Boy Scout Ruling Leaves Many Groups Vulnerable

The United States Supreme Court´s decision upholding the Boy Scouts’ right to expel a gay scoutmaster has been widely hailed as vindicating freedom of association. But it does so only to a limited degree. What the ruling really did was to make voluntary groups alarmingly vulnerable to continued challenges from the nation´s courts and legislatures.

The Supreme Court had been headed in the direction of opening charities to such challenges long before the Scouts’case ever reached its doors.

During the 1980´s, in a string of cases involving women, the court rejected the claims of the Jaycees, Rotary, and other clubs that restricting their membership to men was essential to their activities. Instead, the justices concluded that freedom of association should apply only to groups that were small and “intimate,” or where their purposes were “expressive” and would be harmed by including members who disagreed. Since the Jaycees and other clubs were — in the eyes of the court, at any rate — primarily commercial organizations, they were forced to end their exclusionary policies.

In the Boy Scouts case, a majority of the justices reached a different conclusion about the nature of the group being sued. To do so, they relied on a 1995 case, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, that dealt more with freedom of speech than with freedom of association.

In that decision, a unanimous Supreme Court refused to allow a gay-rights group to march in a St. Patrick´s Day parade on the grounds that its members’ presence would compromise the message the parade´s organizers wished to send.

In the Scouts’ case, Chief Justice William H. Rehnquist and four other justices expressed similar concerns.

“The forced inclusion of an unwanted person in a group,” the majority opinion affirmed, “infringes the group´s freedom of expressive association if the presence of that person affects in a significant way the group´s ability to advocate public or private viewpoints.”

Whether the Boy Scouts’position on homosexuality was popular or not, the Supreme Court majority concluded, the First Amendment to the Constitution gave the organization the right to control its own message rather than have a state law do so.

Led by Justice John Paul Stevens, a minority of the justices did not so much disagree with this interpretation of Hurley as question whether or not the Boy Scouts really did have a “clear and unequivocal” stand against homosexuality.

In fact, the dissenters argued, the group seemed to regard sexual morality as a matter for parents and members of the clergy to deal with, not scoutmasters. Consequently, requiring the Boy Scouts to admit homosexuals would not impair the organization´s First Amendment rights, since it was not trying to send a message in the first place. However, that view is a bit disingenuous.

For several years and in several states, gay-rights groups have been challenging the Boy Scouts over what they took to be discrimination against homosexual leaders and members. At the very least, those challenges suggest that significant portions of the organization were not nearly as neutral toward sexual identity as Justice Stevens and his fellow dissenters asserted.

Still, what is worrisome about the Dale case is that the Supreme Court ended up deciding what the Boy Scouts’view on homosexuality actually is.

By ruling that freedom of association is tied directly to a charity´s articulation of a clear message, the court´s decision gives little comfort to voluntary groups. Non-profit organizations are now more likely than ever to face public second-guessing and interference.

Moreover, the court´s decision gives no guidance about when an organization is sufficiently “expressive” to warrant First Amendment protection, or how far its rights might extend. For example, would the Scouts have been permitted to expel Mr. Dale if he had not publicly acknowledged his homosexuality, even though his closest friends knew that he was gay?

While the Supreme Court majority acknowledges that not all members or chapters of an organization have to agree on its core beliefs, the justices do not indicate how much disagreement is possible before the group itself can be deemed to have adjusted its policy and mission.

Judging the legality of membership rules according to what an association does — or what a group of jurists thinks it does — leads to nothing but trouble.

To avoid the quagmire, the Supreme Court should have re-examined the underpinnings of its rulings on freedom of association. In particular, it should have reconsidered the possibility that the most important attribute of associations is who belongs to them, not what they do or say, and that their identities, in turn, are best defined by those who participate in them — unless a compelling reason exists for legislatures or courts to step in.

Such a deferential view toward associations might, of course, mean that exclusionary standards of membership — what those left out would undoubtedly call prejudices or worse — would persist.

What´s more, insofar as group activities produce benefits such as commercial contacts, those excluded from membership would be at a disadvantage. Yet, the real remedy for that is not to force associations to accept members they do not want. Instead, those left out of already established groups should be encouraged to form their own organizations, which could eventually yield benefits too.

Not the least important consequence of the law´s increasingly ambivalent and even hostile attitude toward associations has been to make them more difficult to create and less appealing to join.

The Boy Scouts case has at least struck a small blow for allowing such groups to be themselves, even if what they stand for may be increasingly unpopular. But unfortunately, the Supreme Court´s rationale still leaves up in the air the question of how much freedom associations really should have.

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