Editor of the Texas Journal

The Supreme Court has under consideration a case that could determine whether there is still such a thing as "private" in America.

The case comes from New Jersey whose own Supreme Court found that the Boy Scouts is not, as you may have thought, a private organization at all but rather a "place of public accommodation" and covered by the state’s anti-discrimination law. The Court is expected to render a decision in July. The fact they have to think it over is not encouraging.

Accordingly, the court found that the Scouts illegally dismissed James Dale form the post of assistant Scout Leader because he is homosexual.

Much of the discussion at the Supreme Court centered on the practical consequences of a gay scout leader and how it might affect the organization’s operations. For example, Dale’s attorney, Evan Wolfson, claimed that Dale didn’t want to use his leadership position to advocate homosexuality. Regard-less of what he wants, his being in a leadership position advocates homosexuality and declares it compatible with what scouting stands for.

What the Boy Scouts stand for also came under discussion. It was noted they require members to be "morally straight," but because the rules don’t ex-plicitly mention homosexuality, Wolfson argued, the Scouts are not an "anti-gay organization" so a homosexual leader won’t interfere with their message. The New Jersey Supreme Court made a similar point in denying the Scout’s claim to freedom of association under the First Amendment. The Boy Scouts, the court intoned, "do not associate for the purpose of disseminating the belief that homosexuality is immoral" therefore they do not enjoy a First Amendment right of "expressive association." This lawsuit has created the absurdity of an organization declaring they consider homosexuality immoral and the court contradicting them, in effect, telling them what their own code means.

All this misses the point. The Boy Scouts consider homosexuality contrary to the value system they try to impart to their members and they put that belief into practice by declining to associate with people who engage in it.

It’s true, they don’t mention homosexuality in the laws or the oath, but they don’t mention genocide or mail fraud either. Are they required to list every behavior that conflicts with their view of morality? Will they have to admit an axe murderer who wants to be scoutmaster and points out that his hobby isn’t prohibited in the Boy Scout Handbook?

And why should they have to justify any of this to a government? The Boy Scouts is a voluntary, private association that should be allowed to conduct its own affairs as it sees fit if liberty means anything at all. The New Jersey court said it is not a private because it recruits from the public. Where else does any organization get its members. Does membership have to be hereditary, like the Daughters of the American Revolution, to be private?

Most churches draw their members from the public. Will they be ruled "public accommodations" and lose the right of "expressive association"? Will they lose the right to establish criteria for deacons. Will the Catholic church be compelled to ordain women priests?