Dispatches

Supreme Court Dispatches

If it helps clarify things, Boy Scouts of America vs. James Dale is not so much a “gay rights” case as it is a “freedom of association” case. The gay rights case was decided when the New Jersey Supreme Court held that under New Jersey’s public accommodations statute, the Boy Scouts could not expel leaders on the basis of homosexuality. The issue before the U.S. Supreme Court is whether the Scouts’ free speech and free association rights trump the public accommodations law, and allow them to bar gays. And there’s a whole lot of free-associating going on, as oral argument slowly works itself into a colossal Gordian knot of jumbled doctrine.

Now, Boy Scouts are supposed to be whizzes at knots, but George A. Davidson—defending the Scouts’ policy—cannot quite seem to pull the bunny through the hole. Almost before he has begun, Justice Kennedy interrupts to ask whether James Dale—the former Eagle Scout whose assistant-scoutmaster position was revoked when it became known that he was a gay rights activist at Rutgers—advocated gay rights to his troop. For the Scouts, Dale’s very act of publicizing his homosexuality in a newspaper was advocacy, regardless of what he told his troop. This quickly emerges as one of the knottiest problems in the case: What Dale sees as a neutral act of being gay is perceived by the Scouts as a pro-gay “message.”

Justice Kennedy—having internalized that part of the Boy Scout oath about staying “mentally awake”—asks Davidson in four different ways whether the Scouts’ problem with Dale is his homosexual statements or his homosexuality itself. Davidson dodges the hypothetical each time but earns himself a merit badge for truthfulness when he admits he’d “defend any position the Scouts took.” (They pay him, you see). Cha-ching!

Ginsburg, working on her merit badge in communication, presses Davidson to clarify whether the Scouts’ policy is “Don’t Ask/Don’t Tell” or that any gays are unwelcome. When he says the former, O’Connor queries what the difference can be between a homosexual condoning homosexuality and a heterosexual doing the same. So Davidson decamps to the general position that Scout leaders—gay or straight—may advocate gay rights to change policy but not to their troops. Scalia inquires whether a celibate homosexual could lead a troop. And Davidson, steadfastly rejecting the hypothetical, says that such a case has not yet come up.

Here is where Davidson asserts with a straight face (as if he could have any other kind) that the Boy Scout oath to remain “morally straight and clean” reflects their anti-gay policy. Ginsburg asks whether unmarried scout leaders living in sin can be expelled from leadership positions. Davidson ignores the hypo. He is working up to a hell of a merit badge in hypo-dodging.

In response to a question from Scalia about the meaning of “openly homosexual,” Davidson observes that one doesn’t talk about “coming out as a Canadian,” thus proving that “coming out” is a statement fraught with moral meaning. The closeted Canadians shift uneasily, knowing that the Boy Scouts have us in their morality radar. Souter, almost a Canadian, asks where the Boy Scouts’ anti-gay policy is codified, suggesting perhaps it’s merely unwritten. “Boy Scout common law?” he asked. Davidson replies that there was once a 1992 article about it, which he later asserts every single Boy Scout read. Souter wonders whether the Boy Scouts object to gays due to some risk of homosexual conduct between leaders and their troops (the Alec Baldwin/Adam Sandler merit badge).

O’Connor and Breyer double-team Davidson with questions about what would have happened had Dale been a straight man who condoned homosexuality. Would he have been expelled? Davidson says it would have been “up to the Scouts to make that determination.” Breyer says (in his “no shit, Sherlock” voice) that of course it would be up to the Scouts, but what is their policy? Davidson says he doesn’t know what the policy would be. Let’s find out, shall we? A Dahlia Merit Badge to the first heterosexual scout leader who tells his troop “Gay is OK.” (I’ll bet there’s more than one of you. Let’s see if you’ll all get drummed out.)

So, let’s pause midpoint to review who can lead the Boy Scouts. According to Davidson, if you’re “avowedly gay” and pro-gay, you’re OUT (pun intended). If you’re straight and pro-gay, you’re probably OUT. If you’re silently gay, but they find OUT, you’re OUT. Stevens asks if straight guys who occasionally engage in homosexual conduct are out. Oh they are so OUT.

Kennedy, gunning for his civics merit badge asks, assuming Scouts can bar homosexuals, whether the public schools and police and fire departments who currently sponsor troops would need to withdraw their support. Davidson says something about a move toward putting more Cub packs in women’s prisons. Because this is, after all, a case about role models.

Breyer is still struggling over whether the Boy Scouts ask their prospective leaders whether they are gay. Scalia advances to Webelo by supplying the answer: Scouts don’t ask if you’re an adulterer or an ax murderer, but they can still bounce you if you prove to be one.

Evan Wolfson of the Lambda Legal Defense Fund is pinioned by Justice O’Connor—who must have been a Brownie—with the question everyone is thinking (except the Canadians): If the New Jersey public accommodations law can force the Boy Scouts to admit gays, why not girls? Wolfson says girls are different because they could be said to “burden” the Boy Scouts message. Souter points out the irony in the fact that Wolfson relies on a trilogy of cases requiring private associations to admit women, while arguing that the Boy Scouts should admit gays, but exclude girls. “Is the best you can come up with that Boy Scouts have an expressive policy against…”

“The best I can come up with is that question is not before the court,” replies Wolfson, who figures that if it’s the best Davidson can come up with, it should do for him.

This leads into a little protest against what Scalia called the Kulturkampf in his dissent in Romer vs. Evans—wherein Scalia and Rehnquist bemoan the politics of identity, and the mushrooming special protections under the 14th Amendment based on color, national origin or, says Rehnquist, whether one is an ex-convict. When Wolfson says special protections are premised upon a long history of discrimination, Scalia helps an Allan Bloom cross the road by noting that “people haven’t liked ex-cons for a long time.”

Back to our regularly scheduled broadcast, the justices try to discern the contours of New Jersey’s public accommodations statute.

Breyer: Must Catholic organizations admit Jews? Must B’nai Brith admit Catholics?Rehnquist: Must Catholic organizations admit non-Catholics?Wolfson: They can only bar them if they “burden their expressive message.”

Scalia asks how it is possible that the Boy Scouts’ message that homosexuality is immoral is not burdened by having as a scoutmaster “someone who is the embodiment of the contradiction of its moral message?” Wolfson answers that “a human being is not speech,” other than (and here he quotes God, who would have been an Eagle Scout if he’d passed his swimming test) “I am what I am” (Exodus III: 14).

Souter asks whether this case turns on the Boy Scouts’ reluctance to make their anti-gay policies explicit, and Scalia makes the nice point that if Dale prevails, he will only succeed in making the Boy Scouts “more openly and avowedly anti-gay.” Wolfson points out that the Boy Scouts are only implicitly anti-gay because they would lose so much of their support among the tolerant groups who support them (as is evidenced by the myriad amicus briefs filed on their behalf).

Chief Justice Rehnquist recognizes Davidson for one minute of rebuttal. Davidson stands and offers what sounds like the following:

“This case has been going on for 19 years and five days/If we must take apart every butterfly in order to dissect it/We won’t have many butterflies left.”

The ordinarily tolerant folk down in the pressroom are aflutter with comments such as: “What was all that butterfly shit?”

Sadly, the Boy Scouts don’t give out merit badges for haiku.