Boy Scouts and freedom of association

[Shubha Ghosh]

It strikes me that one strong argument in favor of Dale is that the Boy Scouts don't have any expressive position on sexuality.  The group is not promoting heterosexuality,  nor denouncing homosexuality, but asexuality, a position that is not inconsistent with having a homosexual leader.  The tension would exist if a leader wanted to enter intending to promote some sexual agenda (whether heterosexuality or homosexuality).   Since the association is not directly promoting heterosexuality or for that matter any type of sexuality, I see no conflict with allowing a homosexual leader, just as I would see no conflict in allowing a homosexual, but celibate Roman Catholic priest.

Does that make sense, Bryan, or am I missing something about the Boy Scouts or about Dale or about Hurley and its ancestry?

>>> bryanw at TJSL.EDU 06/06 5:37 PM >>>
> -----Original Message-----
> From: Scarberry, Mark [mailto:Mark.Scarberry at PEPPERDINE.EDU]
> Sent: Tuesday, June 06, 2000 1:32 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Actual race/sex/etc. discrimination in
> leadership positions
> b y prominent expressive associations
>
>
> On the contrary, the leaders of a scout troop are the most
> important adult
> leaders in the Boy Scouts. Their role is central, not minor.
> They are the
> ones who have the actual effect on the boys. They decide what
> activities the
> troop will have, they organize them, and they serve as role
> models. The
> national or state leaders of a group primarily involved in a
> large scale
> political or ideological campaign may be the most important
> leaders of that
> group, but the Boy Scouts are a much more personal
> organization. In fact, I
> think the small group centeredness of the Boy Scouts gives
> them a strong
> claim for freedom of intimate association
> Mark S. Scarberry
> Pepperdine University School of Law
> mailto:mark.scarberry at pepperdine.edu
> <mailto:mark.scarberry at pepperdine.edu>

I think there is much force to the above (though I tend to think the Scouts'
expressive association argument is even stronger, since, regrettably, an
important part of their ideology appears to be opposition to homosexuality,
esp. in adult role models).

As a gay man and a gay-rights advocate, I find the Scouts' ideology and
policy appalling (and it should deprive them of any state subsidy); aside
from being bigoted, ignorant, and cruel, I believe it contributes to the
socialization of young men as homophobic, with the consequence in some cases
of tipping some such boys/men over the edge of violent gay-bashing as
Matthew Shepard suffered.  But as a constitutional adherent of a very strong
version of freedom of expression/association -- and at possible risk of
getting grief from my gay/lesbian/supportive friends and colleagues -- I
think the Scouts should win the pending Dale case.  Reading over the Jaycees
and Rotary cases when I last taught Sexual Orientation & the Law, it even
struck me that the Court did not satisfactorily address the association
arguments in those cases (e.g., as to whether being forced to accept
unwanted members defined by identity might affect the group's "message").
In many cases, I think it is inevitable that "identity speaks louder than
words."  I have found that simply being openly gay sends numerous (not
always predictable or intended) messages to many people.  Cf. Hurley (which
I also think was correctly decided, and which actually benefitted a gay
group in my home of San Diego, when anti-gay activists were rebuffed in an
attempt to force their way into the gay pride parade) (quoted words are my
own, not in Hurley as best I recall).

I would love for someone to be able to persuade me I am wrong on Dale; this
all steps into numerous difficult issues that the above only very sketchily
surveys.

Bryan Wildenthal, Thomas Jefferson School of Law