Before the end of June, the Supreme Court will decide whether the Boy Scouts can be forced by antidiscrimination law to accept openly gay members and scoutmasters. The Scouts argue that "gay scoutmaster" is a contradiction in terms, going so far as to claim, in their petition asking the Court to hear the case, that their function of teaching boys "what it means to be a man" cannot survive in the presence of men who are gay.
The case began in New Jersey, where a local Boy Scout council expelled former Eagle Scout and Junior Scoutmaster James Dale after a newspaper article appeared in which he was identified as a co-chair of the gay student group at Rutgers University. Dale sued under the state's civil rights statute, which prohibits discrimination based on sexual orientation by public accommodations. Last August the New Jersey Supreme Court ruled that the Boy Scouts had violated that statute and ordered Dale's reinstatement. The Scouts appealed to the U.S. Supreme Court.
The legal issue now before the Court is whether the Scouts have a First Amendment defense to the enforcement of the law. They argue that one of their expressive activities is to condemn homosexuality as immoral and therefore that forcing them to accept openly gay scoutmasters would violate their constitutional rights. New Jersey's highest court rejected that argument, holding that the Scouts, in fact, did nothing to promote any views of homosexuality, so that admission of a gay scoutmaster would not impose a significant burden on the organization's right to continue its expressive activities as before.
However the Supreme Court resolves it, one level of conflict that this case illustrates is the tension between equality and freedom, between the right to belong and the right to exclude. The Boy Scouts argue that if they can't exclude Dale, then the NAACP can't be allowed to exclude a member of the Ku Klux Klan.
That's a powerful claim, and one that discomfits even the strongest believers in equality. But pause and unpack it. The analogy the Scouts have tried to draw is odd. They aren't asking whether the NAACP must accept white persons, but whether it must accept persons committed by their membership in the Klan to a core idea that opposes the NAACP's central raison d'être. Is the Scout policy aimed at excluding persons who disagree with their belief that homosexuality is immoral or at excluding gays?
Surely there is a difference. True, excluding gay men and youth would work as a mechanism to exclude some people who believe that homosexuality is moral. Fifty years ago, it might have excluded all of them. But that is no longer the case. If the Scouts genuinely want to preserve an enclave where pro-gay messages are forbidden, they must exclude everyone, regardless of sexual identity, who would communicate that message. Yet even though a pro-gay message could very well have a greater effect on a boy if it came from a straight man rather than a man known to be gay, the Boy Scouts do not require straight scoutmasters to communicate only antigay views. Given that, one has to ask whether the Scouts' exclusionary policy is really about maintaining their freedom of expression--or does it cross a thin line into what is simply the purge of an unpopular group?
Perhaps some organizations are so centrally devoted to a core ideology of inequality or difference that the mere presence of certain persons would undermine it. The Klan, for example, might have a legal basis for excluding African Americans; the Boy Scouts might be able to defend excluding girls. (Since the New Jersey law exempts certain same-sex groups from sex discrimination challenges, that issue is not before the Court.) But when a group of five million members that describes itself as "open to all boys" declares one group of boys undesirable, the Court must ensure that their argument is genuinely a defense of expression and not a pretext for prejudice.
hatever the outcome, the Court's decision will have ramifications far beyond the bounds of this case. A large number of civil rights claims revolve around issues of what I call "expressive identity," in which people communicate a message just by asserting who they are. This phenomenon includes not just the coming-out declarations of lesbians and gay men, with the inherent message of gay pride, but virtually any claim for inclusion by a previously excluded group. One of the placards in an early civil rights demonstration stated simply, "I am proud to be a Negro." In Louisiana in the early 1960s, that statement was expressive of a political message while at the same time being part and parcel of a claim for equal treatment.
The law has never fully grappled with the tension that is inherent in such situations. Instead, with the incrementalist logic that drives the law, courts have sought to frame some civil rights cases as really about expression, and others as really about identity, so that their resolution could turn on which principle applies. The problem is, this undermines protections for equality. A claim for equal treatment can too easily be defeated when the expressive component of an identity creates a defense. Sure, say the Boy Scouts, we'll accept homosexuals who don't come out. Theirs is the essence of all "don't ask, don't tell" policies: You can have equal treatment or self-respect, but not both. That is counterfeit equality.
One marker of the power of this issue is the number of friend-of-the-court briefs filed in the Boy Scouts case. According to The National Lawyer, the case ranks in the top 10 in the number of briefs ever filed in a case before the Supreme Court. Many of these combatants are the organizations usually involved, pro or con, in any debate about sexuality. One notable newcomer, however, is the NAACP, which is supporting Dale. This is the first brief that the NAACP has filed in support of a lesbian and gay equality claim. The NAACP was the organization that litigated the seminal cases establishing that an organization, as well as an individual, has a right to free speech. Its brief in the Dale case points out the potential risk to civil rights if the courts don't understand the dynamics of expressive identity claims: "Simply put, if [the Boy Scouts] were right, every application of antidiscrimination law would be forced speech, in the sense that requiring a defendant to hire, feed, house, or employ an individual would be tantamount to a 'compelled endorsement' of the proposition that [certain plaintiffs] should not be excluded."
The Boy Scouts occupy a unique place in American culture, claiming to be the very embodiment of masculinity and good citizenship. Indeed, they merge the two into one indivisible concept. (If the Girl Scouts seem to be a missing voice in this debate, the reason is that they don't have an antilesbian policy. No wonder the Dale case feels more like a contest over the meaning of masculinity than over the meaning of scouting.)
Yet in the beginning, the Boy Scouts of America, with their goal of making good citizens out of immigrant and low-income boys, were for their time a voice for tolerance, if not equality. In contrast to Lord Baden-Powell and British scouting, they forswore anti-Semitism; and the national Scout office, while condoning segregation, contested the efforts of Scout councils in the South to limit the program to whites.
It is no small irony that an organization that once practiced more equality than the law required is now resisting an equality law. It is a sign of the tectonic shifts occurring beneath the surface of the culture. The rhetoric of egalitarian masculinity is no longer a satisfactory substitute for fully inclusive democracy. And the implicit assumption that conforming to gender norms is the price of admission to a shared civic culture is under severe challenge.
The Scouts may win or lose this court battle, but either way they have lost the high moral ground. Their claim to be a paragon of good citizenship rings hollow when their strongest argument to the Court is that they have a right to believe in inequality. Of course they have a right to believe in whatever they want. But they may find that fewer Americans are inclined to believe in them.