Boy Scouts, Discrimination, and Association

For a prior column on the boy scouts and the Court’s prior decision in Dale, see below

Chicago Tribune

BYLINE: By Jonathan Turley. As the father of two boys I took more than a passing interest in the Supreme Court’s decision on the qualifications for Boy Scout leaders. After reading the court’s decision to allow Boy Scouts to exclude homosexuals, two things became clear. First, I would not allow my sons to join the Boy Scouts so long as they teach such discriminatory policies. Second, I believe that they are better off and will inherit a stronger Constitution because of the court’s historic ruling.

These may appear to be conflicting views. Yet, a person can be opposed to exclusions based on sexual orientation and still support the right that was reaffirmed by the court this week. At issue was our right to association–not our agreement with the Boy Scouts on the subject of homosexuality. The right to associate sometimes means the right to exclude. We join associations to reaffirm shared values. Nothing could be more important for our liberties. For those people with minority or unpopular views, associations are a vital refuge in joining with people of common faiths and values. In a society that often caricatures groups out of the mainstream, associations are the protected walls within which free ideas and free speech flourish.

The decision by Chief Justice William Rehnquist in Boy Scouts of America vs. Dale significantly changed the past course of the court in defining the right of association. In the past, the court has repeatedly allowed the states to “experiment” with laws that protect various groups from exclusion. Accordingly, Justice John Paul Stevens has argued that the court should support states in their efforts to “replace prejudice with principle.” The problem is that many people hold prejudiced views and reject the principles held by the majority. To those people, it is the majority who lack core principles or values.

Past cases forcing private clubs and associations to accept members have resulted in advancing interests that most of society favors. We have succeeded in opening clubs to women and minorities long barred by ignorance and prejudice. However, these cases also result in the government forcing citizens to associate with other citizens to advance the views of the majority. This week, the court allowed these cases to stand but gave needed support to the diminishing right to association. This does not mean we should sit idly by in the face of prejudice or bigotry. It means we should use our constitutional right of free speech–and yes, our right of association–to oppose discriminatory groups though boycotts and protests.

Ironically, as the number of bigots declines, the pressure on the remaining bigots, and their need for constitutional protection, will increase. This places the rest of society in a difficult position of exercising restraint when impulse calls for action. By definition, the majority always has the ability to force changes on a minority. It is difficult not to use such power, particularly when faced with a group that denigrates your own beliefs or background.

Many of these discriminatory associations would not have me or my kids as members. For the virulent bigot, my kids are a nightmarish mix of Catholic, Jewish, Irish and Italian elements. Yet, in a free society, it is often necessary to protect the rights of those who we despise. At times, we must even defend the rights of those who despise us. These associations, however, are not the greatest dangers that we face. The greatest danger is that we will sacrifice our principles in the fight against prejudice.

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