Taking Action—Against Boy Scout Discrimination

Humanist, Sept, 2000 by Margaret Downey

I have just closed a long chapter in my struggle to end the discrimination practiced by the Boy Scouts of America (BSA). My crusade began in December 1992 when I first filed a complaint with the Pennsylvania Human Relations Commission (PHRC) against the Chester County Council of the BSA for rejecting the applications of my son Matthew and myself to, respectively, be a Boy Scout and a BSA adult volunteer. The reason cited for our rejection was that my son and I had declined to affirm the existence of God. In my complaint I claimed unlawful religious discrimination by an organization that was, in my view, a public accommodation. But, in the end, on June 28, 1999, the PHRC dismissed my complaint and declared the BSA a private organization not subject to Pennsylvania's anti-discrimination law.

Although the American Civil Liberties Union took up my cause shortly thereafter and I filed an appeal, it was on July 11, 2000, that, acting on the advice of my attorney Stephen P. McFate, I agreed to file a petition withdrawing that appeal. This was in response to the June 28, 2000, U.S. Supreme Court decision in Boy Scouts of America v. dames Dale, which made it clear that the BSA would prevail in any further proceedings.

The High Court's ruling in Dale dealt specifically with the question of whether or not the New Jersey Supreme Court was correct in its ruling that the BSA must comply with New Jersey's anti-discrimination law and accept Dale, an openly gay man, as an adult volunteer BSA leader. The New Jersey court had found the BSA to be a public accommodation, bringing the BSA's dismissal of Dale within the anti-discrimination law's scope. The U.S. Supreme Court, however, overturned the New Jersey ruling, viewing the BSA as exclusively private.

In its arguments throughout the long litigation, the BSA claimed that accepting gays would violate the organization's First Amendment rights of freedom of association and freedom of speech. In the five-to-four decision, Justices William Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony g. Kennedy, and Clarence Thomas supported this claim. Indeed, the decision went so far as to create a new term when Chief Justice Rehnquist, writing for the majority, labeled the BSA an expressive association.

Still, I feel compelled to ask: what are BSA leaders expressing? Clearly it is their judgment that gays are incapable of living up to the Scout oath of being "morally straight" and the Scout law of being "clean." BSA attorneys and officials call gay men "unfit role models." According to McFate, had the case before the U. S. Supreme Court been about atheism, the same reasoning would have applied. In fact, the legal invalidity of an atheist's claim of discrimination would have seemed even more clear to the Court, as regards to the BSA's "expressive purpose" argument: the Scout oath specifically requires a belief in "God."

Nonetheless, the real meaning of morally straight as cited in the Dale case is unclear because, at the time the oath was written, the word straight had no social connotation in reference to sexual preference. Furthermore, BSA literature contains no explicit language indicating an anti-gay stance. (Nor does the literature even state that an atheist should be expelled.) The only language--apart from the morally straight and clean references in the Scout oath and law--that clarifies the BSA's expressed purpose is found in various official statements issued by the BSA's national office within the past twenty-two years.

For example, in March 1978, the BSA expressed support for a Minnesota BSA Council's decision to exclude two gay boys. The memo--to all Scout executives--dictated that, if a member were alleged to be homosexual, he should be investigated in a "discreet and responsible fashion." Then, in 1981, a "reaffirmation" statement that "no boy can ever be the best kind of citizen without a belief in God" was distributed to all BSA councils. (A Scout executive later sent that statement to me when my son and I were denied participation in 1991.) These statements were subsequently submitted to the courts as evidence that the BSA has an expressed purpose that can be harmed if a gay or atheist is allowed to participate.

In addition to all this, past U.S. Supreme Court rulings reflect that a private group's right to freedom of association overrides a state's interest in preventing discrimination. In 1995, the Court held that the organizer of a private St. Patrick's Day parade could exclude gays. This exclusion was based on the parade organizer's desire not to be forced into expressing a message contrary to that of the parade. It was argued that, had gays participated, the parade message would have translated into "gay pride" rather than the simple celebration of St. Patrick's Day.

In its 1976 Runyon v. McCrary decision, the U. S. Supreme Court held that private schools have a First Amendment right to support and teach racial segregation if they want to, no matter how noxious that idea may be. But the Court also ruled that the school couldn't actually practice segregation. In sum, the nod was given to preaching but not to practicing. The same case allowed the private school to exclude people if it disagreed with their ideology or political views.