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Boy Scouts
1st Amendment applies to judges, too

Nat Hentoff


In California, bar associations in San Francisco, Los Angeles and Santa Clara have urged the state's Supreme Court to prohibit California's 1,600 judges from being members of the Boy Scouts of America because that organization discriminates against gays. California's high court is seriously considering this proposal.

California judges are already forbidden to join organizations that discriminate based on sexual orientation, but there is an exemption for nonprofit youth organizations, and that includes the Boy Scouts. Says Angela Bradstreet — immediate past president of the Bar Association of San Francisco — in the Los Angeles Daily Journal: "Ending the Boy Scouts' exemption is a matter of preserving a fundamental perception of fairness within our court system. It's absolutely no different from judges being excluded from sporting groups and other organizations that exclude women, African-Americans or other minorities."

If the Supreme Court of California agrees with Bradstreet, its decision will collide with a June 28, 2000, decision by the U.S. Supreme Court in Boy Scouts of America v. Dale. The case involved James Dale, an assistant Boy Scout scoutmaster who had publicly proclaimed his homosexuality. He was expelled from the Boy Scouts for violating one of its basic principles of membership.

In its majority decision, the U.S. Supreme Court said that "we are not, as we must not be, guided by our own views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong."

What cannot be justified, said the court, is "the state's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. The fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different opinion."

Would these organizations of lawyers in California insist that the NAACP must admit as members, particularly in leadership positions equivalent to assistant scoutmaster, those blacks who thoroughly oppose affirmative action and who believe in the crucial need for publicly financed vouchers to religious schools?

Should gay and lesbian organizations be compelled to admit as members and leaders those who are convinced that active homosexuality violates religious commandments and that its practitioners must be converted to a heterosexual life?

In Boy Scouts of America v. Dale, the U.S. Supreme Court affirmed the First Amendment "right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious and cultural ends."

The high court emphasized that "this right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express."

In the weekly Washington-based Legal Times, professor Thomas Baker — who holds Drake University's James Madison Chair in Constitutional Law — distilled the essence of the First Amendment right to associate: "We cannot limit the Boy Scouts' First Amendment rights without limiting everyone's First Amendment rights."

I hope the California Supreme Court will make that constitutional point clear to the bar associations of San Francisco, Los Angeles and Santa Clara. Those lawyers should have learned this basic principle in law school.

The Boy Scouts have already lost support from certain municipalities, including public schools and some private charities, for winning this U.S. Supreme Court decision. But to force judges to publicly scorn the First Amendment rights of the Boy Scouts will set a precedent that could enable public opinion in other states to violate legitimate free association rights of gay and lesbian organizations, too.

Nat Hentoff, who writes weekly for The Village Voice, is an authority on the First Amendment and the Bill of Rights.

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