Is there a First Amendment badge?

Photographer: Andy Lyons/Getty Images

Boy Scouts Yield to Equality's March

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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It’s official: The Boy Scouts of America, headed by former Secretary of Defense Robert Gates, thinks the U.S. Supreme Court is about to create a right to gay marriage. There’s no other logical explanation for why they chose Thursday to announce that they plan to stop banning gay scoutmasters.

For the Boy Scouts, this decision isn’t about getting ahead of the curve. It’s about coming out from behind the curve at the last minute. For 15 years, the Boy Scouts have been synonymous with anti-gay discrimination, ever since the Supreme Court’s 2000 decision in Boy Scouts of America v. Dale. That landmark case established the principle that there’s a constitutional right of free association that allows private groups to discriminate in membership -- provided the discrimination is intentional and at the core of their expressive mission.

QuickTake Gay Rights

The Scouts’ reversal raises important questions in the story of progress toward equality rights: Was the court correct to establish the right to discriminate in the Scouts’ case? Did that right contribute to the gradual emergence of gay rights? Or did it retard the advance of equality, lengthening the process at the expense of rapid progress toward justice?

To get at the answers, begin with the weird and fascinating holding of the 2000 case. The circumstances were that New Jersey had passed a law barring discrimination against gay people in any open “public accommodation.” The courts found that the Boy Scouts counted as a public accommodation because they were open to all qualified members.

In a previous decision involving the Junior Chamber of Commerce and a similar Minnesota law prohibiting sex determination, the Supreme Court had balanced the state’s interest in creating equality with the Jaycees' interest in free association, and held in favor of the state. The court could’ve done the same in the Boy Scouts' case, and held that the state equality law trumped Scouts’ interest in exclusion.

Instead, the court came up with a new, counterintuitive doctrine. In the course of the litigation, the Boy Scouts developed the argument that they were excluding gay scoutmasters because it was part of their mission to do so. They didn’t quite say that the Scouts’ oath to be “morally straight” meant heterosexual -- but in effect, that’s what the Scouts claimed, asserting that the presence of a gay scoutmaster would undercut their fundamental stated mission.

The court relied on this assertion in crafting its holding. It said that, when an organization’s expressed mission would be impaired by the presence of certain people, the First Amendment right to free association -- itself derived from the right of free speech -- permits them to discriminate even in the face of the state’s interest in creating equality.

The odd feature of this holding is that it has the effect of protecting intentional discrimination by groups that have thought through their reason to exclude, while generally not protecting incidental or accidental discrimination by groups that don’t consider exclusion to be necessary to their mission.

Thus, by this logic the Jaycees couldn’t discriminate because excluding women wasn’t part of their core belief system. If, however, the Jaycees had announced their goal was the promotion of commerce and small businesses run by men, they could’ve taken refuge in the First Amendment and won their case.

Similarly, if the Boy Scouts had said that excluding gay people wasn’t at the core of scouting, they would’ve had to follow the anti-discrimination law. The court’s holding gave the Scouts, and organizations like them, an incentive to say that their discrimination was mindful and intentional.

Critics of the court’s decision have long maintained that it’s a bad idea to encourage intentional discrimination and give it an advantage over the accidental kind. To them, the Boy Scouts’ recalcitrance in maintaining anti-gay policies was evidence that the court erred.

Defenders of the court’s opinion have argued to the contrary that it makes sense to require organizations that wish to discriminate to state their premises and reasoning openly, thereby subjecting them to public scrutiny and criticism. On this view, the Boy Scouts have been paying the price for their discriminatory attitude since 2000 -- and now, as public opinion is changing, they’ve decided the price is no longer worth it.

Who’s right? In retrospect, the court’s decision looks like it was a step in the gradualist process of expanding gay rights over two decades. The court judged in 2000 that private organizations shouldn’t be pressed to admit gay members -- perhaps because it judged that the country wasn’t ready.

Yet the principle of Boy Scouts v. Dale will remain on the books even when the Boy Scouts themselves no longer discriminate. It will continue to allow private discrimination for expressive purposes, not just against gay people but also against blacks, women and anyone a self-consciously discriminatory group chooses to exclude.

The decision, then, contributes to the balkanization of American civic life. And it reminds us -- on the eve of the gay-marriage decision, when we most need reminding -- that laws and courts ultimately can’t reverse discrimination on their own, even by outlawing it. To create a society informed by equality, we actually need to believe in equality -- and to convince everybody, one person at a time, that all humans are created equal.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net