Last week, a deeply divided Boy Scouts of America (BSA) opted to delay its decision about whether to admit gays into its ranks until May. The decision, which I recently discussed with the Wall Street Journal, should come as no surprise. The delay is the first line of defense against an internal bloodletting. In the short term, delay allows a fragile coalition to buy time to forge a compromise by acquiring new information and considering fresh proposals that will help the organization stay together.
Unfortunately, that happy outcome is implausible or perhaps even impossible. The issue of gays in the Boy Scouts, like gays in the military, has been extensively and intensely debated for years. There is no doubt that the public momentum on this question has shifted in favor of an expansion of gay rights, which is evidenced by the number of states that approved the legalization of gay marriage by electoral ballot recently, and, of course, by the recent statements of President Barack Obama, the honorary head of the Scouts.
The President put the point as follows: “I think that my attitude is that gays and lesbians should have access and opportunity the same way everybody else does in every institution and walk of life.” Fortunately, in this instance, the President just weighed in with his own position, without seeking to use government force against the Scouts. More on this later.
As a group, the Scouts are not likely to be moved by his high pronouncements, for the scouting community is not a representative sample of the larger public. Some seventy percent of its chapters are run by religious institutions that regard gay marriage as a sin, and they are not likely to give ground on any proposal that undermines their religious opposition to gay marriage.
The gay groups on the other side are equally adamant, and will not stop short of any position that denies full and equal entitlements to all gay boys who want to become scouts. In some situations, dialogue can breed compromise. But in this situation, the two sides will continue to talk past each other. How, then, should we objectively tackle this issue? Surely, forcing our views down the throat of the BSA will not be productive. As a first step, it may help to sketch out the legal and constitutional background to the problem.
Antidiscrimination Laws Meet the First Amendment
One simple explanation as to why the President did not try to force the issue on the Scouts through government action is that, for the moment, neither the federal government nor the states can intrude into this dispute. That issue came up in the 1990s, when James Dale, a model Eagle Scout with twenty-five merit badges, was asked to leave the BSA after the Newark Star-Ledger wrote a story noting that he was openly gay. Everyone knew the exact reason why he was asked to leave, so the stage was set for a real confrontation when Dale sued the BSA under New Jersey’s Law Against Discrimination (LAD), which, in the pertinent part, states: “All persons shall have the opportunity… to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation… without discrimination because of… affectional or sexual orientation…”
The statutory definition of public accommodation under the LAD was a mile wide, which made it clear that the statute prohibited Dale’s expulsion. The only issue for the court was whether the LAD was inconsistent with the explicit First Amendment guarantees of speech, press, petition, and assembly. Associational freedom does not fall squarely into any of these categories. That obstacle, however, was overcome in the watershed 1958 decision of NAACP v. Alabama. There, the Supreme Court found the right of association by implication, ensuring that the Alabama Attorney General could not get his hands on the NAACP’s membership lists in order to aid the state in its fight against integration.
Surely the NAACP decision would protect that organization from having to admit hardened segregationists into its ranks. The atmospherics of the Dale case were eye-poppingly different: There, the point of contention was whether the associational freedom of the Scouts should survive the application of the LAD’s general antidiscrimination rule. I have taken the position that it should for both commercial and expressive organizations, with one key exception. In accordance with traditional economic theory, the nondiscrimination rule may in certain circumstances be applied to limit the power of business organizations that enjoy monopoly power over some essential service, a classification that covers common carriers and public utilities, but not the Scouts. Such a position, it should be noted, renders unconstitutional the entire employment antidiscrimination law insofar as it applies to private competitive firms.
It is safe to say that this position has never been remotely endorsed in the federal or state courts. Quite the opposite—a uniform line of state and federal cases has taken the general position that both the federal government and the states have a “compelling state interest” in the enforcement of the antidiscrimination laws in most contexts. But no court has ever held that the antidiscrimination norm always trumps associational freedom. How, then, to draw the line?
Surely no one would want to apply the antidiscrimination norm to marriage or other intimate associations. People may select their life partners on the basis of religion, race, and sex. But the question is whether that freedom reaches to other cases. In 1984, the Supreme Court narrowed the scope of First Amendment protections in Roberts v. United States Jaycees by holding that the Jaycees could not refuse to admit women members because its wide and nonexclusive membership suggested that membership was not sufficiently “intimate” or “expressive” to deserve constitutional protection.
