Boy Scouts/Discrimination

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Question for you knowledgeable folk. Do you guys remember Boy Scouts of America v. Dale? The scoutmaster (or assistant scoutmaster) of a Boy Scout troop who was openly gay and was expelled from the troop because his lifestyle wasn't consistent with the morals of BSOA or something to the like...

The State supreme court voted it was unconstitutional to expel him but the US Supreme Court overturned it and said they were a private organization and thus had the right to exclude anyone they wanted.

My question is this...would the outcome have been the same had the man been expelled for being Muslim? Or Black? Why or why not?

And then my next question is, if it is constitutional for a gay man to be discriminated against by the Boy Scouts, why are there laws saying somebody can't be fired for being gay/Mormon/white/Egyptian/etc.? Assuming the business is privately owned.

http://en.wikipedia.org/wiki/Boy_Scouts_of_America_v._Dale

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View best answer, chosen by majikal

@majikal,

I am not a lawyer, but I think the keyword here is "expressive association". According to the Supreme Court's jurisprudence, the First Amendment guarantees a right to organize around a set of ideas, and to exclude from the organization members who don't fit into this set of idea. In practice, this means the Catholic Church has a right to exclude Protestants and Muslims; even the Klu Klux Klan has a First Amendment right to refuse Blacks or non-racists as members.

For the Boy Scouts, one of their defining ideas, expressed in the Scout oath, is a commitment to being "morally straight". The organization holds the opinion that homosexuality is morally skewed, or whatever the opposite of "morally straight" is. The Supreme Court held that the Boy Scouts are entitled to this opinion about morality, and that they are entitled to organize around their idea of morality.

The outcome would not have been the same if the man had been expelled for being the muslim, because the Boy Scouts would have had trouble demonstrating how their mission is inconsistent with being a Muslim.

The outcome would have been different for a business, because businesses don't exist for the purpose of expressive association.

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@majikal,

My take with allowing or not allowing gay Boy Scout leaders is not a legal one, but a practical one.

Would anyone be comfortable with a heterosexual male being a Girl Scout leader and taking a troop of young teenage girls out camping in the woods alone?

If the answer is that, we would not be comfortable with a heterosexual male in such a role why would we then be comfortable with a gay gentleman leading a troop of young boys camping?

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@BillRM,

BillRM wrote:

Would anyone be comfortable with a heterosexual male being a Girl Scout leader and taking a troop of young teenage girls out camping in the woods alone?

Sure! Why not?

1 Reply

@BillRM,

This logic seems a bit silly.

Would a gay man be able to take a troop of young teenage girls out camping?

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@BillRM,

Assuming I trusted the heterosexual male and there was more than one chaperone (which would make sense no matter the gender or sexual orientation) I would have no problem with it.

You don't seem to realize, Bill, that that most predators are actually heterosexual males, even those who prey on children of the same gender as them.

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@Thomas,

Quote:

Businesses don't exist for the purpose of expressive association.

Couldn't you argue that some businesses DO exist for the purpose of expressive association?

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@Thomas,

AND couldn't you argue that The Boy Scouts of America IS a business?

And also...why was it that the state ruled it unconstitutional but the US Supreme Court did not?

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@Thomas,

Will I think that if you ask 90 percent of parents why not you would get an overwhelming reply.

Please also take note of what had happen is a similar situation with gay men in power over young boys in the catholic church.

I just can see it, the “WHY NOT” people forcing the Boy Scout to get in this silly position and then we all can watch the Boy Scout being sue out of existed as a result.

Even the rich church came to a limit of their resources over this issue so how long do you “why not” people think that the Boy Scout will survive the lawsuits?

1 Reply

@majikal,

You don't seem to realize, Bill, that that most predators are actually heterosexual males, even those who prey on children of the same gender as them.
-------------------------------------------------------------------------------
I would just love you to post the links to the studies that show that heterosexual males are the ones sexually abusing male children!

So all those priests in the Catholic Church who have a long history of abusing boys are in fact heterosexuals ? NAMBA members are in fact heterosexuals?

You know we do had to have some form of a reality test here.

1 Reply

@majikal,

majikal wrote:

Question for you knowledgeable folk. Do you guys remember Boy Scouts of America v. Dale? The scoutmaster (or assistant scoutmaster) of a Boy Scout troop who was openly gay and was expelled from the troop because his lifestyle wasn't consistent with the morals of BSOA or something to the like...

The State supreme court voted it was unconstitutional to expel him but the US Supreme Court overturned it and said they were a private organization and thus had the right to exclude anyone they wanted.

My question is this...would the outcome have been the same had the man been expelled for being Muslim? Or Black? Why or why not?

And then my next question is, if it is constitutional for a gay man to be discriminated against by the Boy Scouts, why are there laws saying somebody can't be fired for being gay/Mormon/white/Egyptian/etc.? Assuming the business is privately owned.

http://en.wikipedia.org/wiki/Boy_Scouts_of_America_v._Dale

If I were an employer, I would certainly never fire someone for being gay, and i think it would be very wrong to do so, but, just out of curiousity, what law are you referring to that makes it illegal to fire someone for being gay, or for being Egyptian?

1 Reply

@majikal,

majkal wrote:

Couldn't you argue that some businesses DO exist for the purpose of expressive association?

