Let Scouts, not Courts, Determine Beliefs

In ruling this month that a local Boy Scout council could not expel a Scout leader because he is homosexual, the New Jersey Supreme Court accepted a narrow and dangerous standard for charities — especially those with strong moral beliefs.

The decision, which runs counter to a 1998 ruling by the California Supreme Court that held that the Boy Scouts is a private organization and, therefore, not subject to the state’s civil-rights law, is nonetheless consistent with a general trend in jurisprudence toward restricting freedom of association.

Yet recently, policy makers have begun to acknowledge the importance of allowing voluntary groups such as religious institutions and so-called faith-based charities to be more autonomous in how they run their operations. The “Religious Freedom Restoration Act,” signed by President Clinton in 1993, protected the activities of religious groups from a variety of restrictions, unless a state could show a “compelling interest” to impose them. Though the U.S. Supreme Court overturned the law on the ground that it exceeded Congressional powers, a more carefully drafted replacement, backed by (among others) the American Civil Liberties Union, is moving toward enactment.

Likewise, as part of the “charitable choice” provision included in the 1996 overhaul of the welfare system, faith-based organizations that accept government funds to provide social services are permitted to hire only those who believe in a particular religion, and to use religious materials in their programs — though they must help anyone who seeks assistance.

Those developments reflect a growing awareness that the freedom to choose one’s associates — and how one wishes to act — is an essential ingredient for the success of religious groups, both for their own members and for those the organizations choose to serve. With the current heightened (and growing) appreciation of the role that other voluntary groups play in American society, it would not be surprising if the nation’s highest court, upon review of the expected appeal, chose to use the New Jersey case to extend protections to groups with strong moral and ethical beliefs as well.

In fact, the New Jersey court would have been wise to leave the question of who should be a member up to the Boy Scouts themselves. Some local chapters might have permitted homosexuals to join, as a Rhode Island one just did, or even coalesced to form an entirely separate organization, as happened in Great Britain when the issue of gay members came up. Other chapters might have refused to allow homosexuals within their ranks. However regrettable such a stance might be, the damage done to those excluded would probably have been far less than the harm inflicted on all membership groups by the willingness of the court to try to determine what is — or is not — essential to an organization’s purposes.

And that is exactly what happened in New Jersey. In deciding that the Boy Scouts had to obey a state civil-rights law that included homosexuals among the protected groups, the New Jersey court followed the precedent established 15 years ago in Roberts v. United States Jaycees. In that case, the U.S. Supreme Court concluded that unless a group was small and intensely interactive (an “intimate association,” in the court’s words), or unless it had an “expressive purpose” that unwanted members would compromise, the organization had to comply with federal or state statutes forbidding discrimination by race, religion, or gender, or on other grounds.

Because of the size and diversity of the Boy Scouts’ membership, as well as the group’s aim of including as many boys as possible, the Boy Scouts were deemed to be more of a “public accommodation” (such as a school or camp) than an “intimate association.” And since, according to the New Jersey court’s interpretation, the organization did not explicitly disavow homosexuality, its “expressive purposes” could not be jeopardized by having gay men in its leadership.

A standard that protects freedom of association just for “intimate” groups — defined in some cases as requiring fewer than 20 members — is surely too narrow. Indeed, it would subject any organization that seeks support from the public for its work to rules and regulations inspired by popular majorities. By their nature, however, voluntary groups are critical to sustaining and safeguarding activities that appeal chiefly to minorities — a function that most Americans would support.

Furthermore, the court was wrong to rule that the Scouts’ “expressive purposes” were not an issue here. When the Boy Scouts were founded in 1910, and for many years afterward, the group’s “Oath,” “Law,” and other statements of belief made no reference to homosexuality, probably because the prospect of gay men applying for membership seemed too remote. Once such requests arose, however, the organization lost no time in asserting that it deemed homosexuality to be incompatible with long-standing goals, such as fostering “morally straight” behavior among young men.

The New Jersey court referred to such statements as “self-serving” — and so they were. But that is not a reason to dismiss them, any more than a defendant’s “not guilty” plea should be disregarded in a criminal trial. Instead, if “freedom of association” is to be meaningful, a group’s interpretation of its purposes deserves to be taken at face value, unless evidence to the contrary is persuasive. A test that allows the courts to determine which elements are central — and which are not — is nothing short of dangerous.

To be sure, the facts in the New Jersey case do raise doubts about whether homosexuality is really incompatible with membership in the Boy Scouts. James Dale, the young man whose expulsion led to the lawsuit, had actually risen through the ranks of scouting, attaining Eagle Scout, the highest level of proficiency. Some sponsors of troops in New Jersey filed briefs stating that they would not exclude gay members, while others testified to the contrary. The New Jersey court also cited Boy Scout documents that suggest a more tolerant attitude toward homosexuality than indicated by the group’s explicit statements on the subject.

In view of the conflicting testimony, the New Jersey court was not the place to determine who should and who should not be allowed to be a member. That decision should have been left to the Boy Scouts themselves.

Now, however, it looks like the U.S. Supreme Court will get an opportunity to decide how much leeway membership groups and other kinds of associations should have in deciding who can join. In reviewing the New Jersey decision, the Supreme Court will have an opportunity to reassert the essential right of members of voluntary organizations to associate freely and to cultivate and express common purposes.

Leslie Lenkowsky is professor of philanthropic studies and public policy at the Indiana University Center on Philanthropy and a regular contributor to these pages. His e-mail address is llenkows@iupui.edu.