4/26/00 3:40 p.m.
It's About Freedom
For Boy Scouts, gays, and everyone else.

By Matthew Berry, attorney, Institute for Justice

his morning, the U.S. Supreme Court was ground zero in the culture war, as the Justices considered whether the Boy Scouts of America has the First Amendment right to exclude openly gay Scoutmasters. Under review was the New Jersey Supreme Court's ruling that the Scouts' freedom of association does not trump the state's law forbidding discrimination in public accommodations on the basis of sexual orientation.

As one would expect, combatants on both sides of the Kulturkampf showed up to witness the battle. Outside the Court, for example, was a slightly deranged-looking man, holding a giant cross and shouting, "Homosexuals can't be morally straight. End of case." Presumably also supporting the Scouts' position, albeit in a less vocal manner, were an unusually large number of boys for a U.S. Supreme Court oral argument.

On the other side, the spectator section was also filled with many more gay individuals than I have seen previously at the Court's proceedings. How, might you ask, could I tell this? Well, I've received lessons from John McCain.

Moving to the substance of the argument, the Scouts' lawyer George Davidson was up first. He explained that the purpose of Scouting is to shape boys' moral values and that the Scouts believe homosexual conduct to be inconsistent with the requirements contained in the Scout Oath and Law that Scouts be "morally straight" and "clean." New Jersey's mandate that the Scouts accept openly gay Scoutmasters, Davidson contended, would therefore directly undermine the ability of the Scouts to transmit their values to members, and thus infringed their freedom of expressive association.

Davidson was mainly grilled by Justices confused by the actual nature of the policy under attack. For example, can a celibate homosexual be a Scoutmaster? If not, how does he undermine the Scouts' message? Or, what about a heterosexual who openly proclaims his belief that homosexual conduct is consistent with a Scout's pledge to be "morally straight"? Wouldn't such a person also undermine the Scouts' message?

For the most part, Davidson skillfully parried these inquiries. While the Scouts' policy is admittedly somewhat vague with respect to how it should be applied in various instances, Davidson repeated the Scouts' central argument: it is the right of the Scouts, and not the government, to determine both how to interpret and how to enforce its longstanding moral principle that Scouts must be "morally straight."

Countering Davidson was Evan Wolfson, representing James Dale, the assistant Scoutmaster excluded from Scouting when he revealed in a local newspaper that he was gay and president of a gay students’ group at Rutgers University. Wolfson had a rough time of it from the beginning.

The Justices wanted to know the ramifications for future cases should Dale prevail. Does a private gay and lesbian organization have the right to exclude heterosexuals? Shockingly, Wolfson, a "gay rights" advocate, proclaimed that gays could not maintain exclusively gay organizations if the government wished to prohibit this. Were I a member of a gay group in Utah, I would not be comforted. Chief Justice Rehnquist then asked if a Jewish organization had the right to exclude non-Jews? Wolfson demurred, arguing that an organization could only remain exclusively Jewish if doing so were necessary to voicing a specific expressive message. This, it would seem, would prove to be a tough task for, say, Hadassah: What's their "message"?

Needless to say, Wolfson's position did not seem to sit well with the Court. His central contention, which he repeated ad nauseam, was that the Scouts are somehow insincere in maintaining that homosexual conduct is inconsistent with the organization's moral message. He doggedly argued that this is either not really the Scouts' position, or at least is not one of their important positions (which raises the question, why are the Scouts spending a large amount of time and money litigating this case?).

Justice Kennedy, however, crystallized the key issue when he asked Wolfson, "Who is in the best position to determine the content of the Boy Scouts' moral message? The Boy Scouts or the New Jersey Supreme Court?"

Although one can never be sure of how a case will be decided on the basis of oral argument, my bet is that the Court's answer to Justice Kennedy's question will be the Boy Scouts, and this result will enhance the freedom of every American, regardless of his or her sexual orientation.