In June, the U.S. Supreme Court will issue a ruling in the case of James Dale v. Boy Scouts of America. Dale's lawyers argue that the case is about civil rights for homosexuals. It isn't.
The ruling in the case could decide whether the Constitution's guarantee of freedom of association and the free exercise of religion will long survive in America. If the court rules in favor of Dale, then both of those rights will have been effectively destroyed.
The case dates from 1990, when Dale, a 20-year-old Scoutmaster from Mattawan, N.J., was ousted from the Boy Scouts by the local Scouts council after a newspaper story detailed his activities on behalf of a gay-rights organization at Rutgers University. Dale filed a lawsuit against the Scouts and won. A unanimous New Jersey State Supreme Court upheld the verdict and ordered his reinstatement. The Scouts then asked the U.S. Supreme Court for review.
Dale asks the court to declare that the Boy Scouts is a "public accommodation." This would put the Scouts on the same footing as a restaurant, motel, or movie theater. Such public accommodations are prohibited from discriminating on the basis of race, gender, ethnicity, or sexual orientation under the Civil Rights Act of 1964. If the Scouts are deemed such an accommodation, then they cannot bar homosexuals from membership or, in this case, positions of leadership.
But the Boy Scouts indisputably is a private, voluntary association, not a public accommodation as the homosexual activists allege. The Scouts take no government money and are composed entirely of volunteers, and a vast majority of troops have non-governmental sponsors. In fact, nearly 65% of Scout troops are sponsored by churches.
The lawsuit not only alleges that the Scouts amount to a public accommodation, but it also claims that non-members have the right to reinterpret the organization's core beliefs by forcing the Scouts to accept homosexual counselors. Since when does the government have the power to dictate to a private organization the content of its message or the purpose of its mission?
The Boy Scouts have long stood for traditional family values. The Scouting Code is rooted in historic Judeo-Christian moral standards. Belief in God is the core value in Scouting. The Scouts do not admit atheists (another act of "discrimination"?) who refuse to take the Scouting oath, which begins, "On my honor, I will do my best to do my duty to God. . . ." That Scouting is an "exercise of religion" under the First Amendment appears obvious.
If the court were to rule next month against the Scouts in favor of the homosexual plaintiff, then freedom of association and the free exercise of religion would simply cease to exist. The government would be free to dictate to churches, for example, what practices were permissible and orthodox anytime some disgruntled or aggrieved individual invoked a "compelling state interest." This would destroy the very touchstone of our liberty--freedom of conscience.
Dale's lawyers argued that because the Boy Scouts invite the public to join and participate, Scouting is in fact a public accommodation. This misses the point: The Scouts invite the public to participate on the basis of Scouting's principles. That is, in order to participate, one must become a member by accepting, supporting, and evincing loyalty to those things for which Scouting stands.
This is no different from the practice of most religious organizations. If the Scouts are to be judged a public accommodation, then so must churches. The Roman Catholic Church and most Protestant churches welcome all--to become Catholics or Protestants. It is preposterous to suggest that the Catholic Church should accept as members--and even elevate to the clergy--those who refuse to accept the authority of Rome or who reject the Sacraments. The public is not invited to become members of the Catholic Church--or the Boy Scouts--unconditionally.
Yet the Scouts are asked to accept into membership and positions of leadership those who reject key elements of Scouting's core precepts. Homosexuals do not have to like the Boy Scouts' position on the incompatibility of Scouting and homosexuality. In fact, they are free to dislike it, oppose it, castigate it, mock it, revile it, criticize it, or lobby to change it.
But they are not free to wield the power of government as a force majeure to compel the Boy Scouts or any other private association to comply with politically correct notions of what the Scouts' mission should be--not if the freedom to associate still means anything in our country.