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July 28, 2015

Boy Scouts Votes To End Ban On Gay Leaders

This has been a long time coming. Boy Scouts has faced increasing pressure from businesses and municipalities to drop the ban.

The historic vote shifts the specter of discrimination onto local scout groups and those sponsored by religious organizations, which retain the right to set their own policies on whether they'll allow gay men to lead scouts.

Monday's vote by the group's 71-member board followed an impassioned plea in May by the Boy Scouts President Robert Gates, a former U.S. defense secretary, who told the group, "We must deal with the world as it is, not as we might wish it to be." Gates, an Eagle Scout, told leaders, "The status quo in our movement's membership standards cannot be sustained."

This was inevitable after the Scouts dropped the ban on gay scouts back in 2013. The idea that the organization was fine with gays until they turn 18 and then kick them to the curb was never going to fly for long. After that decision, some troops switched from Boy Scouts to different youth organizations. After this decision, the Mormons are exploring the possibility of creating their own Scouts-like organization and take them at their word: troops will bail on the Scouts over this.

The board says the decision whether to allow gay leaders will be left to individual troops, but I don't think that will be very successful. This decision blows a giant hole in the rationale Justice Rehnquist used in BSA v. Dale to allow the Scouts to exclude gays.

Rehnquist rested his decision on the notion that, although they are considered a public accommodation, Boy Scouts has a right to expressive association. Part of that expression was the belief that homosexuals should not be role models and that gays can therefore be excluded from the organization, despite public accommodation anti-discrimination laws. Forcing the Scouts to include gays, Rehnquist held, would "significantly burden" the Scouts' expression in opposition to homosexuality.

But now the national-level organization has abandoned this expression of disapproval. This leaves it to individual troops to argue when they are sued (and c'mon, of course they are going to get sued) that although the national organization Boy Scouts doesn't disapprove, Troop #734, sponsored by a church in Sometown, America, does? And Troop #734 is going to have to hire its own lawyers? How do you think that's going to go?

Regular listeners to the podcast know that I go off on public accommodation laws from time to time. I think they cover way too much. Under the English common law, which is where the notion originates, public accommodations were common carriers and inns and pubs. The reason common carriers, inns, and pubs were required to be open to any with the ability to pay is literally because it was matter of life and death. You have to let people have access to food and water, shelter, and travel. But that was it. It wasn't every business.

The modern trend to declare everything a public accommodation, including membership organizations that any idiot can see are private groups, abandons the notion that people have a right to associate with only those who they care to and also to not associate with those those they don't. Discrimination on the basis of race, religion, national origin, sex, and sexual orientation is abhorrent. But so is using the government to force groups or businesses to associate with individuals that they would rather not.


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posted by Gabriel Malor at 01:41 PM

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