Gays in the Boy Scouts

On August 4, the New Jersey Supreme Court ruled that – under that state’s anti-discrimination law – the Boy Scouts of America could not expel Eagle Scout James Dale from his post as an assistant scoutmaster for being gay. Lawyers for the Boy Scouts had argued that homosexuality violates the Scout Oath, which requires scouts to be "morally straight" and "clean". The court decided otherwise. "The words ‘morally straight’ and ‘clean’ do not on their face, express anything about sexuality, much less that homosexuality, in particular, is immoral," the justices ruled. With those words, the gay rights movement stepped beyond the battle for civil rights and into the era of cultural integration.

On the day of Dale’s victory, the House Judiciary Committee was considering legislation that would extend federal hate crime laws to violence against gays. Meanwhile, an Alabama jury was weighing whether to convict two men of murdering Billy Jack Gaither, a gay man who they said had propositioned them. Dale, however, seeks more than physical safety or civil rights. By breaking open the country’s largest youth organization – an institution synonymous with mainstream values – he is challenging the very stigma against homosexuality.

The legal campaign to quash the Scouts’ antigay policies, which has become an issue in the presidential campaign and is heading toward the Supreme Court, has brought the debate over homosexuality to a crossroads of three political visions. The liberal vision holds that regardless of morality, everyone has a right to his or her lifestyle. The progressive, more ambitious vision is that gays are worthy not only of civil rights but also of moral respect. The radical, most ambitious vision insists that antigay "morality" is itself immoral.

In part, Dale owes his victory to the traditional liberal idea of privacy. Five years ago, a California appeals court ruled that the Boy Scouts had a First Amendment right to exclude Timothy Curran, a gay ex-scout, from becoming a scoutmaster. The court rule that "Curran was not terminated for his secret homosexual desires, but because his espousal of a homosexual lifestyle and his advocacy of homosexuality conflicted with the Boy Scouts’ standards for role models." As evidence of Curran’s advocacy, the court cited his statements that "Gay is OK," that there was not anything wrong with it," and that he "wanted to make sure that other kids understood that."

Rather than challenge the Curran decision, the New Jersey Supreme Court argued that while Timothy Curran had defied the Scouts’ values, Dale had not. "Dale has never used his leadership position or membership to promote homosexuality," said the court, and "there is no indication that Dale intends to actively ‘teach’ anything whatsoever about homosexuality as a scout leader." The court noted further that, "unlike in Curran, Dale did not seek membership in order to challenge Boy Scouts’ purported views on homosexuality."

To the Scouts, this conclusion is preposterous. "The adult leaders in the program are supposed to be moral exemplars of scouting’s values," explains George Davidson, lead attorney for the Boy Scouts. "Mr. Dale put himself on a soapbox. He was co-president of the lesbian and gay group at Rutgers [University]. And he got his picture in the paper in that capacity." Davidson argues that Dale "put a sign around his neck" declaring his homosexuality. "It’s a question of forcing parents to select a role model for their children who stands for values that the parents don’t accept."

Davidson has a point. The conditions placed on Dale’s right to be a scoutmaster — that he won’t teach scouts about homosexuality or challenge the antigay views of Boy Scout officials — are unrealistic. But the conditions dictated in the Curran case — that scoutmasters can’t be avowed," "publicly acknowledged" or "affirmed" homosexuals — are even more absurd. The legal problem is that the Boy Scouts, by equating out-of-the-closet homosexuality with "avowed" homosexuality and "a sign around one’s neck," can exclude many gay applicants unjustly. But there’s a moral problem, too. Just by the force of his example, Dale will teach scouts that a gay man can be an ethical person and a good leader. He will challenge the organization’s homophobia. And he should.

This brings us to the second level of the controversy; whether homosexuality is not just legally tolerable but morally respectable. The Boy Scouts has become the epicenter of this debate because it is federally sanctioned, enormously popular (more than a million youths currently belong), explicitly dedicated to inculcating virtue, and broadly recognized as representing shared values rather than a secretarian agenda. In 1916, Congress chartered the Scouts to teach "patriotism, courage, self- reliance, and kindred virtues." The Scout Oath requires scouts to be "morally straight," that is, to "guide your life with honesty, purity, and justice" and to "be clean in your speech and actions, and faithful in your religious beliefs."

Boy Scout officials think this means troop leaders can’t be gay. A year after Dale’s expulsion, they declared that "homosexual conduct is inconsistent with the requirement in the Scout Oath that a scout be morally straight." In court, they testified that this requirement dated to the early 190s, when everyone understood that homosexuality was wrong.

In 1995, the New Jersey Superior Court judge who heard Dale’s case agreed. Citing the traditional Judeo-Christian view of sodomy as a "gravely serious moral wrong," he concluded: "To suggest that the BSA had no policy against active homosexuality is nonsense. It was an organization which from its inception had a God-acknowledged, moral foundation."

The California Courts took a subtler approach. While pretending not to address whether homosexuality is moral, the judges required Curran to prove that Boy Scout members "understood homosexuality to be consistent with the Scout Oath and Law" — a test he could not meet — instead of requiring Scout officials to prove that scouts understood homosexuality to be inconsistent with the Oath and Law. In short, the judges presumed that homosexuality and morality had to be reconciled.

Last year, a New Jersey appeals court reversed this presumption and overturned the 1995 decision against Dale. "There is absolutely no evidence before us...that a gay scoutmaster, solely because he is a homosexual, does not possess the strength of character necessary to properly care for, or to impart BSA humanitarian ideals to the young boys in his charge," the court ruled. Nor could it "convincingly be argued," the court added, that admitting gay scout leaders "impedes the BSA’s ability...to instill in the scouts those qualities of leadership, courage and integrity."

The state Supreme Court agreed: "Boy Scouts’ activities are designed to build character and instill moral principles. Nothing before us, however, suggests that one of Boy Scouts’ purposes is to promote the view that homosexuality is immoral."