The war on Boy Scouts (Scripps Howard News Service) January 8, 2003

If it is true that Sylvester Stallone is planning another “Rocky” movie this year, he should consider the Boy Scouts of America as a role model. For nearly two years, the scouts have taken a flurry of legal and political punches, including a recent announcement by the California Supreme Court that they may prohibit any state judge from holding membership in the scouts.

But, like Rocky, the Boy Scouts are still standing. It’s time to examine their opposition more carefully and for their fans to become more vocal in support of this important institution.

The spotlight hit the scouts two years ago when the United States Supreme Court held that they could legally exclude homosexual members and leaders. The court decided that the scouts’ membership policies were clearly based on values that would be violated by the inclusion of gay members. Thus, it was their First Amendment right as a private organization to exclude members and leaders who did not follow their stated policies and values.

Any sense of relief in winning the lengthy legal battle about scout membership quickly faded as a barrage of public counterpunches began to hit. Celebrity scout Steven Spielberg entered the ring and announced that, because of their discrimination against gays, he would no longer be associated with the Boy Scouts, a position he reaffirmed in a recent speech. Then, on the same grounds, a handful of local United Way organizations discontinued their financial support of the scouts.

In Washington, D.C., the Human Rights Commission sued the scouts for violating local anti-discrimination laws and a federal appeals court recently ruled in favor of the scouts. Then in Seattle, there was a public flap over a scout leader who admitted that, contrary to scouting laws and values, he was an atheist. Although he and others argued that an atheist should not be excluded, the local scout organization held firm that he should not be permitted to continue as a leader.

Finally, at the request of the Los Angeles and San Francisco Bar Associations, the California Supreme Court will consider a new policy that would preclude all state judges from belonging to an organization that discriminates on sexual orientation. If such a policy were adopted, no California judge could be a member of one of the nation’s oldest and most respected youth organizations.

Not only would such a policy openly conflict with the U.S. Supreme Court – which specifically said that the scouting membership policy is constitutional – it also violates what one of my law professors called “the layman ‘huh’ test.” As we all dutifully scribbled notes on yet one more legal doctrine, he quickly explained that he had made up his common sense test himself. If a layperson looks at a situation and says “Huh?”, acknowledging that it makes no sense, then the law is probably wrong. Forbidding judges from being in the Boy Scouts is one of those policies that simply make no sense.

What is going on here? In short, an organization that has strong and distinctive values is under attach by those who do not believe in such values have any place in a diverse, pluralistic society. But private organizations in America should be free to pursue any values upheld by the Constitution and the Supreme Court. That freedom – that kind of pluralism – is what America has always been about.

The matter of tactics is even more troublesome. People like Steven Spielberg clearly have the right to give speeches against the Boy Scouts and vote with their feet by leaving. The United Way can stop giving to the scouts, and donors can stop supporting United Way and give to the scouts instead, as many have done.

But a government organization like the California Supreme Court should not have the right to prevent a judge from pursuing his or her occupation because of membership in a private organization whose policies have been approved by the highest court in the land What would come next? A decision that judges who belong to churches that discriminate based on religion cannot serve either?

It is unfortunate that a great source of American values such as the Boy Scouts is under attack. But it is wrong if one of the referees of the American legal system, the California Supreme Court, itself becomes one of the attackers. That policy would make for a great sequel, with some brave California judge playing Rocky, putting his job on the line to stand up for the Boy Scouts.