Do the Scouts continue to have a legal basis for discriminating?

Timothy Kincaid

April 28th, 2013

On June 28, 2000, the Supreme Court of the United States overturned the New Jersey Supreme Court’s ruling in favor of James Dale in his lawsuit to be reinstated as assistant scoutmaster. In doing so, SCOTUS relied on the assertions by the Boy Scouts of America that they, as a whole, had an expressive policy against homosexuality. The key determinant was whether the Boy Scouts, in insisting that their members be “morally straight” and excluding, by policy, homosexual members and volunteers, were sending an express message to the youth members.

In other words, they were allowed to discriminate against gay members and volunteers precisely because they have a belief and message to convey about homosexuality.

But here are a few questions I have for the legal eagles:

1. Does the message “homosexuality is acceptable in our membership when one is 17 but not when one is 18” continue to be a consistent expression of belief?

2. If the Scouts no longer believe that one must be heterosexual to be “morally straight” (a condition they place on their youth members), then what, exactly, is the legal basis to their exclusion of gay adult volunteers?

3. The SCOTUS places a great deal of emphasis on the right of the Scouts to teach by example on the issue of homosexuality and that such teaching by modeling is an expression. But that modeling presumes that all youth are equally subject to modeling, and – more or less – that sexual orientation is either not fixed or, perhaps, non-existent. But if they are now accepting gay youth, they then acknowledge that these youth have a homosexual sexual orientation. And if they restrict adult volunteers to those with a heterosexual sexual orientation, they are limiting their modeling of behavior only to those boys who also have a heterosexual sexual orientation and present no model whatsoever for gay youth. So do they continue to express by example?

In short, by this strange ‘compromise’, have not the Boy Scouts given up their legal basis for discrimination?


April 28th, 2013

Alas, you’ve made the all-too-common mistake of believing that the Supreme Court actually meant what it said in Boy Scouts v. Dale. The truth is that despite the logic and good sense of everything you’ve said, I highly doubt any lower court judge would risk flouting an opinion of the Supreme Court to get to the result you’ve urged, at least not until we make broader strides in other areas of the law. The opinion just casts too big a shadow.

Lightning Baltimore

April 28th, 2013

Perhaps they are under the mistaken impression that the presence of straight, adult males will turn gay boys straight, and that’s good, whereas the presence of gay, adult males will affirm that gay boys are fine the way they are, and that’s bad?


April 28th, 2013

I suspect that the Boy Scouts defense will be that youth members who think they are homosexual are only going through a phase (perhaps some bad role models outside of scouting). Just as boys in juvenile detention can join the scouts on promise of future good behavior so can those who think they are homosexual. They are giving them another chance. (Utterly wrong understanding but religious beliefs don’t have to be rational.)

Note that the BSA policy from 2004 until the last couple of years was to allow gay boys (not ban them as so many news reports have and as the BSA has implied) but also not allow them in youth leadership roles unless they ceased to claim to be gay.


April 29th, 2013

The Supreme Court decision was based on a private organization’s freedom of association. A private organization does not have to be consistent or have rational reasons for the decisions they make.

On the other hand, a private organization has no inherent right to taxpayer money. Hence, California will soon pass legislation that will not only cause local governments from subsidizing the Boy Scouts but also cause the BSA to lose its tax-exempt status in California.


April 29th, 2013

You might have a case except for the fact that this was a case that hinged on the fact that he was an assistant Scout Master, and since their new rule, if implemented, will still bar Gay Adults then your point is moote…

The decision in that case centered around the fact that he was an adult wanting to be in a position of Leadership, and that is most likely why they are still baning adults, because if they changed that stance it may very well change the courts opinion if it were to be brought to them under a new case.

The Court deemed it sufficient that the Boy Scouts had taken an official position with respect to same-sex relationships. The presence of an openly gay activist in an assistant Scoutmaster’s uniform sends a distinctly different message from the presence of a heterosexual assistant Scoutmaster who is on record as disagreeing with Boy Scouts policy. The Boy Scouts has a First Amendment right to choose to send one message but not the other. The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.

The decision ends with this:

“We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization’s expression does not justify the State’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.”

