Bench Memos

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Boy Scouting’s Descent into Incoherence


In a characteristically cogent essay at Public Discourse today, Carson Holloway explains why the “compromise” on open homosexuality in the Boy Scouts of America is doomed–and pretty rapidly too.  Echoing comments our own Ed Whelan has made, Holloway points out that legally as well as morally and politically, the Scouts’ new policy is incoherent:

[T]he Scouts have, by compromising with their adversaries and thereby compromising the coherence of their own position, opened themselves to lawsuits forcing them to admit openly homosexual Scout leaders as well as members. Some states have laws that forbid discrimination based on sexual orientation. The Scouts’ traditional policy runs afoul of such laws and was in fact challenged as a violation of New Jersey’s anti-discrimination laws in the latter part of the 1990s.

At that time, the Scouts prevailed against this challenge by claiming that this attempted application of state anti-discrimination law intruded on the organization’s First Amendment rights. In Boy Scouts v. Dale, the Supreme Court agreed. The First Amendment protection for freedom of speech, the Court ruled, includes an implied protection for freedom of “expressive association.” This freedom limits the extent to which the law can force members into an organization contrary to that organization’s own convictions. Thus the Scouts could ban openly gay members because they were organized in part to inculcate a moral teaching with which homosexual activity was inconsistent.

The plausibility of this constitutional defense of its membership requirements, however, depends on the very consistency that the Scouts have now abandoned. . . .

Read the rest here.



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