*QL*: Various articles about the Boy Scouts case
Legal Times, April 24, 2000
Washington, D.C.
( http://www.legaltimes.com )
Free to Be Us Alone
Everyone, Even Scouts, May Select Associates
By Matthew Berry
A little more than 30 years ago, a police raid on a popular New York City
gay bar, the Stonewall Inn, touched off demonstrations that marked the
beginning of the modern gay rights movement. And in the intervening years,
much progress has been made.
President Bill Clinton signed an executive order prohibiting the federal
government from discriminating in employment on the basis of sexual
orientation. Nearly 3,000 companies now offer health insurance benefits to
employees' same-sex partners. Openly gay Democrats and Republicans serve in
Congress, state legislatures, and mayoralties across the nation. The
depiction of positive gay role models in movies, such as "My Best Friend's
Wedding," and television shows, such as "Will & Grace," has become
commonplace.
And yet a culture war still rages over homosexuality. This week, the
battlefield shifts to the U.S. Supreme Court as it takes up the issue of
whether the Boy Scouts have the right to exclude openly gay individuals from
serving as Scoutmasters. Surprisingly, the interests of gays in Boy Scouts
of America v. Dale, No. 99-699, are not what they appear at first blush.
(Read the New Jersey Supreme Court ruling)
As unlike as the Stonewall disturbance and the current case may seem,
they involve the same important principle: freedom of association. In the
former instance, gays sought to congregate peaceably, free from government
harassment. In the latter, anti-gay individuals are also seeking the right
to associate free from government interference.
The state of New Jersey is seeking by law to compel the Scouts to accept
openly gay Scoutmasters. The group complains that doing so would undermine
its ability to transmit its moral views, which include disapproval of
homosexuality, to its young members. As much as gays may oppose the Scouts'
exclusionary policy, protecting the Scouts' freedom of association should be
of paramount importance to all Americans – and none more so than gay
Americans.
GROUP POWER
Throughout this nation's history, government has failed to respect the
right of gays to associate freely. Gay political organizations have been
monitored and harassed. Gay bars and nightclubs have been raided and closed,
while patrons were arrested on charges of disorderly conduct or vagrancy.
And gay student organizations at public universities have been denied
official recognition and funding on a discriminatory basis.
Fortunately, much of this misconduct has ceased, thanks to the Supreme
Court's strong freedom-of-association jurisprudence. Forty years ago, in
NAACP v. Alabama (1958), the Court concluded that government action "which
may have the effect of curtailing the freedom to associate is subject to the
closest scrutiny." The Court forcefully stated, "It is beyond debate that
freedom to engage in association for the advancement of beliefs and ideas is
an inseparable aspect of the 'liberty' assured" by the Constitution.
In that case, the Court specifically held that the state of Alabama could
not force the NAACP to disclose the identity of its members. The unanimous
opinion noted that compelled disclosure would discourage individuals from
affiliating with an organization and thus would restrain freedom of
association. Importantly for gays, the Court also made it clear that freedom
of association is not limited to a narrow range of activities, but rather
concluded that "it is immaterial whether the beliefs sought to be advanced by
association pertain to political, economic, religious or cultural matters."
In the 1950s and 1960s, numerous state courts applied this newly
invigorated freedom of association in vindicating the rights of gay bars and
nightclubs to operate. The same line of reasoning led to the end of both the
Internal Revenue Service's policy of denying tax-exempt status to
organizations promoting homosexuality and many states' practice of refusing
to allow gay groups to incorporate. And the principle set forth in NAACP v.
Alabama continues to protect gay Americans' privacy by squelching attempts to
compel discovery of gay groups' membership lists.
Fourteen years after NAACP v. Alabama, the Supreme Court struck another
important blow for freedom of association in a case involving Central
Connecticut State College. In Healy v. James (1972), the Court reversed a
lower court's ruling that the college's denial of official recognition to a
local Students for a Democratic Society chapter burdened no First Amendment
right. The Court explained that a public university may not abridge
students' associational freedom by denying a group the use of campus
facilities and bulletin boards merely because it disagrees with the group's
views.
Although not directly concerning gays, Healy also helped to expand
freedom for gay Americans. Following the Court's decision, numerous federal
circuit courts upheld students' rights to form recognized gay associations at
public universities, and the number of such organizations increased markedly.
DEADLY COMPROMISE
Although the freedom to associate has been invaluable to gays over the
years, many pro-gay leaders are now willing to sacrifice this principle in
the case of the Boy Scouts. Their perspective is a near-sighted one.
