On May 23, 2013, the Boy Scouts of America finally voted to lift the longstanding ban on gay Boy Scouts. However, in part to appease more traditional members, it maintained its ban on gay scout leaders. Jennifer Tyrrell is asking for signatures on a petition to lift this ban.
I smell a lawsuit a-brewing. It’s already happened once: in the 2000 case, Boy Scouts of America v. Dale, the BSA convinced the Supreme Court by a narrow margin that its Constitutional right to freedom of association allowed it to exclude homosexuals. Because this particular issue has already been settled, it’s unlikely that Ms. Tyrrell’s petition could mature into a lawsuit.
Sue-happy Americans are increasingly invoking the power of the courts – i.e., the force of government – to gain acceptance and tear down walls. We need to be careful. Walls need to be torn down, no doubt, but government intervention to solve a problem that should be solved with words tends to make matters worse.
There is a difference between demanding legal equality irrespective of sexual orientation (or race, religion, etc.) and demanding that everyone is treated equally, even in private settings, under threat of government force. The distinction is not subtle, but unfortunately many people, including very smart people, don’t see it.
In my first year in law school, we were discussing the right to freedom of association and how it impacted the 2000 BSA case. This launched a passionate debate in which the professor pointed out that, with few exceptions, a private group may exclude anyone for any reason. “Wait,” said one of the students, “you’re telling me that a private country club can deny me membership because I’m black?”
“Yes, of course!” I wanted to shout, censoring myself because I knew I’d be accosted by the class’s progressive majority. But the logic is simple, if unpalatable to some. For instance, if one is holding a private party at his house, he can refuse entrance to anyone for any reason. He can be a racist, anti-Semitic, homophobic male chauvinist, and there’s nothing that anyone can legally do about it.
And that’s a good thing.
Don’t get me wrong. It sucks when people are hateful and bigoted; it sucks when people project their own fears and insecurities to bully others. But I would rather live in a world in which people are free to be who they are than one in which one group applies the force of law to oppress another group, even if doing so feels politically in vogue at the moment. Let’s not forget that the worst social atrocities in history (genocides in Rwanda and Nazi Germany, slavery in the Americas, political prison camps, etc.) are often politically popular at the time. In this case, successfully forcing the BSA to accept gay scout leaders, while potentially gratifying in the moment, will only threaten the rights of all private groups to make their own internal decisions.
Often, misguided souls lobby for one-sided freedom: they want liberty for themselves but not others. (Reminds me of the famous Animal Farm quote, “All animals are equal, but some animals are more equal than others.”) If you want the freedom to be yourself, and to share the same civil liberties shared by everyone else, then it seems fair to grant the same freedom to others, even people who aren’t very nice.
I am glad that the BSA has decided to lift the ban on gay Boy Scouts, but remain skeptical of their position on gay scout leaders. By all means, let’s sign Ms. Tyrrell’s petition and stir up some healthy debate – and hopefully change the BSA’s position. Ultimately, however, the Boy Scouts are a private group; supporting their right to associate with whomever they choose helps to cement your right to associate with whomever you choose.
Freedom begets freedom.