On May 23, delegates representing the Boy Scouts of America voted to adopt a change in their membership policies. For many years, the Scouts held that homosexual activity was inconsistent with the spirit of scouting and that therefore openly gay people could not be admitted to the organization. This will no longer be the case.
The change the delegates voted for is a compromise of sorts. For the last decade and a half, liberal activists have sought a complete repudiation of the ban. During the same period traditionalists have sought to retain it. The new policy appears to split the difference: It permits openly homosexual boys to be members of the Scouts, but it does not allow openly homosexual men to be Scout leaders.
Whatever else one thinks about the new policy, this much is certain: It can’t last. No doubt many of the delegates thought they would be buying peace and quiet by enacting this compromise, but they are bound to be disappointed.
The compromise policy’s short life is predictable, in the first place, in light of the kind of people it is meant to placate, people that the Scout delegates have seriously misjudged. Socially liberal political activists don’t believe in compromise. They believe in winning.
If they believed in compromise, there would be no constitutional “right” to abortion, but a variety of more or less permissive abortion regimes across the states. If they believed in compromise, there would be no legal crusade for same-sex marriage, but a willingness to accept same-sex civil unions.
Indeed, proponents of gay-friendly scouting, the very activists whose demands the present compromise is meant to satisfy, have already proclaimed that the fight will go on: The next goal is to open the Scouts to openly homosexual Scout leaders.
The new policy’s eventual doom, however, is ordained not only by the incorrigible aggressiveness of American social liberals, who cannot bear to see any traditional institution untransformed according to their own vision of the good, but also by its own incoherence.
Whether one agrees with it or not, there is a kind of obvious consistency in banning openly homosexual members from an organization that holds that homosexual activity is morally problematic. To be sure, dispositions and acts are morally distinguishable, and it is therefore possible to hold that only homosexual acts, and not necessarily homosexual desires, are blameworthy. Nevertheless, as a practical matter, being an open homosexual is indistinguishable from proclaiming a belief that homosexual acts are morally innocent. After all, if one accepted the traditional view that such acts are morally impermissible, one would ordinarily keep one’s inclination to them to oneself.
The opposite policy would have its own kind of coherence. If the Scouts have rejected their former belief that homosexual activity is inconsistent with being morally “clean” and “straight,” it would make sense to lift the ban on homosexuals entirely. If the Scouts don’t officially endorse any particular sexual morality, there is no need to exclude anyone whose presence seems to proclaim a controversial opinion on such questions.
But what the Scouts have chosen to do instead is well-nigh impossible to defend. Is homosexual activity morally problematic or is it not? If it is, why permit members who have chosen to proclaim to the world their inclination to it? If it is not, or if it is a question in which the Scouts have no interest, why exclude homosexual men from positions as Scout leaders?
Presumably the reason for the old policy banning all openly gay persons from scouting was the concern that by announcing an “identity” rooted in sexual inclinations, they would set a bad example for the impressionable young members.
This concern, however, is present whether we are talking about Scout leaders or ordinary members. On the other hand, if the Scouts are agnostic on this matter of sexual morality, there is no question of setting a bad example at all, and no reason to exclude either practicing gay leaders or members.
Some might contend that what appears incoherent from the standpoint of moral principle can be perfectly coherent from the standpoint of more practical concerns. That is, perhaps the ban on homosexual Scout leaders is being retained to protect the Scouts from possible sexual abuse of boys by men, a scandal that could be ruinous to the organization. After all, only a great fool would think it harmless to let an adult man take a group of teenage girls on a campout.
Thus the organization might ban openly gay Scout leaders not because of any moral disapproval of the gay lifestyle, but because of the perils of sexual attraction between leaders and members.
This position sounds reasonable at first, but its apparent coherence vanishes on closer examination. For of course the danger of sexual misconduct must exist when there is sexual attraction among the members as well as between leaders and members. A sexual relationship between, say, a 20-year-old Scoutmaster and a 17-year-old Scout would cause public scandal and raise the possibility of devastating legal action. But so would a sexual relationship between a 17-year-old Scout and a 14-year-old Scout. Accordingly, the Scouts’ new policy is incoherent even on the basis of such institutional self-protection.
Of course, incoherence alone does not spell the end of any given policy. Human beings are only imperfectly rational at best, and they live with incoherence all the time. Rational indefensibility, however, is a serious problem when one can expect a policy to be publicly challenged—when one can expect insistent demands that it prove its needfulness. As I have already suggested, the ambitions of gay rights activists ensure that such a public accounting is unavoidable.
Moreover, the emotional imperative at work in the attack on the Scouts’ traditional policy will be unchanged or even heightened by the present compromise. One of the most compelling appeals that has been made by opponents of the traditional policy is an appeal to compassion: It seems cruel to exclude gay boys from the organization. This appeal will now be deployed against the ban on gay Scout leaders, and it will gain force from the Scouts’ new inability to counter with any rationally consistent moral or practical position.
Indeed, in some ways the new policy might seem even more offensive to compassion than the old one. The feelings of homosexuals might be lacerated less by simple exclusion from Scouting than by being permitted to be members throughout their youth, only to be drummed out on reaching adulthood.
Finally—and here we reach what is possibly the shortest route to the new policy’s extinction—the Scouts have, by compromising with their adversaries and thereby compromising the coherence of their own position, opened themselves to lawsuits forcing them to admit openly homosexual Scout leaders as well as members. Some states have laws that forbid discrimination based on sexual orientation. The Scouts’ traditional policy runs afoul of such laws and was in fact challenged as a violation of New Jersey’s anti-discrimination laws in the latter part of the 1990s.
At that time, the Scouts prevailed against this challenge by claiming that this attempted application of state anti-discrimination law intruded on the organization’s First Amendment rights. In Boy Scouts v. Dale, the Supreme Court agreed. The First Amendment protection for freedom of speech, the Court ruled, includes an implied protection for freedom of “expressive association.” This freedom limits the extent to which the law can force members into an organization contrary to that organization’s own convictions. Thus the Scouts could ban openly gay members because they were organized in part to inculcate a moral teaching with which homosexual activity was inconsistent.
The plausibility of this constitutional defense of its membership requirements, however, depends on the very consistency that the Scouts have now abandoned. Obviously, American courts cannot treat a claim of expressive association as absolutely dispositive, as this would permit some organizations to defeat anti-discrimination laws at will.
Any restaurant, for example, could refuse service to blacks, claiming that such service was incompatible with the convictions of the restaurant owner. Such abuses are prevented by requiring that an organization claiming a First Amendment right to expressive association must show that it is actually engaged in expressive association, not just commerce or some other activity, and that the discrimination it is making is really essential to the expression in which it is trying to engage.
In the Dale case the liberal justices on the Court were willing to rule against the Scouts, holding that the traditional scouting references to being “clean” and “morally straight” were unclearly related to the question of homosexuality and were therefore mere pretexts for irrational discrimination. The more conservative justices, however, noted that surely the Scouts had a First Amendment right to define their own terms for themselves.
There is a difference, however, between specifying general terms and advancing mutually inconsistent positions. The former does not suggest bad faith while the latter does. Good luck to the Scouts in finding a rational basis on which to justify to federal judges an expressive association that requires excluding homosexual Scoutmasters but not homosexual members.