To be sure, some states, such as New Jersey, discourage discrimination
against gays. But others, such as Utah, have demonstrated a marked hostility
toward homosexuals. The most secure protection for gay Americans, therefore,
lies not in relying on the beneficence of lawmakers – state or federal – but
rather in the vigorous enforcement of the Bill of Rights.
If the Boy Scouts lose at the Supreme Court, the ability of private
associations to control the composition of their membership and their
leadership will significantly diminish. For the large number of groups that
seek to remain exclusively gay or gay-controlled, such a decision could sound
the death knell. Gay social clubs, professional organizations, Web sites,
and vacation retreats, for example, could all be put at risk.
Such threats are far from theoretical. Just a few years ago, an anti-gay
group in San Diego sued for the right to march in a Gay Pride parade. Led by
a former San Diego mayor, the group contended that the parade's refusal to
let anti-gay protesters participate violated the city's anti-discrimination
ordinance.
A state trial court rejected that claim, pointing to the U.S. Supreme
Court's decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston (1995), which upheld the First Amendment right of one set of
Irish-Americans to exclude gays from their St. Patrick's Day parade. A
defeat for the Boy Scouts now would badly undermine the rule of law
established in Hurley.
CHOSEN VIEWS
Certainly, courts have upheld the government's power to impose
restrictions on the ability of certain organizations to limit their
membership. In Roberts v. United States Jaycees (1984), for example, the
Supreme Court allowed the state of Minnesota to require the Jaycees to accept
female members.
In such cases, however, the Court has stressed that the membership
restrictions at issue did not affect the ability of the organization to
advance its chosen views. The Jaycees, for instance, made no claim that they
wished to exclude females in order to convey a specific belief about women's
proper role in society.
Here, by contrast, the Boy Scouts correctly contend that requiring them
to accept openly gay Scoutmasters would directly undermine the group's
ability to communicate its disapproval of homosexuality to young Scouts.
Currently, pro-gay students in Orange, Calif., are litigating for the
right to form a gay-straight student alliance at their public high school,
and a federal judge has already indicated that they will likely win under the
Equal Access Act. Ironically, that law was passed in 1984 at the behest of
religious conservatives seeking to protect the ability of religious clubs to
meet in public high schools. It was championed by none other than Ronald
Reagan. But the very same law, by prohibiting schools from interfering with
students' freedom of association, has facilitated the establishment of more
than 700 gay-straight alliances at public high schools.
A victory at the U.S. Supreme Court for the Boy Scouts and their
religious conservative supporters would similarly benefit gay Americans down
the road. The Court's precedent would almost certainly be applied in future
cases protecting the ability of gays to gather together free from harassment
and interference by the government.
For this reason, gays should defend the Boy Scouts' freedom to associate,
while at the same time using their own First Amendment rights to voice their
disagreement with the Scouts' anti-gay views.
• Matthew Berry is a staff attorney at the D.C.-based Institute for
Justice, which filed a U.S. Supreme Court brief setting forth this position
on behalf of Gays and Lesbians for Individual Liberty.
Legal Times, April 24, 2000
Open to All Boys?
Scouts Can't Discriminate Based on Status
By David Cole
Few entities are more sacred in mainstream American culture than the Boy
Scouts. The Scouts, by their own terms "open to all boys," have more than 5
million youth and adult members, and are an integral part of American
childhood. Yet this Wednesday, the Scouts will go to the Supreme Court to
fight for their right to shut out some boys.
Because, they claim, their creed holds that homosexuality is immoral, the
Scouts insist that they must be allowed to exclude gays from membership.
Their case, Boy Scouts of America v. Dale, No. 99-699, reveals a fundamental
tension between First Amendment rights and equality norms. In this instance,
equality should prevail, and the Scouts should remain "open to all boys."
The key to resolving the case lies not in whether being openly gay is
expressive (as the Boy Scouts have argued) or whether the Scouts truly
believe that homosexuality is immoral (as counsel for James Dale have
maintained), but rather in whether the New Jersey anti-discrimination statute
is targeted at conduct or expression.
Because New Jersey's law prohibits discriminatory conduct without regard
to its message, the Boy Scouts have no right to an exemption simply because
they seek to violate the law to express a point of view. Just as
anti-Vietnam War activists could not claim an exemption from Congress'
general prohibition on the destruction of draft cards, so the Scouts must
abide by New Jersey's general proscription against discrimination.
