Americans are deeply divided over what the moral, public, and legal status of homosexuality should be. A vast majority thinks homosexuals should be accorded broad toleration as a privacy matter and should not be discriminated against on the job. But most Americans are also hesitant to remake traditional and morally freighted institutions, such as marriage, in order to grant homosexual citizens civil parity with the heterosexual majority.
Last month the Supreme Court heard arguments in The Boy Scouts of America v. Dale, a case that touches on these public/private categories in all of their complexity. Do the Boy Scouts have the right to exclude openly homosexual persons from leadership positions? Or should the state’s interest in battling discrimination trump the Scouts’ allegiance to "traditional" morality?
In 1990 James Dale, a Rutgers University student, was dismissed as an assistant scoutmaster after making his homosexuality public. Dale sued the Boy Scouts, arguing that New Jersey law bars discrimination on the basis of sexual orientation. Last year the New Jersey Supreme Court ruled in Dale’s favor, determining that the Boy Scouts were a public accommodation and not a private organization, and therefore subject to the antidiscrimination law. The court ordered Dale reinstated. In appealing the case to the U.S. Supreme Court, the Boy Scouts argued that they are a private group with an "expressive" moral purpose, not a public accommodation like a restaurant or a theater. Furthermore, the ninety-year-old organization maintained that "a society in which each and every organization must be equally diverse is a society which has destroyed diversity," and that traditional moral strictures against homosexuality, implicit in the Scouts’ famous oath, are an essential aspect of what Scouting is all about. Under the First Amendment’s guarantee of free speech and free association, the Scouts think they should be allowed to determine for themselves who can be a Scout leader.
In rejecting those claims, New Jersey’s court had ruled that the Scouts are a large, nonselective group that frequently meets in schools and other public facilities and that Scout troops are often sponsored by municipal police and fire departments. In other words, the Scouts are not as exclusive as a private club and are deeply entangled with civic institutions. The court also found that the Scouts’ opposition to homosexuality was nowhere explicitly stated and that Dale’s role as a scoutmaster therefore did not endanger the purposes of the organization.
On the face of it, Dale would seem to have a strong case. The Boy Scouts’ involvement with public institutions is broad, and Dale himself, a former Eagle Scout, was evidently an exemplary scoutmaster. However, Dale’s abilities or sincerity are not in question. Nor should private organizations forfeit their autonomy because they are engaged in civic duties. Instead, the U.S. Supreme Court is likely to be more concerned with the Boy Scouts’ rights of free association and speech. The Court has previously ruled that groups whose primary purposes are commercial, such as Jaycee and Rotary clubs, do not have the right to restrict membership to men. But where an organization’s purpose is not economic, the right of free association is greater. For example, the U.S. Supreme Court has said that the organizers of Boston’s Saint Patrick’s Day parade have the right to determine who could participate and thus may exclude gay groups. Other state courts have upheld the Boy Scouts’ right to exclude atheists (an explicit belief in God is part of the Scout oath) and girls, just as some feminist organizations restrict their membership to women and civil rights groups bar Ku Klux Klan members. An organization of gay libertarians has even filed a brief in support of the Boy Scouts. A ruling against the Scouts, the libertarians argue, will put the self-selectivity of gay groups in peril.
In this case, the demand that antidiscrimination law be used to compel the private moral acceptance of homosexual conduct crosses a line. It puts the Court in the position of dictating an organization’s position-an organization that acts on behalf of boys and their parents-about a much contested moral issue. The full implications of the profound changes taking place in our understanding of homosexuality are far from clear. For some the treatment of homosexuals is a simple civil rights issue, for others it is a question of basic sexual morality. The mission of the Boy Scouts, as now constituted in its own bylaws, is to shape the moral character of children and adolescents. Given that fact, the public status of homosexuality should be worked out in ways that demonstrate a maximum tolerance for reasonable people on both (actually many) sides of what remains a profoundly divisive question. James Dale should be free to press his case with the Boy Scouts, just as gay Catholics should continue their efforts to persuade the church to rethink its attitude about the "inherently disordered" nature of homosexuality. Perhaps, as the New Jersey court claims, Dale’s sexual orientation does not in any way jeopardize the purposes of scouting. But that is a decision the Boy Scouts-or the church, as the case may be-must make in its own way and by its own lights. The courts should not force the Boy Scouts to embrace a view of homosexuality they cannot in good conscience adopt as their own. Tolerance must work both ways on this difficult issue.