That WSJ Article on Gay Boy Scouts

After reviewing my post on Monday about gay Boy Scouts, it occurred to me that it may be difficult for people to find my August 1999 article from the Wall Street Journal about the BSA's anti-gay membership policies then in place.

The article is not easily searchable on Google.  It may turn up in a database search on something like Lexis-Nexis, but few people have access to those archives.

The one place I was able to find it was in the archives of the Independent Gay Forum, where it appeared under a headline ("Leave the Boy Scouts Alone") different than the one the Journal used.

The funny thing is, when I started this blog almost 10 years ago, one of its original purposes was to be a one-stop-shop for my previously published articles.  Somehow this one never got posted on its own.

So, considering the reforms taking place within the Boy Scouts today and the fact that the piece's 15th anniversary will come up this year, here it is.  It originally appeared on August 11, 1999, in the Wall Street Journal under the title "New Jersey Supreme Court Ruling on Boy Scouts Threatens Freedom for All - Including Gays."

IN A 30,000-PLUS-WORD DECISION, the New Jersey Supreme Court has ruled that the Boy Scouts may not exclude gay members from participation in the organization. Because the New Jersey court's ruling conflicts with others (including one made in March 1998 by the California Supreme Court), this issue almost certainly will be reviewed by the U.S. Supreme Court. For this reason, the New Jersey decision deserves scrutiny as well as criticism.

Three points deserve comment. First, this decision erodes freedom of association. Second, it further expands the definition of "public" at the expense of what is "private." And third, while the Court's written opinion offers a strong argument for why the Boy Scouts should voluntarily change their policy, it fails to demonstrate why the government should force them to do so.

One of the things I learned about as a Boy Scout in the early 1970s was the importance of freedom, as embodied in the U.S. Constitution and the Bill of Rights. The Boy Scouts asserted that, were the organization forced to change its membership (and hiring) criteria, its First Amendment rights to free speech, religious liberty, and association would be violated. The New Jersey Supreme Court ruled, incredibly, that "application of the [state's] Law Against Discrimination to Boy Scouts of America does not infringe on its First Amendment rights." Of course it infringes on those rights -- the question is whether such infringement is justified. The Garden State's Supreme Court argues that it is, and that the state's non-discrimination law trumps the First Amendment.

Freedom of association is one of our most precious rights. The New Jersey Supreme Court ruling threatens all of us who want to set standards for our organizations -- including gay men and lesbians.

The court's decision -- now limited to New Jersey, but with foreseeable national ramifications --undermines the right of gay men and lesbians to seek and maintain "queer-safe space" such as social clubs, fraternities and sororities, and social service organizations like Washington, D.C.'s Sexual Minority Youth Assistance League (SMYAL). If the Boy Scouts are not free to set their own membership standards -- however "vague" they might be (a key point in the New Jersey court's criticism) -- shouldn't these gay and lesbian organizations also lose their freedom to do so? Very few gay teenagers are likely to attend Saturday afternoon rap groups to discuss personal problems with their peers if they know that they might be forced to share this private space with heterosexual teens as well.

Diluting freedom of association makes it harder to combat government-based anti-gay discrimination. Respect for freedom of association, on the other hand, is the linchpin in persuading the U.S. Supreme Court to reverse its 1986 ruling in Bowers v. Hardwick, which gave state governments the authority to regulate our most intimate associations, sexual relationships. At the same time, the right to associate with whom we wish, when we wish, where we wish, will be an important factor in overturning the anti-gay Defense of Marriage Act and various state laws prohibiting same-sex marriage.

My colleague, Odell Huff, suggests that the New Jersey court's expansive definition of "public" will have detrimental effects on all citizens. "We should be protecting the private against the intrusion of the 'public,'" said Huff, vice president of Gays and Lesbians for Individual Liberty (GLIL). He adds: "Of course, we should be wary of any organization, which relies heavily on taxpayers' money to subsidize its activities, asserting a right to discriminate. But the Boy Scouts' reliance on government varies widely from place to place, and in most cases it provides predominantly 'private' space." Moreover, if taxpayers object to the Boy Scouts' use of their money in a "discriminatory" manner, the better course would be to withdraw their money, rather than to circumscribe the Scouts' freedoms of association, expression, and religion.