When the Boy Scouts expelled Dale at the age of 19 in 1990, they knew
that he had been an exemplary Scout for 12 years. They knew that he had been
admitted to the Order of the Arrow, reserved for "those Scout campers who
best exemplify the Scout Oath and Law in their daily lives." They knew that
he had become an Eagle Scout and then, at the Scouts' invitation, an
assistant Scoutmaster. They knew that he had taken or administered the Scout
Oath on thousands of occasions and had committed himself to the Scouts'
Declaration of Religious Principle. They also knew that he was gay.
It was on the basis of the last fact alone – gleaned from a news article
that identified Dale as a leader of a gay student group at Rutgers University
– that the Boy Scouts expelled him. As they explained in a contemporaneous
letter, the Boy Scouts "specifically forbid membership to homosexuals."
New Jersey law, however, specifically forbids "public accommodations"
from discriminating on the basis of sexual orientation, so Dale sued the
Scouts. Last year, the New Jersey Supreme Court ruled unanimously in Dale's
favor.
SPEAKING FOR US
In the U.S. Supreme Court, the Scouts maintain that compelling them to
accept gay leaders – i.e., gay assistant Scoutmasters – violates their First
Amendment rights. The Scouts argue that they speak through their leaders,
and therefore to control who their leaders are is to control their speech.
The Scouts' ability to express their belief that homosexuality is immoral
would be undermined, they maintain, if the state can require them to tolerate
leaders who, by their very lifestyle, contradict scouting's message. And
they argue that if freedom of association means anything, it must protect a
private organization's right to limit its leaders and members to those who
reflect its values and beliefs.
The Scouts' argument identifies an inescapable tension between the First
Amendment association right and anti-discrimination laws. The right to
associate necessarily includes the right not to associate, just as the right
to speak includes the right not to speak. For the state to dictate
membership criteria for private voluntary organizations is to infringe
directly on the right not to associate, and might well undermine the
independent checking function that voluntary associations play in American
life. Moreover, freedom of speech requires that the state not be permitted
to dictate the messages that private groups may or may not express.
But the right not to associate, if unchecked, would eviscerate principles
of nondiscrimination. All prohibitions on segregation, for example, intrude
on the right not to associate. So do prohibitions on sex and race
discrimination in employment. Yet the Supreme Court has long upheld the
constitutionality of applying nondiscrimination laws to many aspects of
private life, from workplaces to private schools to restaurants and hotels.
TORN BETWEEN RIGHTS
The Court has sought to mediate this tension between equality and the
right of association by drawing a bright line between laws that prohibit
discrimination based on a person's status, which it has consistently upheld
against First Amendment challenges, and laws that limit private groups'
ability to discriminate based on a person's speech or views, which the Court
has consistently said are unconstitutional.
In 1976, for example, the Court rejected a right-of-association objection
to a federal law that barred race-based discrimination, even where the
defendant was, like the Boy Scouts, a private entity engaged in morals
inculcation. In Runyon v. McCrary, private schools maintained that the
practice of excluding African-American students was constitutionally
protected by the right of association and the parents' right to direct the
education of their children.
The Runyon Court acknowledged that private schools and parents may be
deeply committed to teaching the propriety of racial segregation, but
rejected the argument that the schools' right to practice segregation was
protected: "[I]t may be assumed that parents have a First Amendment right to
send their children to educational institutions that promote the belief that
racial segregation is desirable, and that the children have an equal right to
attend such institutions. But it does not follow that the practice of
excluding racial minorities from such institutions is also protected by the
same principle."
On the other hand, the Supreme Court has repeatedly said that the First
Amendment prohibits laws that restrict an "organization's ability to exclude
individuals with ideologies or philosophies different from those of its
existing members." In Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston (1995), the Court held that the First Amendment protected the
right of a private St. Patrick's Day parade organizer to exclude a gay
marching contingent where the exclusion was based not on the marchers' gay
identity, but on their desire to express a message in the parade contrary to
that of the parade organizer's.
This bright line between identity-based and speech-based discrimination
accords with the Court's general approach to government regulation of conduct
that incidentally infringes First Amendment rights. Virtually all conduct is
potentially expressive, but the law does not recognize an exemption from
generally applicable rules simply because one wants to violate the rules to
make a point. It is no defense to murder of the president to argue that one
sought to express a message of protest by doing so. Similarly, it is no
defense to a law criminalizing peyote use to argue that one's religious
tenets compel one to break the law.
For the same reason, it ought not to be a defense to New Jersey's
generally applicable prohibition on sexual orientation discrimination to say,
as the Boy Scouts do, that they want to discriminate in order to express a
point of view. They are free to express that point of view in many ways, but
not to engage in the conduct of discrimination.
