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.
"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.
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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.
But 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.
The 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.