Gay & Lesbian Community
Queering the Scouts
By Michael Bronski
This was a right-wing nightmare that rivaled the image of Barbara Bush and Nancy Reagan announcing that they are lovers on National Coming Out Day, or Kenneth Starr excusing
himself as Special Prosecutor because he had walked that mile in Monica's kneepads. This may have been even worse. This was about those iconographic models of young American manhood, those paragons of preparedness and patriarchy: the Boy Scouts.
On March 2, 1998 the New Jersey Appellate Court ruled that the Boy Scouts of America (BSA) violated the state's anti-discrimination law by ousting
James Dale — a highly commended Eagle Scout with 11 years of scouting and 30 merit badges behind him — from the organization in 1990 after his name appeared in a newspaper as co-chair of the Lesbian/Gay Alliance of Rutgers University. The three judge decision overturned a 1995 ruling by NJ District Court Judge Patrick J. McGann that upheld the BSA's decision to terminate Dale's relationship with the Scouts, claiming that "[t]here is absolutely no evidence before us, empirical
or otherwise, supporting the conclusion that a gay Scoutmaster, solely because he is homosexual, does not possess the strength of character necessarily to properly care for, or to impart BSA's humanitarian ideals to young boys." They also stated that, because the BSA recruits members nationwide and because they meet in public spaces such as schools and churches they were, like hotels or restaurants, public accommodations and subject to the state's anti-discrimination laws. Needless to
say, the BSA is appealing the decision.
The high of the New Jersey victory was dampened just 20 days later when the California Supreme Court ruled that the Boy Scouts of America can exclude homosexuals, agnostics, and atheists from their ranks because they are a private membership group which is not covered by the state's civil rights or anti-discrimination laws. The decisions were in two
separate cases. Timothy Curran had brought suit, claiming that he had been unlawfully rejected as a teenager by the Scouts in 1981 when his Scoutmaster discovered he was gay. The second California suit was brought by Michael and William Randall who were barred from an Orange County Cub Scout den in 1990 when — at the age of nine — they refused to declare a belief in God.
One of the
central legal questions in all of the cases revolved around the status of the Boy Scouts of America as a private membership group who has the right to exclude boys who do not fit their criteria. The California Supreme Court's unanimous decision was that the BSA was a private business with the right to restrict membership. This was a new direction for the State's Supreme Court that in the recent past had ruled that Boys Clubs and a private country club were, in fact, business establishments
because their buildings and programs were open to the public. This new direction was made clear in separate opinions by two Justices who stated that they would advise the Court to overrule its earlier decisions about the Boys Club and country club and to narrow the definition of "business establishments," and by extension the ability of people to use anti-discrimination law and civil rights law to seek redress under the rubric of "public accommodation."
In this sense, the Court's pro-BSA ruling is in line with the whittling away at statutes and judicial decisions that cover such issues as affirmation action and laws that protect legal immigrants — thus implementing a vision of a more privatized, restricting society that would allow (under the guise of a broadly interpreted "freedom of association" argument) personal preference and prejudice to
take precedence over a more open vision of equal rights and accessibility. (Interestingly, the rulings made a point of mentioning that while California civil rights law did not cover the Scouts' membership policies, the BSA was not "free to exclude boys from membership on the basis of race, or other constitutionally suspect grounds, with impunity," since other laws, including Federal tax laws granting tax-exempt status, would apply.)
In contrast, the New Jersey Appellate Court argued that because the Boy Scouts have over 5 million members nationwide (and over 90 million members since it was formed in 1910), routinely use public buildings such as schools and churches, and aggressively recruit membership with television and radio PSAs that they can be defined as a public accommodation. Citing New Jersey case law — much of it from the mid-1960s
when racial discrimination was being successfully challenged in a wide range of venues, the Appellate Court found no reason why the BSA should fall into the category of a "private club or business."
