Bench Memos

Boy Scouts Would Abandon Own Supreme Court Victory

Next week, the roughly 1,400 members of the Boy Scouts of America’s national council will vote on a resolution that would revise the BSA’s membership policy on homosexuality. The proposed resolution would eliminate the BSA’s prohibition of youth members who are “open or avowed homosexuals” but would supposedly retain its prohibition of adult leaders who are.

In my initial post on the resolution, I explained why I believed that it was ill-considered and unsustainable. Last week, in a document clumsily titled “Membership Resolution Points of Clarification,” the BSA tried to defend its resolution against the various criticisms that it has received.

In points 3 and 4 of my initial post, I explained that while the BSA’s proposed new policy would purport to leave in place its policy denying membership to adult leaders who are “open or avowed homosexuals,” it would in fact undermine the legal basis for maintaining that policy in states that prohibit discrimination on the basis of sexual orientation. In Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the BSA has a constitutionally protected right under the First Amendment to its existing membership policy. That victory rested heavily on the BSA’s position that (as the Court summarized it) “homosexual conduct is inconsistent with the values it seeks to instill.” The resolution, however, is conspicuously silent on whether this remains the BSA’s position.

Further, because the proposed new policy would apparently allow youth members who are “open or avowed homosexuals” to occupy leadership roles in the troop, it is difficult to see on what basis the BSA could expect to justify barring adults who are “open or avowed homosexuals” from leadership roles. The Washington Post, in a house editorial that criticized the BSA resolution for retaining the adult ban, cited my post and expressly agreed with me that the line that the BSA would draw between adult leaders and youth leaders is incoherent.

So what does the BSA have to say in response? Essentially nothing.

For starters, the BSA doesn’t maintain that its proposed new policy would bar youth members who are “open or avowed homosexuals” from having leadership roles. In the absence of such a provision, troops at a minimum will be allowed to have youth leaders who are “open or avowed homosexuals.”

The BSA doesn’t mention Dale at all and doesn’t directly argue that it could sustain its proposed new policy against litigation challenges. The closest it gets to the subject is its statement that the resolution “rightly recognizes there is a difference between kids and adults.”

But is there a significant difference between a 17-year-and-11-month old youth leader and an 18-year-old (or older) adult leader—a difference so significant that the BSA could plausibly be thought to hold, and to be advancing, a position that “homosexual conduct is inconsistent with the values it seeks to instill” when it allows “open or avowed homosexuals” to be youth leaders but not adult leaders? The BSA’s failure to address this fundamental question is telling.

Someone who prefers the existing BSA policy over a wholesale repeal of that policy might be tempted to support the BSA’s resolution. But there is no reason to think that resolution would adopt a workable and sustainable approach. It instead would operate as the way-station to a wholesale repeal, the first step in a very quick two-step surrender. So anyone who favors the existing BSA policy over a wholesale repeal of that policy should vote against the resolution.

Addendum: Tomorrow at noon at the Heritage Foundation, I’ll be taking part in a panel discussion on the BSA resolution.


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