THE BOY SCOUTS ON THE
FRONT LINES
by Harold
Johnson
The
following article, authored by Pacific Legal Foundation
attorney Harold Johnson, exposes the assault being made
by agencies of oppression against long held beliefs and
values that Americans should be able to embrace without
interference by the state. The Pacific Legal
Foundation, headquartered in Sacramento, California,
provides a voice that fills the void for citizens who
have grown weary of overregulation by big government,
over-indulgence by the courts, and excessive interference
in the American way of life. – (Ralph
Wilbur)
A
Washington, D.C. court hearing [on September 10, 2002]
offered a sobering reminder that 9/11 did not, in fact,
change “everything”. The proceedings, at
the District of Columbia Court of Appeals, dealt with a
government rebuke of the Boy Scouts of America last year
for dismissing two Washington-area Scout leaders because
they’re gay. The Scouts asked the court to
overturn the June 2001 command by the District of
Columbia Human Rights Commission that Michael Geller, 39,
and Ronald Pool, 40, be readmitted as adult members and
receive $100,000 in damages.
Although the Commission submitted no briefs of its own
(angry members of Congress had denied the agency funding
to defend its decision), lawyers for Geller and Pool
didn’t give an inch at the hearing. They
insisted that the Scouts cannot be allowed to escape the
District’s anti-discrimination law, and the hefty
fine was right and just.
Carla Kerr, an attorney for the Scouts, reports that the
judges questioned the Geller and Pool attorneys
aggressively. But even if the appellate ruling
favors the Scouts, the fact that they had to go to court
to win back their rights highlights some disturbing
continuities between pre- and post-9/11 America.
Not all of today’s agents of destruction work with
bombs, bullets or box cutters. There are saboteurs
in coats and ties as well—social and cultural
saboteurs, some with government or academic status, who
continue their long-running siege against venerable
institutions that have nourished the nation’s
soul. The Scouts remain a prime target. They
are loathed by the Left for resisting reeducation on
sexual morality and for transmitting a cultural
framework, stressing God and country, that was supposed
to be marginalized by now.
Most of all, perhaps, the Scouts are hated simply as an
obstacle to the Left’s Taliban-like project of
imposing a general conformity of thought on the
country. Lovers of liberty—even those who
might disagree with Scouting’s membership
policies—should toast the Scouts’ tenacious
stand for the First Amendment and the right not to be
[politically correct].
The District of Columbia assault on the Scouts may be
unique in one respect: its unusually direct defiance of
the United States Supreme Court. In the 2000 case
of Dale v. Boy Scouts, the Court settled the question
that the D.C. bureaucrats have tried to reopen. A
five-justice majority ruled that the Scouts are free to
follow their own philosophical precepts. Therefore,
government—New Jersey, in the Dale
case—can’t compel the Scouts to admit avowed
homosexuals as leaders.
The Commission claimed that the case it dealt with
differs from the case of New Jersey assistant scoutmaster
James Dale because Pool and Geller were not public about
their homosexuality. But the Supreme Court’s
teaching in Dale still applies: a private,
philosophically based organization is free to craft its
own creed and tailor membership rules accordingly.
The Commission also accused Scouting’s leaders of
lying, in effect, when they say that Scouting considers
homosexuality incompatible with the Scout Oath’s
pledge to stay “morally straight.” The
Commission alleged that the Scouts haven’t held this
belief historically. It touted as
“evidence” the fact that formal position
statements were drafted only in recent years. If
this line of argument sounds familiar, it’s because
New Jersey tried to sell it to the Supreme Court in Dale.
Writing for the majority, Chief Justice William Rehnquist
declined the invitation to instruct a private
organization on what it does and does not believe.
The Court in Dale accepted Scouting’s own
interpretation of the Scout Oath and the Scout Law.
So, the District of Columbia Human Rights Commission has
demonstrated about as much respect for Dale as southern
school districts showed for Brown v. Board of Education
when they waged “massive resistance” to
desegregation orders in the 1950s. Like Brown, Dale
is a civil rights decision; it affirms liberty of
association and freedom from thought codes. A
“Human Rights” commission worthy of the name
would honor Dale, not subvert it.
Most of the recent government assaults on the Scouts have
not been as shamelessly frontal. The trend is to
try to coerce rather than openly compel. For
instance, there’s the scheme of shunning, as
practiced in San Francisco, where local judges are now
barred from participating in Scouting. There’s
stigmatizing, as Connecticut has attempted by dropping
the Scouts from the list of charities that state
employees can support through payroll deduction.
There’s singling out for the withholding of public
benefits, as Berkeley has done by starting to charge a
Scout-affiliated group, the Sea Scouts, for use of the
city’s marina. No other nonprofit faces such a
requirement. High school teacher Eugene Evans now
must pay $532 a month out of his pocket so the Sea
Scouts’ ship can berth in the marina and 20 or so
boys can sail the Bay on weekends and learn carpentry and
plumbing by working on the ship during the week. Because
he’s covering berthing costs, Evans can no longer
afford to pay membership fees for boys from poorer
neighborhoods around Oakland and Berkeley. Some,
including some black and Latino kids, have had to drop
out.
These anti-Scout ploys raise constitutional issues by
attempting to do indirectly what the Supreme Court has
said cannot be done directly—force Scouting to
abandon its First Amendment rights. A long,
twilight struggle of legal battles is assured.
The Scouts are learning that the totalitarian temptation
survived the Berlin Wall; it’s an impulse that
isn’t necessarily confined to nations patrolled by
tanks and jackboots. Totalitarian arrangements
share a principle: independent, voluntary associations
aren’t allowed. A totalitarian community
“is made absolute by the removal of all forms of
membership and identification which might, by their
existence, compete with the new order,” wrote
sociologist Robert Nisbet. “It is, further,
made absolute by the insistence that all thought, belief,
worship, and membership be within the structure of the
State.”
Tocqueville saw this phenomenon in fledgling form on his
home continent 170 years ago: “In all European
nations some associations cannot be formed until the
state has examined their statutes and authorized their
existence. In several countries efforts are made to
extend this rule to all associations. One can easily see
whither success in that would lead.”
The Scouts’ fight, then, is for the survival of an
authentically private sector—a sphere where beliefs
can be embraced and explored without preclearance,
editing or censorship by the state.
“They hate freedom.” President
Bush’s words about terror networks also describe the
bullies who would force Scouting to march to a new and
“progressive” tune. By standing their
ground, the Scouts put themselves on the front line of
today’s war against tyranny, as surely as the
soldiers tracking Al-Qaida or any battalions that might
be bound for Baghdad.
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