Originally published July 5, 2000, in the Chicago Free Press.
The U.S. Supreme Court has ruled in favor of the Boy Scouts of America's right to exclude gays, but in so doing it strengthened a right - that of "expressive association" - which benefits us all. And gays are well situated to win the forthcoming Scouts battle where it should be won - in the court of public opinion, rather than the courts of law. What positive actions can gays take?
THE BOY SCOUTS WON? Only seemingly. It would be better to say that the Boy Scouts prevailed with a good constitutional argument, supported by weak evidence, craven apprehensions and unthinking hostility.
And gays lost? Not quite. It would be better to say that gays failed to compromise important constitutional principles they themselves depend on and should now concentrate on the effort to prevail, as they deserve to, in the court of public opinion.
Begin at the beginning. The U. S. Constitution enshrines, says the U. S. Supreme Court, a principle of "expressive association," a sort of hybrid of free speech and free association.
Just as we have free speech to express our opinion, and freedom of association to associate with people we like (and exclude people we do not like), so we have a right to implicitly express our views by the very fact of whom we choose to associate with and exclude.
Each of these principles is important for all of us, gays included.
Early in the gay rights movement, the constitutional right of free association was the basis for legal challenges to states that refused to allow gay organizations to incorporate and colleges that sought to bar campus gay organizations.
Had there been no guarantee of free association, most of those groups would never have been allowed to exist.
Expressive association is the principle that allows gays to exclude homophobes from gay organizations such as gay political advocacy groups or gay counseling services.
It also allows gays to exclude neo-Nazi and Klan groups from gay Pride parades. For that matter, expressive association is also the basis for excluding pederast and pedophile groups such as NAMBLA from gay parades.
No thoughtful person should want to see these constitutional principles seriously compromised.
In the case of the Boy Scouts of America v. Dale, the question was whether the Scouts had defensible reasons for arguing that including gay scout leaders (and, implicitly, gay scouts), was contrary to its principles and its associational message.
The Boy Scouts arguments were tenuous. It tried to argue, for instance, that "morally straight" excluded homosexuality. Today "straight" is indeed a kind of slang for "heterosexual." But the word was not used that way more than 80 years ago when the scout oath was written. "Straight" then meant virtuous, decent, law abiding.
Even less likely, the Boy Scouts said "clean" in the scout law excluded homosexuality. But most scouts have always assumed that "clean" refers to taking regular baths or showers. Even if the word has an overtone of moral purity, it is far from clear what it would include.
Nevertheless, the Boy Scouts had a defensible point. The Boy Scouts had always accepted the traditional religious view of sexual morality which includes the idea that homosexuality is improper, immoral, wrong.
If anyone had asked a scout or scout leader 80 years ago if the Boy Scouts viewed homosexuality as moral behavior, they would have emphatically said, "No." The reaction would have been the same 50 years ago or 30 years ago. Most American citizens would have reacted the same way.
The only reason the Boy Scouts never made opposition to homosexuality an explicit part of its "core" message was that there was never any doubt about the moral status of homosexuality, so it did not need to. Only in recent years has the moral status of homosexuality become a matter of dispute in our society.
None of this means that the Boy Scouts' position is written in stone. The Boy Scouts will eventually change on its own, but probably only after most Americans have changed.
The Boy Scouts, after all, has a strong organizational incentive not to lead social change on the issue. So long as it has a quasi-custodial role over young people, it has to take into account the views and concerns of parents.
Even if Boy Scout officials viewed homosexuality as morally neutral, they would feel a need to accede to the sizable number of parents who think otherwise. And so long as some parents fear their children might be "recruited" by gay scout leaders, officials will feel a need to take that fear into account.
What can gays do then?
We can encourage gay scouts and former scouts to come out and put a wholesome public face on gays in scouting in order to hasten a shift in public opinion.
Gay adults, especially former Boy Scouts, could help form scout-like boys clubs to give young gays-and any other interested youths-some of the same experiences the Boy Scouts offers exclusively by and for heterosexuals. The troops could explore affiliating with the Canadian Scouts, which now accepts gays.
We can begin a concentrated effort to persuade United Way campaigns to exclude local Boy Scout troops as funding recipients.
We can lobby corporations that include gays in their non-discrimination statements to stop supporting the Boy Scouts or apply pressure on the group to change its policy.
We can try to persuade churches that sponsor Boy Scout troops to protest the exclusion of gays and re-evaluate whether to continue sponsoring troops. Gay-supportive troops could march in the gay Pride parades.
We can sue to prevent governmental entities (cities, park districts, schools, police and fire departments) from sponsoring or subsiding Boy Scout troops or permitting the use of government facilities not open to other religious groups.
Change will come when the Boy Scouts sees it as necessary.