Today the Supreme Court ruled that the Boy Scouts were acting within their first amendment rights in firing a gay scoutmaster. http://www.cnn.com/2000/LAW/06/28/scotus.gay.boyscouts/index.html
So, why is this case considered to be a freedom of assembly issue? I think this opens a can of worms for groups to “constitutionally” bar gays.
IANAL, but that won’t stop me from throwing my interpretation out.
The decision calls it “expressive association,” which apparantly mean that the very fact that the Scouts seek to exclude some persons from positions of authority is expressive, and that by excluding gays as scout leader the Boy Scouts are exercising their right to free speech.
At least, that’s what I think it says.
adam yax said:
I’m going to dispute your mixed metaphor, adam, since this ruling changes nothing. The Boy Scouts are a private organization, not a government entity–they have a right to be jerks, if you will. The government does not–and should not–have a say in the matter, for much the same reason they can’t suppress the Klan and the Neo Nazis. Good thing, too–you and I (and, hopefully, the majority of people on this messageboard) find the Scouts’ actions reprehensible, but we can’t use that as a standard to force our attitudes on others. That’s part of freedom…and I recall at least one gay group came down on the side of the BSA–because if the BSA can be forced to admit members against its will, then so can everyone else.
Now, we have the right to let the Boy Scouts know what we think about their policies–by letters to the editor, by protesting, by withholding support for BSA and groups that help fund them. I have no children, but I can guarantee that no son I might have in the future will ever be a member of that organization unless they change their rules. If enough people do that, the Boy Scouts will change–the choice will be change or wither and die.
Well, this is definitely a major can of worms. And it would be most easy to tick a wide variety of people off by any sort of flip answer.
Okay, first you have the First Amendment right to freedom of association. This means that, other things being equal, you have the right to associate with whomever it pleases both/all of you to hang out with, and to avoid associating with those whom you prefer not to. This is your right as a private individual. And it is, by obvious extension, the right of private organizations made up of private individuals to pick and choose, on a reasonable basis, who may or may not be members. There are some “hedges” on this that would require a good constitutional lawyer to decipher. For example, a fraternal organization may not act to exclude African Americans en masse.
A fully public organization, such as a school district, is very delimited in whom it may exclude. A student who is demonstrably disruptive can be excluded on a one-by-one basis, for example, but case after case has stressed that no segregatory or exclusionary action that is not clearly based in the need to provide an education to the children attending is legal. A political party may not exclude anyone who asserts his good faith desire to be a member of it.
And case law to date has held that if you accept public funding, you become “painted” with a public character, and must follow the highly restrictive “public” rules on membership. The American Legion, for example, functions in many states in a quasi-public role and is, where legal, the recipient of public moneys for various civic and charitable activities. And it is required to admit any veteran or member of a veteran’s family, assuming that no reasonable cause to exclude pertains. (E.g., a man who fought in World War II and then was convicted of spying for the Russians, served his term in jail and was released, and then applied for membership, might be justly scrutinized to decide whether he has, so to speak, repented of his quasi-treasonous activities. But that a veteran’s son is a member of the Socialist Party is not sufficent grounds to exclude him if he has a mind to join.)
Now, what the Supreme Court decided is that the Boy Scouts of America, notwithstanding any public funds that may or may have not been devoted to their activities, constitute a “private” organization and can specify who may be a member, leader, etc. They may thus exclude gays from leadership roles, atheists from being members, etc.
I personally disagree with the Court’s holding; I feel that as the single group providing “Scouting” experience to boys and the recipient of at minimum in-kind provision from public groups (ranging from the U.S. Army to various cities and towns), they are “tinged with a public nature.” However, what the courts decide is the law of the land.
Please take note that one can agree with the Court without being homophobic. The question is not whether the Scouts ought or ought not admit gays to membership or leadership roles, but whether they have a legal right to decide whether or not to do so. The courts held that they do have that right. And, unfortunately, they are using it in a highly discriminatory fashion.
I guess that I am not clear on the whole public/private debate. If I own a private business would I be allowed to discriminate against someone due to their religion or sexual orientation or the fact that they were in the boy scouts? What about scout groups that meet in public schools?
Good idea. Where do they get their funding from anyway?
Hmmm…good question.
About doing business: If you own a store, advertise as a plumber or a computer consultant, etc., you are considered as holding yourself open for public trade in the particular forum in which you work. And you are obliged to treat the head of the local KKK and the black Lesbian couple that is your next customer after him exactly equally, insofar as is appropriate (obviously you can charge differently for different goods or services, etc., but you cannot charge them differently for the same item/service, or show some offensive attitude towards one and not the other).
