4.26.00
Gay Rights vs. Everyone's Rights

4.25.00
The Supreme Court's Partial Birth Anxiety

4.25.00
Forbes the Switcher

4.25.00
A Sad Unity in Little Havana

4.24.00
Mr. President, You're No JFK

4.24.00
Elian's Best Interests?

4.21.00
Presidential Columbine Politics

4.20.00
Leonardo Di Caprio, Climatologist

4.20.00
Straight Talk On the Flag

4.20.00
McCain in SC: Bush's Friend or Foe?

4.20.00
You Have the Right to Remain Silent

4.19.00
Media For Gore

4.19.00
Smart Cops Saying 'No'

4.18.00
Celebrating Earth Day — By Cutting Taxes

4.18.00
Clinton's Anti-Gun Two-Step

4.17.00
Let My People Go: Elián and the Exodus

4/26/00 11:25 a.m.
Gay Rights vs. Everyone's Rights
A law professor’s view.

By Thomas E. Baker, Director of the Constitutional Law Center, Drake U.

oes the Constitution permit a state to require the appointment of a gay Scout leader who claims his dismissal was discrimination? That is the narrow question that faces the Supreme Court today in Boy Scouts of America v. Dale. But I do not expect the Justices to see it that narrowly. I think it is a good thing for everyone, including gay and lesbian Americans, that the Justices are more likely to decide this case based on the broader principle of freedom of association.

The Court's decision will have a lot to say about how state public- accommodation laws — New Jersey's statute forbids discrimination on the basis of race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation, or nationality — should be applied under the Constitution to private organizations, which often consist of members of a single sex, ethnicity, or religion.

James Dale was, by all measure, an exemplary Boy Scout. He was admitted to the Order of the Arrow, and earned the highest rank of Eagle Scout. He served as an Assistant Scoutmaster for about sixteen months. Around the same time, Dale went off to college at Rutgers University, where he came out; he acknowledged his homosexuality and became active and visible in the gay-rights movement.

The Boy Scouts severed their relationship with Dale, taking the position that homosexual conduct is inconsistent with the Scout Oath to be "morally straight" — no pun intended — and contrary to the Scout Law to be "clean" in word and deed. Dale disagreed and sued. The Supreme Court of New Jersey ordered that he be reappointed.

The First Amendment does not mention the "right of association" in so many words, but the Supreme Court has long interpolated the right to associate with other individuals as being a necessary corollary of the rights that are mentioned in the text. Think about it: The freedom of speech requires a speaker and an audience; a free press requires a publisher and a reader; petitioning government usually is a group activity of gathering signatures or protesting and the like; free exercise of religion often takes place within a community. The right of assembly would not make any sense as an individual right without the participation of others.

Freedom of association logically presupposes a freedom not to associate. Individuals have a freedom to choose with whom to associate and with whom not to associate. Membership organizations afford groups of individuals the collective right to associate with fellow members on any variety of common interests and, at the same time, to disassociate themselves from nonmembers. This, in fact, is the whole point of forming a club or organization.

BSA argues that Scouting is an intimate association and that appointing adult Scout leaders is an integral part of Scouting's fundamental expression as an association. BSA insists that having a gay man serving as an adult leader is inimical to the basic values that Scouting stands for and seeks to instill in its members.

There is a fundamental constitutional value to preserve an inviolate private sphere of ideation and individual autonomy free from governmental intrusion or regulation. "Without First Amendment protection against intrusion of public accommodation laws into the voluntary sector," BSA argues in its brief, "American society would be fundamentally transformed. A society in which each and every organization must be equally diverse is a society which has destroyed diversity."

Public interest in this case is high. For many on both sides, it represents the latest battleground in what Justice Antonin Scalia once called the Kulturkampf that is being waged over homosexual rights.

But this case is better understood as a freedom of association case, not a gay-rights case. It triggers the same profound concern for the right of association of all Americans that so-called hate speech prohibitions raise for everyone's freedom of speech. The First Amendment forbids the government to choose sides. We cannot limit BSA's rights without limiting everyone's rights.

The Supreme Court should pay heed to the amicus curiae brief filed on behalf of "Gays and Lesbians for Individual Liberty" on the side of the BSA and against Dale: "GLIL strongly disapproves of the BSA's moral views with respect to homosexuality and wishes the organization would voluntarily end its policy of excluding gays from serving as Scoutmasters. Nevertheless, the First Amendment protects the freedom of the BSA to maintain this misguided policy if it so desires. To deny the BSA's right to express its moral views through its decisions to associate with or exclude certain people endangers the rights of all Americans, including gay Americans."

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