This column by ACRU Senior Legal Analyst Ken Klukowski was published April 20, 2013 on Breitbart.com.
A faction in the Boy Scouts of America (BSA) just proposed a resolution to change BSA’s longstanding policy regarding openly homosexual behavior, one that will subject them to crippling lawsuits and cannot possibly survive over time. Regardless of where a person stands on the question of whether there should be open and avowed homosexuals in the Boy Scouts, this policy doesn’t make sense either way.
As a private organization, BSA has always held the official position that open homosexual behavior is incompatible with the code of Scouting. Years ago, when New Jersey argued this longstanding policy violated public-accommodation laws, it went all the way to the U.S. Supreme Court. In the 2000 case Boy Scouts of America v. Dale, the Supreme Court sided with the Boy Scouts, holding that private organizations have a First Amendment right to express themselves through defining their own membership criteria.
Yet, on Friday, BSA’s Executive Council proposed a resolution with a new policy: that BSA will retain its complete ban on adults (age 18+) who openly engage in homosexual behavior serving in any Scouting role, but changing the youth (under 18) policy to read, “No youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone.”
The wording of the resolution reflects a cynical attempt by a faction within BSA’s leadership to get a preordained result: “No youth may be denied.” No one likes the thought of denying young people something. This faction chose not to use wording such as, “Scouting shall retain its longstanding traditional policy,” or, “Scouting shall uphold the expressed will of its national membership to retain its longstanding policy.”
That’s because a national survey of Scouting families showed 61% wanted to keep the longstanding policy against open homosexuality in Scouting, and only 34% want it repealed. Other studies show that most parents want to discuss sexuality at home and instill their personal values on that sensitive issue with their children, rather than having any organization teach their boys about it.
This policy cannot endure over time. Let’s say you have a boy who joins the Scouts at age 12. When he’s 16 years old, he begins engaging in homosexual conduct. (It makes no difference if he also has sex with girls.) At age 17, he attains the rank of Eagle Scout, the highest achievement in Boy Scouting.
But the following year, when he turns 18, suddenly he is expelled from Scouting for the rest of his life. How in the world could that happen? On what basis? A growing number of people with this story would become the faces and voices of efforts to change the other half of the policy and lift the ban on open and avowed homosexual adult Scout leaders.
This policy is also utterly incoherent. Does BSA believe openly homosexual conduct is inconsistent with Scouting principles, yes or no? If yes, then both Scouts and Scout leaders alike must abstain from homosexual conduct to be in compliance with the Scout Oath and Scout Law, which form the foundation of this longstanding policy. If no, then there’s no reason to deny open and avowed homosexual adults a role in the organization’s leadership.
The wording of this policy, “orientation or preference,” also opens the door for self-defined sexual identity. What if someone is anatomically a female but chooses to identify as a boy, and wants to dress and act as a boy? This policy suggests that a girl could join a Boy Scout troop.
In addition, if this resolution is adopted by BSA, then the organization will be subject to a crippling array of lawsuits that it lacks sufficient funds to win. This change in policy means that BSA would forever step outside the protection handed to it by the Supreme Court in Dale. The organization would forfeit the First Amendment protection they currently have from this form of “expressive association.”
The new policy would instead express the opposite belief that open homosexual conduct is entirely consistent with Scouting’s code, and so federal courts would have no basis to uphold the part of the new policy that still doesn’t allow adult leaders who openly engage in homosexual behavior.
Every Scouting unit in the nation could be sued under the anti-discrimination laws of the city and state where it’s located. BSA would lose many of those lawsuits. They might win many others, but at a cost of many millions of dollars.
This doesn’t even consider other impacts of this policy. For example, many Scout troops are sponsored and housed in traditional churches. A Southern Baptist church in Mississippi or Texas or a Mormon church in Utah might no longer in good conscience be able to officially lend its name or facilities to a troop that now accepts open and avowed homosexual behavior as morally-acceptable conduct.
It seems unlikely that this faction in Scouting’s leadership somehow missed all this in drafting the new policy. And it’s very unlikely that any team of even half-competent lawyers could think the resulting litigation would be anything short of catastrophic for BSA, both considering the final outcome and the financial cost.
So this proposal now goes to the full Scouting body for its national Annual Meeting in May of this year. This proposal is squarely against what most Scouting families supported in the national survey, and things might reach a point where perhaps a second Scouting organization will be formed for people who don’t share the same beliefs.
If it wants to try avoiding that outcome (or to see if it’s inevitable), BSA would be well-served by having an open and robust debate, with articulate spokesmen for both sides–including good lawyers to discuss the legal impact–at the national meeting before voting on the policy change.
Next month everyone will see whether BSA’s membership believes its interests are well-served by the work of this faction in its leadership ranks.