In Defense of Discrimination and Freedom of Association
Thank you for your email and questions.
However, your questions betray a fundamental lack of understanding of what the Constitution actually says and does, given that you are presuming 1) that equality of outcome equals equality under the law and 2) that government-mandated political correctness over the consciences and convictions of private individuals and organizations is somehow the definition for what is “constitutional.” Rather, what is constitutional is what is in accordance with the Constitution, our governing document that dictates what the federal government may do and what it must not do.
Taking your questions in order, then – and briefly:
First, discrimination is inevitable. You do it yourself every time you chose one product over another in the marketplace, or decide to befriend one individual and not another. You discriminate when you don’t allow anyone and everyone free access and use of your home and property. The right of the Boy Scouts of America to determine its own moral code and impose conditions upon membership and participation in their private organization is recognized and protected by the Constitution. This is just as it is for you, me, or any other private organization.
Specifically, the right of the Boy Scouts to discriminate (i.e., determine its own membership requirements free from outside coercion) is bound up in the sanctity of private property (Amendments III, IV, & V) and its freedom of conscience (religion), speech, and assembly (Amendment I) – collectively known as the Freedom of Association – is clearly protected by the U.S. Constitution.
Second, there is no inconsistency in our support of the Boy Scouts and our stated mission to preserve equality under the law. Equality under the law simply means that everyone will be treated the same by the laws of the land, and that these laws will be applied without favor to one individual or group over another. Fundamentally, what the American Founders mainly had in mind was that our government leaders would not be free from prosecution for crimes that would most certainly lead to the average citizen being prosecuted. There is no special “above the law” status that is to be afforded to any aristocracy or specially-favored group in America. However, when a law is passed that applies to one group or individual and not another, equality of law has necessarily been violated.
Therefore, any law that “protects” a class of people from “discrimination” (especially when it does so by violating the freedom of association of another individual or organization) has introduced an inequality under the law. That these politically correct laws may be aiming for some greater equality of outcome (in someone’s mind) does not alleviate this fact; to attempt to achieve this requires the subtraction of some individual’s property and/or rights and the redistribution of that property and/or special privileges to individuals among the group or groups now favored by the law.
Finally, that atheists and homosexuals are barred from membership and positions of leadership with the Boy Scouts is most certainly not in conflict with our mission to preserve equality under the law for all Americans, as guaranteed by the Constitution. Private atheistic and pro-homosexual organizations – and even scouting organizations of the such – have the same rights as the Boy Scouts. Their freedom of association – to admit or not admit members and leaders under whatever criteria they should choose – receives the same protection under the law as the Boy Scouts have. We believe that is good and right, and certainly constitutional.
In conclusion, our actions in regard to the Boy Scouts of America are not hypocritical, as you suggest, but are entirely consistent with our stated mission and values.
Director of Development, The American Civil Rights Union