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Does Freedom of Association Permit the Boyscouts of America to Restrict Membership?

By Vegas Longlois, Nikhil R. Mulani, Ivel Posada, Sam Reynolds, Lisa Wang, and Daniel N. Yue

This is the fourth instalment in a series of online-only Roundtables. This new content form from the Crimson Editorial Board seeks to present a diverse array of high-quality student opinion on thought-provoking issues.

If you would like to submit an opinion for this week's Roundtable topic "Are there serious deficiencies with Harvard's mental health services?" please e-mail your 200-300 word opinion to before Wednesday, Feb. 27 at 6 pm .

Democracy, the Ugly Kid

Let me be clear: I am emphatically opposed to the Boy Scouts of America’s policy of excluding openly gay individuals from its membership. Yes, the policy further isoaltesadolescents questioning their sexualities. Yes, it is considered by many to be “backwards” in a progressive age. Yes, such a policy contradicts the Scouts’ own oath to “help other people at all times.”

Nevertheless, I even more emphatically support BSA’s right to hold such views. Boy Scouts of America is a private, non-governmental organization supported entirely by donations. As such, the Supreme Court has held in Boy Scouts of America v. Dale that their freedom of association allows them to exclude members that hinder the group’s ability to “advocate public or private viewpoints.” Where opponents of the Dale decision err, though, is their assumption that the freedom of association is a blanket protection of the organization from individual or group efforts to change these values. Wrong. Freedom of association protects BSA only from a government intervention. Actions such as Eagle Scouts renouncing their medals or legislation banning the organization’s tax exemption are still rightfully allowed.

Freedom of association, a derivative of the freedom of speech, states that “Congress shall make no law” infringing on individual or collective rights. Let’s imagine that Congress disbanded any organization that expelled or banned members on the basis of race, religion, sexual orientation, or gender. How many churches, country clubs, cultural groups, fraternities, sororities, and political parties must the government then dismantle to prove its point, and with what consequences for the civic life of our country? The right to band together around a set of views—savory or unsavory, radical or conservative—is the fundamental cornerstone of democracy that we must consciously guard against trampling, as progressive as our intent may be.

Democracy is not the homecoming queen; it’s the ugly kid in the back of the room that we still include at recess. Democracy is tough and ugly in a country as large and diverse as ours. At times, it is easy to dismiss others’ viewpoints as “incorrect” or “un-American,” but we must always, as Franklin stated, “defend to the death” their right to hold those views, because like it or not, they are equally sovereign parts in this centuries-long project of self-rule.

Lisa Wang ’14 is a government concentrator in Pforzheimer House.

The Boy Scouts of America and the Limits of Free Speech

When the Supreme Court decided Boy Scouts of America v. Dale in 2000, it did so by the thinnest possible margin—a 5/4 split. At issue in the case was whether a New Jersey ordinance mandating nondiscrimination in places of public accommodation unconstitutionally infringed upon the Scout’s freedom of speech. The controversial ruling ultimately upheld the Scout’s discriminatory ban on gay members, deeming it a form of expressive association protected under the First Amendment.

From the day it was decided, Dale stood out like a sore thumb against the remainder of the Court’s free speech jurisprudence. As Justice Stevens noted in his dissent, it marked the first time in the Court’s entire history that “a claimed right to associate in the selection of members prevailed in the face of a State’s antidiscrimination law.”

What is worse, in the 13 years that have elapsed since Dale’s issuance, there has arisen the mistaken belief, especially among communities of so-called intelligent people, that the Constitution generally affords all private organizations the right to exclude any person from membership on the basis of freedom of association. This is false. Anyone who claims otherwise has either not read Dale, or has misinterpreted the ruling.

As the majority opinion clearly noted, state laws prohibiting membership discrimination are wholly germane unless—and this is the key to understanding Dale—“it affects in a significant way the group’s ability to advocate public or private viewpoints,” in which case the ordinance would fail constitutional muster. It is for this reason that Chief Justice Rehnquist, writing for the majority, keenly noted the Court is “obligated to independently review the factual record.” In other words, the Court must carefully attend to the facts and decide for itself, without deference to a group’s opinion, whether compliance with a state’s anti-discrimination law affects the group’s ability to express a viewpoint in a significant way.

This legal standard balances the state’s compelling interest in eradicating the socially corrosive effects of invidious discrimination, against a private organization’s interest in freedom of expression. Although the requirement may seem highly subjective, it has been a fairly high bar for most of the Court’s history, placing a considerable onus on private organizations to prove their core expressive functions are seriously curtailed through compliance with generally applicable non-discrimination ordinances. Because this legal standard has teeth, most private organizations remain, to this day, prohibited in many states from discriminating in membership on the basis of a litany of categories. It is only when it comes to gay people that the legal standard losses its force.

The reason for this seeming anomaly rests, as Justice Stevens noted, not in logic, but in the atavistic attitudes of his colleagues. Luckily for those of us sympathetic to the cause of equality, Dale need not be an everlasting curse. If there is one truth in our system of law it is this: Beyond the Supreme Court always lies a further court of appeals, the American people. If recent shifts in attitudes are any indication, Dale will not be with us for much longer.

Ivel Posada ’14 is a social studies concentrator in Winthrop House. He is the Co-Chair of Harvard's Queer Students and Allies (QSA).

The Boy Scouts of America and the Limits of Free Speech

Yes, but it doesn’t have to be that way. The Boy Scouts of America is, to the best of my knowledge, a private organization funded by members and private donors, and thus the government has no role in dictating decisions regarding its membership. Should it choose to, BSA should have the right to discriminate among its leaders and members according to its founding principles, provided it does so without actively harassing people outside of its contained operations.

