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Right message, wrong deliverer

Published Sep. 29, 2005

The Boy Scouts of America has been under fire throughout the country because it refuses to allow openly gay men to volunteer as Scout leaders. What the Scouts sees as bedrock values, others see as bigotry.

Whether the Scouts may continue to discriminate in this way has been the focus of two recent state supreme courts' rulings that came to opposing conclusions. The New Jersey Supreme Court ruled last week that the Scouts is a place of public accommodation, like a restaurant or department store, and as such cannot exclude gays or other minorities. Taking the opposite viewpoint, the California Supreme Court ruled last year that the Scouts is a private organization and not subject to the state's civil rights laws. High courts in Kansas, Oregon and Connecticut have also reached this conclusion.

One should have nothing but contempt for the way the Scouts has chosen to run its organization. The man who brought the New Jersey case, James Dale, had been a longtime Eagle Scout and an assistant Scoutmaster in New Jersey for more than a year. He was ousted after his photograph appeared in a newspaper identifying him as co-president of a college-based gay group. The Scouts said homosexuality was inconsistent with its leadership requirements and inherently immoral. But the New Jersey Supreme Court ruled otherwise and said the Scouts must accept Dale and other homosexuals as leaders.

While it's true that Dale had been an exemplary Scout and leader, the court went too far. The Scouts should accept gay leaders because it's the right thing to do, not because the government forces it to. The larger issue is whether the government can force private organizations to open their doors to all who wish to join.

Under the First Amendment, each of us is guaranteed the right to free association in private affairs. That means the government cannot enact laws to require us to organize into social and political groups to its liking. Yes, this can protect racists and sexists, but it also allows us to organize into advocacy and interest groups free from governmental interference. Imagine if a group promoting gay rights were forced by the government to welcome homophobic members, or if the NAACP had to accept Ku Klux Klan leaders. Well, the Scouts sees accepting gays and atheists as equally untenable.

In limited circumstances, the courts have approved laws that wrench open private club membership to women and minorities but only where the club encourages people to make business contacts. The Scouts doesn't fit this exception.

While the Scouts maintains camping facilities and has a booming merchandising business, that The Scouts should accept gay leaders because it's the right thing to do, not because the government forces it to. The larger issue is whether the government can force private organizations to open their doors to all who wish to join.

doesn't transform the basic character of the Scouts from a club to a business. And unlike places of public accommodation where the public is invited, Scouting programs are selective in their membership. They are open only to boys of certain ages and only those willing to abide by the Scouts' creed. Today we know that creed is an ugly doctrine that includes intolerance for gays, but that is the Scouts' choice to make.

There is another important caveat to the general rule that private groups should be allowed to pick and choose their membership: They may not discriminate if they receive public funding or support. Throughout the country there are Scouting troops supported by schools, city and county funds and law enforcement agencies. These troops have no legitimate claim of private club status and should either return the public funds or be legally constrained from discriminating.

Where there are no public monies involved, the Scouts should be allowed to condition membership and leadership on its own set of principles and values, as obnoxious as some of those are.

But that doesn't mean people are powerless to effect change.

The only reason Scouts is able to retain this discriminatory pose is that the public tolerates it. The Scouts' bigoted stance would disappear in an instant if boys dropped out in droves and if local United Way agencies refused them funds. Unfortunately, Pinellas, Pasco and Hillsborough County Scouting programs continue to receive substantial support from the United Way despite their discrimination against gay men.

The Scouts intend to appeal the New Jersey decision to U.S. Supreme Court. The court should take the case and affirm the principle that individuals have the First Amendment right to organize into exclusionary societies as long as they do not accept public monies, directly or indirectly. The Scouts may be the one on the hot seat, but the right to freedom of association in private organizations is vital to us all.

+ Robyn Blumner is a Times columnist and editorial writer. +