Scouting for Answers

by Stephen H. Miller on April 6, 2000

Originally appeared April 6, 2000, in The Weekly News (Miami) and in other newspapers.

Ours is a diverse movement. No, I'm not just referring to the standard boilerplate of gender, gender-identification, nationality, race, ethnicity, sub-ethnicity, ad infinitum. While those categories are important, our strength also lies in ideological diversity.

Consider the merry band of gay men and lesbians who follow the beat of a libertarian drummer. They've been garnering attention over the past several months by staking out unconventional positions - opposing hate crime laws, for example, because they penalize thoughts (motivation) rather than simply actions. Such arguments haven't endeared gay libertarians to the more mainstream activist community. And now, in the matter of whether the Boy Scouts of America should be forced by judicial decree to drop a ban on gay scoutmasters, the libertarians are being just as unorthodox as ever.

As you may recall, last August New Jersey's Supreme Court ruled that the Boy Scouts could not exclude James Dale, a former Eagle Scout, from serving as a scoutmaster simply because he is an out gay man. Dale's cause had been taken up by the Lambda Legal Defense Fund, which successfully argued on his behalf before the New Jersey court. The Boy Scouts appealed, claiming that as a private organization they have a right to decide on their membership and what message they want to put out - including the message that homosexuality is not an acceptable lifestyle. The case was accepted by the U.S. Supreme Court, where it will be argued on April 26, with a ruling expected by the end of June.

Among the many "friend of the court" briefs submitted to the Supreme Court by various pro-gay and anti-gay advocates, the most unusual was filed by Gays and Lesbians for Individual Liberty (GLIL), a lesbigay group that favors the Boy Scouts' position (that's right, the Boy Scouts position).

The GLIL brief argues that the Boy Scouts of America have a constitutional right to set their own standards for membership and leadership positions, even if that means excluding openly gay Scout leaders from participation. Not, mind you, that they think the Scouts are doing the right thing. "Our brief emphasizes our disagreement with the Boy Scouts' policy of excluding gay members and leaders," writes Richard Sincere, president of GLIL and a former Boy Scout. "But if government forces the Boy Scouts to change that policy, the constitutional rights of all of us - not just the Scouts, but everyone, gay or straight - will be diminished."

Sincere continues, "Freedom does not belong only to those with whom we agree. Gay men and lesbians have suffered when freedom of association has not been respected. We benefit when freedom of speech and freedom of association are vigorously protected. A Supreme Court ruling against the Boy Scouts will have the perverse effect of hurting gay and lesbian Americans."

The GLIL brief argues that the inclusion of gays in all facets of life is profoundly desirable because it sends "a message of tolerance and acceptance." But when a private association is involved, the First Amendment requires that "this message must not be communicated due to government coercion." GLIL points out that, as the Supreme Court has said in the past, freedom of association "plainly presupposes a freedom not to associate." Warning against "creeping infringement" on the freedom of association, GLIL notes that gay organizations often seek to maintain "gay environments," including clubs, retreats, vacations and professional and alumni organizations. Decreeing that the Boy Scouts cannot exclude on the basis of sexual orientation could mean that gay associations could be prohibited from excluding - or even just not welcoming - heterosexuals.

The brief, available at www.gayliberty.org, contains a lengthy history of how in the past the U.S. government has tried to deny gays the right of association - a right that GLIL says we must protect, even at the cost of allowing others to discriminate.

Cutting the Public Purse Strings

Now admittedly, the Boy Scouts case is something of a sticky wicket. Many opposing the Boy Scouts anti-gay stance feel that the Scouts really are not a private membership organization at all, but should be considered a "public" accommodation because of their close relationship with government - particularly the sponsorship of many individual Scouting units by local governments. I've seen strong constitutional arguments on both sides of this issue, which often comes down to debating the degree of the state's involvement in Scouting.

In light of this fact, some libertarians in GLIL have advanced an alternative proposal. They hold that even though the Scouts do receive taxpayer-funded government support and privileges, including those afforded to no other civilian nonprofit organization (such as the right to hold their national Jamboree on military property), the best response isn't to further extend the arm of the state over the Scouts, but to prohibit all instances of that very government patronage. If the Scouts claim a moral imperative to discriminate, perhaps we should treat them like a religious organization and impose a wall of separation between Scouts and state. No more Scout meetings at city halls, fire stations, or public libraries.

It's an intriguing idea, and it would certainly be interesting to see if (or, more likely, when) the loss of government largess would bring about a self-interested change of heart on the part of the Scout's leadership.

Under such a dispensation, if local, state, or federal government continued to directly or indirectly support Scouting activities, they could then be sued. In fact, the American Civil Liberties Union and American United for Separation of Church and State recently filed a lawsuit against the Commonwealth of Kentucky for contracting with Kentucky Baptist Homes for Children, an organization with a religious policy against hiring gay men and lesbians. It's a more cumbersome solution, to be sure, but one that might avoid pitting the rights of gays to equal protection against the First Amendment's freedom of association.

Newfound Allies

Constitutional issues aside, there's another development related to the GLIL brief that deserves to be noted - the way in which these gay libertarians have been acclaimed by notable conservatives who haven't heretofore been sympathetic to any gay group. George Will recently wrote a column headlined "The Boy Scouts' Unlikely Friends," in which he applauds GLIL and highlights its argument that protecting freedom of association is good for gay folks, too. "America needs a livelier understanding of the ... rights that GLIL understands," writes Will.

Similarly, conservative columnist James J. Kilpatrick wrote in his syndicated column, "Remarkably, the most eloquent brief comes from Gays and Lesbians for Individual Liberty. It says, 'The New Jersey Supreme Court's decision restricting the ability of the Boy Scouts of America to choose its own leaders and define its own membership criteria dangerously erodes the freedom of all Americans, including gay Americans, and should be reversed.'" Concludes Kilpatrick, "I find myself in complete sympathy with that point of view, too."

Of course, hard-core gay-bashers are still wailing that homosexuality is inherently immoral and thus gay people aren't entitled to any "special rights" (including, it often seems, equality under the law). But think about the way that Will and Kilpatrick used the GLIL brief to position themselves as supporting the Boy Scouts without attacking gays per se. In one sense, GLIL has given conservatives a way to spin their opposition to anti-discrimination provisions; on the other hand, conservatives weren't going to support court-ordered gay inclusion in private associations in any event, so at least the GLIL brief provided a way for them to do what they would have done, while eschewing outright homophobia.

And the fact that more and more mainstream conservatives feel a need to eschew outright homophobia is, to my mind, a rather significant cultural indicator - and a reason to cheer on our ideologically diverse community.

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