British scholar Nigel Ashford, writing in the Independent Gay Forum, argues a similar point, noting that Britain and the United States both face the same problem. "The distinction between private and state (usually expressed as 'public') is extremely important in a free society. Unfortunately the definition of the private has become narrowed to include only the person's home, and sometimes not even that. The distinction between private and public should be ownership, not who goes there. 'Public' should mean government owned, not open to the public, as in a bar or club." Ashford goes on to say that "a wide definition of private and a narrow definition of public (state) is the best protection for gays. The alternative is that government can legislate and interfere in areas open to the public," such as bars that cater to a gay clientele, erotic video stores, or even social clubs that meet in private homes. He concludes: "Those who control the power of the state will use it for their own purposes and preferences." A minimization of the private that expands the "public" hurts all of us, gay or straight.

That said, one should not conclude that the Boy Scouts' policy of excluding gay boys and men from their ranks deserves our approval. It does not. The New Jersey Supreme Court documents quite extensively how the Scouts' policy is contradictory and may, in fact, be harmful to the organization itself, as well as to the young men it aims to serve. The policy is archaic and bigoted and should be changed.

Still, a self-contradictory and wrong-headed policy does not require (nor deserve) the action of the state to correct it. Many commentators have noted that the Girl Scouts have chosen to practice non-discrimination in regard to sexual orientation. Lesbians are free to participate in Girl Scout programs. Yet no government action compelled this change in policy. The Girl Scouts' leadership acted on its own.

That is why we should encourage the efforts of those individuals and groups, such as gay former Scouts, who are trying to persuade the BSA to change its membership requirements voluntarily. Their attempts at moral suasion deserve commendation and support.

While on the surface it may appear that gay citizens have won something at the New Jersey Supreme Court, since the rights of all Americans are threatened, gay people have the most to lose.

Gay Boy Scouts in the 1970s - Video

Last week, for the first time in its century-long history, the Boy Scouts of America officially admitted openly gay boys into its membership rolls.

As of January 1, 2014, gay teenagers can now participate in BSA activities until they are 17 years, 364 days, 23 hours, and 59 minutes old.  One minute later, they become ineligible in a bifurcated policy that permits gay Scouts but not gay Scouters (the term of art the international Scouting movement uses to refer to adult leaders).

When the policy's implementation made headlines on the cusp of the new year, I reached back into my own archives, discovering some home movies from a Boy Scout summer camp in 1971.

I was a member of Troop 72 of the Potawatomi Area Council at the time. Troop 72 was sponsored by St. Agnes Parish in Butler, Wisconsin, where I attended elementary school. I joined the troop in the fall of 1970 and went on probably a dozen camping trips over the following two years, including two week-long sojourns during the summer at Camp Long Lake in the Kettle Moraine State Forest in Sheboygan County.

That first summer, my father brought along a Super-8mm movie camera to record some of the frolicking Scouts as they assembled for a flag-raising, took their swimming tests, participated in fire-building, gathered at the mess hall for dinner, and worked toward getting merit badges in archery, canoeing, and other activities.

This silent film -- characterized by overcast skies in what was apparently a chilly summer of 1971 -- lasts for just over seven and a half minutes.

(Before clicking on this video, let this be fair warning to anyone offended by images of shirtless teenage boys romping around in skimpy swimwear, or by classic gas-guzzling American automobiles of late 1960s and early 1970s vintage. You'll see all those things and more. By the way, if you recognize yourself in this home movie from 1971, or if you have ever been a member of Troop 72 at St. Agnes School, please note it in the comments section, below. It will be fun to reconnect with old friends.)

It's possible, but not likely, that I was the only gay Scout featured in this video. Of course, at 12 years of age, I wasn't openly gay like Maryland's Pascal Tessier, who hopes to become the first Scout to earn his Eagle rank while being openly gay. (There are many other gay Eagle Scouts who came out subsequent to their achievement.)

The Boy Scouts' new policy was approved last year and there was some trepidation that the transition might be bumpy.

