The Supreme Court took this important case because the Supreme Court of New Jersey had rejected the Boy Scouts’ constitutional claims, holding that the Boy Scouts’ First Amendment freedoms of speech and expressive association were not infringed because the Boy Scouts did not really have a position about homosexual conduct. In an opinion that can only be called Orwellian, the New Jersey court had refused to accept that the Boy Scouts actually believes that homosexual conduct is immoral and therefore incompatible with the virtues the organization seeks to foster. The New Jersey Supreme Court held that “the words ‘morally straight’ and ‘clean’ do not, on their face, express anything about sexuality, much less that homosexuality, in particular, is immoral.”
Of course, anyone who has been involved with the Boy Scouts knows just how absurd the New Jersey Supreme Court’s statement was. Numerous trial courts had recognized the obvious clarity and consistency of the Boy Scouts’ position. Unlike the New Jersey Supreme Court they had actually considered evidence before reaching a factual determination. For example, a California trial court found, in a similar case, “that sexual morality is addressed in the Boy Scout Oath and Law under the rubric of ‘morally straight’ and ‘clean’”; “that the Boy Scouts of America as an organization has taken a consistent position that homosexuality is immoral and incompatible with the Boy Scout Oath and Law”; and that “this is the view that is communicated whenever the issue comes up.”
The New Jersey Supreme Court rested its opinion in part upon the claim, grounded in moral relativism, that the Boy Scouts itself rejects the idea that there is any objective basis on which to make claims about the morality or immorality of homosexual conduct, or anything else, for that matter. According to that court: “Although one of BSA’s stated purposes is to encourage members’ ethical development, BSA does not endorse any specific set of moral beliefs. Instead, ‘moral fitness’ is deemed an individual choice.” The New Jersey court found support for this astonishing conclusion in the following passage from the Boy Scouts’ Scoutmaster Handbook: “Morality . . . concerns the ‘principles of right and wrong’ in our behavior, and ‘what is sanctioned by our conscience or ethical judgment.’”
The New Jersey court’s reading ignores the distinction between “good conscience,” on the one hand (to which the passage clearly refers), and “bad conscience” and “unconscionable” conduct, on the other. The New Jersey court’s reading of the Boy Scouts’ code, therefore, cannot be more wrong, nor more at odds with the idea of virtue regarded by our nation’s founders as a necessary prerequisite of republican government.
For nearly a century the Boy Scouts has been singularly successful in its mission of instilling in young boys a sense of their moral obligations to God, country, and family. Such moral training was thought by the Founders to be essential in a republican form of government. The Declaration of Rights affixed to the beginning of the Virginia Constitution of 1776, for example, provides “that no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” The Massachusetts Constitution of 1780 echoes the sentiment: “The happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality.” And the Pennsylvania Constitution of 1776 went even further, asserting that “laws for the encouragement of virtue, and prevention of vice and immorality, shall be made and constantly kept in force, and provision shall be made for their due execution.”
But perhaps the clearest example of the Founders’ views was penned by James Madison, writing as Publius in the fifty-fifth number of The Federalist: “Republican government presupposes the existence of [virtue] in a higher degree than any other form. Were [people as depraved as some opponents of the Constitution say they are], the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.” In short, the Founders viewed a virtuous citizenry as an essential precondition of republican self-government.
The Founders were also fully cognizant of the fact that virtue must be continually fostered in order for republican institutions, once established, to survive. Most of the leading Founders, therefore, turned their attention at one time or another to education. Perhaps the best example, but by no means the only one, of this sentiment is expressed in the Northwest Ordinance, adopted by the first Congress for the government of the territories: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The Massachusetts Constitution of 1780 contained a similar sentiment: “Wisdom and knowledge, as well as virtue, diffused generally among the body of the people [are] necessary for the preservation of their rights and liberties.”
Moreover, the Founders believed that the task of fostering moral excellence in the citizenry was intimately tied to religion. President George Washington noted in his Farewell Address, for example, that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” Another prominent Founder, Benjamin Rush, of Pennsylvania, was even more stark in his assessment: “Where there is no religion, there will be no morals.”
Today much of the moral education thought so essential by our Founders is no longer provided in the public schools. As a result, the teaching of morality and virtue—thought so necessary to our republican form of government—is left largely to private associations, primarily churches and groups such as the Boy Scouts.
It is fortuitous, then, that the Founders did not rely on public institutions alone to foster a virtuous citizenry, but rather encouraged the development of private associations that, like the Boy Scouts, were devoted to the development of moral character. As Alexis de Tocqueville observed more than a century and a half ago in his insightful work, Democracy in America, “[the intellectual and moral associations in America] are as necessary as the [political and industrial associations] to the American people, perhaps more so.”
The Boy Scouts has always exemplified—and to many still exemplifies—that which is honorable, decent, and right. As the Supreme Court of Kansas recently recognized, the Boy Scouts “tends to conserve the moral, intellectual, and physical life of the coming generation.” The organization seeks to instill in the coming generation a key element of what our Founders thought necessary to republican self-government, namely, the ability for each individual to govern himself morally and to control the baser passions of his human nature.
The Boy Scouts of America, as an institution, believes that homosexuality is wrong, just as it believes that adultery and premarital sex are wrong. It exists, in part, to foster those beliefs among the boys whose parents involve them in scouting and to teach boys respect for family as the cornerstone of civilized society. Its mission in this regard is consistent with the teachings of most major religions and in accord with the law of most civilized peoples throughout history. The Boy Scouts has been immensely successful as an organization in no small measure because it has remained true to the moral teachings that have shaped its purpose from its beginning nearly a century ago. It seeks to instill in the next generation of our citizenry the kind of moral virtue that our Founders thought so essential to the perpetuation of our republican institutions and ultimately our freedom.