This differs from the right to associate. Nobody can compel you to do anything legally (with some highly limited exceptions), yet your boss can oblige you to do specific tasks as a part of employing you, and a policeman can tell you to leave the scene of a crime or fire you are passing by and stop to watch. You have voluntarily decided to take that job, stop by the crime/fire scene, and you have willingly sacrificed a right temporarily here for some other benefit (paycheck, satisfying your curiosity). By the same token, as a purveyor of goods or services to the public you have foregone your right to freely choose whom you will or will not associate with as regards your business – you have held it open to the general public.
Your private affairs, on the other hand, including what organizations and associations you choose to be a part of, are not subject to government regulation. And the organizations and associations, if not “public” in the sense I have indicated, have a reciprocal right to choose whether or not they want you as a part of them.
Does a group that is “tinged with a public nature” lose it’s right to express itself?
I think the whole concept of “expressive assocation” is an interesting one, has this been used in any previous SC cases? It sounds kind of jury-rigged to perform a specific purpose to me.
adam yax said:
I have heard–I’d want to research this before I decided to boycot them, and I don’t have time to do that right now–that the United Way is one of the entities which funds BSA. BSA is probably registered with somebody or other–state governments, would be my guess–so there may be a way to get this information.
Identify the pressure-points and start squeezing–that’s my view.
From what understood (and I could be wrong), the decision doesn’t appear to state that NJ couldn’t include the Boy Scouts as a public accomodation, just that the application of the law in this particular case would be be a burden on the BSA’s right of “expressive association” without a compelling state interest. (“expressive association” apparently refers to the claim that Dales presence would have interfered with the BSA’s ability to express its view that homosexuality is immoral.Whether the BSA actually expresses such a view, and how fundamental it is to the organization is another question) There have been other cases ( Jaycees, etc. not admitting women ) where the decisions have been that the organizations were public accomodations, and either the restrictions were not expressions of belief or there were compelling state interests.
For those who want to boycott the organization, please remember two things.First.this decision was made on a national level.No one ever asked those kids you see washing cars or their parents what they thought. National doesn’t ever see the money from that car wash,and there are a fair amount of members who disagree with this policy.Second, sometimes change is easier from within. I’m sure Dale wasn’t the first person rejected due to homosexuality, but I bet he was the first who had been a member since age eight.If a homosexual applicant with no previous connection had been rejected, it would have been a lot harder to prove it was the homosexuality that caused the rejection.
The problem is that the Boy Scouts are a religious organization masquerading as an “open” organization. If they just promoted themselves as what they are—a conservative Christian group—I would have no problem with them banning gays and atheists. But to say “we’re open to all—except those filthy godless perverts” is just plain misleading and wicked.
The decision is sad, and I think misguided, but technically the SC was right by the definition of how the BSA runs itself - it’s a private organization, albeit a pretty crappy one in my view. (Note: I was never a boy scout myself - Mom didn’t want to shell out the bucks for a uniform :()
One of the problems of the “private organization” classification is, where’s the competition? What other organizations exist that aren’t exclusatory in this way? The only one I know of is the one my newphews belong to, which (I think) is called Indian Guides. I have no idea, however, if this is even remotely close to the size and import of the BSA.
AFAIK, my church (us Unitarian Universalists) have taken a stance with the BSA and begun to refuse renting church space to them for meetings. My own minister got up at an interfaith/BSA meeting in our area and caused quite a ruckus when she asked about the homosexuality and atheist issues, and, IIRC, was asked to leave! (Go Kate!) If I ever have kids, I hope that either the BSA has changed to be more inclusive, or another similar type organization is around that can provide the same kind of service, education and fun that the BSA does.
Esprix
I’m a tad confused. The Supreme Court said that the Boy Scouts of America, as a private organization, has the right to restrict its membership in any way it pleases. Didn’t the the SC uphold the rights of women to invade men’s clubs? How is that different? And if a private group can exclude gay folk, then a private group can exclude blacks, women, or white guys for that matter. Where is the line between public accomodation and the right to restrict membership?
The difference is in “expressive viewpoints.” The SC ruled that
Here, I think, we run into the problem of “orientation vs conduct.” By their claim that homosexuality is a “choice” and “deviant behavior” the conservative Christians (to simply name the loudest voice) imply that homosexuality is not a “state” but only actions so homoseuality is not what a person Is, but rather what a person Does. Race an Gender cannot be similarly split, so those cases are more clear cut. BSA’s argument is that since they expressly speak for “moral behavior” and that they also define homosexual acts as being innately immoral, they having a scoutmaster who performs “immoral acts” conflicts with their message against immoral behavior.
