Boy Scouts of America Will Defend Anti-Gay Policy in Court

It’s one thing to discriminate, but it is quite another to expect the government to pay for it. Since 1928, the Boy Scouts of America in Philadelphia has been housed in a government building rent-free. The city of Philadelphia decided to revoke this special treatment because BSA’s national policy banning gays violates the city’s nondiscrimination rules. The Boy Scouts local chapter, the Cradle of Liberty Council, is suing the city in for the right to discriminate and receive special treatment from the government. The case has been going since 2008 and finally, a trial is imminent.

Boy Scouts of America has been defending its national anti-gay policy for a while – often successfully. In 2000, the Supreme Court weighed in on the Boy Scout’s anti-gay policy in Boy Scouts of America v. Dale. Siding with BSA, the Court found that the First Amendment’s right to association included the right to associate without gay people. But as today’s case moves ahead with jury selection in federal court, what the city of Philadelphia is arguing is very different from what was at stake in Dale. In 2000, the Court decided that the Boy Scouts, a private non-profit with a particular set of values, was allowed to limit its membership based on those values. In Cradle of Liberty Council, BSA’s gay ban is not at issue, rather, it’s the city’s ability to not support that policy.

This seems to be something of a trend: let us discriminate against gays, but we deserve equal treatment from everyone else. A similar case awaiting a decision from the Supreme Court, Christian Legal Society v. Martinez will decide if a public university can deny funds to a religious student group that restricts membership to those who disagree with their anti-gay values. Like the Philadelphia case, Martinez is about public funding of anti-gay organizations. Another obvious example of this fight comes up with increasing frequency between the Catholic Church and various cities; the Church has closed down adoption services in Massachusetts and Washington, D.C. in the last few years rather than provide adoption services to gay couples. The Boy Scouts case continues this belief — that under the first Amendment right to free association, discrimination is a fundamental right. Further, the Boy Scouts argue that if they have to start paying rent, they will have to cut important programs that keep young boys off the streets. But this isn’t the city’s responsibility; if the local BSA wants to discriminate, that’s their choice. City policy should apply to everyone.

Back in 2008 when Cradle of Liberty Council was getting under way, Philadelphia Mayor Michael Nutter took aim at our acceptance of discrimination against homosexuals:

If we were talking about an organization that discriminated against African Americans, Italians, the Irish, Catholics, people of the Jewish faith, or any of a number of other categories, there would be such an outrage that you wouldn’t be able to contain it…I don’t understand…how the organization can countenance discrimination and then expect to carry out that activity on public property.

Nutter gets at a good point: discrimination against gays is one of the last forms of discrimination tolerated in our society. A few weeks back, Kentucky Senate candidate Rand Paul’s unsavory comments (for which he has recently repented under public pressure) basically said the same thing: that the government shouldn’t be able to tell private organizations not to discriminate. The specter of segregation is enough to make people condemn these comments, but when it comes to gay people, we aren’t quite there yet. Outgoing Justice John Paul Stevens wrote the dissent in Dale, ending with a quote from Louis Brandeis that gets at a fundamental problem with what can only be called a right to discriminate: “we must be ever on our guard, lest we erect our prejudices into legal principles.” There is freedom to associate, and then there is the arrogance that this justifies discrimination. Soon the courts will have to decide where to draw the line between one group’s freedom to exclude and another group’s freedom to participate. And more importantly, whether anti-gay policy should be publicly subsidized.

Pema Levy is a staff writer for Campus Progress.

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