Column: Punishing the Boy Scouts

I cannot recall a First Amendment victory in the Supreme Court of the United States resulting in the continuing righteous punishment, throughout the country, of the victors. Despite the Court's ruling that the Boy Scouts have a First Amendment right of expressive association, they continue to lose financial support from private organizations and are being excluded from public facilities that were previously available to them, including some schools.

The media, by and large, have contributed to the shunning of the Boy Scouts because they too -- particularly The New York Times -- reacted viscerally to the decision, calling for more banishment of the Boy Scouts. Television, of course, covers nearly all Supreme Court rulings in nanoseconds, and viewers get no depth of analysis.

Accordingly it did not occur to many of those penalizing the Boy Scouts that the state cannot compel the NAACP or the Urban League to include members of White Citizens Councils to positions of leadership.

In Boy Scouts of America vs. Dale, the issue concerned an assistant scoutmaster who had publicly declared that he was gay and a gay activist. Because of their disapproval of homosexuality, the Boy Scouts do not accept gays in leadership positions. (Rank-and-file members of the Scouts are not asked about their sexual preferences.)

One of the amicus briefs to the Supreme Court supporting the Boy Scouts was filed by Gays and Lesbians for Individual Liberty (GLIL). They pointed out that "infringement of the freedom of association would harm all Americans, but it would particularly threaten the welfare of gay and lesbian Americans. For the large number of gay organizations that seek to remain exclusively gay or gay-controlled, a ruling against the Boy Scouts could sound a death knell."

This view is, of course, a minority position among gays and lesbians, but the First Amendment is in the Bill of Rights to protect minority views against the majority.

The Boy Scouts themselves, in their amicus brief to the Supreme Court, emphasized: "A society in which each and every organization must be equally diverse is a society that has destroyed diversity."

Stuart Taylor, former Supreme Court reporter for The New York Times, is not in agreement with the Boy Scouts' policy on gays; but he states in Legal Times that, as a constitutional issue, the Supreme Court's decision was "clearly right." He writes that the decision means "not only that governments cannot directly penalize the Boy Scouts for their constitutionally protected views and policies ... but also that governments cannot indirectly penalize the scouts by denying access to public lands or other benefits available to other private groups."

He also says, and I agree, that the Supreme Court's decision does not require that a government entity give preference to any group that goes against governmental anti-discrimination policies. Therefore, special benefits can be withdrawn from the Boy Scouts. But they cannot -- under law -- be discriminated against if other groups are allowed to use public facilities, such as public schools.

I would recommend to The New York Times -- and others so eager to retaliate against the Boy Scouts for their First Amendment victory -- a passage from Alexis de Tocqueville's "Democracy in America," a book that should be in the curriculum of all our schools:

"The right of association appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society."

In its decision in the Boy Scouts case, the Supreme Court made a further point: The majority of the Court said it was aware that "homosexuality has gained societal acceptance," but went on to say that "This is scarcely an argument for denying First Amendment protection to those who refuse to accept those views.

"The First Amendment protects expression, be it of the popular variety or not. ... And the fact that an idea may be embraced by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.

"We are not," the Court continued, "as we must not be, guided by our views as to whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong." The state "cannot compel the organization to accept members where such acceptance would derogate from the organization's expressive message."

I would hope that some teachers of social studies -- or American history -- in our schools will dare to explain why the Supreme Court acted as it did.

(Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights.)