On August 4, the New Jersey Supreme Court ruled that the Boy Scouts of America is a "public accommodation" that must admit homosexuals as adult Scout leaders. Here is legal force used to attack one of the oldest and finest youth charities in our country. That is the bad news. But there's good news, too: The decision opens the way for two important victories — about which more later — if the good sense can be found to pursue them.
This is the first time that a state's top court has held Scouting to be a public accommodation. The line of reasoning in the case traduces both the Boy Scouts and its principles. If it is sustained, it will compromise Scouting, liberty, and morality alike. The Jersey justices pretend that they do little at all, while they work a revolution. The case arose over the situation of one James Dale. Dale grew up to be an Eagle Scout. Then he became a volunteer Scout leader. Then he went to Rutgers and became leader of the gay student group. His picture and a story about his homosexual activism appeared in the Rutgers newspaper. The Monmouth, New Jersey, Scout council dismissed him from service as a volunteer leader. This being America, litigation began, which has made its way through trial, appeal, and now the state Supreme Court. The Boy Scouts hope that the case will soon be before the United States Supreme Court.
The New Jersey court ruled that Dale must be readmitted as a Scout leader under the state's law against discrimination. It offered two grounds for the finding that Scouting is a "public accommodation." First, it is large, advertises widely for members, celebrates openness and inclusion, and has influence. Second, nothing in its creed or practice carries any particular moral meaning, or is devoted to anything that can really be called religion. Never mind that Scouting thinks, and has always thought, differently. Their Honors know better.
The chief justice wrote the opinion of the court. The core of it transforms Scouting's devotion to "moral fitness" into simple relativism: "Although one of BSA's stated purposes is to encourage members' ethical development, BSA does not endorse any specific set of moral beliefs. Instead, 'moral fitness' is deemed an individual choice." Her Honor extracts this sunbeam, not from a cucumber as in Swift, but from a fine passage in the Boy Scout Handbook that speaks of a Scout's duty to follow his conscience. When the Scouts encourage a boy to follow his conscience, the justices interpret this to mean that whatever the boy thinks is right is indeed right. They seem not to know that conscience cannot speak on both sides of a moral question, there being good conscience and bad conscience. Acts can be "unconscionable." Scouting is built upon this distinction. The Jersey justices do not seem to know it, which is a commentary on our time.
The absurdities of this opinion justify, these justices think, the conclusion that the Boy Scouts stand for nothing in particular. This in turn prepares the way for the conclusion that Scouting is a public accommodation. In fact, the Scouts have never held out a sign to say that the public may enter. First of all, only boys may enter. Second, only those boys may enter who will take the Scouts' Oath and follow the Scouts' Law. Other boys are excluded on the ground that they cannot pursue the central good that Scouting has to impart. The justices note that few boys are in fact ever excluded. That is true because everyone knows what Scouting is for, and those who do not like it do not apply or soon drop out. Until recently, both manners and good sense prevented people from joining Scouting merely for the purpose of changing it.
The moral teaching of Scouting is illustrated in James Dale's own experience, if the justices would but look there. His rise through Scouting was guided by the ninth edition of the Official Boy Scout Handbook, issued in 1979 (the 11th edition was issued this year). Dale has every reason to know the contents of this handbook because Scouts are required to carry it with them on most Scouting events. The introduction calls the handbook a Scout's "dog-eared companion" through life. It also contains the passage: "When you live up to the trust of fatherhood your sex life will fit into God's wonderful plan of creation. Fuller understanding of wholesome sex behavior can bring you lifelong happiness. A moment of so-called sexual freedom can turn into a lifetime of regrets" (p. 526; the following page begins with the heading "Once a Scout, Always a Scout"). Whatever the New Jersey judges may think of Scouting, Dale says today that Scouting was good for him and he admires it. He has every reason to know every moral teaching important to Scouting. His attack upon Scouting is therefore a breach of faith.
But getting back to the potentially good news in this New Jersey decision, it is of two kinds. The more immediate concerns Scouting itself. It has been subjected to more than a decade of legal expense and strife from defending itself against lawsuits from atheists, women's groups, and homosexuals. The national Scouting organization has approached these suits with discipline and patience. It has done whatever it could to keep them from affecting its work of helping boys (that work is thriving). The New Jersey case opens the way for a final decision at the United States Supreme Court. This is urgently needed, for one thing because Scouting will be a house divided if the New Jersey decision stands. Scouting works rather as American government is supposed to work under the Constitution: Most activity is local, but there is effective guidance from principles set forth in writing that are national and from a small but significant national governing body. The appeal of this New Jersey decision will be one of the most important cases to come before the Supreme Court in many years.
The second good that could stem from this decision concerns the popular branches of government. Congress has direct power, under section 5 of the Fourteenth Amendment, to repair injuries against rights that are worked by state governments. Scouting and each person involved in it are deprived by this decision of fundamental liberties. Congressman Canady of the Constitution Subcommittee of the House Judiciary Committee has been ready to invoke Congress's power when the time is right. There can be a "Defense of the Boy Scouts Act."
As for the executive branch, the presidential campaign will drag it into the Scouting controversy. So far the presidential race is a contest between two front-runners, each seeking to establish himself as the better family man. Al Gore no less than George Bush, and George Bush no less than Elizabeth Dole and Gary Bauer, seeks to establish credentials in the area of "values." In his announcement speech, Gore said: "Seven years ago, we needed to put America back to work--and we did. Now we must build on that foundation. We must make family life work in America." If for Clinton it was the economy, for Gore it is the family, stupid.
It is not, of course, the job of the federal government to make the family work. And yet at the same time, the nature of the family is connected to the nature of man, and therefore to the nature of rights. To reach in politics the fundamental issue of family, one must connect it to things that are inherently political. The New Jersey case, in its errant reasoning, attempts and fails at this. Al Gore, when he endorses the platform of political homosexuality, attempts and fails at this. Given the variability of human circumstances, the family may indeed take many forms; but each form must be judged by the standard of the family in nature, and none that contradicts that standard will lead to the larger happiness of children or society. Nor can any that contradicts that standard can provide the basis of a right.
George Bush, Steve Forbes, Elizabeth Dole, and Gary Bauer may all have been boosted by the straw poll in Iowa. They can do their country no better service than to answer these attempts to divorce family and sex from their larger purpose in fatherhood and motherhood. If they complete this task, politics can then be about something both fundamental and political. If our rights are grounded in the nature of man, then those rights can be fixed and definite, and government can be limited and just. And the Boy Scouts can be free to assist the family in its natural and essential work.