|
OutRight
The
Scouts’ Rights—And Ours
Why
the Supreme Court was right in upholding the Boy Scouts’
right to do wrong
By
Dale Carpenter
When the Supreme Court held that the Boy Scouts of America
(BSA) may exclude openly gay scoutmasters, many gay
civil rights advocates howled. One writer said the result
“lent legitimacy to the bigotry of...institutions
all over America.” That’s one way to describe
the function of the First Amendment. I prefer to think
of it as something free people should cherish.
The First Amendment protects people, like me, who say
and believe good things. It also protects people, like
the BSA, who say and believe some bad things. It guarantees
freedom of speech, and the concomitant freedom to choose
your friends and associates in order to promote your
views. It doesn’t say, “You have freedom of
speech—unless a majority of a legislature in some
state can be persuaded otherwise.” It doesn’t
“lend legitimacy” to any belief. Only we,
as a people, can do that, through our own words and
actions.
Why would we protect a freedom to say and believe bad
things? It’s not because there’s no difference
between saying and believing bad things and saying and
believing good things. One reason we protect people
who say and believe bad things is that we’re not
very confident about our ability to distinguish between
good things and bad things for all time. We should pause
when we reflect that, as Justice Oliver Wendell Holmes
once wrote, “time has upset many fighting faiths.”
Ideas once thought unassailable are now heretical.
Here’s an example: New Jersey once had a law forbidding
private, consensual gay sex. It was considered a good
thing. But because of the First Amendment, those who
disagreed were able to persuade New Jersey that the
law was wrong. Now the old state sodomy law is considered
bad, even terrible.
In fact, New Jersey has stood the old sodomy law on
its head, forbidding discrimination against the very
people it was once confident were criminals. It is that
antidiscrimination law that brought the scouts to the
Supreme Court.
The BSA disagrees with New Jersey’s new, improved
view of gays. It also disagrees with New Jersey’s
egalitarian views about females and atheists because
it doesn’t welcome them, either.
If the Constitution is to protect us, it must protect
people we don’t like, too. Otherwise, its protections
are a lunchtime snack for democratic majorities.
There’s self-interest in this high-minded devotion
to the BSA’s right to discriminate against us.
In the past century, democratic majorities have given
us sodomy laws, a ban on military service, gay marriage
bans, antigay adoption laws, and much else. With a nod
from those same majorities, the police have used their
power to raid gay bars, censor gay publications, and
harass law-abiding citizens for dressing the wrong way.
Gay equality advocates, as we have learned repeatedly
from painful experience, are not often in firm control
of the outcomes of democratic decision making. We may
have our way today, but tomorrow the barbarians will
be back at the gates pressing in.
What’s the remedy for this uncertainty? We need
to withdraw certain spheres of private life from democratic
decision makers—spheres they have no business regulating
anyway. So commercial establishments, as public accommodations
that have always been regulated by law, may properly
be told not to discriminate. But non-commercial private
membership organizations—like the BSA, or the HRC,
or the NGLTF—should be allowed to further their
missions as they see fit without state interference.
What’s most culturally interesting about the case
is that the BSA needed constitutional protection from
the proponents of gay equality. The constitutional shoe
is on the other foot. It’s not gays seeking protection
from raiding police officers now; it’s homophobes
seeking protection from raiding gay rights laws.
We should never confuse having a right with what is
right, however. People should have the right to burn
an American flag as political protest, but I don’t
think it’s ever right to do so. The BSA may have
a right to discriminate against gays, but that does
not make their discrimination right.
As in the controversy over Dr. Laura, it’s the
role of conscientious people to expose bigotry. In fact,
it’s their right to do so. Just as we may urge
sponsors not to subsidize a television program we think
is wrong, we may urge local governments and charities
not to sponsor a private membership organization that
has fought tenaciously to discriminate against us.
In the short run, the BSA won’t likely fold under
such pressure. The group’s membership is up, and
withdrawing sponsors have so far been replaced by new
ones. There are probably still more parents out there
who would prefer BSA to keep its antigay policy because
they fear their children will be molested by gay scoutmasters
than there are parents who think that fear is irrational
and don’t want their children to be taught to prejudge.
But, as even the supposedly antigay majority Supreme
Court decision recognizes, “the public perception
of homosexuality in this country has changed” in
the direction of “greater societal acceptance.”
If we keep exercising our rights, our First Amendment
rights, to move the country our way, the BSA won’t
be turning to courts to keep us out—they’ll
be turning to us to keep them around.
Writing from the conservative end of the spectrum,
former Houston resident and law professor Dale Carpenter
began his column for OutSmart in 1994 and has won three
Vice Versa awards for excellence in gay writing. Now
working as a law professor in Minneapolis, he can be
reached at OutRight@aol.com.
|
