The Boy Scouts' Freedom Not To Associate

A First Look from last week prompted some questions as to what the rights of the Boy Scouts actually are with regard to membership and their decision not to allow avowed homosexuals to be members. For insight into this ongoing fight, here’s an adaptation of portions of a piece I wrote for the U.S. Senate Republican Policy Committee.

The Boy Scouts of America has been a valuable patriotic and morally instructive institution in our country for over 90 years. It started in England in the first decade of the 20th Century and came to America in 1910. In 1916, it was chartered by Congress “to promote the ability of boys to do things for themselves and others” and “to teach them patriotism, courage, self-reliance, and kindred values.” Ever since then the BSA has been universally revered as an honorable and moral institution.

That is, until recently. Certainly the organization is still respected by most Americans, but over the last few years the liberal media, Democratic politicians, and various left-wing special interest groups have waged war upon this venerable institution because it excludes avowed homosexuals and requires its members to pledge allegiance to God and country. The BSA has a constitutional right to association, and it has a constitutional right to express any views it desires, but it seems that many liberals think otherwise.

The attacks on the BSA’s constitutional rights have been made on two fronts. First, opponents of the BSA have fought, thankfully unsuccessfully, to force the organization into accepting avowed homosexuals as members and leaders. Second, they have fought to get governments to discriminate against the BSA by banning it from meeting in public facilities, particularly school facilities. This second deplorable tactic had some early successes as individual schools and districts succumbed to pressure and banned the Boy Scouts. In order to stop and prevent such discrimination, Congress passed the Helms amendment in 2001, as part of the No Child Left Behind Act. The amendment protects equal access for the Boys Scouts of America to public school facilities by prohibiting federal education funds from going to schools that discriminated against them because of their exclusion of avowed homosexuals or because of their oath of allegiance to God and country.

In 2000, the BSA was forced to defend before the Supreme Court its official policy on homosexuality and the Scout Oath (Boy Scouts of America v. Dale, 530 U.S. 640). The policy states: “The Boy Scouts of America has emphasized traditional family values since the inception of the movement. We believe avowed homosexuals do not provide a role model for Scouts that is consistent with the values of the Scout Oath and Law. Accordingly, the Boy Scouts of America does not accept avowed homosexuals as members or leaders.” In this case, James Dale, a former Eagle Scout, had filed discrimination charges against the BSA for the revocation of his adult membership when it learned that he was an avowed homosexual and homosexual rights activist.

In 1992, Mr. Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court, alleging that the BSA had violated a New Jersey statute which prohibited discrimination on the basis of homosexuality in places of public accommodation. The judgment of the Superior Court’s Chancery Division was in favor of the Boy Scouts, holding that New Jersey’s public accommodations law was inapplicable since the BSA was not a place of public accommodation, but was a distinctively private group exempted from coverage under the statute. The court also stated that the BSA’s position on active homosexuality was clear from the beginning and that the First Amendment freedom of expressive association prevented the government from forcing the BSA to accept Dale as an adult leader or member. However, the New Jersey Superior Court’s Appellate Division reversed and remanded the case, and the New Jersey Supreme Court then affirmed the judgment of the Appellate Division. Finally, the case went to the U.S. Supreme Court which disagreed with the findings of the Appellate Division and the New Jersey Supreme Court, reversed their decisions, and upheld the original decision of the New Jersey Superior Court’s Chancery Division.

In its ruling, the Supreme Court referenced Roberts v. United States Jaycees (468 U.S. 609, 622(1984)) in which it observed that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” The Supreme Court also noted that his associational right must be protected in order to prevent the majority from imposing its views on groups that would rather express other ideas, both popular and unpopular. There are several government actions which could violate this constitutional freedom, including interference with the internal workings of an association by forcing it to accept members it does not desire. The Court correctly found that “freedom of association . . . plainly presupposes a freedom not to associate.”

The next question before the Court was whether the BSA was a group that engaged in “expressive association.” It found that it was. The Scout Oath states: “On my honor I will do my best to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake, and morally straight.” Also, the Scout Law states: “A Scout is: trustworthy, obedient, loyal, cheerful, helpful, thrifty, friendly, brave, courteous, clean, kind, reverent.” As the Supreme Court conveyed in its decision, the values the BSA promotes and seeks to instill in its members are based on those listed in the Oath and Law, and the group consistently has declared that homosexuality is inconsistent with those stated values.

Though the Oath and Law do not mention sexuality specifically and the terms “morally straight” and “clean” are not self-defined, they are defined by the organizations that invoke them as a part of their moral or behavioral code. The Boy Scouts are entitled to believe, as do many people and organizations in this country, that homosexual conduct is at odds with being “morally straight” and “clean.”

The Court, because it found this “expressive association” to exist, was entirely correct in its ruling that the BSA could not be required to admit James Dale because it is not the courts’ role to reject various groups’ expressed values on the basis of disagreement with those values or the believe that the values are inconsistent. This finding is congruous with what the Supreme Court stated in its ruling in Democratic Party of United States v. Wisconsin ex rel. La Follette (450 U.S. 107, 124(1981)), “[A]s is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational” and in its ruling in Thomas v. Review Bd. of Indiana Employment Security Div. (450 U.S. 707, 714 (1981)), “[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection.”

This “expressive association” finding permits the Boy Scouts of America to oppose — whether in verbal or written values or exclusion from membership or leadership — homosexual conduct. A requirement from a State that the BSA allow Mr. Dale to remain in the organization and to hold a leadership position would significantly burden this right to oppose homosexuality. The presence of James Dale or any other avowed homosexual in the Boy Scouts would force the group to send a message that it accepts homosexual conduct as a legitimate form of behavior. Such forced membership would be the antithesis of associational freedom.