NOT FOR THE FIRST TIME, the Boy Scouts of America are under siege. In Orange County, California -- bastion of robust conservatism -- the local Scout council is dealing with the case of the Randall twins. Their father, a lawyer, has reared them atheist, which traditionally is a problem in scouting. At a 1990 Cub Scout meeting, the boys refused to make the Scout promise, which goes as follows: "On my honor I will do my best; To do my duty to God and country and to obey the Scout Law; To help other people at all times; To keep myself physically strong, mentally awake, and morally straight."
After the boys were told that the promise is mandatory for Scouts, the ACLU swooped in, with its refined techniques of subversive argument and shrewd judgeshopping. It found a magistrate willing to say that the oath violated the rights of the twins, as non-believers. How dare the Scouts require a promise to do duty to God (even if it is precisely the purpose of scouting to teach that duty)? The case is now before the California Supreme Court, and a ruling is due not later than April 6. Still, the local judge ordered the Orange County Scout council to grant a "board of review" before that deadline, to test the boys for Eagle Scout (the highest award a Scout can earn). On March 15, the board met and, acting under the judge's decree that the Randalls not be asked about their religious beliefs, was compelled to recommend approval to the Scouts' national council.
One feels for the Randall twins. But we should think too of the parties who are most deeply concerned -- the millions of Scouts who subscribe to the principles of scouting, and the volunteer leaders who make it possible. Ed Laird, chairman of the Orange County Scouts, runs a small business and gives freely of his limited time and money to scouting. He himself took an oath to uphold the purposes of scouting. It offended his conscience to convene a board of review for the Randalls, without reference to God, and he had great difficulty finding people to sit on the board. Yet lawyers told him that, if he didn't make it happen, he could go to jail.
There is other bad news elsewhere. On March 2, a New Jersey appellate court ruled that the Scouts' organization is a "public accommodation" within the meaning of the New Jersey Civil Rights statute. For that reason, the Scouts are required to readmit as a scoutmaster one James Dale, a former Scout who became co-chairman of a homosexual organization while at Rutgers University. When local Scout officials read of Dale's self-outing, they expelled him as a Scout leader. If Dale is sustained later in the New Jersey Supreme Court, then only the good judgment of nine Supreme Court justices will stand between the ACLU and the death of scouting as it has been practiced for almost a century.
The Boy Scouts are a private organization -- old, respected, devoted to the service of others. A general belief in God, as the source of right and the Being to whom we owe ultimate allegiance, is at the heart of the endeavor. The Scouts' view of sex is also central -- it is the moral teaching that sex is meant to be a part of family life. Now, upon pain of imprisonment, people are being forced to abandon these doctrines. This is a type of despotism, and something must be done.
On the legal front, the law of "public accommodation" requires fundamental reform. It is proper that the law forbids a theater or a restaurant to refuse anyone on grounds of race. As John Eastman has written, the common law has held for centuries -- and Blackstone himself acknowledges -- that it is either a civil injury or a crime to deny public accommodation to an individual without good reason. If a state fails to prevent that injury, then it denies equal protection under the law. The Fourteenth Amendment forbids this and prescribes remedies to stop it.
But what is a public accommodation, and what constitutes good reason for refusing service? The Boy Scouts do not hang a sign on their door saying that all may enter. As the name implies, they are first looking for boys, and the separate education of boys and girls is an old, common, and reasonable practice. More specifically, the Scouts are looking for boys who will promise to follow the creed that makes scouting what it is. If a boy will not make that promise, then the Scouts cannot help him. In his own interest -- and in that of other boys who do wish to make the pledge -- he must be excluded. If we subvert that position, we destroy scouting. The Scouts' freedom to be who they are and to perform their good work deserves to be protected.
Then, there is the political front, ultimately the most important. In resisting the influence of judges, we would be hampered by a doctrine -- invented by liberals -- that the Supreme Court is the solitary voice on the Constitution and that whatever the Court says about it is final. But that doctrine is wrong. Congress, the president, and the people have a say, too.
And here is what they should say: It is the rights of the Boy Scouts -- not of the Randall kids or of James Dale -- that are being violated. Each of us has, under the Constitution, the right to associate with whom we please. And the Scouts pursue that right for a high moral and charitable purpose. The Supreme Court itself has said that the right to associate means necessarily the right not to associate, as well. If that right can't be protected here, it is jeopardized everywhere. Indeed, churches themselves could be next. We need not wait for courts to vindicate sacred and constitutional rights. When a state court (or a federal one) fails to protect the rights of its citizens in so essential a matter, the Fourteenth Amendment empowers Congress to require better policy.
So let Congress act. After all, the president signed the Defense of Marriage Act, and maybe he will sign a Defense of the Boy Scouts Act, too. If not, we will have a grand political battle about what the Constitution means, and what our country means. Rep. Charles Canady of Florida is drafting a Scout-protection bill right now. The Boy Scouts need it -- and so, really, do we all.
Larry P. Arnn is president of the Claremont Institute.