Why Enforced Protection of the Boy Scouts Was Actually Necessary

OK, one more on the Boy Scouts, and then I’m done . . . for a while at least.

My two First Looks on the Boys Scouts (here and here) led to a couple important questions that need answers.

#1: What was the Helms amendment?

The Helms amendment was passed in 2001, as part of the No Child Left Behind Act. The amendment protects equal access for the Boys Scouts of America (BSA) to public school facilities by prohibiting federal education funds from going to schools that discriminate against the BSA because of their exclusion of avowed homosexuals or because of their oath of allegiance to God and country.

#2: If the Supreme Court found that the BSA had constitutional protections for its membership policies, why the fight over the Helms amendment?

After the Boy Scouts of America v. Dale ruling by the Supreme Court in 2000, multiple, truculent, left-wing groups shifted their attacks. After they learned that their arguments for forced inclusion did not pass constitutional muster, they began pressuring public schools to deny meeting places for Boy Scout troops. Sadly, many schools across the nation which formerly allowed the Boy Scouts to meet after school hours caved in to those anti-First Amendment groups. Those actions are what prompted the Helms amendment.

Opponents of the amendment made several arguments against it. First, they said that it was unnecessary because discrimination against the Boy Scouts did not actually exist. The Congressional Research Service (CRS) showed otherwise. In a 2001 memorandum to Sen. Helms, the CRS reported that at least nine school districts had taken, or were considering, action to restrict Boy Scout access to public school facilities since the Supreme Court’s Dale ruling.

The prime example of that attitude and the need for the amendment was an action in Florida. The Broward County School Board voted to keep the BSA from using its public schools to hold meetings because of its “discrimination,” even though the local arm of the BSA had used Broward Country facilities for many years. Thankfully, a U.S. District Court Judge in Florida issued an injunction to block the county’s attempt to evict the Scouts. According to the federal judge in the case, the Broward Board’s decision was induced by the Scouts’ policy on homosexuals and the decision of the U.S. Supreme Court in the Dale case. Apparently the board was upset about the BSA’s “discrimination” and the Supreme Court’s decision that upheld the BSA’s right to “discriminate.”

The board had a very selective sense of discrimination. The Federal Court that enjoined the Board’s decision noted that the county did not take action against numerous “sororities, pom pom teams, and cheer-leading teams” that use Broward facilities but discriminate against boys. The school board did not kick out the Florida Youth Orchestra, which discriminates against the elderly, nor did it revoke the privileges of the Service Agency for Senior Citizens, which discriminates against the young. The board also left alone the Urban League, although the League “conducts programs for African-American children,” and it did not bother the Zeta Phi Beta sorority which conducts programs only for African-American girls. The reason for the denial of access was not about “discrimination” but about political incorrectness — and there is nothing that is more politically incorrect today than traditional morality, especially sexual morality.

Conservatives also pointed out to their liberal colleagues who refused to acknowledge the active campaign against the Boy Scouts that on May 21, 2001, the Gay, Lesbian and Straight Education Network — a homosexual activist organization — trumpeted on its website that “After launching a campaign last September [against the Boy Scouts], the Gay, Lesbian and Straight Education Network has tracked a total of 359 school districts which have severed sponsorships with the Scouts since the Supreme Court ruling last June.” Of course, Democrats knew that the campaign against the Boy Scouts was (and is) real; many of them witnessed one of its ugliest moments firsthand on August 17, 2000, at the Democratic National Convention in Los Angeles. That day, delegates at the convention loudly booed the Boy Scouts who were leading the convention in the Pledge of Allegiance. While it is true that not all Democrats were booing, and some even later said that they were bothered by it, no one did anything to stop it, and no consequences followed for anyone involved. It is a sad day in America when such blatant disregard for decency at such a major event can go without repudiation.

Liberals also argued that the Helms amendment was unnecessary because of the Supreme Court’s ruling in Good New Club v. Milford Central School, 2001 WL 636202 (No. 99-2036) which was issued on June 11, 2001. In that case, the Supreme Court struck down a public school’s refusal to allow a private Christian group to use school facilities during non-school hours on the same basis as nonreligious groups. The Milford Central School district was found to have violated the club’s First Amendment rights when it excluded the club from meeting after hours. The Court’s majority opinion rejected the reasoning that a government is justified in denying religious groups access to public facilities because permitting access could create the appearance that it endorsed the views of those groups. The Court noted that denying access could just as easily create the appearance of hostility as the appearance of neutrality.

