Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

DOSA, Anyone?

Keith Pavlischek


August 30, 1999

American policy makers and the American public are increasingly looking to faith-based and other non-governmental organizations for solutions to poverty, youth violence, the "character deficit" and other social ills in our society. Many are exploring creative ways to establish "partnerships" between government and these "institutions of civil society" to serve the common good.

The greatest threat to these creative initiatives is the perverse possibility that when these organizations come into contact with government the state will insist it has the right or obligation to determine their internal institutional identity. The most ominous threat is to their right to determine whom they may hire, fire, and place in positions of leadership.

Witness, for example, the recent ruling of an Illinois judge who upheld a fine sanction against the Boy Scouts of America (BSA) for discouraging a job application from a homosexual who worked as a dancer in gay bars. The judge even admitted the bar features "performances and dress that could arguably be viewed as lewd, whether performed in a homosexual or heterosexual context." Still, he concluded the Scouts could not exclude the applicant, citing the New Jersey Supreme Court case, ten days earlier, which made criminals out of the BSA because they excluded James Dale, a leader in the Rutgers University Lesbian/Gay Alliance, from the position of Boy Scout Leader.

You might think that since the Scouts are a private voluntary organization, the First Amendment guarantee of freedom of association would allow them to exclude from leadership those whose lives and beliefs they find morally objectionable. You would be wrong. According to the N.J. Court, the Boy Scouts are not really a private voluntary organization, but something called a "public accommodation." This is legal-speak for any "membership organization" that, among other things, has "ties to government or other public accommodations." They are then subject to the state's Law Against Discrimination, which gives the state a "compelling interest" to "root out discrimination."

So what are the intimate ties with government that make BSA a "public accommodation" and trump their First Amendment guarantee of freedom of association? Well, for one thing, the Department of Defense is authorized to lend to those Scouts who attend Boy Scout Jamborees things such as cots, blankets, and flags. For another, the New Jersey Division of Fish, Game and Wildlife is authorized by the legislature to stock with fish any body of water that is under the control of and for the use of Boy Scouts. For still another, local Scouts are sometimes sponsored by "local governmental agencies," such as fire departments and law enforcement agencies." Finally, there's BSA's "connection to public schools and school-affiliated groups" which, "constitutes its single most beneficial governmental relationship."

For the government to dictate the hiring practices of the Boy Scouts on the basis of these contacts with government is, in effect, to make them an appendage of the state. That, quite simply, is unjust and unconstitutional. It makes a mockery of the Constitutional guarantee of freedom of association. It conflicts with new laws and pending legislative initiatives that encourage cooperation between independent service institutions and government with the conviction that such cooperation most effectively serves the common good. Finally, if not overturned on appeal or countered by congressional legislation, it will stand as a sword over the head of all non-governmental service organizations.

Congress should take the opportunity as soon as possible to clarify the central issue: true partnership with government should not require the surrender of institutional identity, independence, and the freedom of association. A "Defense of Scouting Act," anyone?

—Keith J. Pavlischek, Fellow
   Center for Public Justice

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”