- The Washington Times - Friday, June 30, 2000

Today, lawyers have become the pre-eminent befuddlers of common sense. Among the dangerous nonsense purveyed by these folks is the recent attempt to compel the Boy Scouts of America a traditionalist youth group whose mission is to help make young men "morally straight" to accept a homosexual scoutmaster and avowed gay rights activist. All this, on "anti-discrimination" grounds.

Wednesday, the Supreme Court rejected the idea, which had been upheld by the New Jersey Supreme Court, that the Boy Scouts had no fundamental right to exclude would-be members who do not subscribe to or conform with the organization's most basic tenets. In this particular instance, the Boy Scouts withdrew the membership of former Assistant Scoutmaster James Dale, an adult volunteer, after learning of his homosexual lifestyle. This, of course, put the Boy Scouts in the gunsights as one of the last remaining bastions of American culture that has not bowed to the gay agenda which demands not merely live-and-let live tolerance, but total acceptance indeed, emphatic endorsement.

Mr. Dale sued the Boy Scouts of America, and the New Jersey Supreme Court ruled in his favor, stating that the Boy Scouts were, in a bizarre contortion of the obvious facts, a "place of public accommodation" like a bus station or school house and thus subject to anti-discrimination laws that forbid the exclusion or mistreatment of people on the basis of their race, ethnicity, gender or sexual orientation. The case drew national attention, with those on Mr. Dale's side of the fence painting the Boy Scouts of America as a nest of archaic "bigotry" and "hate." Those who supported the Boy Scouts did not see how Mr. Dale's "rights" were violated by a private, voluntary group's refusal to accept his lifestyle and thereby reject and undermine its core values.

Chief Justice William H. Rehnquist, in his majority opinion, wrote that the Boy Scouts have the right not to be forced to implicitly accept the message conveyed by "the presence of an avowed homosexual and gay rights activist in an assistant scoutmaster's uniform," and that "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."

And yet, while the Supreme Court's decision is to be cheered, the reasoning behind it is not. Instead of simply pointing out that in America private individuals have a constitutionally-protected right of free association and implicitly, therefore, a right to form private groups, clubs and get-togethers for whatever purpose (provided such purpose is not criminal, of course) the Supreme Court came up with the notion that the Boy Scouts have a right of "expressive association" another one of those "penumbras" and "emanations" the Supreme Court is so famous for discovering.

The result of this, of course, will be future challenges. As law professor Erwin Chemerinsky of the University of Southern California told The Washington Post, "Here the Supreme Court says a group gets to define its own message … So now a group can more easily say that its message necessarily excludes certain groups." Imagine that. A group "gets to define its own message." How very terrible. It takes a lawyer to see evil in this and nine justices not to dismiss it out of hand.

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