be equally diverse is a society which has destroyed diversity.”

“Public interest in this case is high,” said Baker. “For many on both sides it represents the latest battleground in what Justice Antonin Scalia once called the Kulturkampf that is being waged over homosexual rights…We cannot limit BSA’s rights without limiting everyone’s rights.”

These issues were not lost on the Supreme Court justices. They asked Evan Wolfson, Dale’s attorney pointed questions during his argument. “Once there’s a ‘public accommodation’ the right of association is subordinated-somewhat secondary?” Justice Anthony M. Kennedy asked.

“What about a gay or lesbian group that didn’t want straight members?” Justice Sandra Day O’Connor offered.

“So a Catholic organization has to admit Jews A Jewish organization has to admit Catholics. That’s your view of constitutional law? Asked Justice Stephen G. Breyer, a former Eagle Scout.

Follow Me Boys
(Photo courtesy of Boy Scouts of America)

The Place of Religion in the Boy Scouts
The New Jersey Supreme Court did not understand the nature of Scouting said the brief representing the Church. “For the Supreme Court of New Jersey,” it reads, “Scouting is apparently little more than a recreational program for any interested youth, much like Little League.” Instead, “with the full involvement of churches and synagogues, Scouting in America was founded as a movement to teach and instill in boys particular moral precepts and character traits.”

From its origins the “Scouting movement in America has long declared the necessity of religion in character development and urged its practice. The “duty to God” requirement is part of the official constitution of Scouting. “Because of Scouting’s devotion to the spiritual element of character education, and its willingness to submerge itself in the religious traditions of its sponsors, America’s churches and synagogues enthusiastically embraced Scouting.

What’s more states the brief, “Scouting’s teachings on sexuality have always affirmed traditional Judeo-Christian morality, centering on the importance of a boy someday becoming a responsible and loving husband and father within the traditional family structure…

“Scouting trains boys not only to be successful in their chosen walk, but to choose the right path. The mission of Scouting is not to equip a boy to pursue all possible destinies, but to discipline his character for a better life of ennobling obligation.” In fact, this is so clear that the phrase, “He’s a real Boy Scout” has come to mean that a young man demonstrates certain moral qualities.

“Scouting’s program for character development is successful because it teaches morality and character not only through lessons, creeds, and activities, but also through the living examples of its adult leaders…In a very real sense the scout leader is not merely the messenger of Scouting-he is also the message….The success of the entire Scouting Movement depends on the criteria used for selecting adult leaders,” reads the brief.

The Future of Scouting
(Vivian Kosan Bagnall, Copyright 1999)

Outlook for the Future
“We are confident that the Supreme Court will rule in our favor,” said Greg Shields, spokesperson for the Boy Scouts of America. “We’ve been litigating this kind of battle for more than twenty years. We have had favorable rulings in California, Oregon, Connecticut, and Kansas. Many of the cases have been appealed to the Supreme Court, and in every case we have won, the Supreme Court has declined to review it. In the one case we lost, they decided to review. The merits of our case speaks for itself. If our right of freedom of speech and association is not defended, it is very serious for other private organizations.”

Shields is also not worried that the Church will withdraw. “Under Boy Scout policy, the chartering organizations select their leaders. That organization selects who and how long that leader serves. I am very confident that the Church would not be put in the position of having a homosexual leader forced upon them.

Despite the clamor over gay rights and the opposition the Boy Scouts has occasionally encountered, during the last twenty years the membership has grown tremendously. “We take that as a sign of support for the position the Boy Scouts have held,” said Shields. “We feel very strongly that an avowed homosexual is not a role model for the values that we hold. I would support his right to form an organization and have an opinion. We simply ask their respect for letting us hold our values and our opinions in our own way.”

A Boy Scout is obedient, and therefore, we will, of course, obey the law, but we are confident that this Supreme Court case will put an end to the litigations on this point that have plagued us for twenty years.”



2001 Meridian Magazine.  All Rights Reserved.