Constitution Check: Do the Boy Scouts have a constitutional right to exclude gay boys and men?

Constitution Check: Fact-checking the news Lyle Denniston looks at a controversial issue that is seemingly headed back to the Supreme Court: the legal rights of the Boy Scouts of America to exclude gays from membership.

The statements at issue:

“Scouting believes that good people can personally disagree on this topic and still work together to achieve the life-changing benefits to youths through Scouting.  While not all board members may personally agree with this policy, and may choose a different direction for their own organizations, BSA leadership agrees this is the best policy for the organization.”

– Executive Committee, National Executive Board of the Boy Scouts of America, in a statement on July 17 on the reaffirmation of the Scouts’ long-standing policy of excluding from membership or volunteer positions any boy or man who is a homosexual.  The statement was quoted by the Associated Press and other news organizations.

We checked the Constitution, and…

The Constitution’s First Amendment, as interpreted by the Supreme Court, protects various forms of private expression.  But the word “expression” does not mean only words that are written or spoken.  The court has included in the amendment’s protection a right or freedom “of association.”   That means that people have a broad – though not absolute — right to join together in groups that share common views on one or many topics, and those groups cannot be forced by the government to admit those who do not agree.

The Boy Scouts of America won a Supreme Court case 12 years ago, explicitly barring a state from using an anti-discrimination law to compel a New Jersey unit to reinstate a man who had become an assistant scoutmaster; he had been expelled after revealing that he was gay.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

In that 5-4 decision (Boy Scouts v. Dale), the court said: “The forced inclusion of an unwanted person in a group 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.”  It was, of course, controversial; the dissenters complained that, “until today, we have never once found a claimed right to associate in the selection of members to prevail in the face of a state’s anti-discrimination law.”

A Supreme Court ruling, of course, can settle a case, but not necessarily a dispute.  The Scouts have often been asked to reconsider their membership policy, and such a request apparently led the organization to arrange for a confidential review that lasted for two years, resulting in this week’s reaffirmation of the ban by its national leadership.

But even the meaning of the Supreme Court’s 2000 decision remains a topic of ongoing controversy in the courts, and lawyers for the Scouts have continued to fight vigorously against attempts to compel a change in the ban, while lawyers for opponents of that policy have been unrelenting in trying to bring about a change.

In court, the Scouts have argued that the decision in the Dale case 12 years ago provides First Amendment protection for the ban on homosexuals, both as to adult leaders and to youthful members, while challengers have contended that the decision dealt only with its specific facts – exclusion of an adult leader who was a public advocate of gay equality.

One day, perhaps, the Supreme Court will clarify who is right on that point.  In the meantime, though, the controversy continues in the courts, with a new focus on the issue of whether the Scouts can simultaneously keep their membership policy while retaining their access to government-owned facilities – especially in communities that have laws against discrimination on the basis of homosexuality..

Across the nation, the Scouts have been given some special benefits, especially by local governments, and some of those date back decades, long before its view on homosexuality was drawn into dispute.  Often, this includes the right to use, rent-free or for very low fees, public park space or government-owned buildings.

Two of the most high-profile controversies in the federal courts over Scouting’s membership policy have involved the use of a building in Philadelphia owned by the city but long used without rent by a regional unit of Scouting for its headquarters, and a public park with youth recreation facilities in San Diego, used by Scouting there for $1 a year.

The Philadelphia dispute, which the Scouts are winning so far, is just now getting underway in the Third Circuit Court of Appeals in Philadelphia.   The San Diego controversy, which the city is winning so far, is still going on in the Ninth Circuit Court of Appeals in San Francisco after a preliminary trip to the Supreme Court two years ago.

The ongoing controversy has grown more complex because the Supreme Court has issued another major ruling on a private group’s opposition to homosexuality and, this time, a non-discrimination policy was upheld against that group.  That came in the 5-4 decision two years ago in the case of Christian Legal Society v. Martinez.

The Court majority ruled that a state-operated law school, Hastings College in San Francisco, could enforce a policy requiring all student groups to welcome “all comers” to their membership and activities.  It concluded that such a policy did not violate the rights of the Christian Legal Society chapter.   The dissenters relied upon the 2000 decision in the Boy Scouts’ favor to argue the contrary.

Whether the two decisions can be reconciled, at least as they affect the Boy Scouts’ policy, may not be cleared up until the Justices choose to step back into the controversy, and that seems inevitable.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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