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EspressoPundit Ruminations of an over-caffeinated political junkie |
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In 2000, the BSA was forced to defend
before the Supreme Court its official policy on homosexuality and the
Scout Oath (Boy
Scouts of America v. Dale, 530 U.S. 640). The policy states:
"The Boy Scouts of America has emphasized traditional family values
since the inception of the movement. We believe avowed homosexuals do
not provide a role model for Scouts that is consistent with the values
of the Scout Oath and Law. Accordingly, the Boy Scouts of America does
not accept avowed homosexuals as members or leaders." In this case,
James Dale, a former Eagle Scout, had filed discrimination charges
against the BSA for the revocation of his adult membership when it
learned that he was an avowed homosexual and homosexual rights activist.
In 1992, Mr. Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court, alleging that the BSA had violated a New Jersey statute which prohibited discrimination on the basis of homosexuality in places of public accommodation. The judgment of the Superior Court's Chancery Division was in favor of the Boy Scouts, holding that New Jersey's public accommodations law was inapplicable since the BSA was not a place of public accommodation, but was a distinctively private group exempted from coverage under the statute. The court also stated that the BSA's position on active homosexuality was clear from the beginning and that the First Amendment freedom of expressive association prevented the government from forcing the BSA to accept Dale as an adult leader or member. However, the New Jersey Superior Court's Appellate Division reversed and remanded the case, and the New Jersey Supreme Court then affirmed the judgment of the Appellate Division. Finally, the case went to the U.S. Supreme Court which disagreed with the findings of the Appellate Division and the New Jersey Supreme Court, reversed their decisions, and upheld the original decision of the New Jersey Superior Court's Chancery Division. In its ruling, the Supreme Court referenced Roberts v. United States Jaycees (468 U.S. 609, 622(1984)) in which it observed that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." The Supreme Court also noted that his associational right must be protected in order to prevent the majority from imposing its views on groups that would rather express other ideas, both popular and unpopular. There are several government actions which could violate this constitutional freedom, including interference with the internal workings of an association by forcing it to accept members it does not desire. The Court correctly found that "freedom of association . . . plainly presupposes a freedom not to associate." The next question before the Court was whether the BSA was a group that engaged in "expressive association." It found that it was. The Scout Oath states: "On my honor I will do my best to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake, and morally straight." Also, the Scout Law states: "A Scout is: trustworthy, obedient, loyal, cheerful, helpful, thrifty, friendly, brave, courteous, clean, kind, reverent." As the Supreme Court conveyed in its decision, the values the BSA promotes and seeks to instill in its members are based on those listed in the Oath and Law, and the group consistently has declared that homosexuality is inconsistent with those stated values. Though the Oath and Law do not mention sexuality specifically and the terms "morally straight" and "clean" are not self-defined, they are defined by the organizations that invoke them as a part of their moral or behavioral code. The Boy Scouts are entitled to believe, as do many people and organizations in this country, that homosexual conduct is at odds with being "morally straight" and "clean." The Court, because it found this "expressive association" to exist, was entirely correct in its ruling that the BSA could not be required to admit James Dale because it is not the courts' role to reject various groups' expressed values on the basis of disagreement with those values or the believe that the values are inconsistent. This finding is congruous with what the Supreme Court stated in its ruling in Democratic Party of United States v. Wisconsin ex rel. La Follette (450 U.S. 107, 124(1981)), "[A]s is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational" and in its ruling in Thomas v. Review Bd. of Indiana Employment Security Div. (450 U.S. 707, 714 (1981)), "[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection." This "expressive association" finding permits the Boy Scouts of America to oppose -- whether in verbal or written values or exclusion from membership or leadership -- homosexual conduct. A requirement from a State that the BSA allow Mr. Dale to remain in the organization and to hold a leadership position would significantly burden this right to oppose homosexuality. The presence of James Dale or any other avowed homosexual in the Boy Scouts would force the group to send a message that it accepts homosexual conduct as a legitimate form of behavior. Such forced membership would be the antithesis of associational freedom.
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