Recently my nine-year-old son’s Cub Scout Den Mother called and asked me, as an old Eagle Scout, to speak to their den about “scouting the way it was” back when I was growing up in the ’50s.

Following the hallowed Scout motto “Be Prepared,” I dug out my old Scout uniforms. Each badge and award brought back a memory: campouts, hikes, axmanship, marksmanship, service projects. An old photo album brought to life memories of my old Scout buddies, my tentmate, my patrol leader, and others.

But one photo stood out above all others: It was one of Don, my old Scoutmaster. Don was a good organizer, but he was more than that. He was a role model to me, because he lived and taught the precepts of the Scout Law (“A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, reverent”) and the Scout Oath (“On my honor I will do my best to do my duty to God and my country, and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake, and morally straight”).

Scouting was fun, and I learned a lot: nature lore, survival, camping skills, knot-tying, paddling a canoe, and a host of other skills. And those skills have stayed with me. Although I teach in a law school and a seminary, and travel across the nation lecturing, debating, and litigating conservative cases, I am still most at home in the outdoors.

But Scouting also taught me to be a man. The lessons of Scouting were drilled into me week after week, not just by reciting the Oath and the Law every week, but by practicing them daily under the watchful leadership and example of Don and others who assisted him. They made me what I am today.

But it could have been otherwise — and will be for future Scouts, if the Superior Court of New Jersey, Appellate Division, has its way. On March 2, 1998, that Court ruled that New Jersey’s Law Against Discrimination (LAD) requires the Boy Scouts of America to reinstate a Scoutmaster who was expelled after he publicly declared that he was a homosexual.

Using rather dubious reasoning, the Court held that since the Boy Scouts is a large organization and holds itself out as being open to the general public, it constitutes a public accommodation within the meaning of LAD. The law, according to this ruling, forbids the Boy Scouts from discriminating according to sexual orientation.

The Boy Scouts contended that even if LAD does apply to private organizations, it is unconstitutional as applied to the Scouts because it violates the organization’s right to freedom of association. Freedom of association, the Scouts argued, includes not only the right to join together for a common purpose, but also the right to exclude from your association those who do not share that common purpose. Freedom of association, the Scouts said, includes the right not to associate with homosexuals.

Not so, said the New Jersey Superior Court. Unlike freedom of assembly, freedom of association is not expressly mentioned in the Bill of Rights. Only two types of association, according to the Court’s view, arise to the level of a fundamental right: intimate association and expressive association. Intimate association, the Court said, “applies only to those groups having such attributes as ‘relative smallness,’ a high degree of selectivity in decision making, and seclusion from others.” Since the Boy Scouts consists of nearly five million members, it does not qualify as intimate association.

As I read the Court’s opinion, I wondered whether any of the judges had ever been on a Boy Scout campout. As Scouts share tents, campfires, cooking, and the like, they become very close indeed. While Scouting is a broad national organization, its local councils are broken down into individual troops and packs, and these units are broken down still further into patrols and dens consisting of five to eight boys. The association is one of intimate camaraderie.

The Court also concluded that the Scouts’ activities do not constitute expressive association. To claim a constitutional exemption from nondiscrimination laws, the Boy Scouts must prove that opposition to homosexuality is the central reason the organization came together. While Scouting does teach certain moral values, the Court said that opposition to homosexuality was not central to the Scouts’ purposes. Even though the trial judge had concluded that “According to its mission and purpose, BSA [Boy Scouts of America] has determined that an assistant scoutmaster who is an active sodomite is simply incompatible with scouting and is not morally straight,” the appellate court reversed the trial judge and actually labeled that finding “irrelevant” because the ousted Scoutmaster was an “active homosexual,” not an “active sodomist.” The Court suggested that the Boy Scouts’ fears of homosexual Scoutmasters are based upon “homophobia and stereotypical conceptions of homosexuality” and concluded that “there is absolutely no evidence before us, empirical or otherwise, supporting, a conclusion that a gay scoutmaster, solely because he is a homosexual, does not possess the strength of character necessary to properly care for, or to impart BSA humanitarian ideals to the young boys in his charge.”

But the Boy Scouts’ concerns that homosexual Scoutmasters might not be good role models — and might even pose a threat to the boys entrusted to their care — is legitimate. Studies have shown that nearly one-third of child sexual abuse is committed by homosexuals, even though homosexuals constitute only about two percent of the population. On my first assignment as an Air Force Judge Advocate (lawyer), I handled three cases involving military personnel who served as Scoutmasters and who were being discharged for having molested the young Scouts entrusted to their care. I challenge the New Jersey judges to face the parents of these boys and tell them there is no evidence that a homosexual Scoutmaster “does not possess the strength of character necessary to properly care for, or to impart BSA humanitarian ideals to the young boys in his charge.”

The Boy Scouts organization has clearly stated its policy: “We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts.” While the Court dismissed this statement by noting that it was adopted only in 1991, persons familiar with Scouting’s history point out that the terms “morally straight” in the Scout Oath and “clean” in the Scout Law have been around almost from the inception of Scouting, and that when these terms were adopted they were almost universally assumed to be incompatible with homosexuality.

To claim that Scouting does not exist for “expressive purposes” is to miss what Scouting is all about. Founded by Lord Baden-Powell in England in 1907, the Boy Scouts has been a character-building organization since its inception. In 1909, when a British Boy Scout found American businessman William D. Boyce in a London fog and led him to his destination, Boyce was so impressed with the Boy Scouts that he and others formed the Boy Scouts of America in 1910. What so impressed Boyce about the Scouts was not the fun and social opportunities, but the role such an organization could play in building the character of young American men.

While the March 2nd decision by the New Jersey court is disappointing, three weeks later a ruling on the West Coast gave the Scouts strong encouragement. In Curran v. Mount Diablo Council of the Boy Scouts of America, the California Supreme Court unanimously ruled that the anti-discrimination provisions of California’s civil rights law do not apply to the Boy Scouts of America. Ruling against plaintiffs in two companion cases, one involving a homosexual Scoutmaster and the other involving two Cub Scouts who refuse to affirm a belief in God, the Court declined to decide the constitutional issue of freedom of association since it had disposed of the cases by ruling that California’s civil rights law did not apply. But Justice Kennard, in his concurring opinion, noted that if the Act did apply to the BSA, the BSA’s freedom of association argument would be “compelling.”

Ironically, “gay rights” advocates fail to realize that by undercutting the fundamental right of expressive association, they may be putting themselves out on a limb and sawing it off. The principle that freedom of association includes the right to exclude those who do not share the goals of the association, especially protects minorities. Otherwise, what would prevent a heterosexual majority from becoming members of a small “gay rights” organization and taking over? When we make equality our god and toleration our only virtue, we sacrifice liberty on the egalitarian altar.

Dr. Eidsmoe is a professor of constitutinal law at Thomas Goode Jones School of Law in Montgomery, Alabama.

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