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The Boy Scouts on the Front Lines By: Harold Johnson
FrontPageMagazine.com | Thursday, September 19, 2002

A Washington, D.C. court hearing last Tuesday — 9/10 — offered a sobering reminder that 9/11 did not, in fact, change "everything." The proceedings, at the District of Columbia Court of Appeals, dealt with a government rebuke of the Boy Scouts of America last year for dismissing two Washington-area Scout leaders because they're gay. The Scouts asked the court to overturn the June 2001 command by the District of Columbia Human Rights Commission that Michael Geller, 39, and Ronald Pool, 40, be readmitted as adult members and receive $100,000 in damages.

Although the Commission submitted no briefs of its own (angry members of Congress had denied the agency funding to defend its decision), lawyers for Geller and Pool didn't give an inch at the hearing. They insisted that the Scouts cannot be allowed to escape the District's anti-discrimination law, and the hefty fine was right and just.

Carla Kerr, an attorney for the Scouts, reports that the judges questioned the Geller and Pool attorneys aggressively. But even if the appellate ruling favors the Scouts, the fact that they had to go to court to win back their rights highlights some disturbing continuities between pre- and post-911 America. Not all of today's agents of destruction work with bombs, bullets or box cutters. There are saboteurs in coats and ties as well - social and cultural saboteurs, some with government or academic status, who continue their long-running siege against venerable institutions that have nourished the nation's soul. The Scouts remain a prime target. They are loathed by the Left for resisting reeducation on sexual morality and for transmitting a cultural framework, stressing God and country, that was supposed to be marginalized by now.

Most of all, perhaps, the Scouts are hated simply as an obstacle to the Left's Taliban-like project of imposing a general conformity of thought on the country. Lovers of liberty - even those who might disagree with Scouting's membership policies - should toast the Scouts' tenacious stand for the First Amendment and the right not to be PC.

The District of Columbia assault on the Scouts may be unique in one respect: its unusually direct defiance of the United States Supreme Court. In the 2000 case of Dale v. Boy Scouts, the Court settled the question that the D.C. bureaucrats have tried to reopen. A five-justice majority ruled that the Scouts are free to follow their own philosophical precepts. Therefore, government - New Jersey, in the Dale case - can't compel the Scouts to admit avowed homosexuals as leaders.

The Commission claimed that the case it dealt with differs from the case of New Jersey assistant scoutmaster James Dale because Pool and Geller were not public about their homosexuality. But the Supreme Court's teaching in Dale still applies: a private, philosophically based organization is free to craft its own creed and tailor membership rules accordingly.

The Commission also accused Scouting's leaders of lying, in effect, when they say that Scouting considers homosexuality incompatible with the Scout Oath's pledge to stay "morally straight." The Commission alleged that the Scouts haven't held this belief historically. It touted as "evidence" the fact that formal position statements were drafted only in recent years. If this line of argument sounds familiar, it's because New Jersey tried to sell it to the Supreme Court in Dale. Writing for the majority, Chief Justice William Rehnquist declined the invitation to instruct a private organization on what it does and does not believe. The Court in Dale accepted Scouting's own interpretation of the Scout Oath and the Scout Law.

So the District of Columbia Human Rights Commission has demonstrated about as much respect for Dale as southern school districts showed for Brown v. Board of Education when they waged "massive resistance" to desegregation orders in the 1950s. Like Brown, Dale is a civil rights decision; it affirms liberty of association and freedom from thought codes. A "Human Rights" commission worthy of the name would honor Dale, not subvert it.

Most of the recent government assaults on the Scouts have not been as shamelessly frontal. The trend is to try to coerce rather than openly compel. For instance, there's the scheme of shunning, as practiced in San Francisco, where local judges are now barred from participating in Scouting. There's stigmatizing, as Connecticut has attempted by dropping the Scouts from the list of charities that state employees can support through payroll deduction. There's singling out for the withholding of public benefits, as Berkeley has done by starting to charge a Scout-affiliated group, the Sea Scouts, for use of the city's marina. No other nonprofit faces such a requirement. High school teacher Eugene Evans now must pay $532 a month out of his pocket so the Sea Scouts' ship can berth in the marina and 20 or so boys can sail the Bay on weekends and learn carpentry and plumbing by working on the ship during the week. Because he's covering berthing costs, Evans can no longer afford to pay membership fees for boys from poorer neighborhoods around Oakland and Berkeley. Some, including some black and Latino kids, have had to drop out.

These anti-Scout ploys raise constitutional issues by attempting to do indirectly what the Supreme Court has said cannot be done directly - force Scouting to abandon its First Amendment rights. A long, twilight struggle of legal battles is assured.

The Scouts are learning that the totalitarian temptation survived the Berlin Wall; it's an impulse that isn't necessarily confined to nations patrolled by tanks and jackboots. Totalitarian arrangements share a principle: independent, voluntary associations aren't allowed. A totalitarian community "is made absolute by the removal of all forms of membership and identification which might, by their existence, compete with the new order," wrote sociologist Robert Nisbet. "It is, further, made absolute by the insistence that all thought, belief, worship, and membership be within the structure of the State."

Tocqueville saw this phenomenon in fledgling form on his home continent 170 years ago: "In all European nations some associations cannot be formed until the state has examined their statutes and authorized their existence. In several countries efforts are made to extend this rule to all associations. One can easily see whither success in that would lead."

The Scouts' fight, then, is for the survival of an authentically private sector — a sphere where beliefs can be embraced and explored without preclearance, editing or censorship by the state.

"They hate freedom." President Bush's words about terror networks also describe the bullies who would force Scouting to march to a new and "progressive" tune. By standing their ground, the Scouts put themselves on the front line of today's war against tyranny, as surely as the soldiers tracking Al-Qaida or any battalions that might be bound for Baghdad.

Harold Johnson is an attorney with the Pacific Legal Foundation.

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