But in 2000, the tides shifted again in Dale. In a narrow five-to-four decision, Justice Rehnquist held that the BSA was an “expressive” organization, and that all such organizations were entitled to select their own members, lest they be forced to support and embrace social and religious beliefs that they thought false. Business associations were subject to the law, but these so-called “expressive” institutions were not.
The dissent of Justice Stevens did little to help the situation when he insisted that only organizations like the Klu Klux Klan, which shouted out their beliefs in no uncertain terms, were entitled to First Amendment protection. On his view, the Scouts, who for years had sought to finesse the gay rights issue in order to keep their coalition together, should be denied that protection because of their evident internal equivocation on that issue. In my view, his distinction leads to calamitous results because it drives groups to extreme positions lest they forfeit constitutional protection. The cautious are entitled to as much protection of their associational freedoms as the reckless and thoughtless.
One Aggressive But Misguided Response
After Dale, the question arose of what, if anything, restive governments at all levels could do to bring the Scouts to heel. A number of civil liberties and gay rights organizations took this position: “While organizations are entitled to hold whatever beliefs they choose, groups that act upon and instill disrespect and prejudice toward others have no right to special benefits or support from the government.” The purpose of this initiative was to deny the Scouts access to public facilities such as schools and parks for conducting their activities until they were prepared to admit gays.
That aggressive position should be rejected emphatically because the government should never be allowed to use its control over public resources to exclude some individuals while admitting others. Its resources are supported by the tax dollars of all individuals and groups. No more than any common carrier or public utility can the government play favorites among its citizens for political purposes.
Unfortunately, much Supreme Court authority ignores this basic position by allowing the government to dispense or withhold benefits on grounds it thinks appropriate. Thus, in the 1983 case of Bob Jones University v. United States, the Supreme Court wrongly held that the Free Exercise Clause of the First Amendment did not block a ruling by the Internal Revenue Service that lifted the tax-exempt status of Bob Jones because it refused to allow interracial dating. Once it is settled that the Free Exercise Clause insulates Bob Jones from a direct statutory mandate to allow interracial dating among its students, Bob Jones should have come out the other way. Only the federal government can give tax exemptions, which it cannot use to alter the level playing field between different lawful points of view. Those people who don’t like the university’s practice can go elsewhere.
More ominously, in 2009, the Supreme Court held by a five-to-four vote that Hastings Law School, a public institution, could deny the tiny Christian Legal Society the benefit of facilities open to other students because it would not accept members who did not unqualifiedly accept the teachings of Jesus Christ. Again, the Court stood aside while the dominant political players at the law school bullied a minority group. None of that should have ever been allowed to happen.
Cut the Baby in Two
For the moment, however, the access of Scouts to public facilities is not the key issue (although it may yet become so). Rather, it looks as though under current law the Scouts have both the right and the duty to make its own decision, and it will have to weigh the costs and benefits of whatever path it chooses to pursue.
The shape and size of any collective organization requires a trade-off between two benefits. On the one hand, organizations can gain strength by admitting additional members, which gives them more resources for programs and more political and social clout. But, as that membership increases, internal cohesion starts to diminish, and the costs of governance of the organization increase when the preferences of its membership start to diverge.
As the level of disagreement intensifies, the costs of maintaining the unified front increases. The single institution may well be better off if it divides itself into two halves, each of which is free to go its separate way. When religious disputes produce a schism, for example, it is necessary to decide which assets belong to which of the two dividing groups. This can often inject civil courts into religious disputes that they have little inclination to resolve. It would be better for the Scouts to reach an amicable separation before the organization has to resort to costly and bitter litigation.
To this outsider, it looks as though the separation of the two factions—who are in conflict over the issue of admitting gays—will happen. That, on balance, will be for the better. Any effort to introduce a federalism-like solution whereby each particular troop or subunit is entitled to go its own way under a national umbrella will not ease the situation. The deep divisions here are along moral lines. So long as the subunits of the larger entity have to engage in any cooperative activities, the division of sentiment on the matter will only engender the old rivalries, which indeed are likely to go stronger as the separate blocs become more emphatic in their views.
Come next May, when the Scouts reexamine this question, they should work for an amicable separation instead of a fractious union. Mutual toleration and peaceful coexistence may yet turn out to offer the best way forward.
Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).