WHEN THE SUPREME COURT held that the Boy Scouts of America (BSA) may exclude openly gay scoutmasters, many gay civil rights advocates howled. One writer said the result "lent legitimacy to the bigotry of ... institutions all over America." That's one way to describe the function of the First Amendment. I prefer to think of it as something free people should cherish.
The First Amendment protects people, like me, who say and believe good things. It also protects people, like the BSA, who say and believe some bad things. It guarantees freedom of speech, and the concomitant freedom to choose your friends and associates in order to promote your views. It doesn't say, "You have freedom of speech - unless a majority of a legislature in some state can be persuaded otherwise." It doesn't "lend legitimacy" to any belief. Only we, as a people, can do that, through our own words and actions.
Why would we protect a freedom to say and believe bad things? It's not because there's no difference between saying and believing bad things and saying and believing good things. One reason we protect people who say and believe bad things is that we're not very confident about our ability to distinguish between good things and bad things for all time. We should pause when we reflect that, as Justice Oliver Wendell Holmes once wrote, "time has upset many fighting faiths." Ideas once thought unassailable are now heretical.
Here's an example: New Jersey once had a law forbidding private, consensual gay sex. It was considered a good thing. But because of the First Amendment, those who disagreed were able to persuade New Jersey that the law was wrong. Now the old state sodomy law is considered bad, even terrible.
In fact, New Jersey has stood the old sodomy law on its head, forbidding discrimination against the very people it was once confident were criminals. It is that anti-discrimination law that brought the Scouts to the Supreme Court.
The BSA disagrees with New Jersey's new, improved view of gays. It also disagrees with New Jersey's egalitarian views about females and atheists because it doesn't welcome them, either.
If the Constitution is to protect us, it must protect people we don't like, too. Otherwise, its protections are a lunchtime snack for democratic majorities.
There's self-interest in this high-minded devotion to the BSA's right to discriminate against us. In the past century, democratic majorities have given us sodomy laws, a ban on military service, gay marriage bans, anti-gay adoption laws and much else. With a nod from those same majorities, the police have used their power to raid gay bars, censor gay publications, and harass law-abiding citizens for dressing the wrong way.
Gay equality advocates, as we have learned repeatedly from painful experience, are not often in firm control of the outcomes of democratic decision making. We may have our way today, but tomorrow the barbarians will be back at the gates pressing in.
The remedy for this uncertainty is to withdraw from democratic decision makers certain spheres of private life they have no business regulating. So commercial establishments, as public accommodations that have always been regulated by law, may properly be told not to discriminate. But non-commercial private membership organizations - like the BSA, or the HRC, or the NGLTF - should be allowed to further their missions as they see fit without state interference.
What's most culturally interesting about the case is that the BSA sought constitutional protection from the proponents of gay equality. The constitutional shoe is on the other foot. It's not gays seeking protection from raiding police officers now; it's homophobes seeking protection from raiding gay rights laws.
We should never confuse having a right with what is right, however. People should have the right to burn an American flag as political protest, but I don't think it's ever right to do so. The BSA may have a right to discriminate against gays, but that does not make their discrimination right.
As in the controversy over Dr. Laura, it's the role of conscientious people to expose bigotry. In fact, it's their right to do so. Just as we may urge sponsors not to subsidize a television program we think is wrong, we may urge local governments and charities not to sponsor a private membership organization that has fought tenaciously to discriminate against us.
In the short run, the BSA won't likely fold under such pressure. The group's membership is up and withdrawing sponsors have so far been replaced by new ones. There are probably still more parents out there who would prefer BSA to keep its anti-gay policy because they fear their children will be molested by gay scoutmasters than there are parents who think that fear is irrational and don't want their children to be taught to prejudge.
But, as even the supposedly anti-gay majority Supreme Court decision recognizes, "the public perception of homosexuality in this country has changed" in the direction of "greater societal acceptance." If we keep exercising our rights, our First Amendment rights, to move the country our way, the BSA won't be turning to courts to keep us out - they'll be turning to us to keep them around.