And we’re going to keep running into this problem until people can be convinced that homosexuality is as innate a part of what person is as race, gender, heterosexuality, and that regardless of the “true” cause, it is not a choice and cannot be defined solely by acts.
pinqy
I’ve not read the decision. Somebody please help me here.
From this thread’s postings it appears that the BSA has opted to exclude openly homosexual men from voluntary, non-paid, positions of authority and influence over impressionable and formative teen boys.
As I remember, the BSA charter specifically says that it builds character, molds it members, teaches values, etc. (I was a Boy Scout some years back.)
I don’t see the level of prejudice or bigotry that most of you appear to find. Is there prejudice involved? Probably. But isn’t it just as phobic to see “conspiracy” and “phobia” written on any decision that goes against a group as it is to fear, loathe, and despise a group?
The focus of the issue shouldn’t be the phobic nature of people. The focus should be whether parents have the right to become members (by proxy via their children) of voluntary organizations and decide the attributes desireable in those they choose to grant influence over their children.
I have to side with the BSA and SC on this. Any other decision suggests that we are not free to choose with whom we will associate.
I always find it amusing that Baden Powel - the guy that started the Scout movement off - was, in all probability, a homosexual himself. He was also a collector of photographs of young(ish) boys in ‘natural poses’.
Seems the BSA would nowadays find the founder as unsuitable for a leader.
I fervently hope, in the wake of this decision, that the more forward-thinking school districts in the United States will no longer allow local BSA troops to come into their schools and recruit for members (the very thing that conservatives accuse homosexuals of doing, ironically). If they want people to join, and are going to limit membership based on religious affiliation and sexual orientation, they can do it while not on the public’s dime.
I don’t know. In preinciple I’m against this kind of discrimination. In practice though…
Well for example, as a man, I certainly wouldn’t feel comfortable leading a troop of teenage girl scouts into the woods. The potential for scandal is just way too high for comfort. I can understand why the girl scouts wouldn’t want me to do this either. One needs to avoid the appearance or even the possibility of impropriety.
I was in the BSA for a couple of years, and it was pretty much an open secret that one of our scoutmasters was gay. I think it was pretty much understood that his personal sexual preferences had nothing to do with scouting. I think if he had formally announced that he was gay, than he would have been making an issue of it with respect to scouting.
I personally think that sexuality is not an issue in scouting. Whoever makes it so, probably does not have the best interests of the organization and the children at heart, and probably has no place there.
The more I think about this, the more upset I get. That clause from the BS charter always gets mentioned. The one about being “morally straight”. Correct me if I am wrong, but I don’t think straight wasn’t equated with hetrosexual when the BS charter was written.
What a crock this is. It makes me think that the BS read the article in The Onion about homosexuals nearing their recruiting goals.
I guess I was mistaken when I got upset over my son’s lovely little Cub Scout brothers calling him a “gayrod.” They were accurately presenting spouting scout policy! (Of course, my son, who at 10 certainly knows what homosexuality is but just doesn’t think too much about it - or heterosexuality for that matter, couldn’t understand why the term gayrod was supposed to be an insult, because gay means happy. What a sweetie!)
Are you aware that scouts no longer offer a UU religious badge? Not because of that niggling little matter of whether or not there is a God, but because the denomination has the nerve to reject the premise best phrased by the late great SK, “Suck a dick, go to hell!”
I’m going to have to check out the extent to which my schools and other public buildings can make themselves available to groups that expressly discriminate on the basis of sexual orientation.
SouthernStyle wrote:
It always helps to read up on the background of something before you comment on it. Links are provided.
Oh, yes, the only positive male role models are heterosexual. :rolleyes:
The issues argued were (and somebody correct me if I’m wrong) (a) whether or not the BSA constituted a public or a private organization, and (b) whether or not openly gay or atheist scouts or scoutmasters contradicted the BSA’s core tenents. If they had been a public accommodation, then prejudice is not tolerated, regardless of their tenents. But since they were decided to be private, they could decide if they were against their doctrines or not, and they did.
Both the scouts and the scoutmasters are volunteers, and the organization is private. No one is holding a gun to some parents’ head and forcing their kids to join Boy Scouts. I’d like to hope that more people are intolerant of such exclusionary policies and would therefore find a viable alternative experience for their children.
If you’ll read the issues posted here about “expressive association” you’ll get a better feel of what does and does constitute “freedom to associate” under the law.
Esprix