Boy scouts

[A.E. Brownstein]

I think the Boy Scouts issue is difficult and disturbing, at least for me,
for several reasons, only some of which may have any legal or
constitutional significance.

1. The Scouts have a relatively unique status in our society. There is a
sense in which this is a quintessential American institution, along with
Mothers and apple pie. How it developed that status is an interesting
question? But I think part of the answer has to due with it having the
image of being a very inclusive organization -- one that any boy could
participate in under the old, maybe corny, but still very powerful,
American ideal of a place where race, creed, color, where you came from,
etc. didn't matter. The support the Scouts received from government and
from the general community certainly resonated with this idea that Scouting
was for everybody.

Now the Scouts describe themselves as an exclusive organization. Gay scouts
and agnostic or atheistic scouts need not apply. And some people argue they
have always maintained those restrictions on membership. As an exclusive
organization, one could argue that the Scouts have the legal right to
exclude Blacks or Jews as well as gays and agnostics. If the Boy Scouts are
essentially a private institution, membership is arguably an entirely
private matter.

I don't for a minute suggest that the Scouts would do that. But if they
did, it would mean something very different and would cause very different
feelings than what people would experience if they were denied admission to
an overtly exclusive organization that has always been associated with a
restricted membership policy and ideological purpose. There is a real
disconnect when organizations that have taken on, and benefited from, a
public persona claim the autonomy of private institutions.

2. A related point has to do with the size of the Boy Scouts, the secular
and non-ideological nature of many of their activities, and the lack of
comparable alternatives for excluded boys. I have made this point before
when discussing religiously exclusive organizations (although as I
recollect, no one on the list was terribly impressed by it.) To my mind,
for example, there is a significant difference between an exclusive
Christian Bible Study Club at a public high school and an exclusive
Christian Math Club or Chess Club. If there are too few non-Christians in
the student body interested in these activities for there to be a second
chess or math club, these religiously exclusive clubs have a very different
impact than the Bible Study group. Under this framework, a lot of extra
curricular activities, what one might call the social and cultural public
life of the school, would be unavailable to religious minorities.

I think there is an analogy here to the Boy Scouts. In many communities, it
would be silly to suggest   that an alternative Scouting organization could
develop that would be available to gay and agnostic children. The Boy
Scouts are the gorilla in the bath tub and there isn't much room for anyone
else. When exclusive organizations become the primary or exclusive source
of these kinds of social and cultural goods, the  excluded groups are
seriously burdened. Protecting valuable rights can justify the imposition
of significant burdens, of course, but it is always important to keep in
mind the cost that the exercise of the right is imposing on others.

3. There is a lot of ambiguity about what the Scouts stand for. In Davis
where I live, the Scouts  claim that they do not discriminate against
anyone. They insist that they should not be blamed for the misguided
policies of the National organization.  In my brief encounters with the Boy
Scouts and Scout leaders, I found nothing that suggested a consistent set
of moral, religious, or any other kind of standards. (Full disclosure, I
was a terrible scout and only lasted two years.) One of the two leaders of
my troop was a blatant racist and bigot.  Recently, I discussed the issue
of discrimination with a friend who is heavily involved with Scouting. He
was adamant that gay men should not be accepted as Scout leaders. When I
asked about the Scouts rejecting two kids because they were agnostic, he
basically said that they should have lied about their beliefs just as he
had done as a young scout. Thus, from the outside looking in, there is an
arbitrary quality to the discrimination in these cases.

                                                                Alan Brownstein
                                                                UC Davis