The Boy Scouts Made It Worse

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.


  1. NotA says

    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.

  2. plinx says

    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.

  3. Rees Cramer says

    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.

  4. says

    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.

  5. says

    “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.

  6. says

    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…

  7. says

    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.

  8. Burt says

    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.

  9. Fredo says

    “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.

  10. GE says

    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.

  11. Jeff says

    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.

  12. BobN says

    “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.

  13. Chris Gable says

    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.

  14. Rich says

    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)?

  15. says

    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 ban…no private organization can hold out against citizens’ actions forever…

  16. Rick says

    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.

  17. Bobo says

    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.

  18. XoMoDe says

    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 WON…so I’m not sure why they’re going through all this now. It should be a closed case.

  19. Caliban says

    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.

  20. Evji108 says

    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.

  21. Brian says

    ~ 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.

  22. DW says

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

  23. Randy Wilson says

    I disagree with several things that this piece asserts. BSA is not a monolithic organization. According to BSA’s recent survey results, any change in membership standards is unpopular among 87% of charter organizations. The board deserves credit for recommending this much needed change. The proposed policy would be of significant benefit to the thousands of gay scouts currently in scouting.

    I agree that it’s not a sustainable policy. As openly gay Eagle Scouts age out of the youth program, people will recognize that keeping them out as leaders is silly.

    I support the change and will urge voting members of my council to support it, while recognizing that it is not good enough. There is much work to be done to change hearts and minds in BSA, and honestly that work can be best done by openly gay scouts participating successfully in the program. (Although I, as a straight ally leader, will do my best to do my part.)

  24. matt says

    I disagree with Ari on this one. This is a half-step forward and brings more equality to more people. It makes the second part of the half-step a smaller future act. I agree that banning gays (whether adults and youth, or just adults) is wrong-headed, but this action is a positive development.

  25. APJ says

    I appreciate Ari’s reminder to us of the basis on which the decision in BSA v. Dale was made. I’m not sure that I can follow him all the way to the conclusion he wishes to draw, but I don’t find his argument implausible. To win at the Supreme Court, the BSA had to argue that opposition to homosexuality is a fundamental element of its expressive purpose. In light of that, how should we interpret a policy that would allow gay youth members but still forbid gay adult leaders? If Focus on the Family were to announce that it would welcome all youth into its programs regardless of sexual orientation, but continue to prohibit gay adults from providing leadership to those programs, wouldn’t we be skeptical of their motives?

    PS to all of the commentators saying “The Boy Scouts are not a public accommodation”: You are not correct, and I suggest you read up on the history of this case. The Boy Scouts were considered a public accommodation by the New Jersey Supreme Court (in a decision that ruled against the BSA), and this was not challenged by the US Supreme Court decision that overruled the New Jersey decision. The Boy Scouts do receive public funding in most states (perhaps all), including New Jersey, and that makes them subject to anti-discrimination laws covering public accommodations.

  26. Penny Duff says

    You’re right, NotA, the Boy Scouts are a private club, not a public accommodation. BUT, they seem to want more privilege and accommodation from others than the average private group. I frankly am grieved by a group that teaches bigotry to its youthful members. I am deeply grieved that my grandson is in the Cub Scouts, probably through his (Catholic!!) church, so I have no confidence that he’s not being taught his Grandma is evil by this bunch. Boy Scouts have no place at the table, and shouldn’t have a place as part of public school activities or other public activities.

  27. William says

    Why don’t you homosexuals form your own damn organization for scouts and quit bothering the normal people. I remember when people viewed homosexuals with a shrug of the shoulders. Homos were not in people’s faces. Now, it is no wonder people hate you.

  28. jeff says

    I would agree with all this “first amendment” leave them alone stuff, except that the BSA receives public funds. The Federal Government may be required to stop helping the Scouts depending on how SCOTUS decides certain cases coming down the line. If ENDA gets passed, I dont see how they can continue getting federal money. Stay tuned..

  29. Matt says

    I disagree with Ari. It is too paranoid to think that the real reason the Scouts changed their policy was to try to steer boys away from the Gay. They changed the policy because it was a perrenial issue, divided its group, hurt fundraising, hurt membership, and they saw the tea leaves in societal change. No, it’s not full equality, but it’s a major step in the right direction. The world is more fair for more people today than yesterday. And it makes the incremental step of allowing adult gays much smaller — the idea that a Scout is allowable one day and forbidden on the date of his 21st (?) birthday is silly and the current distinction will fall for that reason. But this half-step forward is great. I find those who demand giant leaps accomplish less than those who make baby steps.

  30. Rick says

    @Brian Play your little relativist games, all you want, while you are here on this blog in front of the home crowd. You know what I am talking about and you know I am right.

    Boys and girls are not entirely interchangeable–if they were, then why would the Boy Scouts or any other all-male organization even exist?

    And society is not ever going to accept men who refer to other men as “girls” and who are physical cowards, among other things.

    Such individuals are not accepted in leadership roles in any other organization in society and they are not going to be accepted in the Boy Scouts, either.

    Of course, you can still exclude the effeminate without excluding homosexuals…..and that point needs to be emphasized in the coming battle to allow gays to be leaders in the Scouts, rather than just members.

  31. Sean says

    @ Nota,

    When the BSA recruits ON THEIR OWN, and quits using PUBLIC schools to recruit membership they can claim rights of association. No school would allow the American Nazi Party, KKK, the Catholic Church or Communist Party into publicly financed schools to recruit members. Once you decide to become a POLITICAL organization, by making anti-homosexuality part of your core being, you cease to be a tax-exempt organization.

