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Federalism as a constitutional concept requires a leap of faith. To keep power close to the individual citizen, the congressional faithful must allow the states to experiment with their own approaches to problems. But some quintessential state questions involve the most enticing political symbols. Such state questions are the forbidden fruit of the Constitution. They dangle just out of reach of members of Congress, who chafe at the restrictions imposed by the 10th Amendment. The temptation to force states to heel to a federal model has repeatedly lured both Democrats and Republicans to constitutional perdition. Given their inclinations, it’s not surprising that a controversy over the Boy Scouts — the Rockwellian symbol of what is good about America — proved impossible to resist. Last month, the Senate narrowly approved a measure that would withhold federal funds from schools and other government facilities that bar the Scouts from their grounds. The senators were responding to the state and local efforts to cope with the Supreme Court’s June 2000 decision in Boy Scouts of America v. Dale. That decision created something of a problem around the country. In Dale, the Court ruled that the Boy Scouts have a constitutional right to exclude gay boys and men from participating as Scouts and Scout leaders. Five justices decided that a New Jersey law barring discrimination on the basis of sexual preference could not be used to impinge upon the Scouts’ First Amendment right to association. That decision immediately triggered a secondary controversy: As an organization that discriminates on the basis of sexual orientation, the Scouts run afoul of various state and municipal laws barring the use of government facilities by such groups. A number of cities and states determined that the Scouts’ access must be restricted or denied due to their discriminatory policy. Sen. Jesse Helms (R-N.C.) struck back with an amendment to the education bill pending before Congress. Now, local authorities may lose federal funding — a sizable penalty — if they do not conform to the will of the federal government. Since the Senate boasts many self-identified federalism proponents, such a heavy-handed measure should have died a quiet death. But some of our current senators are recidivists when it comes to impinging on states’ rights. Back in 1990, they passed the Gun Free School Zones Act. While no doubt sympathetic to the cause of eliminating guns near schools, the Supreme Court struck down that law in United States v. Lopez (1995) on the ground that Congress lacked the power to impose the law on the states. Undeterred, the Senate is seeking once again to force its view — and the Boy Scouts — on the states. CORRODING ELEMENT Of course, the use of federal funds to hammer the states is a tried and true technique. The Supreme Court has repeatedly allowed Congress to withhold funds to force state action in areas ranging from civil rights to the environment. Congress used this very means to compel states to stop discriminatory practices in the civil rights era. In an ironic turnabout, the Senate is now seeking to prevent states from enforcing anti-discrimination policies. And it may succeed. But this willingness to withhold funds comes at a constitutional cost, regardless of whether the Supreme Court upholds the law. As Congress increasingly micromanages states through their dependence on federal funds, a corrosive element seeps into the foundation of our Republic. The sovereignty of the states is weakened. Federalism has already suffered serious damage over the past century. Before the 17th Amendment in 1913 provided for their direct election, senators were chosen by the state legislatures. That made senators the natural defenders of state power, for they were unlikely to muscle the very institutions that put them in office. Also in 1913, the 16th Amendment cleared the way for a federal income tax — the source of the enormous revenues that give the federal government so much power today. Finally, in a myriad of ways, Americans have let power shift from local to national centers. The result is an anemic federalism primarily honored in the breach. While the Supreme Court has made some significant federalism decisions in recent terms, we cannot look to the Court’s occasional rulings for the solution. Historically, the justices have been fickle allies. Federalism ultimately must rely not on the institutional vigilance of the Court but on the personal restraint of Congress. It is incumbent on the individual members themselves to recognize when they shouldn’t wield their federal power even if they can. Take the case of the Boy Scouts. There is nothing more central to a state’s self-definition than its determination of when and how to fight discrimination against its citizens. Many states believe strongly that such efforts must extend to discrimination on the basis of sexual preference and have decided by majority vote to bar discriminatory organizations from the use of public buildings and resources. Just as the Boy Scouts have a right to exclude others, these states have the right to exclude those who would exclude their citizens. In the wake of the Dale decision, we face an intriguing constitutional problem that calls for state development and experimentation. The conflict between the right of association and the right of states to bar exclusionary groups is only one element of that controversy. The Boy Scouts notably defended their exclusionary policies on moral and religious grounds, and emphasized their long relationship with major religious organizations. The Mormon Church, for example, made clear that it would withdraw from involvement with the Scouts if this central religious tenet were not followed. (Currently, all boys in the Mormon Church are automatically enrolled as Scouts under a longstanding arrangement.) Religious organizations are, of course, protected in holding unpopular views by the First Amendment. Thus, when anti-discrimination laws are applied to exclusionary groups, the religious component in many of their exclusionary policies creates a potential collision with another recent Supreme Court decision. In Good News Club v. Milford Central School, the Court last month held that a school district violated the First Amendment rights of a religious club by barring it from school grounds. Read together, Dale and Good News Club leave state anti-discrimination laws in a bind when applied to organizations that are exclusionary or discriminatory on the basis of religious or moral beliefs. If the Boy Scouts and the Good News Club are allowed to use school property, what about an Aryan religious group that not only excludes but also demonizes nonwhites and Jews? Many citizens obviously have a considerable problem with their tax dollars being used to support organizations that would exclude their fellow citizens. They are concerned about government entanglement with any organization — secular or religious — that excludes certain students from its ranks. On the other hand, such an anti-discrimination stand would also cause schools and other government facilities to bar groups that limit themselves by gender, race, or ethnicity. Many such groups legitimately seek to advance and explore their own identities. It is hard to see how you can exclude the Boy Scouts for excluding gays while allowing a women’s group that permits only female leaders or an African-American group that wants only African-American officers. This is where state experimentation is so important. The citizens on either side of these issues may be dead wrong. But they are entitled to find their own path through the thicket without punitive retaliation from the federal government. States must balance the First Amendment rights of exclusionary organizations — including freedom of religion and association — with the states’ own interest in ending discrimination. States must also balance the value of inclusion to protect their students from discrimination against the need for exclusion to preserve the diversity of organizations. This kind of balancing demands an evolutionary process that will take time and, more importantly, faith in a system that allows for tremendous creativity among the states. TAKE A LEAP Of course, this system also requires something of a leap of faith from the states. New Jersey’s attempt to force the Boy Scouts to accept gay Scouts and leaders showed a lack of faith in the inherent strength of our constitutional system, particularly in the protection afforded individuals by the right of expressive association. No doubt highly aggrieved over the Dale decision, the D.C. Commission on Human Rights recently voted to require the Boy Scouts to reinstate two gay Scout leaders. In so doing, the commission denied D.C. residents their right to associate in a misconceived though well-meaning effort to advance human rights. The commission would do well to remember that the greatest protection of human rights is the opportunity for all individuals to join together and advance their values and views. It is unlikely that the D.C. decision will survive appeal, whereas congressional action like the Helms amendment could survive review and further undermine the American system of state rights. Like the D.C. commission, the Senate has apparently reacted to a compelling case without thought to its systemic implications. The test of principle for all Americans is when it compels us to take a position against our own inclinations. When it comes to federalism, that means that sometimes Congress must stay its hand even when the states do not act in ways that our federal politicians deem wise. By keeping authority closest to the citizens, federalism remains the bulwark of our freedom and self-determination. Too often it is treated as a mere sound bite by politicians who know the terminology, but lack the faith. If senators want a Jeffersonian merit badge, they need to defend federalism against the lure of transient popular causes. Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University in Washington, D.C.

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