Analyzing Potential Problems in the Boy Scouts of America Case

Abstract

Dale's case against the Boy Scouts of America created quite a controversy, so much so that it went all the way to the United States Supreme Court. His case exempting private organization's exclusion of gay individuals from a public accommodations law under the First Amendment right to expressive association (Boy Scouts of America v. Dale, 2000) marked a considerable loss for the gay rights movement. In holding this, the Supreme Court placed a major precedent that the right to freedom of expression entitles an association to exclude individuals based on sexual orientation. This paper will delve into several tough questions, ultimately disagreeing with the Court's decision by drawing comparisons to race and the culture of discrimination, validating Steven's dissenting opinion in the case based on its proper framing of anti-discrimination law, and arguing against a screening process for sexual orientation within associations like the Boy Scouts of America as it is an outrageous means of exclusion.

Introduction

The Boy Scouts of America (BSA) is a private, not-for-profit organization engaged in instilling its system of values into young people. These values are best summed up in the "Scout Oath and Law" as follows:

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.

As it stands, openly gay boys and men cannot make this oath because the Boy Scouts assert that homosexual conduct is inconsistent with the values embodied with it (Boy Scouts of America v. Dale, 2000). Dissecting this case offers a lesson in the relationship between constitutional law and the evolving nature of rights. When the Supreme Court took Dale's case, there was a relative dearth in pro-gay case law and legislation (Bergonzi, 2011, p. 5), and as such, it represented one of the first of its kind. Dale was the embodiment of what the BSA stands for, receiving the organization's top honors as an Eagle Scout. However, due to his sexual orientation, he was no longer allowed to participate in the organization as a Scout leader. It is not disputed in this case that Dale was excluded from the BSA based on the fact that he was gay (Dale v. Boy Scouts of America, 1998). Thus, whether or not one can agree with the Supreme Court's decision depends on confronting the social tension between the freedom of association and laws that advance equality. As a person who believes in equality, it is easy to disagree with the decision of the Court.

Professor Erwin Chemerinsky, a respected constitutional law scholar, put it best when he stated that the Court's ruling in Boy Scouts of America v. Dale is a ruling in favor of discrimination and intolerance that is wrapped in the rhetoric of freedom of association (Chemerinsky, 2001, 596). The majority in this opinion espoused the freedom of association as superior to a State's law to stop discrimination (Boy Scouts of America v. Dale, 2000) and dodged the true question of equal protection in this case. Instead, the five conservative justices¬–Rehnquist, O'Connor, Scalia, Kennedy, and Thomas–chose to protect the freedom of association in order to benefit individual member's right to expressive messaging (Chemerinsky, 2001, p. 612).

Ultimately, the Court's failure to enforce an anti-discrimination law against a group that discriminates based on sexual orientation compromises the ideal of equality and makes it much easier for groups that wish to discriminate based on any characteristic (be it race, gender, etc.) to do so. It was not long ago in this country that discrimination based on race was legal (e.g. Jim Crow-era America). If Dale was about discriminating based on race rather than on sexual orientation, it would likely not have had the same result as rights have evolved to disfavor racial discrimination. At the time of the case (and arguably still), gay rights have not evolved to the same level.

In this regard, there is strong validity in the dissent's (written by Justice Stevens and joined by Justice Souter, Justice Ginsburg and Justice Breyer) arguments. It states that because every state law prohibiting discrimination is designed to replace prejudice with principle (Boy Scouts of America v. Dale, 2000), the framing of the question should be different by not pitting expressive association against the value of anti-discrimination. Instead, the Court should inquire whether the group's expressive message (whatever it may be) is significantly affected by a State's antidiscrimination law and analyze the case as such. This is precisely what the New Jersey Supreme Court did and it found in favor of Dale (Dale v. Boy Scouts of America, 1998).

Furthermore, the exemption scheme that Dale's case put forth is a dangerous one. Until a federal law prohibits discrimination based on sexual orientation and does so for all places private or public, organizations have the ability to change their practices in order to avoid liability (Chapman, 2012, p. 1806). This leads nicely into the discussion of whether or not a screening system should be in place in order to discover who is homosexual and who is not as it helps demonstrate the absurdity of the lengths associations can go to exclude members. It is already difficult enough for young gay people to be themselves, it seems that adding a process that could "out" them before they are ready would simply be cruel. Additionally, there are serious questions as to exactly how a screening process can discover homosexuality and whether or not such a process would infringe on privacy rights.

Luckily, it seems that the BSA is reevaluating its stance on gay members about a decade after Dale was decided, further evidencing the power of social movements in shifting rights. However, this positive progressive measure by the BSA in truly adhering to its Scout's Honor seems to be easily replaced with more negative moves such as Chic-fil-A's stance on same-sex marriage. The private and public nature of protecting First Amendment rights will always clash with the changing face of social values. Ultimately, ending discrimination must come from the collective social commitment to end discrimination, not from nine justices that sit on the Supreme Court, and Dale is the perfect example of this statement.

References

Bergonzi, S. (2011) Boy Scouts of America v. Dale: A Sociopolitical and Historical Examination of the Contentious Supreme Court Decision. (Senior Honors Thesis, The College at Brockport, 2011). Retrieved from http://digitalcommons.brockport.edu/cgi/viewcontent.

Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

Chapman, K. C., (2012). Gay Rights, the Bible, and Public Accommodations: An Empirical Approach to Religious Exemptions for Holdout States. The Georgetown Law Journal, 100, 1783-1827.

Chemerinsky, E., & Fisk, C., (2001). The Expressive Interest of Associations. William & Mary Bill of Rights Journal, 9, 595-617.

Dale v. Boy Scouts of America, 308 NJ Super. 516 (1998).

Dale v. Boy Scouts of America, 734 A. 2d 1196 (1999).