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For almost a century, nobody knew that a core purpose of the Boy Scouts of America was to express condemnation of homosexuality and to advocate exclusion of gay youngsters, teenagers, and adult troop leaders. Certainly not the president of the United States who, since 1910, has served as the “honorary president” of the organization. Certainly not the Congress, which originally chartered the BSA and enacted legislation to provide the group with special access to federal resources such as camping equipment and agency services, and to federal lands, such as National Forest Service property. Certainly not the state and local government agencies, like public schools, police departments and fire stations that act as “charter organizations” or official sponsors of Boy Scout troops, providing leadership, funding and meeting places for scout activities. The government, like the BSA’s members and their families, believed that the organization’s purpose was simple and uncontroversial: to encourage young boys to lead decent, healthy, and tolerant lives, to enjoy the outdoors, and to learn how to contribute to their communities. But the Boy Scouts has now outed itself. In order to convince the Supreme Court last week to uphold the exclusion of a gay scout leader in defiance of New Jersey’s anti-discrimination laws, the organization took the position that one of its core expressive purposes, entitled to full First Amendment protection, is — and has been all along — to advocate against and to exclude gay people. According to its brief, when the BSA talked all those years about teaching boys to be “morally straight,” what the group really meant was “straight” and not “gay,” rather than “straight” and not “crooked” or “dishonest.” When troop leaders instructed generations of young scouts to be “clean,” they weren’t just talking about hygiene and ethics, but about being heterosexual. When the BSA handbook emphasized the importance of family life, it was intended to advocate one and only one vision of the acceptable family and to denounce the rest. The seemingly unobjectionable prescription of “morally straight” and “clean” living was really code language, the Boy Scouts insisted to the court, that meant “no gay people allowed.” Justice John Paul Stevens and his three fellow dissenters, of course, would have none of it. The evidence the BSA was able to muster to support its claim that anti-gay discrimination had been the group’s message all along was paltry: primarily, an internal executive committee statement from 1978 suggesting that homosexuality was “inappropriate” for scout leaders. As the dissent pointed out, the statement was never disseminated to the public but was in effect maintained as an organizational “secret.” And the dissent found that it was never part of the express values of the organization in any event. But a majority of the court found that it had no choice but to accept on its face the BSA’s assertion in its brief and in other litigation that, regardless of the historical record, the organization’s essential message was anti-gay and pro-exclusion. In the end, though, the majority decision upholding the BSA’s First Amendment right to exclude gays will be an ephemeral victory for the long-revered organization. The decision of the Boys Scout of America’s central leadership to tout an anti-gay discrimination policy as essential to its core purposes will have consequences almost immediately, both practical and legal. Of course, the families of young boys who join the Boy Scouts will need to decide whether they want to continue to send their children for moral training to an organization that teaches discrimination as a moral precept. Equally important, the public officials and agencies that sponsor the scouts, from President Clinton and his successor to our congressional representatives to state governors to local police stations and school boards, must reconsider whether they want to continue their role in the scouting enterprise — as newly defined by the BSA. It’s hard to reconcile a federal or state agency enacting and enforcing anti-discrimination laws while simultaneously acting as the official sponsor of an openly discriminatory organization. And the extraordinary entanglement between the BSA and the government at all levels poses serious legal questions under those anti-discrimination laws as well as under state and federal constitutional guarantees of equal protection. Unless the government charter organizations of the BSA can convince the group to toss out its discriminatory practices, they can and should expect legal challenges to their continued sponsorship of scouting with its newly minted anti-gay message. The Boy Scouts’ disclosure to the high court and others that it has always maintained a secret policy of discrimination and anti-gay prejudice is undeniably pernicious. Gay teens are one of the most at-risk segments of our youth, prone to depression, alienation and, too frequently, suicide, as they struggle to come to grips with their sexuality and with the hostility of their adolescent classmates. Barring them from what everyone thought of until now as the all-inclusive, all-American activities of Boy Scout meetings — held on the premises of and officially sponsored by these young people’s own schools, police departments, and fire stations, with their parents’ own tax dollars — is as legally impermissible as it is dangerous. Nor can anyone miss the lesson in bigotry and intolerance that the discrimination teaches to the boys who do get to attend. It is sad that the BSA administration, at this point in our society’s history, has decided to advocate a previously unvoiced policy of exclusion and intolerance as Boy Scout dogma. It would be even sadder, however, if our government officials, who support and sponsor the Boy Scouts, join in that discriminatory message. Unlike the BSA, our political leaders don’t have the excuse that they’re just private individuals who get to associate with — and discriminate against — anyone they want to. Jerry Roth is a litigation partner at Munger, Tolles & Olson in San Francisco. He co-authored the amicus brief in Boy Scouts of America v. Dale submitted by Bay Area Lawyers for Individual Freedom and the Bar Association of San Francisco.

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