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Opinion
Noah Feldman

No Girls Allowed? Boy Scouts Have a Case

Scouting has a legal argument to stay a single-sex organization, if it wants to.
Boy Scout camp looks awesome.

Boy Scout camp looks awesome.

Photographer: George Frey/Getty Images

What are the legal prospects for the California girls who want to join the Boy Scouts of America? Five girls, ages 10 to 13, have asked the local council to be admitted as full-fledged Boy Scouts. Should they eventually take their case to court, they won’t be able to rely on Title IX, the law that prohibits sex discrimination in educational institutions, because Congress wrote in an exemption for the Boy Scouts. Structurally, the exemption resembles the one that Congress gave Major League Baseball from antitrust laws: It doesn't really have a principled basis, but reflects some combination of tradition and lobbying power.

The girls could instead try to use state anti-discrimination laws to demand membership. The Boy Scouts would, however, have a response. They could claim that they’re committed to the exclusion of girls as a matter of their core definition, and therefore invoke their constitutional right to associate in a discriminatory fashion.