According to news reports, however, whatever fears there might have been dissipated quickly once the policy was implemented.

For instance, according to a story in the Columbia (Missouri) Daily Tribune, local Scout council leader Doug Callahan said he had not observed much of an effect since the policy change.

Overall, he said, the feedback he has received about the change has been "mostly positive."

"Some folks didn't think it went far enough, and some folks didn't like any change, but the vast majority of our supporters and members are OK with the change because they realize our focus is on serving youth and delivering a quality scouting program," he said. "This issue isn't really an important part of our core mission."

Callahan said the Great Rivers Council, which oversees about 8,000 Scouts in northern and Central Missouri, has gotten a few letters from parents that said they will pull their sons out of the Scouts and some letters from people ending financial support. But others have increased their donations because of the change, Callahan said.

"Financially, it's pretty much a break even," he said.

Elsewhere, Alex J. Davidson and Trudy Ring reported in The Advocate,

... so far there has been little blowback as a result of the new policy.

Although about 70 percent of scout troops are affiliated with churches, not all of them LGBT-friendly, very few churches have ended their sponsorship over the gay-inclusive stance, NBC News reports. BSA spokesman Deron Smith told NBC that fewer than 2 percent of the nation’s 116,000 scouting units were dropped by their sponsors between May 23, when the new policy was approved, and Wednesday, when it went into effect.

In an additional statement to The Advocate, he said BSA volunteers and staff were "prepared to implement the new policy with no major changes to the delivery of the scouting program."

The Advocate further reported that BSA spokesman Deron Smith had said in a written statement:

"While people have different opinions about this policy, we can all agree that kids are better off when they are in scouting. We're pleased that the overwhelming majority of our members, families, and chartered organizations remain committed to the Boy Scouts of America. America's youth need scouting, and by focusing on the goals that unite us, we can continue to accomplish incredible things for young people and the communities we serve."

Years after my own, brief Scouting experience, I mentioned my participation in Troop 72 in the first commentary piece I wrote for The Wall Street Journal, in which I argued that, although the Boy Scouts' policy at the time -- to exclude completely any openly-gay boys or leaders -- was wrongheaded and cruel, it was the BSA's right as an organization to maintain that policy.

Later, Gays and Lesbians for Individual Liberty (GLIL) made a similar but expanded argument in an amicus curiae brief presented to the U.S. Supreme Court in the case of BSA v. Dale. The court alluded to our brief in its decision favoring the Scouts' right to freedom of association.

GLIL had argued that public pressure, rather than government coercion, was a better way to get the Boy Scouts to change theiranti-gay policies.  As I noted in my WSJ article in August 1999:

a self-contradictory and wrong-headed policy does not require (nor deserve) the action of the state to correct it. Many commentators have noted that the Girl Scouts have chosen to practice non-discrimination in regard to sexual orientation. Lesbians are free to participate in Girl Scout programs. Yet no government action compelled this change in policy. The Girl Scouts' leadership acted on its own.

That is why we should encourage the efforts of those individuals and groups, such as gay former Scouts, who are trying to persuade the BSA to change its membership requirements voluntarily. Their attempts at moral suasion deserve commendation and support.

Moral suasion is indeed what turned out to be successful. Eagle Scout Zach Wahls, a co-founder of Scouts for Equality described that process in an article in The Miami Herald on January 3:

“We began an 18-month campaign that less than a year later culminated in the Boy Scouts voting this past May to end their ban on gay youth,” said Wahls, 22, who is spending his New Year’s holiday in Miami Beach. “While in some sense this is a big step forward and we need to recognize that, on the other hand you’re still going to be kicked out of the program the day you turn 18.”

The transition is not complete, as noted by Eagle Scout Eston "Dusty" Melton (also the father and son of Eagle Scouts) in the same article, written by Steve Rothaus. Changing the policy on gay youth members, Melton said, "was the correct first step for the Boy Scouts as an organization, but the effort will not be completed successfully until every aspect of discrimination is eliminated from the BSA’s official policies.”

More public pressure is undoubtedly needed to prod the BSA toward more thorough reforms of its policies.  As we have seen from what has happened so far, however, patience pays off and persuasion is better than coercion.