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

Sabrina Ghouse

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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.”


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