However, the questions of should BSA be allowed to and should they are entirely different and must be addressed as such. During my many years as a scout, I met a number of other scouts who did not necessarily fall within BSA restrictions of membership. These people contributed to and gained from the program as much as I did, and certainly left their respective troops better than they found them. The teaching of the principles of scouting to these people certainly follows the BSA’s mission statement: “to prepare young people to make ethical and moral choices over their lifetimes by instilling in them the values of the Scout Oath and Law.”

Clearly BSA believes that the inclusion of homosexuals and agnostics is a violation of the oath’s lines, “to do my duty to God and my country,” and “to keep myself … morally straight.” However, these people’s individual beliefs are antithetical to the oath and law only under the strict lens of conservative Christianity, which set the guiding principles behind the founding of BSA in the early 1900s. That lens should no longer be used to judge the value of potential members because it no longer accurately reflects the moral zeitgeist. I believe that homosexuals, heterosexuals, atheists, agnostics, and believers alike can greatly benefit from the strong foundational principles that govern the scouting experience, and that they can greatly contribute to the program in return. So should BSA be allowed to exclude persons from membership? Yes. But should they? A resounding no.

Daniel Yue ’16 lives in Canaday Hall. He is an Eagle Scout.

Universal Acceptance

Growing up as a Boy Scout, I never thought my ability to join this organization was based on a “freedom of association”; the only thing that concerned me was making friends and having fun.  One year removed from my Eagle Scout ceremony, it saddens me to think that boys as young as six will be prevented from joining this organization due to their beliefs. Although the Supreme Court declared in 2000 that the Boy Scouts of America has the freedom to ban members whose beliefs conflict with the organization’s “expressive message,” the continuation of this policy in no way benefits Scouts or Scouters.  If the BSA’s mission statement states that the goal of Scouting is “to prepare young people to make ethical and moral choices,” then the continued exclusion of members from Scouting contradicts this essential goal.  By preventing prospective Scouts from expressing their identity, this policy inhibits the development of each and every Scout.  The preparation these young men go through does not happen in a vacuum; it occurs through exposure to others, regardless of race, sexuality, or religion.  Rather than adopt a universal policy barring membership, the BSA should instead attempt to foster a sense of community and acceptance.

When I first joined the Boy Scouts of America, I was just a shy first grader who wanted to make some friends.  Throughout my years in this organization, I learned more through exposure to my peers than I did by practicing knots or lashings.  Recently, the BSA decided to reconsider its ban on openly gay members.  Hopefully this organization will honor its rich history by removing not only its ban on gay Scouts, but removing all membership restrictions, creating an accepting environment for all.

Sam Reynolds ’16, a Crimson editorial writer, lives in Grays Hall. He is an Eagle Scout.

Freedom to Discriminate

Although, as the Chief Executive of the Boy Scouts of America claims, all organizations have the right to membership criteria, these criteria should not be based upon inherent conditions over which a person has no control. Freedom of association should not extend to the ability to discriminate, especially when a group has “quasi-official status,” which the BSA benefits from, according to legal scholar Andrew Koppelman. By excluding people on the basis of sexual orientation, gender, race or disability status, the organization in question perpetuates social stigmas and sends the message that those excluded are inferior. These messages are not only detrimental to those excluded but also to the members of this organization, as they are implicitly associated with discrimination at the very least and may be more susceptible to biases. For this reason, the admissions criteria for youth organizations should be held to a much higher standard.

Youth organizations can be highly influential in the lives of children and can have a large impact on their perspective later in life. As such, any prejudices transmitted to children at this formative period of their lives will most likely influence their actions in one way or another for a large portion of their lives. According to an article from Rolling Stone, LGBT Scouts often experience identity crises. Conversely, Scouts may grapple with their own prejudice as a result of BSA’s policies. Currently, LGBT teenagers face high levels of discrimination at the hands of their peers, which could be exacerbated by the exclusion of LGBT members on the grounds that they cannot comply with the organization’s moral values. As the effects of exclusionary policies negatively affect all of society, they should be banned.

Vegas Longlois ’16 lives in Greenough Hall.

Out of Hopeful Green Stuff Woven

The fewer policies that the Boy Scouts of America has regulating membership, the better the organization will fulfill its goal of spurring personal growth in teenage boys. The core value of scouting is found in its lack of adult involvement and overbearing direction—that’s how it fosters independence and self-discovery.

I only learned about scouting’s exclusionary membership policy from the newspaper. In my troop, we never discussed whether someone should or should not be a scout. All you had to do was show up at a meeting to become one. Our scoutmasters were little more than organizers. They gave us money for buying supplies, drove us to a campsite, and then sat back and watched while we figured out how to help each other set up tents, build fires, and protect ourselves from the rain.

In the midst of idyllic groves and creeks, pitching campsites was analogous to pitching identities. Issues that were forbidden in classrooms were the staple of our fireside conversations—all sorts of naïve misconceptions and prejudices were floated regarding class, ethnicity, gender, and courtship—only to be quickly challenged by some and subjected to discussion by all. Despite the fanciful notions of scouting’s national leaders, there are few environments more saturated with covert talk about sexuality than a Boy Scout campsite in the middle of the Midwestern woodlands.

Our troop was successful because it created a community of equals in which scouts could challenge their conceptions of self and society and grow as individuals. If our troop had more diverse membership, this dynamic would only have been more positive.

The most beautiful part of scouting is its kaleidoscopic nature: Many local troops, with traditions of their own, each of which is made up of unique individuals, creating distinct identities for themselves. Like our country, scouting must not be afraid to contradict itself, to be large and contain multitudes.

Nikhil R. Mulani ’14, a Crimson editorial executive, is an Eagle Scout.

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