The BSA responded that its membership practices and policies do not "reflect an open and unrestricted invitation to the community at large to join "the organization," and
that membership is "redistricted to those willing and able to understand and live by the Scout Oath and Scout Law." They also pointed to BSA policies that explicitly deny open homosexual membership in the Scouts. A 1978 policy statement that was not made public, but was addressed to executive committee members, stated that, "an individual who declares himself to be a homosexual would not be selected to be a volunteer scout leader, be registered as a unit member, or be employed
as a professional or non-professional."
A 1993 Position Statement stated: "The Boy Scouts of America does not ask prospective members about their sexual preference, nor do we check on the sexual orientation of boys who are already Scouts. The reality is that Scouting serves children who have no knowledge of, or interest in, sexual preference. We allow youth to love as children and
enjoy Scouting and its diversity without emerging them in the politics of the day." But, they added: "The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. We do not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA."
These arguments were essentially moot once the NJ Appellate Court had decided that the BSA was a public accommodation, but the judges addressed them as well. The Boy Scouts of America were arguing that they were being denied their "freedom of expressive association" by not being able to discriminate against homosexuals; that their essential moral and social message would be sullied or diminished because of
the presence of gay boys and men. Aside from the Position Statement, the BSA noted that, according to their oath, Scouts had to be "morally straight" and "clean" — both of which were incompatible with being a homosexual.
The tone of the Appellate Court's rejoinder was both patient and startling sharp. Noting again that with a national membership of over five million,
the BSA was hardly espousing one social or moral message. Further they claimed that since it is an "undisputed fact that the BSA's collective 'expressive purpose' is not to condemn homosexuality [and] its reason to be is not to provide a public forum for its members to espouse the benefits of heterosexuality and the 'evils' of the homosexual lifestyle" their "freedom of expressive association" was not being hindered. In fact, they claimed, the general moral precepts of the
Scouting movement — honesty, truthfulness, leadership, integrity — are "in many respects compatible with the purposes sought to be achieved by the LAD" (New Jersey's anti-discrimination law).
When addressing the anti-gay Position Statement, the court was downright hostile. Because the Statement was drafted in 1993 — amid a flurry of suits against the BSA by
homosexuals — they claimed that "it is not unrealistic to view these Position Statements as a litigation stance taken by the BSA rather then an expression of a fundamental belief concerning its purpose." After accusing the BSA of easily exposed moral posturing, the Appellate Court then went after the earlier decision by Judge Patrick J. McGann, in which he argued that James Dale was an "active sodomite" (even though he also admitted that since New Jersey had no
sodomy law, this was a legal activity) and "cited the Judeo-Christian tradition condemning sodomy as a 'grave serious wrong'." It was — in McGann's logic — this "wrong" that rendered James Dale not "clean" and certainly not "morally straight." Through a legal and linguistic slight of hand the Appellate Court claimed that Dale was kicked out of the Scouts because he was "an avowed homosexual" not because he was an "active
sodomite" and that homosexuality per se was, in essence, morally neutral and not in variance with the Scouts moral precepts.
It is at this point that the New Jersey Appellate Court decision becomes a startling legal and social document. The decision is not only a necessary and bold retort to the blatant discrimination of the BSA and a direct challenge to the pervasive homophobia that is
entrenched in everyday life, but it is a radical revision of how homosexuality, manliness, and morality are conceptualized. It is a decision that, while argued in clearly delineated legal terms, carries with it much broader implications.
But these implications (as well as the Court decision) are overshadowed by a basic irony: Lord Robert Baden-Powell, the founder of the Scouts, was a
homosexual and a pedophile. Tom Jeal's The Boy-Man, a 1990 biography, details Baden-Powell's attraction to, and likely affairs with, teenage boys, as well as his fondness for nude boy photos and requirements that Scouts in his care should bathe outside naked. Today Baden-Powell would have made the top ten on a Sex Offenders Registry list.