If the Supreme Court stays true to the line it has drawn, it should
uphold New Jersey's anti-discrimination law. That law does not require the
Scouts to say anything that they do not want to say and does not bar them
from excluding anyone who expresses a view contrary to the Scouts' own. All
it proscribes is the practice of status-based discrimination.
A LESSER VIEW
The Scouts object that the law will indirectly undermine their ability to
express the view that homosexuality is immoral. But their own practices
undermine the force of that objection.
The Scouts do not require members or leaders to agree with the Scouts'
view on homosexuality. They do not themselves express the view that
homosexuality is immoral in any Boy Scouts literature provided to members,
leaders, or the public. Heterosexual troop leaders and an entire troop have
publicly stated that they believe homosexuality is moral, and the Scouts have
done nothing to expel them.
Thus, the Scouts have not even taken advantage of the constitutionally
protected opportunities they have to express their anti-gay message directly.
In light of these facts, their argument that merely being required to comply
with a nondiscrimination law will undermine their expressive rights is
disingenuous.
But again the critical question is not whether the Boy Scouts want to
express an opinion by excluding James Dale. It is whether New Jersey's
generally applicable ban on sexual orientation discrimination is related to
the suppression of expression. It is not. New Jersey prohibits
discrimination irrespective of its message, and the Boy Scouts have no right
to opt out simply because they want to send an anti-gay message.
• David Cole is a professor at Georgetown University Law Center and a
volunteer staff attorney with the Center for Constitutional Rights. "Strict
Scrutiny" appears every other month in Legal Times. Cole and Brooklyn Law
Professor Nan Hunter wrote an amicus brief for the Society of American Law
Teachers in support of James Dale.
National Review, April 26, 2000
( http://www.nationalreview.com )
It's About Freedom
For Boy Scouts, gays, and everyone else.
By Matthew Berry, attorney, Institute for Justice
This morning, the U.S. Supreme Court was ground zero in the culture war,
as the Justices considered whether the Boy Scouts of America has the First
Amendment right to exclude openly gay Scoutmasters. Under review was the New
Jersey Supreme Court's ruling that the Scouts' freedom of association does
not trump the state's law forbidding discrimination in public accommodations
on the basis of sexual orientation.
As one would expect, combatants on both sides of the Kulturkampf showed
up to witness the battle. Outside the Court, for example, was a slightly
deranged-looking man, holding a giant cross and shouting, "Homosexuals can't
be morally straight. End of case." Presumably also supporting the Scouts'
position, albeit in a less vocal manner, were an unusually large number of
boys for a U.S. Supreme Court oral argument.
On the other side, the spectator section was also filled with many more
gay individuals than I have seen previously at the Court's proceedings. How,
might you ask, could I tell this? Well, I've received lessons from John
McCain.
Moving to the substance of the argument, the Scouts' lawyer George
Davidson was up first. He explained that the purpose of Scouting is to shape
boys' moral values and that the Scouts believe homosexual conduct to be
inconsistent with the requirements contained in the Scout Oath and Law that
Scouts be "morally straight" and "clean." New Jersey's mandate that the
Scouts accept openly gay Scoutmasters, Davidson contended, would therefore
directly undermine the ability of the Scouts to transmit their values to
members, and thus infringed their freedom of expressive association.
Davidson was mainly grilled by Justices confused by the actual nature of
the policy under attack. For example, can a celibate homosexual be a
Scoutmaster? If not, how does he undermine the Scouts' message? Or, what
about a heterosexual who openly proclaims his belief that homosexual conduct
is consistent with a Scout's pledge to be "morally straight"? Wouldn't such
a person also undermine the Scouts' message?
For the most part, Davidson skillfully parried these inquiries. While
the Scouts' policy is admittedly somewhat vague with respect to how it should
be applied in various instances, Davidson repeated the Scouts' central
argument: it is the right of the Scouts, and not the government, to
determine both how to interpret and how to enforce its longstanding moral
principle that Scouts must be "morally straight."
Countering Davidson was Evan Wolfson, representing James Dale, the
assistant Scoutmaster excluded from Scouting when he revealed in a local
newspaper that he was gay and president of a gay students group at Rutgers
University. Wolfson had a rough time of it from the beginning.