You could. And if you can make a persuasive case about it for a particular business in a lawsuit, it will be granted the same protections as the Boy Scouts.

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@majikal,

majkal wrote:

Couldn't you argue that some businesses DO exist for the purpose of expressive association?

You could. And if you can make a persuasive case about it for a particular business in a lawsuit, it will be granted the same protections as the Boy Scouts.

majkal wrote:

And also...why was it that the state ruled it unconstitutional but the US Supreme Court did not?

Two possible reasons:

1) State Supreme courts decide their cases under State constitutions, whereas the US Supreme Court decides its cases under the US Constitution. Different constitutions can have different provisions in them.

2) Even when the provisions are the same, deciding a case comes down to interpretation and line-drawing. That leaves enough room for one court to find a practice barely constitutional and another one to find it almost constitutional.

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@BillRM,

BillRM wrote:

Please also take note of what had happen is a similar situation with gay men in power over young boys in the catholic church.

The Catholic Church isn't very good evidence for your case, given the parallel you draw between gay men in charge of young boys and straight men in charge of young girls.

The Catholic Church employs several orders of magnitude more straight men with power over young girls than gay men over young boys. How many complaints, lawsuits, etc. do you hear about girls molested by Catholic pastors?

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@Thomas,

I would never let either of my children (and I have a male child and a female child) accompany any adult of either gender on any trip alone aside from people who are either members of my biological family or family through friendship whom I have known for many, many years.

As a teacher - although I know I'm not a predator and would never abuse my position or trust to abuse a child - I would never want to put myself in the position of being the only adult on a sleep- over trip - or for that matter - any trip (even a daytime one) with children alone.

I think the problem arises in terms of perception because it is a fact that many pedophiles or predators of children actively seek positions of responsibility over minors which will put them in a position where it becomes possible for them to abuse children-and this includes boyscout leader.

I'm not homophobic and I don't believe that homosexuality automatically implies the entirely separate pathology of pedophilia - but I do have to admit that it does give me pause (because of all the horror stories I've read) when I hear that a gay male is a boyscout leader - I can't help it. He may just be the nicest guy in the world and an eagle scout and want to help young men realize their potential - absolutely true - and also PROBABLE - but I wouldn't put my kid in the car alone with him - and if he were smart - he wouldn't get in a tent or in a car alone with any kid himself....and for that matter-neither would I and I'm not gay or a pedophile.

And I would never let my daughter go on a camping trip headed by a lone straight male. But that would never be allowed to happen in any situation in which responsible adults were actively thinking and planning.

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@Thomas,

By your strange logic gay men are way more likely to abused boys then straight men are to abused young girls.

By the way the ratio of gay to straight in the church is not likley to be the same as in the genral population.

I had hear it is as high as 50/50.

2 Replies

@BillRM,

Quote:

I would just love you to post the links to the studies that show that heterosexual males are the ones sexually abusing male children!

So all those priests in the Catholic Church who have a long history of abusing boys are in fact heterosexuals ? NAMBA members are in fact heterosexuals?

You know we do had to have some form of a reality test here.

From a UC Davis Study on homosexuality and child abuse
http://psychology.ucdavis.edu/rainbow/HTML/facts_molestation.html
"Using the fixated-regressed distinction, Groth and Birnbaum (1978) studied 175 adult males who were convicted in Massachusetts of sexual assault against a child. None of the men had an exclusively homosexual adult sexual orientation. 83 (47%) were classified as "fixated;" 70 others (40%) were classified as regressed adult heterosexuals; the remaining 22 (13%) were classified as regressed adult bisexuals. Of the last group, Groth and Birnbaum observed that "in their adult relationships they engaged in sex on occasion with men as well as with women. However, in no case did this attraction to men exceed their preference for women....There were no men who were primarily sexually attracted to other adult males..." (p.180)."

"Other researchers have taken different approaches, but have similarly failed to find a connection between homosexuality and child molestation. Dr. Carole Jenny and her colleagues reviewed 352 medical charts, representing all of the sexually abused children seen in the emergency room or child abuse clinic of a Denver children's hospital during a one-year period (from July 1, 1991 to June 30, 1992). The molester was a gay or lesbian adult in fewer than 1% in which an adult molester could be identified " only 2 of the 269 cases (Jenny et al., 1994)."

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As a supporter of laissez faire free enterprize
with its freedom of contract, I support the right of
anyone (including the Boy Scouts) to avoid contracting
with whomever thay choose to avoid for any reason, or for no reason.

If the Scouts wanted to employ a homosexual against his will (or anyone else)
thay coud not force him into a contract.
Likewise no one shoud be able to coerce nor extort anyone else into a contract.
This was a fundamental principle of the English Common Law, whence our jurisprudence derives.
This is supposed to be the land of the Free and the Home of the Brave.

David

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It's like a Catholic organization excluding Jews. Or an African-American group excluding whites. Or Aryan Nations excluding blacks. We may not like it but that's the way it is.

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@BillRM,

BillRM wrote:

By your strange logic gay men are way more likely to abused boys then straight men are to abused young girls.

Strange or not -- the conclusion of my logic is that I have no problem either way. I neither have a problem with heterosexual grown-ups supervising children of the opposite sex, nor with homosexual grown-ups supervising children of the same sex.

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