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The following article is from the Secular Humanist Bulletin, Volume 16, Number 3.

Supreme Court Endorses Discrimination

by Ansel Barnum

The Boy Scouts of America (BSA) has won the approval of the U.S. Supreme Court to openly discriminate against gays. Joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas, Chief Justice William H. Rehnquist argued that freedom of association, insured by the First Amendment, protected the BSA from being forced "to accept members where such acceptance would derogate from the organization's expressive message." 

Indeed, if bigotry is part of its shared goal or expressive message, a private organization need not submit to civil rights laws guarding against discrimination (although the American Civil Liberties Union disputes this). However, nowhere in the BSA Scout Oath and Law, the guiding principles all scouts aspire to, is there any indication that gays should be condemned. This was the opinion of dissenters John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer, and David H. Souter, who felt the majority had been swayed by unsubstantiated claims that the BSA stands for the deprecation of homosexuality. "There is no shared goal or collective effort to foster a belief about homosexuality," noted Justice Stevens, "let alone one that is significantly burdened by admitting homosexuals."

Chief Justice Rehnquist, while acknowledging the terms morally straight and clean in the Scout Oath and Law "are by no means self-defining," decided the word of scout officials was good enough. "We accept the Boy Scouts' assertion" and "need not inquire further," said the satisfied chief justice.

Having received its wish, the BSA must practice what the Supreme Court concluded it preached. "[The BSA's] leaders and lawyers have convinced five members of the Supreme Court of their narrow, discriminatory vision," explained Ruth Harlow, deputy legal director for Lambda Legal Defense and Education Fund, which argued the case of expelled gay scoutmaster James Dale. "Now they have to live with that vision."

In addition to the BSA winning the right to continue excluding gays and atheists, another consequence of the ruling is the now unquestionable private status of the BSA after pleading in front of the Supreme Court for the right to discriminate. Their recruitment in public schools, acceptance of public funds from United Way, reception of government gratuities, and holding of a congressional charter led the New Jersey Supreme Court to conclude that the BSA fit the definition of a public accommodation and consequently was not entitled to discriminate. After the Supreme Court overturned the New Jersey ruling, however, the private BSA relinquishes the rights and funding enjoyed by a public organization. The BSA will now be dependent solely on private donations, although benefactors may be less inclined to support a cause that nurtures intolerance and bigotry. "The BSA will lose the respect of people who hold dear the moral tenet of non-discrimination," predicted Margaret Downey, president of the Anti-Discrimination Support Network and one of many mothers whose son was ejected from the BSA for refusing to kowtow to the Almighty.

"Corporations, agencies of government, and the United Way cannot fund an organization that is merely private and openly discriminatory." In addition to facing a loss of funding, the 6.2 million-member organization also stands to be reduced in number. "Parents must choose if they want their children taught morals by a group that promotes prejudice, intolerance, and separatism," cautioned Downey.

The Scout Oath

On my honor, I will do my best 
To do my duty to God and my 
country and to obey the Scout Law;
To help other people at all times;
To keep physically strong, mentally awake and morally straight.
The Scout Law
A Scout is trustworthy, loyal, 
helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent.

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This page was last updated 12/04/2003

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