Revisiting BSA v. Dale

by Paul Siciliano


In a purely cynical move, the Boy Scouts of America (BSA) has voted to allow for gay scouts, but it will keep in place, it's policy with respect to gay scout masters.  Because of this change of policy, there now will be an influx of gay 8 year-old boys into the BSA.  Anyway, the policy change made me wonder whether the BSA's decision altered its, and the Supreme Court's reasoning in the case of Boy Scouts of America v. Dale.  (Read the decision here).

Just as a quick refresher, BSA v. Dale, was the case back in 2000 when the BSA was determined to stop the organization from accepting gay scout masters in New Jersey (and New Jersey only) by taking the matter to the Supreme Court.  The BSA argued that despite being a public accommodation under New Jersey law, it was exempt under the state's anti-discrimination law because it violated the organization First Amendment right to expressive association.  

Even though the BSA never discussed sexual orientation, issues of sexuality or gave out merit badges for heterosexual behavior, it found some comments here and there to the effect that it promoted a heterosexual lifestyle for its members and the mere presence of an "avowed homosexual" as a scout master would undermine that message.  A 5-4 majority of the Supreme Court, basically taking the BSA at its word, agreed.  The logic is pretty flawed but was a nice way of the Court saying, "Don't worry, we won't have your boys go into the woods with some faggot who, at best, will recruit them to his lifestyle."  (You can use your imagination at what they were thinking at worst).

If you think I am being harsh, you should read how the majority obsessed over the fact that Dale was an "avowed homosexual" (their words) and a gay rights activist because he was a co-president of the gay student organization at Rutgers and did a couple of newspaper interviews (some after the BSA kicked him out).  Clearly, Dale was part of the radical gay agenda.  I am digressing here - but this is my big complaint with the Supreme Court and the justices - many of them have isolated themselves from the public that they really are out of touch and don't understand how the average American lives.  

Anyway, going back to BSA v. Dale, if the BSA is willing to allow for gay 8 year old scouts, how does the continued barring or gay scout leaders make sense or is protected by the organization's right to expressive association?  Of course, Supreme Court precedent allows for the acceptance of any argument the BSA makes regardless of its coherence or consistency.  It makes no sense and the reasoning in BSA v. Dale, as flawed as it was, should now be moot.  

This will not force the BSA to accept gay scout leaders since a ruling for Dale in the case would have only applied to New Jersey.  Still, the BSA might as well face the inevitable and just accept gay scout leaders but continue it's policy of non-discussion of sexuality and sexual orientation.  I am sure gays can control themselves just as much as straight men.  Hmmmm . . . that may not be the best standard!