by Marc Stern
This year the Miss America contest found itself embroiled in
controversy. Could it or could it not enforce long-standing pageant rules restricting
eligibility to young women who had never had an abortion and never been married. The legal
question was whether New Jerseys statutes banning discrimination in places of public
accommodation overrode the rules of the Atlantic City-based pageant-rules firmly rooted in
conventional sexual morality.
The New York Times, which rarely devotes much attention to the Miss America
pageant, was apoplectic: "What really interests us about the issue is the psychology
underlying the attempt to preserve retrograde attitudes. It is doubtful that the 300,000
citizens who work in state and local pageants really think virginity is as common as it
used to be. What animates the local pageants is not analysis of the real world, but
nostalgia for a fictionalized American past. In reality, that small-town past was never as
regimentedly virtuous as it appeared, but its unblemished myth is still a powerful force
in American life. Ronald Reagan built a political career and Walt Disney a movie studio on
the foundation of similar nostalgias about prelapsarian America."
Leave aside the fact that pregnancy and loss of virginity are no longer inexorably
related -- birth control long ago saw to that -- and that the pageant did not seek a
pledge that participants were virgins. What so irritated the Times was the fact
that the old rules were "hurtful and discriminatory," that is, that they
excluded those who, faced with an unwanted pregnancy, had decided that abortion was a
morally acceptable alternative.
Well, yes, the rules were discriminatory. Moral rules always are. The question the Times
refused to grapple with -- indeed, refused to even acknowledge -- was whether a private
organization is entitled to enforce moral rules to the point of excluding otherwise
qualified persons, or whether an organizations entry into the public sphere requires
abandonment of exclusionary rules of sexual morality.
The Miss America pageant was not acting capriciously when it considered dropping its
ban on contestants who have had abortions. Just weeks before, the New Jersey Supreme Court
had issued a strongly worded opinion holding that the Boy Scouts could not exclude a gay
scoutmaster because in the Scouts view homosexual conduct is, per se, immoral.
Relying on the states anti-discrimination law, the Court found in a case captioned Dale
v. Boy Scouts of America that the exclusion was a manifestation of crude bigotry, and
legally intolerable. Brushed aside by the court was the Scouts claim that the
courts decision impinged on its right, and the right of its members, to associate
for purposes of furthering its own moral vision. Predictably, the Times also
editorialized in favor of the Courts decision, deriding any claim that it denied to
the Scouts the freedom to associate.
The Times editorial page was not alone in reducing the Boy Scouts policy
to a simple question of bias. Most large city newspapers had the same reaction. (Indeed,
news stories about the case were slanted in the same direction.) Some editorials
accurately noted that the plaintiff was in all respects other than his sexual orientation
a model Scout, and that it was Scouting that would be the poorer for his exclusion. Some
argued that the participation of a homosexual scout with a distinguished scouting record
would teach scouts how irrational anti-gay prejudice was. Most of the editorials
supporting the decision failed to note the costs of insisting on lowest-common-denominator
morality in the name of ending discrimination.
To be sure, the argument that quasi-public institutions such as the Boy Scouts should
not be permitted to practice "invidious discrimination" has substantial weight.
It was not so long ago that some of those opposed to ending de jure racial
segregation argued in moral terms against civil rights laws -- some invoking the Bible
(as, of course, do opponents of equal rights for gays) and others invoking the right to
freely choose ones associates. No one today contends that the Boy Scouts should be
allowed to exclude blacks or Hispanics from membership. Freedom of association is as
plausible a defense in the racial context as it is in the context of anti-gay
discrimination. If we are unprepared to accept it the racial context, why should society
accept it with regard to gays? Moreover, it is plainly true that the enforced mixing of
the races has done much to destroy harmful racial stereotypes. Would not requiring the
Scouts to accept gay scout masters help do the same for gays?
But as columnists, letter writers, and some editorial pages typically in smaller-market
newspapers were quick to point out, this is only half the argument. The right to associate
also includes, necessarily, a right not to associate. Thus the Tampa Tribune:
"It is a distressing development in a country that seems intent on compromising or
punishing any secular organization that dares to make a moral judgment ... The Boy Scouts
were invented to instruct youths in wholesome practices and very definite beliefs. The New
Jersey court demonstrated again the invasive injustice that occurs when iconoclastic
modernists don those black robes."
These claims, too, have a basis in law. The Supreme Court has recognized that
organizers of the St. Patricks Day parade in Boston did not have to allow Irish gay
groups to march when the purpose of their participation was to express disagreement with
the organizers view on homosexuality. A Maryland federal court rebuffed a claim by a
local NAACP chapter that a Klan march along a public street should be required to be open
to members of all races. And Minster Louis Farrakhan of the Nation of Islam has been
permitted to hold men-only (and, allegedly, blacks-only) rallies. In the mirror image of
their editorial opposites, those editorials supporting the Scouts gave scant attention to
the importance of the nondiscrimination principle.
The Boy Scouts no-gays rule was an attempt to enforce a moral standard,
traditional in Judeo-Christian culture. It is a standard understood to be immoral
precisely because God said so. This surely is the evident meaning of several biblical
passages. On this moral understanding, it was of little moment that in other respects the
scoutmaster was a model citizen.
Of course, no American can be forced by government to accept the Bible as authoritative
on moral matters. One also could, as many religious leaders have, explain away these
biblical passages as being outdated, or as referring to cultic male prostitution rather
than stable, consensual, homosexual relationships. It is also probably true that very few,
if any, governmental forms of discrimination against gays are sustainable. The legal
question, though, is not whether government can discriminate, but whether it may
prevent a large, private, not-for-profit organization from doing so in pursuit of its own
The New Jersey Supreme Court thought that the answer was no for several reasons. First
-- and the news stories mostly focused on this claim -- the trial judge had found that
allowing gay scoutmasters would increase the risk of sexual abuse of children. There was
no evidence that this was true, the record of heterosexual scoutmasters certainly not
being without blemish in this regard; and the Scouts had taken other precautions against
pedophilia. The Scouts case rested not on this stereotypical view, however, but on
the very different claim that it was entitled to act on its moral vision that
homosexuality itself is immoral.
