Strange Bedfellows
Pastor Martin Niemoller admonished:
"First they came for the Communists, and I didn't speak up, because I wasn't a Communist.
Then they came for the Jews, and I didn't speak up because I wasn't a Jew.
Then they came for the Catholics, and I didn't speak up, because I was a Protestant.
Then they came for me, and by that time there was no one left to speak up for me."
Gays and Lesbians for Individual Liberty (GLIL) take Niemoller's warning seriously and have filed an amicus curiae (friend of the court) brief on behalf of the Boys Scouts of America in the case of Boys Scouts of America v. James Dale pending before the United States Supreme Court.
The case centers on James Dale, a former scout, who was a twenty-year old adult scout leader. When Dale came out and announced publicly his homosexual status, the Boys Scouts did not permit him to continue as a scout leader. Unlike other courts around the country, who have ruled in favor of the Boy Scouts, the New Jersey Supreme Court ruled that the prohibition of gays from the Boys Scouts violates New Jersey's anti-discrimination law. At issue is the First Amendment's right of free association versus the state interest in prohibiting discrimination.
Specifically, the New Jersey Supreme Court ruled that the Boys Scouts are a public accommodation and therefore must allow gays to participate. However, one gets the sense that the New Jersey Supreme Court was succumbing to the temptation of the law and stretching the definition of public accommodation far outside its plausible limits in order to bludgeon the Boy Scouts into submission to its own values. In its opinion, the New Jersey Supreme Court described the Boy Scouts position on gays as an "archaic moral value." If the issue is whether or not the Boys Scouts represent a public accommodation, then the condition of their moral values is irrelevant and the Court's remark was both gratuitous and revealing.
In their brief, GLIL points out how similar tactics were used against the National Association of Color People as well as gay organizations in the past. In the words of the brief, "The New Jersey Supreme Court's decision is especially pernicious for it places government in the intolerable position of second-guessing a private organization's interpretation of it own rules and articulation of its own message." GLIL is apprehensive that the inexorable logic of the New Jersey Supreme Court position could be used against gay organizations that "often seek exclusively gay environments." GLIL warns that, "Lesbian organizations and institutions, in particular, often seek to limit membership and participation." An over broad interpretation of public accommodation would force these organizations to open their doors to people who might act to undermine these groups and their message.
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