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It's All Politics
Wed January 30, 2013
Lifting Boy Scout Ban On Gays: One Legal Perspective
The Boy Scouts of America as early as next week may drop its ban against openly gay members and leaders, just a dozen years after it successfully took its fight to maintain the policy all the way to the U.S. Supreme Court.
It would mark a seismic shift for the organization, which counts more than 3.3 million youth members who participate in troops largely sponsored by civic and church groups.
The organization, roiled recently by revelations of an abuse cover-up, has said lifting the institutional ban on gay Americans would allow local organizations to determine their own leadership and membership policies.
The Supreme Court in 2000 ruled 5-4 that the Boy Scouts, as a private organization, was not subject to anti-discrimination laws and could bar gay scoutmaster James Dale. The scouts, the majority ruled, could not be forced to accept members it believed would harm its "expressive message" against gays, even if there was dispute over the validity of the message.
We spoke with law professor Andrew Koppelman, who has written extensively about gay Americans and discrimination, about what the change being contemplated by the Boy Scouts could mean.
Koppelman, co-author of the book, "A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association," spoke from his office at the Northwestern University School of Law.
Q: Where does this fit in with other gay rights battles, from same-sex marriage to workplace anti-discrimination protections?
Koppelman: "One of the principal concerns of the gay rights movement from the beginning has been the cultural tendency to regard gay people as 'vile contaminants' who must be kept away from all that is 'good and pure.' The exclusion of gay people from the Boy Scouts was always a manifestation of that, which is why it aroused such passions on both sides. That is happily going away. This is a further sign of that. It is really a part of a broad cultural movement."
Q: Are there any precedents that come to mind, similar situations in which a private organization faced this kind of scrutiny and funding uncertainty because of a position on a social/rights/cultural issue?
Koppelman: "I don't know that much about what's influencing the internal deliberations of the Scouts. But I guess it's less about money than the public image of the organization, which is stigmatized as discriminatory. Lots of boys are unwilling to join the Scouts because they are unwilling to join an organization that discriminates."(Note: Statistics show that membership in the Boy Scouts has dropped from a high of more than 5 million a decade ago)
"It's a response to that pressure of public opinion that the Scouts are shifting, even though they've got a legal right to do it. The clearest comparable shift was on the part of the Mormon Church in the late 1970s, when it allowed blacks to be members. That policy was put in place during a time of racism, and there came a time that they had to abandon it. In that case, and with the Scouts, too, it wasn't just external pressure that prompted the change. More and more people in the Mormon Church became persuaded that the old rule was morally repugnant. I know that a lot of that has gone on within the Scouts as well."
Q: The Supreme Court in 2000 ruled 5-4 that the Boy Scouts, a private, not-for-profit organization, could not be compelled to accept members they believed harmed their "expressive message," even if there is dispute over the validity of the message. (The four dissenters agreed that the Scouts could not be forced to adopt an unwanted message, but argued the Scouts failed to make a case that homosexuality was incompatible with its mission.) Under the protected right of freedom of association, including the right to come together with individuals to 'pursue and defend common interests,' how can you argue this is not Constitutional?
Koppelman: "The decision was very poorly reasoned. You read it now and it's nearly unintelligible. There's a broad principle, that if someone claims they were sending a message, we have to respect that. The court says we're not giving a license to discriminate, but it doesn't make it clear what's distinctive about the Scout case. It's hard to read the Dale decision and understand just what the principle is. Some would like to think it's a distinction between commercial and not-commercial groups, but the court didn't say that."
Q: The court, at the time, discounted the gender exclusion precedent it set in the 1980s when it opened up to women all-male organizations such as the Rotary Club under the tenets of the First Amendment. How is that, or exclusions based on race, different than the Scouts case?
Koppelman: "What the court said in those other cases was that the organizations didn't have any message that would be interfered with by admitting the members it didn't want to admit. The big question raised by the new policy the Boy Scouts are considering, is whether the Scouts any longer are sending a message that requires them to discriminate and justifies their discrimination. Maybe they're not, and if not, New Jersey [where the state Supreme Court ruled that the Scouts discriminated against James Dale, which led to the Scouts successful U.S. Supreme Court appeal] can apply its law to them."
Q: What might the future hold — a scouting organization that remains bound to religious groups, Catholics, Mormons, for instance, and continues to endorse a ban an gay people, and another that doesn't? Might that not be inevitable?
Koppelman: "What the Boy Scouts have done is abandon the national rule; they have not adopted a non-discrimination rule. I have no doubt that the many Boy Scout troops sponsored by the Mormon Church in Utah, for example, will continue to discriminate. The Scouts have simply made it a local option. But that's a huge result in many cities."
"We know that after the Supreme Court litigation in Dale, many inside Scouting wanted the ban on gay people to be discarded, and the leadership of the Boy Scouts in many cities — New York, Philadelphia, Chicago, San Francisco, Minneapolis, and others — joined in a resolution to do so. All of them wanted what they're now getting. And I have no doubt that within a year all of those places will abandon the discriminatory policy. Pennsylvania tried before, but was denied. It faced shutting down scouting for 65,000 members, or compliance. It complied. That's the bottom line of this change — there is now a local option."
Q: Is there room in American society, and under its Constitution, for private organizations that want to limit their members based on sexual orientation, and why?
Koppelman: "Sure. As the organizations become smaller the state's interest becomes weaker. What was strange about the Supreme Court's decision is that it held that there was no state interest at all in the discriminatory policy adopted by the largest youth organization in the world. And that protecting the children didn't come into play at all. That's a strange result. We tolerate all kinds of discriminatory organizations. There are lots of them, but not a lot of them have power. The bigger they are, the larger the state's interest.