First appeared August 11, 1999, in the Wall Street Journal under the title "New Jersey Supreme Court Ruling on Boy Scouts Threatens Freedom for All - Including Gays."
IN A 30,000-PLUS-WORD DECISION, the New Jersey Supreme Court has ruled that the Boy Scouts may not exclude gay members from participation in the organization. Because the New Jersey court's ruling conflicts with others (including one made in March 1998 by the California Supreme Court), this issue almost certainly will be reviewed by the U.S. Supreme Court. For this reason, the New Jersey decision deserves scrutiny as well as criticism.
Three points deserve comment. First, this decision erodes freedom of association. Second, it further expands the definition of "public" at the expense of what is "private." And third, while the Court's written opinion offers a strong argument for why the Boy Scouts should voluntarily change their policy, it fails to demonstrate why the government should force them to do so.
One of the things I learned about as a Boy Scout in the early 1970s was the importance of freedom, as embodied in the U.S. Constitution and the Bill of Rights. The Boy Scouts asserted that, were the organization forced to change its membership (and hiring) criteria, its First Amendment rights to free speech, religious liberty, and association would be violated. The New Jersey Supreme Court ruled, incredibly, that "application of the [state's] Law Against Discrimination to Boy Scouts of America does not infringe on its First Amendment rights." Of course it infringes on those rights -- the question is whether such infringement is justified. The Garden State's Supreme Court argues that it is, and that the state's non-discrimination law trumps the First Amendment.
Freedom of association is one of our most precious rights. The New Jersey Supreme Court ruling threatens all of us who want to set standards for our organizations -- including gay men and lesbians.
The court's decision -- now limited to New Jersey, but with foreseeable national ramifications --undermines the right of gay men and lesbians to seek and maintain "queer-safe space" such as social clubs, fraternities and sororities, and social service organizations like Washington, D.C.'s Sexual Minority Youth Assistance League (SMYAL). If the Boy Scouts are not free to set their own membership standards -- however "vague" they might be (a key point in the New Jersey court's criticism) -- shouldn't these gay and lesbian organizations also lose their freedom to do so? Very few gay teenagers are likely to attend Saturday afternoon rap groups to discuss personal problems with their peers if they know that they might be forced to share this private space with heterosexual teens as well.
Diluting freedom of association makes it harder to combat government-based anti-gay discrimination. Respect for freedom of association, on the other hand, is the linchpin in persuading the U.S. Supreme Court to reverse its 1986 ruling in Bowers v. Hardwick, which gave state governments the authority to regulate our most intimate associations, sexual relationships. At the same time, the right to associate with whom we wish, when we wish, where we wish, will be an important factor in overturning the anti-gay Defense of Marriage Act and various state laws prohibiting same-sex marriage.
My colleague, Odell Huff, suggests that the New Jersey court's expansive definition of "public" will have detrimental effects on all citizens. "We should be protecting the private against the intrusion of the 'public,'" said Huff, vice president of Gays and Lesbians for Individual Liberty (GLIL). He adds: "Of course, we should be wary of any organization, which relies heavily on taxpayers' money to subsidize its activities, asserting a right to discriminate. But the Boy Scouts' reliance on government varies widely from place to place, and in most cases it provides predominantly 'private' space." Moreover, if taxpayers object to the Boy Scouts' use of their money in a "discriminatory" manner, the better course would be to withdraw their money, rather than to circumscribe the Scouts' freedoms of association, expression, and religion.
British scholar Nigel Ashford, writing in the Independent Gay Forum, argues a similar point, noting that Britain and the United States both face the same problem. "The distinction between private and state (usually expressed as 'public') is extremely important in a free society. Unfortunately the definition of the private has become narrowed to include only the person's home, and sometimes not even that. The distinction between private and public should be ownership, not who goes there. 'Public' should mean government owned, not open to the public, as in a bar or club." Ashford goes on to say that "a wide definition of private and a narrow definition of public (state) is the best protection for gays. The alternative is that government can legislate and interfere in areas open to the public," such as bars that cater to a gay clientele, erotic video stores, or even social clubs that meet in private homes. He concludes: "Those who control the power of the state will use it for their own purposes and preferences." A minimization of the private that expands the "public" hurts all of us, gay or straight.
That said, one should not conclude that the Boy Scouts' policy of excluding gay boys and men from their ranks deserves our approval. It does not. The New Jersey Supreme Court documents quite extensively how the Scouts' policy is contradictory and may, in fact, be harmful to the organization itself, as well as to the young men it aims to serve. The policy is archaic and bigoted and should be changed.
Still, a self-contradictory and wrong-headed policy does not require (nor deserve) the action of the state to correct it. Many commentators have noted that the Girl Scouts have chosen to practice non-discrimination in regard to sexual orientation. Lesbians are free to participate in Girl Scout programs. Yet no government action compelled this change in policy. The Girl Scouts' leadership acted on its own.
That is why we should encourage the efforts of those individuals and groups, such as gay former Scouts, who are trying to persuade the BSA to change its membership requirements voluntarily. Their attempts at moral suasion deserve commendation and support.
While on the surface it may appear that gay citizens have won something at the New Jersey Supreme Court, since the rights of all Americans are threatened, gay people have the most to lose.