JAMES DALE was a Boy Scout, an Eagle Scout, a Scout leader and a recipient of an award that only 3 percent of Scouts receive. He had been a Boy Scout for 13 years when, in 1991, he was asked to leave the organization. He was also an outspoken gay rights activist. This was the reason the Monmouth Council (N.J.) of the Boy Scouts requested that he leave.
Many of us probably feel sympathetic to Dale for what seems to be a prejudicial judgment of his character, even though he proved his character worthy to the Boy Scouts for over 13 years.
But that should not color our judgment either. The Supreme Court's recent decision in Boy Scouts of America v. Jame Dale was a sound one. Chief Justice William H. Rehnquist wrote the opinion for the 5-4 majority, declaring the Boy Scouts can legally exclude Dale.
The case originated in New Jersey, where Dale had been a Scout leader. New Jersey's Law Against Discrimination applies to all public facilities -- such as schools and government centers -- and all public accommodations -- such as highways and restaurants. So if the Boy Scouts fit the description of one of the two, then they can't discriminate based on sexuality, and hence could not exclude James Dale.
The Supreme Court of New Jersey wrongly classified the Boy Scouts as a public accommodation, and compromised its integrity as a result.
Here's just one implication of the New Jersey Supreme Court's reasoning. Consider a liquor store. If it is a public accommodation, then the LAD's age discrimination clause would demand that it must serve 19 year-olds and 22 year-olds alike. No right-minded court would ever label a liquor store a public accommodation for this reason -- doing so eliminates the state's ability to set a drinking age.
But liquor stores are often run by the states themselves. Hence, if no court would call a state-run liquor store a public accommodation, then surely the Boy Scouts -- a privately chartered organization -- certainly can't be one either.
Seeing that the Boy Scouts are not a public accommodation is crucial to understanding the Court's ruling. Depending on your tastes, you might consider the position that homosexuality is immoral an unthinking prejudice. Each of us is entitled to make that judgement. So is the Boy Scouts of America. In fact, one of the treasures of the First Amendment is that we have a right of association for the purposes of expression.
If aggregation is to have this power, there must be a right to exclude. By forcing the Boy Scouts to accommodate homosexual lifestyles, it must also accommodate a tacit contradiction of its moral message, since part of that message is an objection to homosexuality. In the case of James Dale, who was publicly identified as president of the Rutgers University Lesbian/Gay Alliance, this contradiction is not so quiet.
It's no different than an intelligent, outspoken, environmentalist lawyer who might represent an oil firm. Just as homosexual Scoutleaders are as competent as heterosexual Scoutleaders, so an environmentalist could be a competent representative of a company that causes significant damage to the environment. Such a lawyer's associations, however, diminish the effectiveness of his speech.
The same is true of the Boy Scouts. The more gay rights activists it must accommodate, the more watered down its message would become. Its right of expressive association would be meaningless. The Supreme Court, by favoring the Boy Scouts, allowed it to remain meaningful.
Several homosexual groups agree with this reasoning. They filed friend-of-the-court briefs arguing that if the Boy Scouts can't exclude them, then they can't exclude heterosexuals in purely homosexual associations.
Prevention of discrimination in this case conflicts with First Amendment expressive association rights. The New Jersey Court favored the former on shaky grounds. The Supreme Court could not favor the former and yet maintain its jurisprudential integrity.
Here's why. "Discrete and insular minorities" -- such as racial minorities -- are protected equally under the Fourteenth Amendment. Not only did Congress not intend the Fourteenth Amendment to be a protection of homosexuals, but judicial precedent doesn't either. In Bowers v. Hardwick (1985), the Court ruled that states can pass laws against sodomy, which means they can regulate homosexual conduct in ways they cannot regulate heterosexual acts. This demonstrates that homosexuals cannot have a blanket protection against discrimination along the lines of what New Jersey had in mind.
The Boy Scouts have circulated several position papers on the immorality of homosexuality. They may have taken the wrong position; they may not have. But the Court has the law and its integrity. We can all rejoice that neither was compromised.
(Jeffrey Eisenberg is a Cavalier Daily columnist.)
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