Reports of the Boy Scouts’ decision to end the organization’s ban on openly gay adult leaders came with one significant caveat: Religiously chartered groups can still discriminate against gays if they so choose. (This exception isn’t really about religious liberty—church-sponsored groups aren’t themselves religious bodies—but, rather, about appeasing anti-gay troops.) This statement of the Boy Scouts’ policy is certainly accurate, but it’s not necessarily correct on a legal level. By abolishing its prohibition on openly gay leaders and scouts, the organization has likely surrendered its own Supreme Court victory—effectively subjecting troops to LGBTQ nondiscrimination laws.
As the National Review’s Ed Whelan has long asserted, the Boy Scouts’ First Amendment right to ban gay members and leaders rests on a consistent policy of exclusion. In its famous 2000 Dale decision, the Supreme Court found that the Boy Scouts had a First Amendment right of expressive association to exclude gay members. The ruling was based on the Boy Scouts’ purported position that “homosexual conduct is inconsistent with the values it seeks to instill.” (To prove it held this belief, the organization noted that the Scout Oath and Law requires members to be “morally straight” and “clean.”) In order to instill these values, the justices agreed, the Scouts had a right to discriminate against gays.
So long as the Scouts maintained a uniform policy of exclusion, it could use the First Amendment to justify its discrimination. But that rationale is gone now. As Whelan notes, the new policy strongly suggests that, in fact, the Boy Scouts find “homosexual conduct” perfectly consistent with “the values it seeks to instill.” The organization might have been able to avoid this implication by reiterating that it still opposes homosexuality in the abstract. With this latest vote, however, the Scouts have sent a clear message that, as an organization, it holds no particular hostility to homosexuality.
Thus, while the Boy Scouts may think local troops can still discriminate against gay adult leaders, anti-gay troops may quickly run into legal problems. Twenty-one states and the District of Columbia bar anti-gay discrimination in public accommodations. Not all of these states will consider Boy Scout troops to qualify as places of public accommodation and therefore subject to nondiscrimination laws. But some will. And those that do are probably within their rights to order anti-gay troops to stop discriminating against gay leaders.