  32. Bingo says

    This was stupid when it was written and, in the light of recent news, seriously stupid.

    We have a serious step forward that will help demostrate the need for the next step.

  33. Randy says

    I can’t believe we are reduced to arguing over a case that was decided over 15 years ago. We lost Dale v. BSA. Get over it. It’s history. We have to move forward.

    Seriously, Ari would rather the old policy was in place? Tell that to the gay kids who are in scouting and under the old policy can’t get their Eagle award because they are gay. Now they can. How is that a bad thing?

    The BSA is supposed to exist for the boys. Not for gays, or christianists or for adults even. We must do what best for them, and although I agree this new policy didn’t go far enough, it’s a step in the right direction.

  34. Randy says

    Right now, there are troops that WANT to allow openly gay boys. They can’t because they risk expulsion from the BSA. Now they can accept the kids and not risk their charter.

    Isn’t that a better policy?

  35. Randy says

    Right now, there are troops that WANT to allow openly gay boys. They can’t because they risk expulsion from the BSA. Now they can accept the kids and not risk their charter.

    Isn’t that a better policy?

  36. JONES says

    Here’s a little exercise for you that might help you to understand your bigotry.

    Take your words above and replace ‘homo’ by any other ethnic, racial, or religious label and see how it reads back to you.

    What is your ethnic background? Find the slur word used at one time or another to make your group feel inferior and use it in place of ‘homo’ in your statement.
    Now how does that feel?

    Wanna go further? Imagine now that every major organized religious group condemned you from the pulpits and you had no laws in civil society to protect you.

    Feeling it a bit? Want more?
    Your children are bullied. Some are murdered on the streets. Some take their own lives rather than face the onslaught of hate that ‘normal’ people feel is their privilege to inflict. They’re constantly told that they are less than.
    Do you go home and say ‘oh well, it’s the way of the world, best to just accept it’ or do you stand up and say ‘Hell No!’

    This homo says hell no.

  37. FD90 says

    It’s really all I need. Until they start making closets for racial & ethnic groups to escape bigotry and discrimination, the comparison is moot. Unless a scout said something to indicate his homosexuality, he wouldn’t have been kicked out before.

  38. JONES says

    No, it’s not all you need. It all you choose to use to rationalize your point of view. The ability to hide is far from a qualifier for rendering moot a comparison of groups that face discrimination.

    Did you chose to ignore or have you never heard of ‘passing’?
    That’s the closet you deny exists for ethnic, racial, & religious discrimination.

  39. says

    This is in response to people who think like NotA. These changes to policies are being fought for by people are already a part of the Boy Scouts organization. Just as the Boys Scouts has the right to refuse to change those policies, the people who actually make up that organization have the right to protest those policies and seek to change them. So what are you talking about? Don’t dismiss them as not having the right to voice their concern about discrimination within an organization that they contribute to and help promote. Bye.

  40. David Hearne says

    I wasn’t aware that ending discrimination against gay scouts and leaders was “a goal of our community”. I thought our goal was end discrimination in government subsidized activities, or to end the government subsidy of discriminatory organizations.

    The scouts have a right to be exclusive. It is the nature of a club to define its membership and exclude others. What the scouts can’t do is to promote themselves in the public schools as inclusive of all boys when that isn’t true.

    I see the leadership issue as being somewhat different. Adults don’t attend public schools.

  41. Nick says

    At the end of the day yes this was a compromise, but it was a compromise that passed. It gives hope for the future versus a defeat that would have set the movement back. I think the BSA will come the rest of the way in a few years now that all the really homophobic people will quit. I can live with the progress.

  42. Lymis says

    I agree with most of what Ezra says about this decision as a snapshot in history – it’s unacceptable and in some real ways worse than the previous policy.

    At the same time, as far as change and improvement go, the effect is going to eventually be the same effect that having out gay people in any setting always is – a significant percentage of these boys are going to grow up utterly failing to see an issue, and being outraged that when their gay friends and comrades reach adulthood, they get pitched out of the scouts for the crime of being gay, while straight men with far less character are retained.

    Even if the scouts don’t change their policy now, they will either change it soon or they will marginalize themselves. And this new policy shouldn’t change any of the policy decisions by municipalities that have cut back support and accommodation to the scouts for their discrimination.

  43. Craig Nelson says

    I think it’s sad that the policy will change but that the onus will be placed on young people to do the bear the brunt of the policy while trying to get it changed. Now often young people do campaign and show extraordinary leadership in doing so (which is great) but growing up is a time when one shouldn’t have to and it places a terrible burden on the young people concerned.

    The sort of thing I imagine is scouts getting really into it and doing well but then being barred from leadership roles when they turn 18. This must be a terribly scarring process for all concerned – two friends, each equally good and committed – one goes on to be an adult leader, the other barred.

    I can only hope that progress is speedy, I think this is a terrible thing to inflict upon young people growing up and to that extent the new policy hasn’t been thought about from an ethical perspective.

    I can however see that this is progress of sorts albeit very slow.

  44. Rexford says

    So as soon as a gay boy scout becomes an adult and might want to become a scout leader himself, they’ll treat him like sh!t, and say “No thank you.” If I had a child of any sexuality, there’s no way I’d want him to be around such people.

  45. Bob says


    First of all, it’s the best of the ACTUALLY POSSIBLE outcomes. The mormons and catholics control the organization, and would likely have split the Scouts asunder if they had to agree to adult leaders.
    as there is seen to be no problem with Gay scouts, and as the older leaders die off.

    Think of it as being similar to “domestic partnerships were progress, but marriage came along after awhile”