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On Wednesday, the Supreme Court, by the narrowest of margins, handed the Boy Scouts of America an important victory, upholding the organization's right to exclude an openly homosexual man from a position as an adult leader of the organization.
Much more was at stake than simply the right of this particular private association to define its membership and choose its leaders, however. The rights that the New Jersey Supreme Court sought to abolish in the decision that was reversed yesterday — freedom of speech and freedom of association — are rights that should be viewed as precious to all freedom-loving Americans.
Inherent in the freedom of speech, and also in the parallel First Amendment protection of the right peaceably to assemble and petition the government for the redress of grievances, is the right to associate with others of like mind in order to magnify one's views. And there is perhaps no more fundamental tenet of the freedom of association than the right of the association itself to determine who shall be admitted to membership.
During debate in the convention that gave us our Constitution, for example, Gouverneur Morris noted that "every Society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted."
As the Supreme Court has recognized, "there can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire." "Freedom of association . . . plainly presupposes a freedom not to associate." This is especially important in the context of associations that seek to foster moral virtue in young people.
For nearly a century, the Boy Scouts has successfully instilled in young men a keen sense of moral virtue. It has taught generations of boys to honor their duty to God, to country and to family, a duty that refuses to countenance the currently fashionable view that homosexual conduct is just another legitimate lifestyle choice.
Instead, The Boy Scouts inculcates in young men certain virtues such as honesty, frugality, and reverence. The Scouts teaches the importance of being "morally straight," which includes the long-established view that extramarital sexual relations and homosexual conduct are immoral.
Our Founders viewed such moral training as essential in a republican form of government. The Declaration of Rights affixed to the beginning of the Virginia Constitution of 1776, for example, provides "[t]hat no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles."
The Massachusetts Constitution of 1780 echoes the sentiment: "[T]he happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality."
Perhaps the clearest example of the Founders' views was penned by James Madison, writing as Publius in the 55th number of The Federalist Papers: "Republican government presupposes the existence of [virtue] in a higher degree than any other form. Were [people as depraved as some opponents of the Constitution say they are,] the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another."
In short, the Founders viewed a virtuous citizenry as an essential pre-condition of republican self-government, and they encouraged the development of private associations that, like the Boy Scouts, were devoted to the development of moral character.
The New Jersey Supreme Court had ordered the Boy Scouts to reinstate an openly gay adult as an Assistant Scoutmaster, undermining the organization's mission and forcing the organization to convey a message about the morality of homosexual conduct that is fundamentally at odds with the message the Boy Scouts has long conveyed. It did so by ignoring clear precedent by the United States Supreme Court, precedent interpreting the First Amendment's protection of the Freedom of Speech and Assembly as protecting the right of private associations to define their membership and message.
In order to avoid that compelling precedent, the New Jersey Supreme Court took political correctness to new heights, effectively telling the Boy Scouts not just what the group ought to think about the immorality of homosexual conduct, but deciding for itself that the Boy Scouts really did not believe that homosexual conduct was immoral, the Boy Scouts own statements on the subject notwithstanding.
Such an abuse of power by governmental officials is a danger to the freedom of us all, and was rightfully repudiated by the United States Supreme Court. The only real surprise is that the vote in favor of the Boy Scouts was only 5-4.
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