Fall 1999, Vol. 2, No. 3

Contents Page,
Vol. 2, No. 3


Quick Links
to other articles
in this issue:
From the Editor: The BVM at the BMA

Why Smash the Falun Gong?

Vouchers Move to Center Stage

Spiritual Victimology

The Kansas Compromise

Those Revolting Greeks

Covering Israel's Religion Wars



Discriminating Bodies

by Marc Stern

Miss_America_GIF.gif (5666 bytes)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 Jersey’s 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 organization’s 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 state’s 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 court’s 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 Court’s 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 one’s 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. Patrick’s 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 moral vision.

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 person’s 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 court’s 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 vision.

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 case’s 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 paper’s simplistic editorial, praising the court’s decision.

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 nation’s public communal life be stricken of religiously based morality in the name of equality? That is an issue of overarching importance.

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 now.