Not bigoted enough

By Terence J. Pell

The Washington Post, August 23, 1999

The recent decision by the New Jersey Supreme Court striking down the Boy Scouts’ ouster of homosexual Scout leader James Dale was widely interpreted as a blow against anti-gay bigotry. But that has it backward.

By the perverse logic of this decision, the Boy Scouts erred not in the direction of bigotry but rather in not being bigoted enough. Had they proclaimed loudly and often that homosexuality was immoral, they would, according to the court, been protected by the First Amendment. But because the Scouts were decidedly more low-key in their treatment of homosexuality, the court concluded that they didn’t really have a view worthy of First Amendment protection.

One could hardly imagine an outcome more at odds with the First Amendment or more destructive of the healthy involvement of religious and moral institutions in public life. If allowed to stand, the New Jersey decision will all but force organizations to promote extreme views in order to preserve their First Amendment right to stand for anything at all.

According to the New Jersey court’s reading of the Constitution, the First Amendment protects only the right of groups to hold views that are “clear, particular and consistent.” In the court’s mind, the Boy Scouts don’t have enough attitude about homosexuality; they don’t, for example, publish a list of prohibited sex acts, don’t quiz adolescents about their sexual practices and preferences, and only rarely exclude Scouts (as opposed to leaders such as Mr. Dale) for being gay.

Because the Scouts don’t meet the court’s “in your face” standard for holding a “view,” it was easy for the court to rule that they held themselves open to the public regardless of sexual preference (in legal terms, a “public accommodation”), that admitting a gay assistant scoutmaster would not interfere with the nature of scouting and that ousting Dale was nothing more than bigotry. That all of this turned on its own rather aggressive reconstruction of the values shared by the Boy Scouts seemed to bother the court scarcely at all.

But it should bother the rest of us. In contrast to the court’s rather crude model of what counts as expressing a view worthy of First Amendment protection, the Scouts take a more nuanced (one might even say tolerant) approach to homosexuality. Instead of harping on forbidden acts, as the court would have it do, the Scouts emphasize how a boy should behave — a positive code of life rather than a “litany of negatives” to quote from one of the organization’s legal briefs in an earlier case.

As far as sexual behavior is concerned, the Boy Scout Handbook emphasizes what boys should aspire to: fatherhood according to “God’s wonderful plan of creation.” At every meeting, Boy Scouts promise to keep themselves “morally straight” and “clean.” The Boy Scout Handbook advises boys that being “clean” goes beyond washing off dirt; it means getting in with a “clean crowd,” having a “clean outlook on life” and staying away from “swearing and telling dirty stories.”

Of course, a rather definite view about homosexuality is implicit in the injunction to aspire to fatherhood. Unfortunately, the New Jersey court was deaf to the idea that First Amendment expression doesn’t have to be loud and obnoxious to be protected — that it “may also take the form of quiet persuasion, inculcation of traditional values, instruction of the young and community service,” to quote from an instructive opinion by U.S. Supreme Court Justice Sandra Day O’Connor in an earlier case, Roberts v. U.S. Jaycees.

The fact that the Scouts didn’t engage in hyperbole about homosexuality is exactly why the Scouts are a worthy participant in civic life and why their views on that subject in particular should be protected.

The New Jersey decision poses special difficulties for religious organizations. If a religious organization doesn’t proclaim its views “loudly,” it will be deemed not entitled to First Amendment associative and expressive protections. Yet if it does get loud, it risks impaling itself on the other horn of First Amendment jurisprudence, the Establishment Clause. A college, for example, that is overly expressive when it comes to its religious beliefs inevitably will be deemed to be “pervasively sectarian” and thus restricted from participating in public programs for which it might otherwise be eligible.

This threat is more than abstract. The religious beliefs and practices of Seventh-Day Adventist Columbia Union College in Maryland are being investigated by state officials in order to determine whether the school is eligible for state aid routinely granted Roman Catholic colleges. At issue is precisely whether Columbia Union holds its beliefs with too much fervor for the tastes of the state.

None of this comports with any sensible conception of the First Amendment. Surely a constitutional provision designed to protect freedom of expression from government interference was not supposed to empower government officials to inquire whether an organization states its views with too much — or too little — fervor. Plans to involve faith-based institutions in the provision of social welfare services will exacerbate the problem created by this lose-lose view of the First Amendment.

The inevitable result of First Amendment jurisprudence as practiced by the New Jersey Supreme Court would be to force organizations to shed any views deemed noxious by one of dozens of special interests or to restate those views in so extreme a form as to make public involvement meaningless. No reasonable person could welcome such a result.