Ari Ezra Waldman | Boy Scouts | James Dale | Law - Gay, LGBT | Supreme Court

The Boy Scouts Made It Worse


The headline, "Boy Scouts Move to Allow Gay Members," read with such promise. Including gays in the Boy Scouts has been a goal of our community for decades, most notably since James Dale challenged the Scouts' discriminatory policies in the 1990s. A sharply divided Supreme Court rejected Mr. Dale's challenge, but more recently, an avalanche of factors -- demographic shifts; concerted activism from Boy Scouts themselves and their families; rapid change in the acceptance of gays and marriage equality; and, strong pro-equality support from President Obama, his Democratic allies, and even some Republicans, to name just a few -- has forced the Boy Scouts to reconsider its exclusionary policies. Last week, the Scouts did change its policy... for the worse.

Bsa"No youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone," say the Scouts. This change comes after reminding us that "youth are still developing, learning about themselves and who they are, developing their sense of right and wrong, and understanding their duty to God to live a moral life." The youth proviso means that gay kids are ok, but gay men cannot serve in any leadership positions. So, if you stick around the Scouts for long enough and refuse to "understand [your] duty to God to live a moral life," i.e., stop being gay, you're out of the Scouts. 

Allowing gay scouts seems like a step forward. But the exclusive focus on gay youth proves that this "step forward" is anything but a good thing. In fact, it's the worst possible result and shows the Scouts' true anti-gay colors. Gay kids are being let into the Boy Scouts not because the Scouts recognize the inherent equality of all American youth, but rather to more directly implement the organization's anti-gay dogma. This begs the question: Is the new Boy Scout policy both unjust and unconstitutional? The Scouts' policy was always unconstitutional, despite what the Supreme Court has said. Let's discuss why.

Continued, AFTER THE JUMP...

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The more we parse the Boy Scouts' policy, the worse it gets. And it proves the unconstitutionality of the kind of discrimination the Boy Scouts have been engaging in for years.

The Scouts have long argued that the virtues and purposes of scouting are building leadership skills and camaraderie, teaching independence and civil responsibility, and molding young men into active and participatory citizens. These goals were at the center of the Boy Scouts' argument before the Supreme Court, where they argued that they should retain the right to determine their own membership policies in accordance with their goals.

Those of us who were, or know people who were scouts, don't deny that scouting can offer young men extraordinary benefits. That's why so many pro-equality scouts are challenging the Scouts: they loved their scouting experience so much that they want to ensure the organization's survival and bring it in line with modern notions of liberty and equality.

DaleBut for all the good the Boy Scouts can accomplish, the organization's distaste for homosexuality is well known. Its bylaws and spokespersons have long held that being gay is "contrary to the Boy Scout mission" or that homosexuality is "contrary to the goal of building young men into moral citizens." Being gay is, therefore, anathematic to the Boy Scouts. The Scouts' basic argument against Mr. Dale at the Supreme Court proved as much. They argued that they have the right to determine their goals and purposes and have the attendant right to exclude activities and people that conflict with those goals and purposes. Allowing gay scout leaders would interfere with their right and ability to express disapproval of homosexuality. The Supreme Court refused to assess the legitimacy of the Scouts' avowed anti-gay goal, instead deciding that forcing inclusion of a gay scout leader would impermissibly burden the Scouts' right to determine the nature of its expressions.

The remarkable thing about the case is that Mr. Dale and his allies in dissent argued that a gay scout leader should not be incompatible with scouting because the Scouts are really about all that other good stuff: education, citizenship, independence, and so on. Disapproval of homosexuality was not a core part of the Scouts' purpose, they argued. To preserve their right to discriminate, the Scouts argued the exact opposite -- that, above all else, anti-homosexuality was central to scouting and, therefore, including Mr. Dale would damage their message. As a result of Dale, then, the law recognized the Scouts not as a patriotic, character building organization; rather, as a matter of law, the Boy Scouts is an anti-gay organization.

So, Dale said that the constitution will protect your organization if you're based on anti-gay hatred. For now, let's set aside how counter-intuitive it is to say that the more you hate, the easier it is going to be to violate our public accommodation laws.

The new policy reinforces the Scouts' anti-gay identity.