So it would seem that they can still hold a belief or message that adult behavior is different than childrens, and have a seperate standard for their adult participants than they do for their minor participants. Nothing in their new possibilities would undo the decision. As long as they hold to and express their “belief” they can discriminate.

Priya Lynn

April 29th, 2013

Very interesting questions Timothy.

Lightning Baltimore

April 29th, 2013

So openly gay adult male automatically equals activist, Robert?


April 29th, 2013

The most recent ‘compromise’ strikes me as still bending towards the belief that one’s sexual orientation is based on one’s behavior. I can imagine a scout claiming to be gay, then receiving a patronizing pat on the head with a sarcastic “sure you are.” Even older teens might still be treated as abstinent (if I remember correctly, BSA encourages abstinence until marriage), but one cannot assume an adult is celibate. Therefore, an adult claiming to be gay must also engage in the behavior. Of course, we wouldn’t want celibate gay adult leaders either because that will certainly lead to trouble. In short, I don’t think it would be deemed as incoherent (and thus unconstitutional) a message as you might hope.


April 29th, 2013

Lightning Baltimore,

I made no such assertion. This was the rationale behind the case Timothy is raising questions on, my apologies for leaving out the quotation marks on that portion of the quotation.

This was not MY impressions, but those found by the Court. If you wish to argue with them, try the SCOTUS Blog. I didn’t have anything to do with the case or it’s decision.

The case was also influenced by the type of “review” the law was held to, which Dale had asserted a higher scrutiny, as Boise and Olsen did later with Perry case in California.

And many people believed, at the time THIS case was decided that ANYONE who was open and honest about their sexuality were considered “activists”. The standards for the use of that word have changed dramaticlly since this case was decided. At that point in history, DALE was considered an activist just for being out and open. Today the term would require much more participation than just being out and open. But not then.


April 29th, 2013

Here is the link to the actual decision:

You can read it for yourself to decide the merits of the questions posed here since the decision has not been presented in it’s totality and Timothy didn’t cover ALL of the aspects that went into the decison.


April 30th, 2013

“…but one cannot assume an adult is celibate. “—Why not?

Regan DuCasse

April 30th, 2013

Jay is correct,ultimately the SCOTUS decision supported the BSA claim they were a private organization, therefore could set their own standards for membership, exempted from public discrimination standards.
And yet, the BSA still expected to receive free public and federal access to government land and real properties with the same privileges they’d enjoyed for decades in some quarters.
As soon as the govt started to make them adhere to the laws regarding paying for it, or having no access at all, the anti gay supporters of the BSA went apeshit talking about discrimination and how lack of privileges they’d had would destroy the BSA’s financial and physical ability to operate.
There is nothing more blatant than the hypocrisy that inevitably follows anti gay policies.

Regan DuCasse

April 30th, 2013

I should amend that, it wasn’t necessarily the gov’t that upheld they couldn’t have the same free access, but private parties petitioned that the BSA pay the same as anyone else who was a privately owned org.
Local gov’ts would support the private owners who refused the BSA’s requests for free access.
Which still made the anti gay smear gays as out to destroy the BSA.
No end to the homophobes wanting to have it both ways.

Priya Lynn

April 30th, 2013

Hyhybt said ““…but one cannot assume an adult is celibate. “—Why not?”.

The same reason you can’t assume an adult is sexually active – both are possible and without knowing more you can’t assume either about an adult. Children on the other hand are less likely to be sexually active than adults.


April 30th, 2013

Thanks PL, that pretty wells sums it up. I am reminded of a friend of mine who didn’t get married until her mid-30s. In telling me the story, she said she chose not to wear white because no one would believe that, at her age, she had never had sex. Society has expectations for people, and we expect children to be innocent and adults to have engaged in sexual activity. There is, of course, a period of time where ‘children’ can and do have sex while some adults are believably abstinent. It is, for this reason, that “one cannot assume an adult is celibate,” but still feel that children are ‘salvageable’, even if they have been exposed to ‘deviant’ sexual activity. For my part, the more Mr. Kincaid talks about this compromise solution, the more insidious I realize it could be.

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