The court and supportive editorial writers responded to this with the irrelevant
argument that the particular scout involved had an otherwise exemplary moral record and
was without question an exemplary citizen. The precise point at issue, though, was whether
homosexuality was immoral according to the Scouts, as they construed their moral code, not
whether an editorial writer thought that sexual preference was an improper basis for
evaluating a persons moral stature, or whether the New Jersey Supreme Court agreed
with the Scouts moral code. The U.S. Supreme Court has insisted that under the First
Amendment it is not for public officials to decide what shall be orthodox in matters of
belief or morals.
The New Jersey Supreme Court also insisted that the Scouts had no
freedom-of-association claim because the Scouts had not made a public enough point about
their opposition to homosexuality. It appears from parts of the courts opinion as if
the Scouts might have prevailed if they had conducted a long-term, public, and loud
campaign against homosexuality and homosexual scouts. As Terrence Pell of the Center for
Individual Rights pointed out in a Washington Post op-ed piece, this was a
perverse requirement from a court concerned with tolerance, although it may well be a
concession required by U.S. Supreme Court decisions. The existence of such a campaign
would in any event not persuade those who think that no quasi-public organization ought to
exclude citizens from participation, based on private sexual activity.
A second ground offered by the court for rejecting the Scouts
freedom-of-association claim was that the Scouts are not a small, private group, with
strict entrance standards, but a group that appeals to all boys. The right to associate
and hence to exclude, it ruled, was not available to nonexclusive groups. It is true that
there is precedent for such a limitation, but only in cases where the group had no
plausible ideological claim -- not the case here.
There is, no doubt, greater harm to the equal dignity of citizens when large
associations of citizens practice discrimination. But it is also true that the rule
adopted by the New Jersey Supreme Court has the effect of relegating traditional moral
rules to isolated corners of society. Success in organization would undermine the ability
of groups espousing traditional views of sexual morality to enforce their own moral
The Boy Scouts have promised an appeal to the U.S. Supreme Court, and by mid-January it
should be known whether the court will take up this important case. One can only hope that
next time the press coverage will present a more rounded picture of the arguments.
In fact, almost every argument presented here can be found in one or another newspaper.
But almost without exception, each paper favored one or the other side, and restricted
itself to the arguments that suited its advocacy; anyone who did not take the trouble to
read a wide range of papers was likely to miss the cases complexities. A rare and
praiseworthy exception was the Arizona Republic, which wrote a brief editorial
outlining both sides of the issue, and solicited opinions from readers. Another
praiseworthy exception was a thoughtful and balanced column by James Ahearn of the Bergen Record,
a column far more thoughtful than the papers simplistic editorial, praising the
The problem is not just that a particular lawsuit is oversimplified in the name of one
or the other form of political correctness. The question of whether quasi-public
institutions like the Boy Scouts ought to be permitted to implement moral visions that are
necessarily exclusionary has implications far beyond this one case. Can the Boy Scouts
exclude those who do not believe in God? The reasoning of the New Jersey Supreme Court
would indicate that they may not (since to do so is religiously exclusionary, and one can
be a "moral" citizen and be an atheist), although several other courts have
resisted that conclusion.
Can a drug rehabilitation program that uses religion as a center of its therapeutic
program exclude non-Christians? Curiously, only weeks after the widely covered Boy Scouts
case, a New Jersey intermediate appellate court, relying on that decision, held that it
could -- but that decision received no coverage in the press other than one matter-of-fact
story in the Newark Star Ledger, and generated no editorial comment. The clash
between nondiscrimination principles and traditional rules of sexual morality will have
increased salience if, as both Vice President Gore and Governor Bush have promised,
government delivers more social services through sectarian providers at the same time as
they promise to protect the religious independence of the providers.
More broadly, the issue of whether private morality may be given public rein has been a
major issue in debates over the extent to which religious practice should be protected
from government regulation. Should there be recognition of a right of small landlords to
refuse to rent to cohabiting or gay couples because they do not wish to facilitate sin? Or
is it the case that by entering the public marketplace one must yield private religious
beliefs if these adversely affect others? Must the nations public communal life be
stricken of religiously based morality in the name of equality? That is an issue of
How much private moralizing is consistent with the fundamental equality that is
essential to the public weal? Are efforts to outlaw public implementation of restrictive
notions of sexual morality thinly disguised governmental efforts to suppress these moral
ideas themselves? The New York Times editorials cited above suggest so. But is
discrimination based on sexual morality substantially different from, say, discrimination
against Jews premised on the argument that no moral person could refuse to accept the
lordship of Jesus Christ?
None of these questions lends itself to ready answers, except to true believers of one
sort or the other. What has been missing in the opinion writing is sufficient balance to
indicate that the issues are difficult.
What would a balanced editorial look like? It would acknowledge that the Scouts
case calls two important liberties into conflict, and suggest that the strength of a
freedom-of-association claim will likely vary depending on the nature of the organization
asserting it -- the claims of religious and other strongly ideological organizations being
the strongest, the claims of nonideological social groups (other than very small ones)
being the weakest. The Boy Scouts fall somewhere in between and it could fairly be argued
that they might be ascribed a place on either side of the line.
Whatever its conclusion, an editorial adopting such an approach would avoid the
unhelpful good guys/bad guys treatment that has characterized most press reaction until