when pigs fly … expect the unbelievable

Archive for May 19th, 2009

At the outset, let me say:  “Whew, and thank goodness for Roberts v. Jaycees (1984).”  Roberts is the case that the Jaycees, an expressive association, would not undermine their mission of development of contribution to community service and skill in business association, if they had to admit women.  And voile!

It seems to me that the Boy Scout case is quite similar.  Dale was a college student who had been a Boy Scout since he was 12 years old.  Now in college, he sought to be a Scoutmaster.  The Boy Scouts welcomed him with open arms — until he came out of the closet and this was covered in a newspaper article.  The Boy Scouts said that they simply couldn’t have a Scoutmaster who was a homosexual.

Now, the Boy Scouts are a private organization, but because they are very accepting in membership, they are subject to a New Jersey (this all happened in New Jersey) law which prohibits discrimination on the basis of sexual orientation (among other things) by organizations such as the Boy Scouts.  So Dale sued the Boy Scouts.  Looks simple doesn’t it?  But it’s not.  The Boy Scouts countered that open-door associations such as themselves do have a right to limit membership, particularly if the association is an “expressive association.”  The Boy Scouts said that they were an expressive association which sought to transfer faith-based values, such as those contained in the Scout Oath and Scout Law, and that the tenets of the Scouts value being “morally straight” and “clean” and that having a Scoutleader who is homosexual is not consistent with the values of the association.

The Boy Scouts won at the New Jersey trial court level; Dale won in the New Jersey Supreme Court.  The Boy Scouts appealed to the United States Supreme Court, which brings us to Boy Scouts of America v. Dale.  At the Supreme Court of the U.S., the Boy Scouts won, even though the association admitted that (1) none of its values mentioned, much less promoted, sexual orientation in any fashion, (2) it had no evidence that a homosexual Scoutmaster in general or this one [Dale] in particular would interfere with the teachings of the Scout Oath and Scout Law, and that (3) the strength of its case depended on the BSA’s opinion, as an association, that being homosexual was inconsistent with morality.

Chief Justice Rehnquist, in ruling in favor of the BSA, said that while the Court was not endorsing the veiw [that being homosexual was inconsistent with morality], as an expressive association, the BSA could not be compelled to accept a homosexual Scoutmaster if it perceived that such an act would compromise the message that the BSA wanted to send to its membership.  In other words, the first amendment’s guarantee of freedom of association [and the freedom not to associate] trumps the New Jersey law which prohibits discrimination based on sexual orientation, even in an open-door association, if the association is also an expressive association.  Got that?

Far be it from me to say that Chief Justice Rehnquist and the other 4 guys he got to vote with him were wrong here.  I don’t think I know much about the Scouts except that they are supposed to “be prepared”.  But my concern with Boy Scouts of America v. Dale is similar to Trachtman’s.  It seems to me that to be legally allowed to violate a law which prohibits discrimination of a protected group, the folks wanting to violate the law should have more evidence than just a position — a belief that homosexuality equals immorality.  Just a position and nothing more.

So what does this mean for women?  Well, it wasn’t long ago that folks like a group of Jaycees could have argued that women (1) are not civic minded, (2) should not be in the business world, (3) have obligations of home and hearth, and (4) would upset the entire scheme of American culture were they allowed to become members of a heretofore male civic organization.  I am not sure that would have flown as an argument in ’84; it surely would have in ’54!

Do you see how tenuous this right of women to associate in open-door groups has become as a result of Boy Scouts of America v. Dale?  That’s why I say that this case makes the top 5 of Trachtman’s 34 for the purposes of the WPF blog.

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