SCOUT LOOPHOLE

By KENJI YOSHINO
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Court reaffirmed a principle articulated in prior cases: An organization need not comply with antidiscrimination law if compliance would interfere with its "message." Thus, according to the Court, an organization with an anti-gay "message" need not admit gays - even if a statute says it must.

This holding, by itself, leaves open a loophole in antidiscrimination protections. But the Court went even further. In prior cases, the Court had based its finding of an organization's "message" on independent corroborating evidence. In this case, however, the Court accepted that the Scouts had an anti-gay "message" without such evidence. This enlarges the existing loophole in a troubling way. It makes it easier for organizations that have never held or articulated a discriminatory "message" to avoid compliance with antidiscrimination law simply by stating that "message" during litigation.

The Boy Scouts' Purported Anti-Gay "Message" Was Concocted For Litigation

This case began when James Dale, a respected Scout leader, came out as gay and was expelled from the Scouts. Dale claimed the expulsion violated a New Jersey law that bars, in certain cases, discrimination on the basis of sexual orientation. The Scouts responded that this state law violates the First Amendment. Specifically, the Scouts claimed that they had a First Amendment right to convey an anti-gay "message" that would be undermined unless they could expel openly gay Scouts like Dale. In fact, there was no evidence of such a "message."

Under the Constitution, having an anti-gay "message" does not simply mean that an organization excludes known homosexuals. That's just discrimination - not a "message." Having an anti-gay "message" means, instead, that the organization takes the condemnation of homosexuality to be one of the specific tenets for which it stands. Was the condemnation of homosexuality one of the specific tenets of the Scouts? Not before litigation, it wasn't.

Before litigating this and other cases, the Scouts' "message" appeared to be about training boys in scoutcraft and teaching them "patriotism, courage, self-reliance, and kindred values." The organization had published a broad array of recruiting and informational materials that included "messages" like these. Prior to litigation, not a single public Scout document ever expressed an explicit anti-gay stance. To the contrary, the group touted itself as being "open to all boys."

Nevertheless, the Court somehow discerned such a "message." The Court relied on requirements in the Scouts' Oath and Laws that Scouts be "clean" and "morally straight." But the Scout Handbook defines "morally straight" to include the following prescriptions: "[G]uide your life with honesty, purity, and justice," "Respect and defend the rights of all people," "Your relationships with others should be honest and open."

This "message" was one of honesty, not one of hatred. It does not condemn gays or homosexuality. On the contrary, it could be construed to condemn the very closet of secrecy from which Dale emerged.

The Court's Decision Dangerously Enlarges A Loophole

The Court, then, simply took the Scouts at its word, according "deference to an association's assertions regarding the nature of its expression." Taking an organization at its say-so might, at first, seem reasonable. But there's a reason we don't just believe lawyers' assertions - statements in litigation are often self-serving and designed to avoid liability. Moreover, in this context, failing to look at both the organization's claims and the contemporaneous evidence is particularly dangerous, for it lets organizations that want to discriminate have it both ways.

reflects. So is the societal cost of expressing anti-gay animus. No wonder the Scouts chose not to express such a "message," and instead insisted that they were inclusive, and "open to all boys." But having secured the benefits of keeping its purported "message" secret, the Scouts should also assume secrecy's costs. The organization should not be permitted to deploy such an unarticulated "message" solely to evade an antidiscrimination law. Yet this is exactly what the Court's decision allows an organization to do.

Granted, any organization that uses this loophole will have to shoulder the political costs of its "message" after it has announced its "message" in litigation. But that's cold comfort. First, litigation postures don't always translate into real-life political consequences, the way honest communication to the public and the organization's membership would. Second, when a "message" is kept secret, many individuals will invest in an organization they would not have joined had they known of the "message." How many pro-gay individuals are now deeply troubled that they ever sent their boys to the Scouts, or gave the Scouts their money or their time as volunteers? Parents who thought their kids were learning civics only now discover that the secret "message" was hate.

Now that the Scouts have admitted their anti-gay "message" in the legal sphere, we should ensure that the consequences of that admission are visited upon the organization in the political sphere. The Boy Scouts Association has taken a long time to make its anti-gay "message" explicit. We should not take so long to express our condemnation of that "message."

Kenji Yoshino is an Associate Professor of Law at Yale Law School. He contributed to respondent James Dale's brief to the United States Supreme Court.

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