The ACLU is not happy with the Boy Scouts. In the landmark decision of Boy Scouts of America v. Dale, the U.S. Supreme Court held that under their constitutionally protected rights of freedom of expression and association, the Scouts are free to exclude open homosexuals as adult Scout leaders, even where a state anti-discrimination statute would otherwise prohibit them from doing so. Such adult leaders would be inconsistent with the moral values the Scouts want to teach their boy members. The government cannot force them effectively to change their message by forcing them to accept such adult leaders.

But the ACLU is not interested in helping the Boy Scouts defend this now established and recognized civil liberty. Rather, the ACLU is horrified by the traditional values the Scouts want to teach boys. They want to punish the Scouts for not promoting the gay rights view of the morality of homosexuality. The ACLU is also offended by the Scout requirement that members and leaders maintain a belief in God.

Imposing Their Values

The courts in America are where so-called liberals go when they want to impose their moral views on others. So the ACLU is suing the Scouts wherever they can to demand that state and local governments cut off all relations with the Scouts, and ban them from public facilities, on the grounds that governments cannot associate with such a “discriminatory” organization, even if the group has the constitutional right to engage in such “discrimination.”

A Federal court in San Diego ruled in one such case, Barnes Wallace v. Boy Scouts of America, at the end of July. Judge Napoleon Jones was not shy about stating his biases up front, saying, “[T]he Boy Scouts displays intolerance towards individuals who identify themselves as homosexual, agnostic, or atheist by denying membership to or revoking the membership of gay and nonbelieving individuals.”
The Judge continued, saying that the Boy Scouts maintain an “anti-homosexual, anti-agnostic, and anti-atheist stance”, and that “it is clear that the Boy Scouts of America’s strongly held, private, discriminatory beliefs are at odds with values requiring tolerance and inclusion in the public realm.”

But the Judge could have said the same about any traditional Catholic church or organization, which hold the same views on homosexuality and a belief in God as the Scouts. Ditto any Protestant church or organization that refuses to include openly practicing homosexuals, or atheists, as priests, bishops, or adult leaders. Ditto any Mormon or Islamic church or organization.

Indeed, the same could be said about any American who believes in traditional moral values and organizes to promote and teach them, which is the essence of the Boy Scouts. Does the intemperate language of Judge Jones reflect the attitude of the U.S government towards Americans who hold such values and want to promote them? If the ACLU gets its way, the answer will be yes.

Boy Scout Charity

This case is about two leases to the Boy Scouts of America of parkland in San Diego. The City first leased an 18 acre parcel of Balboa Park to the San Deigo Scouts in 1957 for a nominal annual fee. The Scouts have invested several million dollars in this property since then to build and maintain a first class youth campground site. In 1987, the City similarly leased a one half acre parcel to the San Diego scouts in Mission Bay Park. The Scouts have invested millions in that site as well to build a first class youth aquatic center.

Both sites are open to the public for a nominal fee on a first-come, first-served, reservation basis, and are heavily used by non-Scout youth groups. The Scouts have now invested more in these properties than their sale value on the open market, according to the ACLUs’ own expert witnesses.

The ACLU sued the City on behalf of a lesbian couple and an atheist couple both with Scout age sons, even though neither the sons nor the parents would be excluded from either facility. Ludicrously, Judge Jones has now held that the Balboa Park lease amounts to unconstitutional aid to religion, and his reasoning applies to the other lease as well.

But the Scouts receive no aid from the leases. Rather, the leases are a vehicle for the Scouts to provide millions and millions in charitable aid to the City and the general public. Without the Scouts, the taxpayers would have to pay millions for such facilities. With the aid going not from the City to the Scouts, but from the Scouts to the City, the leases cannot amount to unconstitutional aid to religion. The primary purpose and effect of the leases is not to advance religion, but to advance youth camping and water sports.

Moreover, there was no special favoritism for the Scouts in the leases. The City maintains similar leases of public land with over 100 other non-profit organizations, including some overtly religious ones, such as the Lawrence Jewish Community Center, the Point Loma Community Presbyterian Church, the San Diego Calvary Korean Church, the Salvation Army, and the YMCA. In all these cases, the City policy is to grant use of public property to an organization if it is going to invest considerable amounts of its own money to provide a service to the public. The leases to any of these groups with religious ties have now been put in question as well by the court’s order in the Boy Scouts case.

In addition, the City also gives outright grants of public aid to nonprofit groups to provide public services. These include religious groups, and even openly gay groups. Recipients have included Catholic Charities, Episcopal Community Services, the Salvation Army, and the Gay Men’s Chorus of San Diego. If the leases to the Scouts involve unconstitutional aid to religion, then surely outright grants to religious groups do.

For Whom the Bell Tolls

This case reflects a fundamental metamorphosis in the gay rights movement. Gay rights used to be about the freedom of adults to do whatever they want with their sex lives behind closed doors, free of government interference or regulation. The public now broadly accepts this view.

But what the gay rights movement is demanding now is something quite different, and rather illiberal. They are demanding public approval of homosexual activity, and government enforcement of that approval with penalties for those who refuse to accept it. Ultimately, that entails vilification and marginalization of those who will not give such approval.

In this new gay rights/ACLU world view, homosexual activity is now mainstream. The Boy Scouts, Catholics, and Bible believing Protestants are all now the fringe, not acceptable in polite society. Ultimately, in this brave, new world, will these groups even be allowed to teach their values and beliefs to children?

What is important now is that those who hold the long predominate traditional values view of the morality of homosexuality retain the right to hold, express, promote and teach their values without vilification, marginalization, punishment, and outright prohibition by the government. The debate can then proceed in the open marketplace of ideas.

Those who believe in the traditional values view need to get much more politically and socially active and demand that government policy maintain the freedom to hold, express, and teach their views. They need to be much more focused on opposing at the ballot box those who would oppress them. They also need to eschew socially liberal corporate donors, and embrace much more vigorously those who are willing to support them.

Those who believe in the ACLU/gay rights view need to exercise their civil liberties and start their own scout group that embraces liberal social values across the board, on homosexuality, atheism, premarital sex, and social justice issues. If they don’t think teaching boys to maintain a belief in God is important to their moral and character development, that will then be their business.

People can then vote with their feet as to what views they support, and what they think is right for their children. Moreover, everyone does not have to agree. Those who hold to one view can join their group, and those that hold to another can join theirs.

The response of the social liberals has been that this would be a cop out for them. What they must do in their view is stop the social injustice in the current operation of the Boy Scouts. But what that means is they are insisting on imposing their views on the Scouts. That is social fascism, not social liberalism.

Peter Ferrara is Executive Director of the American Civil Rights Union, which operates the Scouting Legal Defense Fund (www.defendscouting.com).