By Jeremy Patrick (jhaeman@hotmail.com)

August 21, 2000

This summer, in a highly publicized case, the Supreme Court faced an issue of conflicting fundamental values: equality and freedom. By a 5-4 majority, the Court chose freedom, holding the Boy Scouts of America had a constitutional right to exclude James Dale, a gay Scout, even in the face of a New Jersey law that forbade discrimination on the basis of sexual orientation.

On occasion, in these so-called "right-to-exclude" cases, liberty has triumphed. The NAACP once brought suit to gain admission to a parade by the Ku Klux Klan. As racial separation is the Klan's primary purpose, allowing blacks severely compromises its message. Mostly, equality has won out. In the Court's first right-to-exclude case, it held that the Jaycees could be constitutionally forced to admit women members. Three years later, it held the same for Rotary International. In both, and another right-to-exclude case, there was not a single dissenting opinion. The law and precedents seemed clear.

How to explain, then, the 5-4 Dale decision? Perhaps it can only be explained by reference to the political orientation of the judges involved. Not surprisingly, the five judges voting for the Boy Scouts are traditionally seen as conservative, while the four voting for Dale are seen as moderate to liberal. The belief of some cynics that rules have no weight at all is clearly misguided, but so is the belief of idealists that laws act as clear guides for judicial decision-making.

In close cases, such as Dale, judges look to their own values first, and find the "law" to support their positions second. This approach is not unique to "activist" liberals or to "hard-line" conservatives - few of us can think of conservative judges that are otherwise flaming liberals, and vice versa. The Dale decision involved one of the country's most cherished private organizations (the Scouts) and one of the its most controversial subjects (homosexuality). It is not surprising that neither the majority nor the minority deviated from what appeared to have been clear legal precedent.

Which side erred, of course, will be up to legal scholars and future courts to determine. From an admittedly biased viewpoint, it seems clear that the majority stretched the bounds of reason and precedent to find for the Scouts. The public accommodations law at issue in the Dale decision is the exact same type of law that opened the doors of diners and buses for blacks in the 1960s. When these laws were challenged, courts did not strike them down simply because the establishment or organization preferred segregation or believed it would be better off if the protected class were excluded. Instead, courts required the discriminatory group to have an important value or message that would be compromised.

The Ku Klux Klan can exclude blacks, but the Jaycees cannot exclude women, as business and professional advancement has nothing to do with gender discrimination. The Boy Scouts are closer to the Jaycees than to the Klan. At Dale's dismissal the only Boy Scouts document denouncing homosexuality was a 1978 position paper, distributed only to the BSA's 80-member Executive Council, which stated: "We do not believe that homosexuality and leadership in Scouting are appropriate." But the document went on to state that the Scouts would follow all state public accommodations laws. More importantly, Scout youths are taught absolutely nothing about sexuality, much less homosexuality. Scoutmasters are instructed to refer all such questions to parents.

If the Boy Scouts had any view regarding homosexuality, its members didn't know about it.

Allowing the Scouts to claim freedom of association to exclude gays, based on a never-distributed policy statement, would be similar to allowing McDonald's to refuse service to racial minorities based on the individual prejudices of its Board of Directors. The Dale decision would have a much different outcome had he been excluded because he was black. "The law is whatever nine old men and women say it is," according to an old maxim. But the Scouts are coming under fire from major funding sources, such as city governments and the United Way.

Perhaps, someday, the Scouts will allow its gay members to practice the same values embodied in its 1915 Charter: honesty, courage and "kindred virtues."

(c) Daily Nebraskan Online 2000