Boy Scouts Prevail

When the Left feared their vulnerability to the dominate political culture, they championed free speech and free expression of ideas even if others found those ideas and notions offensive. Indeed, it is precisely when ideas are unpopular that they require First Amendment protection. Popular notions require little protection.

If the most exquisitely and deliberately sensitive could constrain the speech of others, free speech disappears. On college campuses around, Conservatives find their publications vandalized and Conservative speakers shouted down. At times when Ward Connerly, the black Conservative who fights against racial preferences, visits college campuses at the invitation of Conservative groups he finds not his ideas challenged, but his right to speak them preempted by those with the childish attitude that whoever bellows the loudest wins the argument.

Now that Conservatives discover their expressions and associations assaulted by attempts at suppression, they find themselves, perhaps uncomfortably, calling upon the same jurisprudence litigated in a different environment. Although some on the Left remain true to their conviction that the First Amendment is a shield, too many others find it an inconvenient obstacle in cleansing discourse of objectionable ideas.

Fortunately, in the recent case of Boy Scouts of America v. James Dale the Supreme Court found for the First Amendment right of expressive association. In this case, James Dale was an exemplary scout who earned the rank of Eagle. As a young adult in college, he publicly revealed his homosexuality and his advocacy that youngsters should have gay role models. The Monmouth Council of the Boy Scouts denied him sanction to become a adult scout leader. The New Jersey Supreme Court was convinced that this policy ran afoul of non-discriminatory public accommodation laws and found in favor of Dale. The New Jersey Supreme Court argued that the "the reinstatement of Dale does not compel Boy Scouts to express any message" and Dale?s exclusion was therefore not protected expressive association on the part of the Boys Scouts. In a close decision, the US Supreme Court ruled in favor of the Boy Scouts.

Writing for the majority, Chief Justice Rehnquist affirmed the important principle, that "the forced inclusion of an unwanted person in a group infringes the group?s freedom of expressive association if the presence of that person affects in a significant way the group?s ability to advocate public or private viewpoints."

Disputing the reasoning of the New Jersey Supreme Court, the US Supreme Court found that Boys Scouts exclusion of gay leaders to be expressive of their views of homosexuality. Rehnquist writes,

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