Why Boy Scouts of America is allowed to discriminate: Comparing US and Canadian human rights laws
Jul 23, 2012

Why Boy Scouts of America is allowed to discriminate: Comparing US and Canadian human rights laws

I recently expressed outrage over the Boy Scouts of America's decision to continue banning members who were LGBT or atheists/agnostics. Ideally, groups like BSoA would be able to figure out for themselves that this homophobic and discriminatory policy is not acceptable. But there is also a legal question as to how it is that such discrimination is even allowed to continue in the United States while it would not be in Canada.

In 2000, the Supreme Court ruled that Boy Scouts of America could continue its practice even in states like New Jersey that have specific laws against discrimination based on sexual orientation. The decision was a classic 5/4 conservative/liberal split in the Rehnquist court. Unfortunately, I agree, from a constitutional analysis perspective, with the majority opinion which asserts that people have a constitutional right to free speech and assembly (ergo a right to lack of assembly) and that allowing homosexual members would infringe on their ability to maintain anti-homosexual speech and assembly. A homosexual leader and a heterosexual leader certainly do send a different message if one is aiming to instil an anti-homosexual value. The dissent's main point was that anti-homosexual speech was not core to the mission and values of the Boy Scouts of America as it was not part of the oath and the like. However, as the majority opinion notes, it is not up to the Supreme Court to decide on what the organization is or is not saying or how much they prioritize it. If they take an official position - as they have - then that constitutes speech which is protected by the first amendment.

As much as I despise it, this majority opinion was the correct legal reading of the US constitution. The problem is that the constitution itself does not have sufficient protections against discrimination. What was not referenced in the case was the equal protection clause in the fourteenth amendment that has been used to overturn government discrimination such as the infamous Brown v. Board of Education which desegregated schools. It has no relevance to a private group like the Boy Scouts of America and the US constitution simply does not have protections against discrimination by private entities.

In Canada, the Equality Rights section of the Canadian Charter, while not explicitly enumerating sexual orientation, has been interpreted to include sexual orientation as an analogous right. This is what led to the Supreme Court decisions to overturn marriage discrimination laws in most provinces before Ottawa passed it into law nationally. However, the Charter provisions, like the Equal Protection Clause in the US Constitution, are restrictions on government, not private organizations of individuals. A government could not expect a law to be upheld that discriminated on the basis of either the enumerated or analogous rights, but this doesn't get at private entities.

So how is discrimination on behalf of private entities dealt with in the US and Canada? These have been (partially) addressed by acts passed by legislatures. In the US, for instance, there is the infamous Civil Rights Act, Equal Pay Act, Age Discrimination Act, and the like which explicitly prevent discrimination from employers on employees in the workplace. However, there is no overarching law which bans discrimination in general, or a specific list of types of discrimination, from any possible organization. This is the fundamental reason why men only golf clubs, straight only Boy Scouts of America, and the like are acceptable.

In Canada, we have a much beefier system to deal with discrimination in the Canada Human Rights Act, passed by parliament in 1977. This sets up a special quasi-court system called the Human Rights Council and Human Rights Tribunal to investigate, ameliorate, and adjudicate discrimination cases. In this, sexual orientation is one of the explicitly enumerated ways that discrimination is not allowed to occur (there are no analogous rights here, just enumerated ones). The result of this is a method with a wide scope capable of dealing with human rights violations and discrimination through a separate legal system and has been, along with provincial bills, largely a success.

There is, admittedly, a question of balance. If we are going to maintain two separate principles - firstly, that people should be free to speak and associate as they will; secondly, that egregious harm from discrimination should not be allowed - there will be situations where there is a tension between these two principles. Even if you disagree with me that in the Boy Scouts of America case the harm from the discrimination vastly outweighs the harm from restricting Boy Scouts of America's freedom of speech and association, we can concoct some situation where the balance is difficult to determine. For me, hate speech laws are a more difficult balance and I think it can be argued that Canada goes too far on its hate speech legislation that gets into a dangerous undercutting of freedom of speech. What has been done, however, is to put one of these two principles, the freedom one, on a much higher pedestal, such that this question of balance cannot be determined by society acting through their politicians, but by the fiat of the court.

One of the ways the 2000 ruling is so pernicious is that it is limiting states rights. While I typically lean towards greater federal power as, say, gay marriage being banned in even one state is wrong, there can be an alliance here with conservatives who believe in a limited federal government that allows states to be social experiments each trying to find the best solutions to our problems. Someone supporting states rights ought to support the idea that an individual state like New Jersey should be allowed to implement anti-discrimination laws in its own state and not have it overturned by the courts. If it works and is desirable, it can be copied in other states, and if it isn't then it won't be. If the constitution is not going to provide the anti-discrimination conditions on its own, it needs to get out of the way of states who try to do just that.

I will note that I don't necessarily think that enumerating a list of specific forms of discrimination is beneficial. In the Canadian Human Rights Act, for instance, there is not the broader terms of the Charter and only the enumerated types of discrimination can be considered by the Act. As long as we are enumerating things, absolutely sexual orientation (and, for that matter, gender identity not just gender) should be included. However, enumerating such lists is both immediately exclusionary of others types of discrimination not on the list, and, if accompanied by a general clause as in the Charter, is unnecessary. I have written previously, for instance, about why an explicit ennumeration for the freedom of religion is not to be desired.

It is usually best not to have outcome based thinking. Respective legal systems should be judged on their a priori merits and not how they turn out for a specific case. However, I feel that such an egregious example of harmful discrimination can be a litmus test to measure the efficacy of a legal system and in this case the US one is demonstrably broken. The balance between freedom and anti-discrimination has been tilted too far in the favour of the former, and in this case it is to the very significant detriment of LGBT youth.

Thoughts on this post? Comment below!

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Skinny Dipper said...

Canada does have strong human rights acts. However, the Charter of Rights is meant to deal with violations by governments. It, alone, does not deal with rights violations by private entities. Canada and the provinces' human rights acts deal with matters by both public and private entities.

Skinny Dipper said...

Last night, I listened to Jon Stewart make a joke that the Boy Scouts of America officially opposes gay leaders even though it is one of the most gayest organizations around. He made a reference to a fashion accessory, the neckerchief. Who wears them? He implied gays. Who reads a 1950's Boys Life magazine with a studdly (my word) boy scout (he did look like a man) water skiing?

Personally, I would agree with Jon Stewart that the Boy Scouts of America and its Canadian equivalent are among the "gayest" organizations around. I don't mean that they are full of open or closeted gays. Far from it. Their members probably resemble the general population in terms of sexual orientation. Aside from worshipping the founder of scouting, a closeted repressed gay man named Lord Baden-Powell, the youth and adult members of scouting seem to represent those on the lower or middle of the social-pecking order ladder. In terms of the youth members, they don't represent the "super cool" kids. The Boy Scouts of America and its Canadian equivalent are closeted organizations in that cool kids are not in scouts. The less than cool kids in scouts don't talk about scouting with their non-scouting friends. The adults are leaders in scouting even though very few hold leadership positions within their work places. Unless one is with their packs or troops, who in their right mind would wear a scout uniform in public? That is so "gay." This is just a explanation of the rough parallels between "closeted" scouts and gays. Both serve great purposes within society while they both can be socially riduculed in public. Think of the animated movie, Up. The boy scout is a social nerd/geek.

Skinny Dipper said...

Note: Scouts Canada does accept gays as leaders.

janel raelyn said...

I enjoyed reading your post. About gays and boys scout.

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