The Boy Scouts plan to include gay youth not because they accept their sexuality, but because they see it as something to train out of them. As children, young scouts are "still developing, learning about themselves," implying that their professed sexual orientation is, at a minimum, a passing phase. When they join the Scouts, they are still developing "a sense of right and wrong," suggesting that they don't yet know that, in the Scouts' worldview, heterosexuality is right and homosexuality is wrong. They don't yet understand their "duty to God," which requires they dump how God made them and adopt a persona the Scouts happen to think is better.

TyrrellThe Boy Scouts' refusal to permit gay scout leaders is only the strongest evidence of this pernicious motive behind policy reform. The ban on gay scout leaders does more evil than simply denying young gay scouts good role models. It reinforces the Scout message that homosexuality is wrong: The Scouts are saying that, as a child, you don't know who or what you are, so we will help you find yourself; as an adult, your choice to be gay, in violation of morality and God, makes you a negative influence on children.

If the Scouts really believed in accepting American youth as God made them, they would have to allow gay scout leaders. Training, teaching, and building character are important; straight and gay kids can benefit from that kind of education. But the Scouts also teach that being gay is wrong. They believe that the only valid way to conclude the youthful period of discovery and learned is to conclude that you're not gay. Gay scout leaders, as testaments to the fact that morality, esteem, and homosexuality are not incompatible, give scouting youth another option: be who you are. And that the Boy Scouts cannot abide.

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  1. The Boy Scouts are not, in any coherent world, a public accommodation. They are a private organization, protected by the First Amendment guarantee of Freedom of Association. Even people who hate are allowed to associate as they wish (so long as they do not as some facet of their association threaten the public peace). Constitutional rights cannot adhere only to groups with which we agree.

    Posted by: NotA | Apr 25, 2013 1:47:43 PM

  2. Have to agree with NotA. It's really stretch to call the BSA a public accommodation. As noxious as their policy is, they have the right to espouse it. In response, we have the right to shame the BSA leadership, to argue that their government funding should be stripped in jurisdictions where it conflicts with non-discrimination statutes, to persuade commercial sponsors that affiliation with the BSA is bad for business, etc. What's sauce for the goose is sauce for the gay gander.

    Posted by: plinx | Apr 25, 2013 1:58:05 PM

  3. They have a right to manage their own affairs and it is protected under the constitution. Ironically, an organization with such a great historical heritage does not understand history. Change is rarely sweeping and big, it often happens in small steps. Give it time, but don't give up or loose heart.

    Posted by: Rees Cramer | Apr 25, 2013 2:01:32 PM

  4. The BSA hasn't changed its policy yet. Last week, it announced it would send this proposal to its voting body to decide on in May. This could change again before its voted on. For now, the policy remains intact: no gay scouts or scout leaders.

    Posted by: Doug | Apr 25, 2013 2:13:30 PM

  5. "Allowing gay scout leaders would interfere with their right and ability to express disapproval of homosexuality."

    This stance for the Boy Scouts has not changed. Simple solution as has been said continue to boycott companies that support the scouts...certainly do not allow a young man who may be gay to join so they can be bullied and or brainwashed. I was a scout and it was an awful experience for me. I was picked on and Bullied and when I tired to stand up for myself i was admonished.

    SIMPLY DONT JOIN there are better organizations more open and affirming.

    Posted by: Rev. Joseph Shore-Goss | Apr 25, 2013 2:17:15 PM

  6. What exactly is a "moral life" and who gets to define it?

    Interesting that the church, the source of more immoral activity in the history of man is held up as the barometer and approver of everyone elses morality.

    Frightening that so many people still turn a blind eye to their crimes, blaming a few in the lower reaches, perhaps... if we're lucky... No organization can be as corrupt and immoral as the church without approval from the top.

    People have been making snide remarks about priests and altar boys for generations - with good reason, but it's the average run-of-the-mill gay person that just wants a shot at a normal life that is loathed and vilified.

    When is the last time a priest was assaulted for raping a child? Gay men are assaulted regularly simply for holding hands with another adult male.

    More child molestation happens in the church than outside it, and people still can't bring themselves to hold these men (and they're ALL MEN) accountable for their crimes.

    Perhaps it's time for an alternative to the BSA that just teaches these boys what it means to be human - morality be damned...

    Posted by: MikeInSanJose | Apr 25, 2013 2:17:40 PM

  7. Good commentary Ezra.

    Is anyone else bothered by, of course among other things, the use of the word 'alone'? To me it implies that it could still be considered as a reason to deny membership in conjunction with other "disqualifiers" for lack of a better term.

