Boy Scouts Capitulate on Gay Leaders -- Liberals Still Angry

(AP Photo/Rick Bowmer, File) (AP Photo/Rick Bowmer, File)

In yet another act of conservative capitulation, the Boy Scouts of America (BSA) voted to reverse its policy against openly gay scout leaders last week, with an important exception for church-based troops, who can choose to keep excluding them. Unfortunately, this may alienate the Boy Scouts’ huge conservative constituency, without satisfying the Left. As an Eagle Scout myself, it pains me to see the organization of my boyhood mired in a needless political debate.

While likely well-intentioned, this move has proven catastrophic -- reversing an historic Supreme Court victory, potentially endangering boys on campouts, and angering both sides of the moral divide.

Previously, the Boy Scouts of America banned openly gay adults from serving in positions of leadership. Now, the national organization has removed the ban, but it allows church-based groups (roughly 70 percent of local chapters) to maintain the ban if they desire. The  Church of Jesus Christ of Latter-day Saints -- better known as Mormons -- hinted that this decision may still cause it to leave the BSA, and liberal groups are decrying this as a stop-gap measure which still allows for unjust discrimination against homosexuals.

In calling for the policy change, BSA President Robert Gates said exclusion of gay leaders is “unsustainable,” that it “was inevitably going to result in simultaneous legal battles in multiple jurisdictions, and at staggering costs.” Maintaining the policy would mean “the end of us as a national movement.” In other words, it is time for the Boy Scouts of America to “get with the times,” or find itself at the wrong end of an expensive legal battle, like Aaron and Melissa Klein.

Surrendering a Supreme Court Victory

Gates’s fear that charges of “discrimination” would be levelled at the BSA due to a policy of excluding openly gay leaders is far from unfounded. Economic and cultural elites have strongly turned against even religious protections for groups which oppose open homosexuality and gay marriage, as seen in Indiana earlier this year. Ironically, however, by applying this policy the Boy Scouts may have forfeited the strongest kind of legal argument -- a Supreme Court decision.

In Boy Scouts of America v. Dale (2000), the United States Supreme Court ruled that the BSA had a constitutionally protected right under the First Amendment to its then-exclusive membership policy. As National Review’s Ed Whelan remarked, that decision rested on the Boy Scouts’ position that “homosexual conduct is inconsistent with the values it seeks to instill.”

“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, and to keep myself physically strong, mentally awake, and morally straight.” This scout oath emphasizes duty to God and country, and elevates moral rectitude as the third most important part of maturing from boy to man. Whether or not the BSA was right to consider homosexuality immoral, the Supreme Court was right to say the moral code is a fundamental part of the Scouts’ message.

The First Amendment protection for freedom of speech extends not only to individuals, but to groups of individuals as well, the Supreme Court argued. Since its version of morality was central to the Boy Scouts’ speech, the Constitution protected the organization from mandates to include members who openly opposed one tenet of the moral code -- being openly homosexual.

(This may not have applied to all gays -- indeed, there are many scouts who later come out after their time in scouting -- but the Boy Scouts wanted to refrain from adding sexual tension to their activities. More on this later.)

The argument for this protection, however, could be fundamentally weakened should the BSA's position on open homosexuality evolve. So long as the Boy Scouts' moral code does not endorse homosexual behavior, the defense should stand -- their policy is buttressed by the freedom of speech enshrined in the Constitution, according to the Supreme Court.

In 2013, the BSA extended membership to boys who were openly homosexual. This did not violate the premise on which the Supreme Court case was based, but it seemed to open the door to alterations of the BSA moral code.

Allowing gay boys to join the Boy Scouts does not necessarily send the message that homosexuality is suddenly acceptable. So long as the adult leaders were not openly gay, the BSA could still claim the defense of the Supreme Court decision, because their structure did not encourage homosexuality. While some of the scouts would openly identify as gay, the role models would not.

So long as the BSA held that open homosexuality is unacceptable for adult leaders who would necessarily be moral role models to the scouts, the Supreme Court decision should have shielded the national organization from charges of discrimination.

This new decision may actually open local chapters to litigation, however. Should the protection of the Supreme Court decision be extended to local chapters when the national organization has rejected the moral opposition to open homosexuality? Since the BSA no longer includes that message as part of its constitutionally defended free speech, liberal groups may successfully sue for “discrimination” on the grounds of “sexual orientation.”