Conservatives strongly agreed with that decision but did not agree with the liberal argument that it would stop further discrimination against the Boy Scouts. The Court said that discrimination based on the religious nature of a group is not allowed, but no consequences would have applied to any school that flouted the decision. Liberals actually expected the nation to believe that the hatred for the Boy Scouts subsided after — or because of — the Good News Club decision. Activist groups would have continued applying heavy pressure to schools to discriminate against the Boy Scouts, and schools, if no negative consequences had resulted from giving in to that pressure would have given in. The BSA needed the protection provided by the Helms amendment.

The Left also repeatedly raised the argument that the amendment would have been a slap at local control. Their basis was the claim that it would usurp the rights of States and localities that felt strongly that it is wrong to discriminate against homosexuals and wished to disallow the use of school facilities by groups such as the BSA. Again liberals ignored the BSA’s right to exclude homosexuals from membership, which was upheld by the Supreme Court under the protections of the First Amendment. And they failed to explain how such a federal enforcement of constitutional rights would be an imposition on state and local control. Did liberals really believe that municipal ordinances should trump basic constitutional rights? Those on the Left who made this argument, of course, were the same Leftists who have always been the most willing to run roughshod over states’ rights, as they’ve voted to expand the size and reach of the federal government just about every chance they have had. The Left is not concerned with federalism; it is concerned with imposing the homosexual agenda.

It is interesting that the argument on local control was made by the same liberals who argued that no discrimination against the Boy Scouts was occurring or could occur — two completely contradictory arguments. On the one hand, Democrats claimed that the Helms amendment was not necessary because the schools were not allowed to block usage by the BSA or similar groups, as ordered by the Supreme Court, but on the other hand, they cried that local schools should have been able to block the BSA without the federal government punishing them. The Left can’t have it both ways. Would schools continue to discriminate or not?

The final argument against the Helms amendment was that it would be wrong to prohibit federal funds from going to schools, even those that banned the BSA. Liberals failed — or refused — to understand the roots of the amendment: the Equal Access Act of 1984 which provides, “It shall be unlawful for any public secondary school which receives federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discrimination against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meeting.”

The Office of Civil Rights noted that most discrimination cases are settled, before fiscal penalties are enacted, at one of four stages: at the early complaint stage; during negotiations prior to a “letter of finding” by the Office of Civil Rights concerning a violation; shortly after such a finding; or at the administrative enforcement stage when the institution is given one last chance to comply with regulations. Therefore, it was evident that even with the Helms amendment few schools would have their funding eliminated, unless they adamantly refused to provide the Boy Scouts’ equal access. The amendment did not create a new law that is out of the ordinary, but provided enforcement of the Supreme Court ruling by require the use of an existing anti-discrimination law just as it is used in other discrimination cases.

Liberals tried to link the practices of the Boy Scouts to the racist practices of groups such as the Ku Klux Klan. They noted that the U.S. does not allow hate groups like the KKK to meet in our public schools, but to equate the Boy Scouts with the KKK, even by insinuation, was disgraceful and people saw right through it. The amendment, despite the cries of the Left, was not about picking on or abusing a minority. As Colin Powell once said: “Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.” The Left’s deflection of the BSA debate to minority rights avoided the moral and First Amendment arguments that have been decided by the Supreme Court.

What was really disappointing was that many of the liberals who stood in opposition to the Helms amendment and the rights of the Boy Scouts also stood on the Senate floor defending the right to immerse a Crucifix in urine and receive federal tax dollars to display it as art. Leftists love to fight to make the taxpayers pay for bigotry against religion but they cannot find it within themselves to protect the Boy Scouts from unconstitutional discrimination based on their moral beliefs. If the nation continues on this path of Leftist intolerance to morality, then the United States’ obituary will soon be written. It should be no wonder to anyone that we have problems in America. Who should be surprised when we hear of children shooting children or committing crimes or disrespecting authority?

The message that liberals have been sending our kids is that if anyone stands up for what he believes is morally and ethically right, then he will be ostracized. How bad do things need to get before we figure out that it is time for change?

(This First Look is adapted from a piece I wrote for the Senate Republican Policy Committee.)