    Posted by: kirkyo | Apr 25, 2013 2:37:30 PM

  8. This whole thing may be a red herring designed to test the waters of opinion and see if the Scouts can save some shred of their discrimination policy. It ain't May yet. Now's the time to let them know. The Southern Baptists have already weighed in. Now it's time for companies and other financial sponsors to let it be known that they expect more from the scouts than what's being offered now.

    Posted by: Burt | Apr 25, 2013 2:40:25 PM

  9. "The Scouts' policy was always unconstitutional, despite what the Supreme Court has said."

    I love Ari's analysis generally, but do think this is an inaccurate simplificaiton. The BSA is not a state actor, so its actions are unquestonably NOT in violation of the Equal Protection clause (even though they are against the spirit), and whether the BSA's policies were constitutional was never an issue. Rather, the claim was based on the BSA violating New Jersey's public accomodations statute. The constitutionality question was whether that state statute, as applied to the BSA, constitutetd a state action that impermissibly infringed on the BSA's right to exercise its free speech rights. This was by no means a clean-cut question.

    In fact, the argument that the first amendment protects private associations against state statutes that would purport to restrict the behavior of such associations was exactly the argument made in the FAIR v. Rumsfeld case by law schools who refused to allow the pre-DADT-repeal military to recruit on law school campuses because the military's hiring policy was in violation of the law schools' nondiscrimination policies. Ironically, the exact same argument that the Supreme Court used to strike the application of New Jersey's statute was rejected by the Court when it upheld the government's arguments in the FAIR case, forcing law schools to allow military recruiters on their campuses.

    Posted by: Fredo | Apr 25, 2013 3:19:12 PM

  10. I bet they wouldn't receive so much attention if they weren't called "The Boy Scouts." If the name were changed to "The Gay Scouts" no straight boys would want to join.

    Posted by: GE | Apr 25, 2013 3:53:29 PM

  11. Take another road. Navigators USA is another group that can guide young people without the anti-gay and religious dogma. Help them grow and give people a choice to leave the BSA. It seems too much to change the BSA into accepting some main stream ideas. They may become a dinosaur if they can't keep up.

    Posted by: Jeff | Apr 25, 2013 3:57:09 PM

  12. "The Boy Scouts are not, in any coherent world, a public accommodation."

    Then take away their Congressional Charter, remove the President as an honorary executive of the organization, and make them pay market value for all the special access then get to federal, state, and local property.

    Posted by: BobN | Apr 25, 2013 4:20:53 PM

  13. The BS is simply not a public accommodation any more than Augusta National is a public accommodation. Though the BS are hideous, and your point about them promulgating their hatred of gay men, and putting it at the fore in Dale, is well taken. They have right to hate us, as a private membership org, and they have the to bear the condemnation and dwindling fortunes that go along with their stance.

    Posted by: Chris Gable | Apr 25, 2013 4:23:26 PM

  14. @BobN
    Good points, but maybe it's up to the President to resign the honorary role. IIRC, Eleanor Roosevelt did that with the DAR in 1939.
    As for the Congressional Charter, now that a group from the House has intervened to protect DOMA, can't another group from the House ask the courts to revoke BSA's charter on grounds that it violates the First Amendment (with respect to atheists)?

    Posted by: Rich | Apr 25, 2013 4:41:50 PM

  15. Although I do not like the BSA's ban at all, I'm not sure that the government can do anything about the ban since the BSA is a private organization. However, that does not mean that people can't join the Navigators USA instead of the BSA, decide to not buy from companies sponsoring the BSA, or continue to protest the private organization can hold out against citizens' actions forever...

    Posted by: | Apr 25, 2013 4:43:07 PM

  16. Why don't we create our own "Boyscouts?"

    Posted by: GE | Apr 25, 2013 4:48:01 PM

  17. Why don't we create our own "Boyscouts?"

    Posted by: GE | Apr 25, 2013 4:48:02 PM

  18. As usual, most of you, including Ezra, simply don't "get it" because you are too enveloped by "gay ideology" to have a real-world understanding of why such actions are taken.

    First of all, getting comfortable with homosexuality is a PROCESS for all people. You cannot expect everybody to totally discard every element of homophobia all at once. It just doesn't work that way. Attitudinal change takes time, it require experimentation, and it requires patience.

    A better way to view this is that, IF the new policy proves successful, THEN they will eventually feel more comfortable with having gay Scout leaders.

