6/28/00 5:40 p.m.
Big Wins for Conservatives
On Scouts and schools, the Supreme Court helps our cause.

By Matthew Berry, staff attorney at the Institute for Justice

n the last day of its term, the U.S. Supreme Court has handed conservatives and libertarians two significant victories. In the Boy Scouts case, it has reaffirmed that freedom of association is alive and well, for the time being. And in a case involving a federal program providing instructional materials for students in public and private schools, the Court has signaled once again that school vouchers are likely to be declared constitutional under the First Amendment's Establishment Clause. While both decisions are clearly cause for at least some celebration, the extent of one's revelry in both cases will likely depend on one's temperament.

Turning first to the Boy Scouts case, a cheerful Reaganite conservative such as myself will be satisfied that the Scouts' freedom of association has been respected. A conservative with a more dour disposition, however, will focus on the fact that liberty only prevailed by a single vote.

In a 5-4 majority decision written by Chief Justice Rehnquist, the Court ruled that the State of New Jersey could not compel the Scouts to accept openly gay Scoutmasters, agreeing with the Scouts' argument that to do so would violate the organization's freedom of expressive association.

The Boy Scouts maintain that homosexual conduct is incompatible with the admonitions contained in the Scout Law and Oath to be "morally straight" and "clean." Chief Justice Rehnquist therefore observed that preventing the Scouts from excluding gay Scoutmasters would undermine the organization's ability to express its disapproval of homosexuality both to young Scouts and to the public at large.

While gay-rights advocates are already arguing that today's ruling is a setback for gay Americans, this is far from the case. Rather, the Court's decision enhances the freedom of all Americans, gay and straight, to associate with others free from government harassment. While this particular case involved the First Amendment rights of an anti-gay organization, history teaches that when freedom of association is not respected, it is gays and other minorities who suffer most.

Writing for the four dissenters, Justice John Paul Stevens set forth his own view of the case: (1) contrary to the Scouts' interpretation of their own code, homosexuality really isn't incompatible with Scout Oath and Law; and (2) scouting has not been sufficiently clear enough in communicating its disapproval of homosexuality for its view to warrant First Amendment protection.

The entire dissent is permeated by an Alice-in-Wonderland quality. If the Scouts really do not to wish to communicate their view that homosexuality is immoral to their membership, then what is motivating their policy? And why have they spent an enormous amount of money defending this position in courts across the nation? Even more troubling, however, is the dissent's refusal to accept the Scouts' interpretation of the Scout Law and Oath. While it is the job of the U.S. Supreme Court to interpret the Constitution, it is not the job of the justices to interpret the meaning of a private organization's own moral code. That is the job of the organization itself. If the dissent's approach becomes the law of the land, what will be next? U.S. Supreme Court opinions expressing disagreement with Major League Baseball's interpretation of the strike zone?

Moving to conservatives' second triumph of the day, the Supreme Court, in Mitchell v. Helms, upheld by a 6-3 vote the constitutionality of the federal government's Chapter 2 program — which provides aid in the form of instructional materials to students in public, private, and religious schools. In voting to reject a challenge that the provision of computers and library books to students at religious schools violated the Establishment Clause, the Court handed school-voucher supporters a major victory.

But again, reaction to the ruling among conservatives and libertarians will be mixed, with the cheerful among us happy that the justices reached the correct result, while the more pessimistic note that the opinion was not as solid as it could have been.

Writing for four of the six justices in the majority, Justice Thomas left little doubt where those justices stand on the question of vouchers. Neutrality, according to Justice Thomas, is the hallmark of the Establishment Clause. Aid that is provided to students at religious and nonreligious schools on a neutral basis cannot possibly be seen as an establishment or endorsement of religion. Instead, it is money provided for the education of children. Given that all voucher programs are neutral with respect to religious and nonreligious options, school-choice supporters should feel very good about this opinion.

Justice O'Connor, in a separate concurring opinion joined by Justice Breyer, also voted to uphold the Chapter 2 aid program. Much in Justice O'Connor's opinion is quite encouraging for school-choice advocates, but it also must be said that she was careful not to box herself in with respect to the outcome of a future voucher case.

O'Connor's quarrel with Justice Thomas centered principally on the distinction between direct and indirect aid. She is far more concerned about the constitutionality of programs involving the direct provision of government aid to religious schools than she is about indirect "private choice programs," such as vouchers, where aid is provided to parents or students who then choose to use it at the school of their choice. Although Justice O'Connor goes to great lengths to disassociate herself from some of the Thomas opinion's views with respect to direct aid, much of her effort to distinguish direct from indirect aid is actually good news for voucher supporters.

While, admittedly, the Mitchell ruling does not guarantee victory in the ultimate U.S. Supreme Court showdown over the constitutionality of vouchers, it does leave school-choice supporters better off than we were at the beginning of the day. Sure, it would have been great had Justice O'Connor joined Justice Thomas's opinion. And, sure, it would have been better had the victory in the Boy Scouts case been by more than a single vote. But the important thing conservatives and libertarians should realize is that we have won two big victories today. And as Vince Lombardi so perceptively stated, "Winning isn't everything, it's the only thing."