by Ryan Mulvey:

Last month, the Boy Scouts of America (“BSA”) changed its long-standing yet controversial membership policy. Whereas the BSA previously excluded openly homosexual youth and adults from its ranks—claiming homosexuality to be inconsistent with the principles of scouting—gay youth will now be permitted to retain their membership. Gay Scouters, however, will continue to be disallowed.

While many have welcomed this change, the BSA has opened itself to a host of renewed legal challenges. Under current First Amendment jurisprudence, the Scout’s new “semi-exclusionary” policy is unconstitutional. Having explicitly eliminated any “moral agenda” from its membership guidelines, the BSA is no longer entitled to insulation from government efforts to eradicate discrimination in voluntary, private associational life. While this reality might be a distortion of the Founders’ vision of limited government and individual liberty, it is reality nonetheless.

As a disclaimer, I should note that I am uninterested in discussing the merits of the Scouts’ exclusion or admittance of homosexuals as such. My opinion on that matter is irrelevant to the present consideration of the legal implications of the BSA’s new membership rules. Suffice it to say, though, I am skeptical that allowing gay youth to join, while continuing to exclude gay adults, will produce the much-desired revival of scouting. It may instead lead to an exodus of traditionally minded families and chartering organizations—something that is apparently already happening.

In Boy Scouts of America v. Dale (2000), the Supreme Court found the BSA’s previous exclusionary membership policy to be constitutionally legitimate. The case originated as an attempt by a gay Scoutmaster to contest his expulsion pursuant to a New Jersey public accommodations statute. Writing for the Court, Chief Justice Rehnquist ruled for the BSA, finding it to be an expressive association whose efforts to disseminate a particular conception of sexual morality would be significantly burdened by the forced inclusion of a homosexual leader.

The significance of the Dale decision cannot be overemphasized. As Justice Stevens noted in dissent, prior to Dale the Court had never upheld a claimed right to associate in the discriminatory selection of members. In Roberts v. U.S. Jaycees (1984), for example, the Court forced an all-male youth organization to admit women to full membership. And in subsequent decisions, the Court upheld state-led efforts to foist inclusive policies on organizations as varied as the Rotary Club and private athletic associations.

The Court’s pre-Dale analysis not only turned on whether any one form of discrimination was integral to an organization’s expressive activity, but also required an independent investigation into whether any instance of membership discrimination was factually justifiable or merely based on stereotype. It was only where further constitutionally protected rights and interests—viz., the free exercise of religion and participation in the political process—where discrimination would be considered legitimate. Thus, the Court had found political parties and morally obnoxious groups, typically found on the extremes of the political spectrum, to be beyond the reach of public accommodations statutes.

All this was thrown into a state of confusion with Dale. The BSA was certainly not a church, at least as typically understood, nor was it a formal “political” organization. The Scouts had no further constitutional interests that would have required the insulation of membership practices from the otherwise “compelling” state interest in combating discrimination.

Even more perplexingly, the Dale Court abandoned its efforts to independently identify a group’s expressive message and the extent to which any one practice was integral to its dissemination. Rehnquist deferred to the BSA, allowing it to define its own message. Had the Chief Justice not done so, an independent inquiry would likely has revealed that no particular sexual morality was explicitly identifiable in the Scout Oath and Law. Rather, the BSA’s particular conception of heterosexual masculinity was grounded in the implicit teachings of its partnered organizations—principally, Catholic, Methodist, and Mormon churches—and the vestiges of traditional sexual morality.

In the end, Dale carved out an exception for the Boy Scouts. The Court simply assumed that the BSA was an expressive association whose message of traditional maleness would be irreparably damaged by the forced inclusion of a homosexual leader. This result permitted the continuation of the BSA’s “position” on the morally objectionable character of homosexuality vis-à-vis its membership rules.

The BSA’s reformed membership policy, however, eviscerates any chance of adhering to Dale. In conforming to the moral zeitgeist, the BSA has adopted an incoherent and fatal position. Whereas an entirely “exclusive” policy signaled an implied condemnation of homosexuality, the new policy makes suspicious any claim to a continued moral agenda. The Scout Law cannot have two concurrent, yet inconsistent, interpretations that vary according to an arbitrary distinction based on age. If the BSA is no longer interested in inculcating boys with a particular conception of manhood and male sexuality, then for what reason has it changed its membership policy? And if the promotion of heterosexuality is no longer a goal, then for what reason are homosexual leaders still excluded?

It seems to me that the only justification that can be proffered is that the inclusion of homosexual leaders would make parents and youth uncomfortable. Indeed, this seems to be the opinion of most parents when interviewed by the news media. Yet, while such sentiments are unsurprising, and as a practical matter something to which BSA executives should be sympathetic, they are constitutionally impermissible. The notion that a homosexual adult would be any more prone to sexual misconduct with youth than his heterosexual counterparts is, legally speaking, grounded in animus and false assumptions. No “moral” justification is likely to convince the more liberal members of the Court that the new “semi-exclusive” membership policy is constitutionally defensible.

The fatality of the BSA’s attempt to accommodate changing sexual mores should be troubling because, in the real world, it is not an unreasonable compromise, if still an imprudent one. Why must the law impose an “all or nothing” requirement? Even more importantly, though, we should question why anyone cares what the Scouts, as a private and voluntary organization, chooses to do.

The Dale case should never have reached the Supreme Court because Dale should never have had a cause of action in the first place. Private individuals, and the organizations they constitute, are not (theoretically) bound by the demands of the Constitution, short of the Thirteenth Amendment. And the more that government is permitted to abridge individual rights so as to promote vague notions of equality, or to squash “politically incorrect” viewpoints, the more likely it will oppress the free operation and spontaneous development of civil society. This result is intolerable.

In an ideal world, individuals would be free to associate as they see fit, notwithstanding discriminatory or prejudicial views. Insofar as social institutions remain voluntary and do not possess monopoly powers, thereby leaving ample space for new institutions to arise, the “problem” of exclusionary membership is self-resolving. Disaffected members can simply leave and found competing organizations.

There were countless examples of this sort of market-based reaction within the scouting movement after the Dale case. Openly gay leaders and youth—and those who sympathized with their exclusion from the BSA—set out to form their own alternative scouting groups. And in the wake of the most recent membership reforms, many traditional or religious families are starting to do the same. The courts have no place interfering with this process and forcing a particular organization to change its ways, especially if it simply because that organization is the largest, wealthiest, or historically most prestigious. The state needs to leave room for civil society to function as it should.

I suspect that the Founders envisioned the right of association to be enjoyed in that way. And I am sure that they would be horrified at the prospect of government-mandated membership practices, let alone the prohibition of group conduct on the basis of a government-led effort to effect cultural change. That change is inevitable, if the past sixty years have demonstrated anything, but a truly tolerant disposition cannot be statutorily imposed.

Ryan Mulvey, an Eagle Scout, lives and works in the Washington, DC area. He holds a BA in history and political science from the University of San Diego, and a MA (Philosophy) and JD from Boston University. Mr. Mulvey can be contacted at rpmulvey@gmail.com