Justice Stevens Was Right (Again)

On Justice Stevens's birthday, I suppose it is appropriate that there is an article in the New York Times that, to my mind, highlights the wisdom of his 2000 dissenting opinion in Boy Scouts of America v. Dale. In that case, the Supreme Court held that the First Amendment prohibited the state of New Jersey from enforcing its antidiscrimination laws (which prohibit discrimination against gay people) against the Boy Scouts. The Court (in an opinion by Justice Rehnquist) reasoned that instilling a view that homosexual conduct is immoral was a part of the Boy Scout's purposes as an expressive association and that, as a consequence, enforcing the antidiscrimination laws against them was unconstitutional.In his dissenting opinion, Justice Stevens expressed doubt that condemnation of homosexual conduct was really part of the Boy Scout's self-understanding -- as opposed to a convenient stance adopted for the purposes of litigation:

The only policy written before the revocation of Dale's membership was an equivocal, undisclosed statement that evidences no connection between the group's discriminatory intentions and its expressive interests. The later policies demonstrate a brief -- though ultimately abandoned -- attempt to tie BSA's exclusion to its expression, but other than a single sentence, the BSA fails to show that it has ever taught Scouts that homosexuality is not 'morally straight' or 'clean,' or that such a view was part of the group's collective efforts to foster a belief.

Today, the New York Times reports about the Scouts' proposal to change its policies to allow gay members. The group's leadership has proposed to allow gay scouts, but not gay scout leaders. (This is interesting to me in part because I'm curious to see how church groups respond to it. Some have already begun to criticize it, though the key Mormon and Catholic constituencies do not appear to have commented. Will those interested in Catholic scout groups really insist that exclusion of young boys who identify as gay is required by Catholic teaching on homosexuality? I tend to doubt it, but we'll see.)But back to Justice Stevens. Towards the end of the story, we see that the text of the proposed resolution includes this telling littlepassage:

[S]couting is a youth program, and any sexual conduct, whether homosexual or heterosexual, by youth of scouting age is contrary to the virtues of scouting. . . . The Boy Scouts of America does not have an agenda on the matter of sexual orientation, and resolving this complex issue is not the role of the organization, nor may any member using scouting to promote or advance any social or political position or agenda.

Happy 93rd Birthday, Justice! You have always been at least 10 years ahead of your time.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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