But Baden-Powell's homosexuality is a
superficial irony compared to the fact that despite what the New Jersey Supreme Court declares, the Boy Scouts of America are essentially correct: homosexuality is completely incompatible with the history, meaning, and intent of Scouting as it has been understood until now. How could it be otherwise? As conceived of and organized by Lord Baden-Powell in 1907, Scouting's mission was to make boys moral, patriotic, and healthy. Beneath the more benign rhetoric exhorting Scouts to "help
others," "tell the truth," and "be kind to animals," Baden-Powell's Scouting principles focused on obedience to authority, doing your "duty to God and Country," and "being pure in thought, word, and deed." Scouting — which Baden-Powell referred to as a "character factory" — was a regiment to inculcate a deeply conservative, secular Christianity that espoused a defensive nationalism, racial intolerance, and sexual prohibitions.
Scouting would turn out real men who would maintain the status-quo, and not challenge prevailing social standards. When World War I erupted Scouting was seen as the breeding ground of good soldiers.
As World War II began Baden-Powell's repulsive political and racial attitudes, which inform the history of Scouting but are clearly separate from it as well, became even more evident. In 1937
Baden-Powell was eager for the scouting movement to establish official ties with Hitler youth groups. In 1939 he noted in his diary: "Lay up all day. Read Mein Kampf. A wonderful book, with good ideas on education, health, propaganda, organization etc. — and ideals which Hitler does not practice himself."
While the Boy Scouts today are certainly not a neo-Nazi group, nor
as paramilitary as they were in the past, many of Baden-Powell's original ideas still remain — especially those that inform how "real men" are made in the character factory. The Scout's "duty to God" is defined, even now, by the most narrow of moralities. (Although in California it is determinate to BSA membership.) The injunction to be "pure in thought, word, and deed" reflected its founders repressive views of sexuality (including an obsession with
stopping masturbation among Scouts) and allowed only reproductive heterosexual intercourse within marriage.
Such views are still at the heart of the BSA's stand against homosexuality. In their 1990 letter expelling Dale from the organization they claimed he had "violated a provision of the Scout oath to remain 'morally straight' and a mandate under Scout law that members remain
'clean'." Simply put, the Boy Scouts are about manufacturing real men, and homosexuals are not "real men" by their definition.
The Court's challenge to the BSA's anti-gay stance is not just about homosexual rights, but is emblematic of a much larger cultural battle over how society defines masculinity. While coached in the legal terms of "public accommodation" and
"discrimination" the Appellate Court's ruling represents a wresting away from the Boy Scouts of their patent on issuing the only "real men" from the character factory. "Morally straight" and "clean" are code words reinforcing stifling traditions of masculinity, traditions accepted by fewer and fewer people.
In conjunction with this bid to redefine
masculinity, the Appellate Court's ruling also contests the ever popular and still prevalent idea that gay men are a menace to children. The Appellate court accuses Judge McGann of unfairly raising "the sinister and unspoken fear that gay scout leaders will somehow cause physical or emotional injury to scouts." They respond that "such assumptions, predicated on stereotypical generalizations, rather than fact, cannot be employed as "shorthand measures" in place of
legitimate factors justifying First Amendment protection. This is the question that hangs over the entire proceedings. The charge of child molestation is intrinsic to how homophobia is constructed in our society, and any challenge to it is welcome and necessary. Ironically, it is a change that has gained more credibility since gay people have been struggling for their basic civil rights, and one which Lord Baden-Powell never had to face in his own lifetime.
In their final paragraphs the Appellate Judges articulate an irony that explodes the BSA's unconscionable hypocrisy: "In our view, there is a patent inconsistency in the notion that a gay Scout leader who keeps his 'secret' hidden may remain in Scouting and the one who adheres to Scout laws by being honest and courageous enough to declare his homosexuality must be expelled." By simply imagining —
presuming — that homosexuality is natural and morally neutral, the New Jersey Appellate Court has radically reordered how the world works: homosexuality is now "clean," children may gain benefit from gay Scoutmasters, and coming out is being honest and truthful.
Baden-Powell's character factory — with its corrupt notion of what it means to be
moral, truthful, and honest — is in the too-slow process of finally shutting down; it is a process that has been going on for years. The BSA's demand to continue to define "real men" is a last ditch effort to hold on to and promote outdated, ugly values. In years to come it will seem — like Baden-Powell's attraction to Hitler Youth and Mein Kampf — simply repulsive.