Discussing the Boy Scout Decision; Listening to Hendrix and PSB; Welcoming Back Richard; Surviving Survivor

The Supreme Court ruled yesterday that the Boy Scouts can exclude an avowed gay scoutmaster. I had recently read a lengthy article in "Rolling Stone" about the case and was hoping the outcome would be positive. The decision is disappointing to say the least.

The good news, I suppose, is that the decision was 5-4 and not a count more lopsided. Also of interest is that Justice Stevens wrote a strongly-worded opinion for the four dissenting justices. There are several quotes worth noting.

James Dale joined BSA as a Cub Scout in 1978, when he was eight years old. Three years later he became a Boy Scout, and he remained a member until his 18th birthday. Along the way, he earned 25 merit badges, was admitted into the prestigious Order of the Arrow, and was awarded the rank of Eagle Scout an honor given to only three percent of all Scouts. In 1989, BSA approved his application to be an Assistant Scoutmaster.

On July 19, 1990, after more than 12 years of active and honored participation, the Boys Scouts sent Dale a letter advising him of the revocation of his membership. The letter stated that membership in BSA "is a privilege" that may be denied "whenever there is a concern that an individual may not meet the high standards of membership which the BSA seeks to provide for American youth." App. 135. Expressing surprise at his sudden expulsion, Dale sent a letter requesting an explanation of the decision. Id., at 136. In response, BSA sent him a second letter stating that the grounds for the decision "are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals." Id., at 137. At that time, no such standard had been publicly expressed by BSA.
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It is clear, then, that nothing in these policy statements supports BSA’s claim. The only policy written before the revocation of Dale’s membership was an equivocal, undisclosed statement that evidences no connection between the group’s discriminatory intentions and its expressive interests. The later policies demonstrate a brief -though ultimately abandoned-attempt to tie BSA’s exclusion to its expression, but other than a single sentence, BSA fails to show that it ever taught Scouts that homosexuality is not "morally straight" or "clean," or that such a view was part of the group’s collective efforts to foster a belief. Furthermore, BSA’s policy statements fail to establish any clear, consistent, and unequivocal position on homosexuality. Nor did BSA have any reason to think Dale’s sexual conduct, as opposed to his orientation, was contrary to the group’s values.
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The majority pretermits this entire analysis. It finds that BSA in fact " ‘teach[es] that homosexual conduct is not morally straight.’ " Ante, at 9. This conclusion, remarkably, rests entirely on statements in BSA’s briefs. See ibid. (citing Brief for Petitioners 39; Reply Brief for Petitioners 5). Moreover, the majority insists that we must "give deference to an association’s assertions regarding the nature of its expression" and "we must also give deference to an association’s view of what would impair its expression." Ante, at 10. So long as the record "contains written evidence" to support a group’s bare assertion, "[w]e need not inquire further." Ante, at 9. Once the organization "asserts" that it engages in particular expression, ibid., "[w]e cannot doubt" the truth of that assertion, ante, at 10.

This is an astounding view of the law. I am unaware of any previous instance in which our analysis of the scope of a constitutional right was determined by looking at what a litigant asserts in his or her brief and inquiring no further. It is even more astonishing in the First Amendment area, because, as the majority itself acknowledges, "we are obligated to independently review the factual record." Ante, at 6. It is an odd form of independent review that consists of deferring entirely to whatever a litigant claims. But the majority insists that our inquiry must be "limited," ante, at 7, because "it is not the role of the courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent." Ante, at 8; see also Brief for Petitioners 25 ("[T]he Constitution protects [BSA’s] ability to control its own message").

It is not my intent to re-hash the case in detail but to point out some of the peculiar logic used by the majority. The last statement quoted above is especially telling. The other evening, I was wondering about the ability of logic to change thinking on issues of sexuality. And again, this reinforces the difficulty.

As before, the Court once again does not know what to do with gay issues. It would prefer to settle such issues based partly on prejudice rather than justice.

Today's musical selections at work were Hendrix's "Electric Ladyland" and Pet Shop Boy's newest work "Nightlife."

I've had Hendrix on vinyl for years but only recently added a cd version. It has been awhile since I've listened to all the cuts, so I need to get re-acquainted with it. Actually, it has been a long time since I've listened to the entire effort. Usually, I just jump to one track and that is it. That one track is a version of Dylan's "All Along the Watchtower." The first 30-45 seconds are among the very best of all rock. Pure, jubilant, kaleidoscopic, electronic pyrotechnics. No matter how many times I listen, I'm transported each time. It may be that Hendrix's guitar is the perfect expressive instrument for Dylan's enigmatic lyrics.

Last week when I started re-listening to PSB's "Very," I thought about the fact that I'd not bought anything since "Very" came out. So on Wednesday of last week, I made a detour to the music store at lunch and picked up "Nightlife". Since "Very" is so very, very good, I was prepared for a letdown. Although "Nightlife" is not up to the sublime standards of "Very," it is nonetheless impressive. One cut caught my attention: "In Denial" is a dialogue between a gay father and his daughter as she attempts to make him realize his denial. As with Hendrix, I need to do some more listening.

Richard formerly of "This Life" has returned to journal writing. Welcome back Richard, your were sorely missed. (No longer available.)

Another episode of "Survivor" has come and gone. The first young white male was booted. However, Dirk was obviously loosing weight and did not look well. I wondered if he had contracted an undiagnosed tropical disease. He almost seemed incoherent at times.

Among the other activities: snake was eaten, spears were thrown, and Sean had much to say about his bowel movements.

PAX!