The Justices wanted to know the ramifications for future cases should
Dale prevail. Does a private gay and lesbian organization have the right to
exclude heterosexuals? Shockingly, Wolfson, a "gay rights" advocate,
proclaimed that gays could not maintain exclusively gay organizations if the
government wished to prohibit this. Were I a member of a gay group in Utah,
I would not be comforted. Chief Justice Rehnquist then asked if a Jewish
organization had the right to exclude non-Jews? Wolfson demurred, arguing
that an organization could only remain exclusively Jewish if doing so were
necessary to voicing a specific expressive message. This, it would seem,
would prove to be a tough task for, say, Hadassah: What's their "message"?
Needless to say, Wolfson's position did not seem to sit well with the
Court. His central contention, which he repeated ad nauseam, was that the
Scouts are somehow insincere in maintaining that homosexual conduct is
inconsistent with the organization's moral message. He doggedly argued that
this is either not really the Scouts' position, or at least is not one of
their important positions (which raises the question, why are the Scouts
spending a large amount of time and money litigating this case?).
Justice Kennedy, however, crystallized the key issue when he asked
Wolfson, "Who is in the best position to determine the content of the Boy
Scouts' moral message? The Boy Scouts or the New Jersey Supreme Court?"
Although one can never be sure of how a case will be decided on the basis
of oral argument, my bet is that the Court's answer to Justice Kennedy's
question will be the Boy Scouts, and this result will enhance the freedom of
every American, regardless of his or her sexual orientation.
National Review, April 26, 2000
Gay Rights vs. Everyone's Rights
A law professor's view
By Thomas E. Baker, Director of the Constitutional Law Center, Drake U.
Does the Constitution permit a state to require the appointment of a gay
Scout leader who claims his dismissal was discrimination? That is the narrow
question that faces the Supreme Court today in Boy Scouts of America v. Dale.
But I do not expect the Justices to see it that narrowly. I think it is a
good thing for everyone, including gay and lesbian Americans, that the
Justices are more likely to decide this case based on the broader principle
of freedom of association.
The Court's decision will have a lot to say about how state public-
accommodation laws – New Jersey's statute forbids discrimination on the basis
of race, creed, color, national origin, ancestry, marital status, sex,
affectional or sexual orientation, or nationality – should be applied under
the Constitution to private organizations, which often consist of members of
a single sex, ethnicity, or religion.
James Dale was, by all measure, an exemplary Boy Scout. He was admitted
to the Order of the Arrow, and earned the highest rank of Eagle Scout. He
served as an Assistant Scoutmaster for about sixteen months. Around the same
time, Dale went off to college at Rutgers University, where he came out; 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 homosexual conduct is inconsistent with the Scout Oath to be "morally
straight" – no pun intended – and contrary to the Scout Law to be "clean" in
word and deed. Dale disagreed and sued. The Supreme Court of New Jersey
ordered that he be reappointed.
The First Amendment does not mention the "right of association" in so
many words, but the Supreme Court has long interpolated the right to
associate with other individuals as being a necessary corollary of the rights
that are mentioned in the text. Think about it: The freedom of speech
requires a speaker and an audience; a free press requires a publisher and a
reader; petitioning government usually is a group activity of gathering
signatures or protesting and the like; free exercise of religion often takes
place within a community. The right of assembly would not make any sense as
an individual right without the participation of others.
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.
BSA argues that Scouting is an intimate association and that appointing
adult Scout leaders is an integral part of Scouting's fundamental expression
as an association. BSA insists that having a gay man serving as an adult
leader is inimical to the basic values that Scouting stands for and seeks to
instill in its members.
There is a fundamental constitutional value to preserve an inviolate
private sphere of ideation and individual autonomy free from governmental
intrusion or regulation. "Without First Amendment protection against
intrusion of public accommodation laws into the voluntary sector," BSA argues
in its brief, "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. 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.
But this case is better understood as a freedom of association case, not
a gay-rights case. It triggers the same profound concern for the right of
association of all Americans that so-called hate speech prohibitions raise
for everyone's freedom of speech. The First Amendment forbids the government
to choose sides. We cannot limit BSA's rights without limiting everyone's
rights.
The Supreme Court should pay heed to the amicus curiae brief filed on
behalf of "Gays and Lesbians for Individual Liberty" on the side of the BSA
and against Dale: "GLIL strongly disapproves of the BSA's moral views with
respect to homosexuality and wishes the organization would voluntarily end
its policy of excluding gays from serving as Scoutmasters. Nevertheless, the
First Amendment protects the freedom of the BSA to maintain this misguided
policy if it so desires. To deny the BSA's right to express its moral views
through its decisions to associate with or exclude certain people endangers
the rights of all Americans, including gay Americans."
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