For many people, the decision by the Boy Scouts of America to continue its ban on gays is an easy call. In one sense, I think this judgment is correct. The Boy Scouts made a bad decision. But, the more important issue is whether or not the Boy Scouts of America have a right to make bad decisions. They do.
The U.S. Supreme Court in 2000 overturned a New Jersey court ruling that had said the Boy Scouts should re-instate assistant Scout Master James Dale, who was gay. The 5-4 decision reflects the fact that this was not an easy call either. The strongest part of the dissent was that the federal courts should permit New Jersey to experiment with social policy, in this case, a desire to avoid what the state viewed as unjust discrimination. The strongest part of the majority’s opinion, authored by Chief Justice William Rehnquist, was this:
The issue of whether private organizations can discriminate is complicated because most private organizations discriminate in one way or another. I cannot join the Daughters of the American Revolution because the DAR only admits females and only those females whose lineage traces back to the revolutionary era. I am a boy whose ancestors came to this country in the nineteenth and early twentieth century. No DAR application for me.
For Catholics, this issue comes up all the time and is at the heart of the fight over the HHS mandate with its restrictive four-part definition of what constitutes an exempt religious organization. There are those in our society, and gay rights advocates are understandably interested in the matter, who wish to see as many religious institutions as possible deemed non-exempt from relevant statutes for legal purposes. The argument that a Catholic hospital or a Catholic university is conducting an essentially secular purpose, providing health care or an education, misunderstands how we Catholics view health care and education. For us, both tasks flow from the Gospel call to care for the afflicted and to instruct the ignorant or, less negatively, to proclaim the truth. We believe, therefore, that such religious institutions are integral to our understanding of our faith and, just so, should enjoy the protection of the First Amendment’s religion clauses.
The Supreme Court’s decision in Boy Scouts of America v. Dale had to do with a different First Amendment right, the right to freely associate. Like all First Amendment rights, the right to free association is not absolute. A criminal enterprise cannot expect First Amendment protection, nor can a cartel whose aim is to create an economic monopoly. But, the 2000 case, like the fight over the HHS mandate, raises two of the thorniest issues for liberals. First, why, in the name of diversity, should all organizations be made to look alike? And, second, do we really want a society in which no organizations, no cultural barriers, no mediating institutions exist between the individual and the State?
The second question has a longer, and more troubling, lineage. In the 1790s, the champions of the French Revolution insisted on the view that the State was all powerful and that the privileges for groups, especially the clergy and aristocracy, that characterized the ancien regime must be done away with. The ancien regime was indefensible, to be sure, but the “liberty, equality and fraternity” for which the revolutionaries claimed to be fighting were ill-served by their destruction of all intermediate social groups. Throughout the following century, France struggled with these issues: should seminarians be made to enlist in the army (the issue that just led Kadima to leave the coalition government in Israel)? Should the state schools be mandatory? Should religious orders be permitted? Some of these questions crossed the ocean. In Oregon in the early part of the twentieth century, a law was passed that made attendance at state schools mandatory, effectively shuttering the Catholic schools. The law was overturned by the courts, but it had nonetheless passed by a popular referendum, not just a vote of the legislature, with majority support. Here we discern another related, and important, tenet of our constitutional system: fundamental rights should not be entrusted to majority vote.
Nonetheless, while I believe Catholics should be unstinting in their efforts to combat anti-gay bigotry, it would be a mistake to think that every social problem warrants a governmental remedy. A society that allows a wide variety of groups, all of them exclusionary in one way or another, is a healthier society than one in which the government can simply dictate the rules of the road for all organizations. I support anti-discrimination laws in hiring, but I think religious colleges and universities should be able to give preferential hiring to co-religionists and student applicants because a Methodist college without Methodists will lose its identity. The same holds for historically black colleges. A preference for some is not a prohibition against all others, to be sure. It is wrong to hire an unqualified person who shares one’s faith or one’s racial background, over a qualified person who is different. But, government action towards groups like a Catholic hospital, or an historically black college, or the Boy Scouts, should be limited as strictly as possible in the interests of maintaining a vibrant civil society.
The first issue – the role of diversity in our culture – is a newer question. We have all come to appreciate the fact that diversity in America has been one of our nation’s strengths. For some people, that diversity can be threatening, and a cover for bigotry. But, the remedy cannot be worse than the disease and creating a diversity that insists on certain groups being included, like gay boy scouts, while excluding others, like those who think homosexuality is sinful, is not diversity at all. Liberalism is not threatened by bigots, it is challenged, and its response to that challenge should not become a bigotry of its own.
But, back to the Scouts. The decision was bad for the same reason I believe those dioceses which ban the children of gay parents from their parochial schools made a bad decision. We are talking about kids. The most important thing to know about a 12 year old is not whether he likes boys or girls, or whether his parents are gay or straight. I would not want a scout leader talking about sex with children anyway. If someone wanted to hijack their involvement in the scouts to make a political statement, either a pro-gay statement or an anti-gay statement, I would think the organization would be justified in expelling that person, not because they are pro-gay or anti-gay, but because they are distorting what the Boy Scouts are about. The same holds for the children of gay parents in Catholic schools. But, I thought the Boy Scouts was about learning to tie knots. Unintentionally, the group has pointed to the way our society continues to tie itself into knots over some fundamentally thorny cultural issues and I find myself wanting to echo the words of Rodney King during the riots that followed the acquittal of the cops who beat him – can’t we all just get along? No we can’t always get along, but we should try. Instead of adopting a blanket policy, I wish the scouts had left such issues to be adjudicated by local groups. They didn’t, and I think they are wrong. But, they have the right to be wrong in this free country we all love.