All Boy Scouts Are Equal, But Some Scouts Are Just Not Welcome
The Boy Scouts of America (BSA) have been one of the nation’s most prominent youth groups in the United States since 1910. With over 110 million members since its founding and substantial support from respected institutions in the country, the BSA has enjoyed a great deal of success.
The scout’s success, however, has brought controversy as well. The Boy Scouts, which claim to focus on teaching moral values, have a long standing rule of banning homosexuals from joining, either as a scout or as an adult leader. The rule has been repeatedly challenged since the 1980’s, even going to the Federal Supreme Court at the beginning of the 21st century. The Rehnquist Court, in Boy Scouts of America v. Dale (2000), ruled that the BSA could keep its discriminatory rule.
This, however, was not the last word on the issue. Every year since the ruling, petitions from current and past members have urged the BSA to reconsider its stance on homosexuals. This month though, the BSA’s leadership announced that after a two-year review of the situation, it has unanimously decided to keep its long standing rule.
Opponents of the Boy Scout’s policy, argue that the rule is blatantly disrespectful and forces homosexual members in the closet, similar to the effect the militaries former “Don’t Ask Don’t Tell” policy did to its members. In the case of the BSA however, the effect is much more harmful as young boys may be confused about what they feel and what they are told. Moreover, this encourages young people to lie about who they are; a violation of the BSA’s code to be honest. The odd thing about the policy on homosexuals however, is that it isn’t expressly written. The BSA code only requires members to be “morally straight” and “clean”. As Justice Stevens pointed out in Dale, a ban on homosexuality among members of the BSA is only an interpretation, and an interpretation which doesn’t necessary follow from its written code.
The BSA, however, asserts that they have the right to make such rules. The state cannot force private organizations to change their rules, as that would be a violation of the First Amendment’s free speech and free assembly. The BSA, in contrast to the military, is a private organization, free from the government’s anti-discrimination policies. As the majority in the Dale case wrote, it doesn’t matter if individual members of the group disagree, the group’s official doctrine is the one which is binding. Although pro-gay rights groups may agree with Justice Steven’s dissent, that the Boy Scout’s code doesn’t match its behavior, it is not the place of the judiciary to interpret what the BSA’s code means. The Court can only interpret the law and the law is clear that membership in an organization is not a fundamental right the Court can protect.
Opponents will point out that the Boy Scouts are not a private organization. Until 2005, the BSA’s charters were often sponsored by military bases or public schools. Indeed, the Defense Department still hosts and spends $2 million worth of tax dollars to host BSA’s jamborees, a major annual event of the group. Congress has twice passed laws, Boy Scouts Equal Access Act of 2001 and Support Our Scouts in 2005, which require state and local governments to give the BSA access to government land and property if the state or local municipalities receive federal aid. The BSA is far from a private organization; on the contrary, it receives a huge amount of government support for its religious based rules.
Although the Boy Scouts receive sponsorship from several government entities, the BSA itself is not a religious group, as ruled by a federal court of appeals in Winkler v. Rumsfeld (2007). Since the BSA is not a religious group, there is no violation of the establishment clause, which bars any establishment of religion. Thus, governments are free to aid the scouts as the governments see fit.
The laws Congress passed ensure only that state and local governments provide equal access for the Boy Scouts. The laws are there to ensure that government doesn’t discriminate against the scouts and to ensure that they have the same rights to government support as the ACLU, Wal-Mart or any other group holding public events on public property. Although it is sad to see that the BSA will not change its membership stance, it is perhaps best that civil rights groups lobby the BSA’s leadership rather than head to the courts on this matter. Laws should reflect public sentiments and only in fundamental rights should laws constrain private behavior.
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