Boy Scout camp looks awesome.

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No Girls Allowed? Boy Scouts Have a Case

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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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.

The Scouts would be relying on the 2000 case of Boy Scouts v. Dale, in which the U.S. Supreme Court held that the organization could ban a gay scoutmaster. Since then, the national organization has retracted this exclusionary policy. Now, the Scouts would have to say that their capacity to express their viewpoint would be thwarted by having girls in the organization.

In the spirit of “Be Prepared,” let’s start by considering the logic of the Title IX exemption. That 1972 law, famously used to enable girls’ and women’s sports to be funded alongside boys’ and men’s, says that no one shall be excluded or discriminated against on the basis of sex in “any education program or activity receiving federal financial assistance.”

The law then lists a number of exemptions, only some of which are still in use. Religious educational institutions are exempt, for good reasons of religious liberty. The service academies, also exempted, now admit women anyway. There's an exemption for public institutions that traditionally were single-sex, but precious few still exist. There’s also an exemption for scholarships awarded in connection with beauty pageants; surely such scholarships today rarely if ever come directly from the educational institution.

Then comes Section 1681(a)(6). It exempts social fraternities and sororities, and adds the YMCA and YWCA, the Girl Scouts and Boy Scouts, and the Camp Fire Girls.

The law doesn’t give any explanation for the exemption, but it’s easy to see how it came about. Congress didn’t want to alter the existing parallel structure for boys and girls in a nationally prominent, traditional organization.

Notice that Title IX only applies to the Scouts to the extent they get federal funding. Historically, the main source of such funding was the government subsidy to hold the Boy Scout Jamboree every four years at Fort A.P. Hill in Virginia, a practice that lasted from 1981 until 2010.

The American Civil Liberties Union challenged the government subsidy, saying it violated the establishment clause because of scouting's religious content. It won in federal district court, but the decision was overturned on appeal because the taxpayers who brought the suit were held not to have standing to challenge the expenditure. Beginning in 2013, however, the Jamboree was moved to the Summit Bechtel Family National Scout Reserve in West Virginia, a private, nongovernmental facility.

It could therefore be argued that Title IX doesn't apply to scouting at all anymore, because the Scouts don't receive federal money. The Scouts are allowed to use school buildings all over the country, which themselves receive federal funding. But this use is probably too indirect to come under Title IX.

If Title IX exemption is no longer relevant, that’s a good thing. But it leaves girls who want to join the Boy Scouts with the more limited option of relying on each state’s anti-discrimination laws to demand membership. Such state laws typically prohibit any organization deemed to be a public accommodation from discriminating on the basis of sex. The Boy Scouts have open membership, and would ordinarily count as a public accommodation.

Here's where the Constitution comes in. Under the Dale precedent, the Boy Scouts could exclude girls if they asserted that allowing them would significantly affect their ability “to advocate public or private viewpoints.” In that case, the court found that the presence of a gay scoutmaster would “force the organization to send a message … that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

To rely on the precedent, the Boy Scouts can't just argue that they don't want girls. They would have to say that the presence of girls forces them to send a message that the organization doesn't want to send.

What message would that be? To win, the Scouts would essentially have to say that they don't think boys and girls belong to the same scouting organization -- and that single-sex scouting is the very core of their expressive message. In other words, they’d have to say that they deeply believe in separate-but-equal scouting.

The argument would be made more difficult by the Boy Scouts’ own coed activities like Venturing. The court would have to find the Scouts were genuine with regard to their expressive message.

Because courts like to defer to associations’ own self-description, the Boy Scouts might well win in court if they could agree to make exclusion of girls their message.

But it's far from clear that the organization would choose to do that. After all, it’s 2015. Coeducation is common in most youth groups, from church organizations to sports leagues. As a political matter, the Scouts might not be prepared to say that they condemn such coeducational youth activities.

The upshot is that, while the process would have to be state-by-state, girls could conceivably integrate the Boy Scouts despite the organization’s potential constitutional defense. Maybe some boys want to join the Girl Scouts, too. Would that really be so bad?

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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

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