The Boy Scout Decision - Why The US Supreme Court Got It Wrong - The BSA is a Public Accommodation not a Private Organization

5/26/01

By David Perry

On June 29, 2000, the US Supreme Court ruled 5-4 that the Boy Scouts of America may exclude gays from both membership and leadership positions. The fact that it was such a close decision highlights the complexity of the issues and the fine line that is drawn between private organizations and public life.

Although many people have supported the decision--even though they oppose discrimination -- is because the Boy Scouts is a private organization. Most people believe that once an organization is private, it should have the right to establish its own membership requirements, even if you find them deplorable. But in the case of the Boy Scouts, it is not that simple.

The Civil Rights Act of 1964 bans "public accommodations" from discriminating. A public accommodation is any organization that opens itself up to the general public.

So, for example, although a restaurant is private, it may not discriminate because it is a public accommodation. In other key rulings by the US Supreme Court, the 4-H Club, the Boys Clubs, and private country and golf clubs were ruled to be public accommodations and they all lost the right to discriminate.

And so, the question becomes, should the Boy Scouts be considered a public accommodation as so ruled by the New Jersey State Supreme Court? (This court decided that James Dale's constitutional rights had been violated and his case ended up in the US Supreme Court)

To help you answer this question, consider these facts:

The Boy Scouts:
1) Recruit routinely in public schools all over the country
2) Operate troops that are sponsored by public schools, police and fire departments
3) Meet on public property free of charge while other private organizations must pay rent
4) Have been granted a US Congressional charter that makes the US President the honorary chief of the Boy Scouts
5) Are given free ammunition by the military

In addition:
1) Eagle Scouts who join the military start at a higher pay scale than other recruits
2) The United Way, which is a big funder of the Boy Scouts, solicits contributions from public employees at their workplace. (The United Way, by the way, is violating its own policy of nondiscrimination by providing funding to the BSA)

This shows the tremendously high level of government entanglement on the part of the BSA. Private country clubs, the 4H Club and The Boys Clubs had virtually no government entanglement and yet they were ruled to be public accommodations. If other organizations that have a much lower level of government entanglement are considered public accommodations, then surely the
Boy Scouts should be as well.

Here is another reason: Throughout the BSA's 90-year history, it has never behaved like a private, religious organization that should have the right to discriminate. You would think that an organization that wants the right to associate freely would reduce its risks by avoiding government entanglement. In fact, the Boy Scouts would probably never have been sued to begin with if
they had respected the Civil Rights Act and voluntarily removed themselves from the public schools, paid rent to meet on public property just like any other private organization, declined free ammunition from the military, etc.

In other words, the BSA has had it both ways. It has been able to operate as a private organization for purposes of discrimination and as a public entity to achieve all of the advantages outlined above.

No other private, religious organization has this level of access to the public sector. None. And that isn't fair.

The national leaders of the Boy Scouts must make a choice: If they insist on discriminating, then they should do so on private property. They should have the integrity to stop using public facilities and perks to support their principles of exclusion.