The attack on the Boy Scouts is grounded in the claim that their position on homosexuality is nothing but a bigoted, homophobic relic of the past. The cultural elites who launched this assault have essentially redefined our understanding of virtue or, worse, claimed that there is no such thing as virtue. For two centuries, though, the people of this nation and their courts have had little difficulty recognizing the meaning of the term virtue taught by the Boy Scouts, as well as its opposite—at least in nonmarginal cases. Certain actions, for example, have long been held to be malum in se—wrongful in and of themselves. In the 1878 case of Reynolds v. United States, for example, the Supreme Court upheld a congressional prohibition of polygamy in the Utah territory, describing polygamy as an “offence against society.” More recently, in the 1974 court-martial case of Parker v. Levy, Justice Harry Blackmun (ironically, coming from the author of the landmark decision legalizing abortion, Roe v. Wade) wrote that some actions, such as “engaging in sexual acts with a chicken, or window peeping in a trailer park, or cheating while calling bingo numbers’ were so contrary to “fundamental concepts of right and wrong” that they could be punished as “conduct unbecoming an officer and a gentleman” even if they were not specifically prohibited by the Uniform Code of Military Justice. And in the 1991 nude dancing case, Barnes v. Glen Theatre, Inc., the Court held that “Public nudity was considered an act malum in se.” As Justice Antonin Scalia elaborated: “Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy.”
Certainly homosexual conduct has for centuries been included in the list of acts generally deemed malum in se. Indeed, the view that homosexuality is immoral is still supported by criminal prohibitions against sodomy in many states and in the Uniform Code of Military Justice.
While it may be true, as Justice Blackmun further noted in Parker v. Levy, that “relativistic notions of right and wrong, or situation ethics, as some call it, have achieved in recent times a disturbingly high level of prominence in this country . . . as a justification of conduct that persons would normally eschew as immoral and even illegal,” the Supreme Court’s decision demonstrates that we have not yet reached the day when the law is allowed to silence those who think otherwise.
At least for now. Unfortunately, the Supreme Court’s decision in June 2000 has not abated the attack on the Boy Scouts one ounce. From one end of the country to the other, local governments are being lobbied and lawsuits are being filed to bar the Boy Scouts from using public schools and public parks because the organization “discriminates” against homosexuals, or because it “discriminates” against atheists by requiring its members to acknowledge their duty to God. Major corporations and charitable institutions such as the United Way are being encouraged (or pressured) to sever their financial support of the Boy Scouts. All this because the Boy Scouts dares to insist that there is an understanding of moral virtue, shared by our nation’s founders, that is rooted in our God-given human nature and therefore immutable.
Two avenues of response are open to us. We can insist that our public institutions adopt a policy of neutrality toward the Boy Scouts, letting the Boy Scouts have the same access to public schools and public parks that other organizations have. This is, in many ways, the easier response, but it is a response ultimately doomed to fail, for it essentially accepts the moral relativism upon which the assault on the Boy Scouts is grounded. It is a response that makes it impossible for a local school to open its doors to the Boy Scouts without also opening them to gay and lesbian clubs, to neo-Nazi clubs, or to any other organization that would undermine the kind of moral virtue that the Boy Scouts seeks to foster.
Alternatively, we can insist that our public institutions fully embrace organizations such as the Boy Scouts and, more important, the idea of moral virtue that they, and our nation’s founders, champion. This response, of course, requires that we be “judgmental,” even “discriminating,” in our views of acceptable behavior. But to borrow again from Justice Blackmun’s concurring opinion in Parker: “What is at issue here are concepts of ‘right’ and ‘wrong.’” If we truly believe, as Justice Blackmun stated in Parker, that “times have not changed in the area of moral precepts,” that “fundamental concepts of right and wrong are the same now as they [ever] were,” we will choose this latter course. If our nation’s founders were correct in their understanding that only a virtuous people were capable of self-government (and I think they were), nothing less than the perpetuation of our republican institutions and ultimately our freedom is at stake.
The challenge to the Boy Scouts’ vision of morality has several aspects. Is it indeed a public institution that should be bound by civil regulations? Does the money trail of public support obligate it to conform to regulations and laws that may offend its sense of morality? Can it really expect to have the same exemptions granted to churches, which often hold views similar to those of the Scouts? There is good cause to see this organization as a victim of aggressive action to marginalize its moral worldview. There is a very real danger too in invoking some sort of moral superstate ideal. The United States was founded on moral assumptions, but the republic was consciously constructed to keep the state out of the morality issue. How to defend the rights of beleaguered groups like the Scouts and keep the state from acting as moral dictator is the challenge.
John C. Eastman is associate professor, Chapman University School of Law, Orange, California, and director of the Claremont Institute Center for Constitutional Jurisprudence, Claremont, California. Eastman, together with former U.S. attorney general Edwin Meese, filed an amicus curiae brief in the Supreme Court of the United States in support of the Boy Scouts in Boy Scouts v. James Dale, 120 S.C.T. 2446 (2001). Eastman is also an Eagle Scout who began his Scouting career with the Cub Scout pack affiliated with Troop 73, Matawan, New Jersey, the troop at issue in the Dale case.
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