    That said, I have to tell you that, until gay men embrace the masculine values that are the norm for males in this society--and that the Boy Scouts (and all other all-male organizations teach and encourage)....and until they stop lobbying for acceptance of "gender-non-conformity".....then straight parents are not ever going to be comfortable having gay men act as role models for their sons, NOR SHOULD THEY.

    If gay men want to be part of mainstream organizations as leaders, they must reflect the values and decorum of such organizations.....and if they refuse to, then they have no business being leaders within it.

    And that applies to the Boy Scouts just as it will apply to any sports team or other all-male activity.....and always will.

    Posted by: Rick | Apr 25, 2013 5:37:45 PM

  19. The new policy, if adopted, puts the BSA in an untenable position. A gay younster will be able to recieve an Eagle Scout award but, once he becomes an adult, he cannot lead younger scouts. How can the BSA rationalize that? One of it's own Eagle Scouts cannot lead a troop? Will there be two levels of Eagle Scouts: the worthy and and un-worthy? Based on sexual orientation alone? Try to defend that in court. Good luck.

    Posted by: Bobo | Apr 25, 2013 7:00:58 PM

  20. The BSA is a private club and should be allowed to discriminated on membership based on whatever grounds it chooses. They were before the Supreme Court about this and I'm not sure why they're going through all this now. It should be a closed case.

    Posted by: XoMoDe | Apr 25, 2013 9:07:01 PM

  21. It is within the BSA's rights to continue to deny membership to gays. Just as it is completely within the rights of the gay community to continue to protest their policies and lobby the companies which fund them to stop doing so.

    So stop yammering on about the BSA's RIGHTS for Christ's sake! They aren't the only f*cking ones around here with rights, capiche?! So stand up for yourself or at LEAST quit defending THEIR rights over your own! Jesus.

    It's true that this possible compromise position is offensive. The BSA is oh so magnanimously "allowing" the boys who have been with them since childhood to remain in their precious organization even when it turns out that they are gay, something that was part of them since birth according to most reputable scientific research. How very big of them. But it's a step. In the parlance of the deal, the BSA "blinked" for the first time ever. They're losing and they know it, even though nothing may change in the immediate future.

    Personally I'd rather see another similar organization move in to take up the slack from the BSA and their incessant God-bothering and the future eternal, infernal wrangling with the Mormons and Catholics who actually run the d@mn thing, something more modern and far less twee. But maybe that's just me.

    Posted by: Caliban | Apr 25, 2013 10:18:19 PM

  22. Hit them where it always hurts... TAXES!

    Posted by: Jim Brown | Apr 26, 2013 12:09:08 AM

  23. The Boy Scouts will go down the drain of history along with another previously much-admired group with historic ties, The Daughters of the American Revolution (DAR), who were on the wrong side of another issue, racism.

    Posted by: Evji108 | Apr 26, 2013 11:59:41 AM

  24. ~ Rick: "That said, I have to tell you that, until gay men embrace the masculine values that are the norm for males in this society--and that the Boy Scouts (and all other all-male organizations teach and encourage)....and until they stop lobbying for acceptance of "gender-non-conformity".....then straight parents are not ever going to be comfortable having gay men act as role models for their sons, NOR SHOULD THEY."

    Change does take time, but it also takes exposure. This line of thinking shows how little exposure you and many others probably have. The idea of what is 'normal' for masculinity and femininity are antiquated and unrealistic. When you look at the whole of the population; men and women; homosexual, heterosexual, bisexual and asexual; no matter what religion or culture you identify with; You'll find everyone has a mixture of traits that you could consider masculine and feminine. We are a spectrum, not a dichotomy. The more people are exposed to this concept the more accepting we will find ourselves to be, and the less confused or afraid of diversity we will find ourselves.

    The BSA is within their rights to choose who they offer membership to, but as a former scout I fear that if they don't keep up with the times they will find themselves losing more and more members. It's already an issue. I've sat in on recent round tables and declining membership is already the biggest problem they are dealing with in my area. Girl Scouts, with their more open admission policies, are thriving. I'm not saying that having a more accepting culture and set of policies will fix everything, but I believe it is a step in the right direction.

    Posted by: Brian | Apr 26, 2013 12:07:37 PM

  25. Just how far along is Rick in the "process of getting comfortable with homosexuality" himself? A little therapy might work wonders.

    Posted by: DW | Apr 26, 2013 2:05:34 PM

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