April 29, 2000
Jacksonville
Times-Union
Box 1949
Jacksonville, FL, 32231
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E-MAIL: tuletter@tu.infi.net
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The case of Boy Scouts vs. Dale is being heralded as a conflict between freedom of association and the right to be protected from discrimination based on sexual orientation. But that's an oversimplification. Like the military, the Scouts have a "don't ask, don't tell" policy. They cite the Scout code, in which members promise to be "morally straight," as justification for banning open homosexuality. James Dale was an assistant Scoutmaster in New Jersey 10 years ago when a newspaper article identified him as the leader of a gay rights organization at Rutgers University. The Scouts ousted him, and he filed a lawsuit accusing them of violating a state anti-discrimination law. Dale prevailed before the state's highest court but the Scouts appealed to the federal judiciary, arguing the decision had violated their First Amendment right to free association. Dale's lawyers told the U.S. Supreme Court that one can be both morally straight and homosexual. Depending on individual values, that may or may not be right. But, as Justice Anthony Kennedy noted, the Scouts are better positioned than the courts to interpret Scout values. An argument also was made that the Scouts are a public accommodation since they sometimes recruit in schools. If so, the right to equal access may overrule the right to association. But the St. Patrick's Day parade in Boston uses public streets. Still, in 1995, the high court ruled that the sponsors could stop a homosexual group from carrying signs, despite a state anti-discrimination law. It's difficult to imagine how the First Amendment would prevail in Boston but not in New Jersey. Also, as the president of Gays and Lesbians for Individual Liberty insists, a ruling for Dale would set a precedent that could haunt homosexuals in the future. "Respect for freedom of association," he says, "... is the linchpin in persuading the U.S. Supreme Court to reverse its 1986 ruling in Bowers vs. Hardwick, which gave state governments the authority to regulate ... sexual relationships. At the same time, the right to associate ... will be an important factor in overturning ... laws prohibiting same-sex marriage." It's a big stretch to say freedom of association makes homosexual conduct and marriages an inalienable right, but that argument may be their best hope for persuading the courts to legislate their agenda. In a "friend of the court" brief, he adds: "Freedom does not belong only to those with whom we agree." Freedom of association, like the rest of the Bill of Rights, benefits everyone — even those who find it inconvenient.