When judges go crazy over gay Boy Scouts

Principles of interpretative constitutionalism and judicial activism

Mark Steyn
Daily Telegraph
30 June 2000 E-Mail this page to a friend

THE United States Supreme Court wrapped up its term this week with a bundle of rulings on everything from gay Boy Scouts to partial-birth abortion, and raised many interesting questions. Among them: how crazy do you have to be to be a Supreme Court justice?

The gay case arose after a New Jersey scoutmaster was sacked for being openly homosexual, and the question for the court was really whether the Scouts were a private organisation or a public body. The New Jersey Supreme Court ruled that, like restaurants, the Boy Scouts are a "public accommodation", which, curiously enough, is exactly how my own frisky scoutmaster and his wandering woggle used to look on me.

But that was then and this is now. North of the border, they have just recognised the planet's first openly gay Scout troop - who donned their rainbow neckerchiefs and marched in Toronto's Gay Pride parade the other day. (Feel free to insert your own jokes about Merit Badges for Camping at
the only way to avoid being sued by gays is to be more virulently anti-gay
this point.) In such a world, there seemed little point in the Jersey Scouts contesting the case on the quaint grounds that homosexuality is incompatible with the injunction to be "morally straight", as laid out by Lord Baden-Powell.

And yet, amazingly, the Scouts won: the Supreme Court ruled 5-4 that to force them to accept gay scoutmasters would violate their right to freedom of expressive association. In his dissenting opinion, however, Justice John Paul Stevens argued that, on the one hand, homosexuality is not incompatible with Scout Oath and Law - no matter what the Scouts themselves say - and, on the other, scouting has not been sufficiently robust in communicating its disapproval of gayness to warrant First Amendment protection.

In other words, in Justice Stevens's America, the only way to avoid being sued by gays is to be more virulently anti-gay. Ah, well - you gotta smile. As Scout Law Number Eight enjoins: "A Scout smiles and whistles under all difficulties." One difficulty B-P never foresaw was that the likes of Justice Stevens, whose job is to interpret the Constitution, would start moonlighting and take it upon himself to interpret Scout law, too.

The resourcefulness of judges is something to behold but it is still a stretch to find anything in Scout lore remotely encouraging of practising gays. B-P took a dim view of any kind of carnal activity - or, as he put it, "beastliness" - especially when practised by certain types of young men with their "pink socks, fancy ties and well-oiled hair".

To the modern American sensibility, Baden-Powell is obviously out of his tree. But that is no reason to let Supreme Court justices apply the principles of interpretative constitutionalism and
Justice Stevens subordinated the constitutional right to freedom of speech to an entirely new one he cooked up on the spot: ... the right "to be let alone"
judicial activism not just to the state's articles of association but to everybody else's - the Scouts, the agricultural Grange and the Ladies' Aid Society. The 5-4 judgment in the Scouts' favour is a reminder that traditional American freedoms hang by a slender thread.

And a lot of the time, Justice Stevens wins. Also this week, the court upheld Colorado's decision to abrogate the First Amendment rights of pro-life groups protesting outside "women's health centres", as the abortion mills are euphemistically known. Writing for the majority, Justice Stevens subordinated the constitutional right to freedom of speech to an entirely new one he cooked up on the spot: the right of citizens in public places to avoid "unwanted communication"; the right "to be let alone".

Ah, yes. Back in the old days in Alabammy, it used to really bug me when you'd be trying to have a quiet BLT at your segregated lunch counter and a bunch of uppity negroes would be kicking up a fuss outside. I see I haven't even mentioned the Supreme Court's big decision - declining to permit any restraint on abortion up to and including "partial-birth abortion" - or, as I like to think of it, infanticide.

The foetus is delivered feet first and, when all but his head is out of the mother's body, the doctor reaches in, punctures the skull and evacuates the brains. The little feller's arms flail wildly and then fall limp. In the unanimous opinion of medical experts, such a procedure is never medically necessary. But, to the likes of Justice Stevens, to ban it would unduly circumscribe a woman's right to choose.

It sometimes seems as if a Bush-Gore election has nothing much at stake. It does. If Al Gore gets to appoint the judges, Justice Stevens's topsy-turvy Alice-in-Wonderland will become a permanent Supreme Court majority, not a 5-4 seesaw. A Bush presidency is no guarantee of anything - Stevens was, after all, a Ford appointee - but at least it gives sanity a sporting chance.

Previous Visitor Comments

Name Email Subject Location
I was doing a bunch of Boards of Review this week - I asked each boy what they would do in that situation. I hope that one of thgins they are learning in Scouts is how to handle themselves in the woods (not get lost) and difficult situations (what to do if you do get lost). But it is hard for the parents. We have a lot of parents who have had a hard time accepting the transition from Cub Scouts (adult led and controlled - planned activities) to Boy Scouts (boy led and managed, with adult oversight - encourage independence). Of course _I_ don’t have that problem ;-(sPh
Stereotyping it drives me nuts.We get a lot of joltnauisrs who just aren’t interested in anything other than confirming their preconceived ideas with some evidence’ even when the evidence doesn’t exist or contradicts what they want to say. Five years after the fact, there are still articles claiming that the number of egg and sperm donors dropped through the floor when the law on anonymity was changed. It didn’t the numbers actually went up. If they’d bothered to check the publicly available stats on the HFEA website they’d know this is a non-story but no, bad news is so much more entertaining.Then, and I hate to say it, there are the articles in women’s mags who want a very specific story about a grieving infertile couple given hope by a donor and how they had suffered for so long but look there was a happy ending. I know this is what they DO and it’s also the kind of story that helps recruit donors, but y’know, it’s not the whole picture.

don donquihote_at_mail.comHysteria in the usa
It is recorded that a lot of sexual assaults on boys are committed by married 'hetrosexual males'... had we better ban hetrosexuals leaders from the scouts too.

Hi Everyone. Thank you to those who have really made an effort to comment constructively and maybe your comment can help others. For those of you who want to make this a sleezy floor, please find yourself another site as the aim is to debate (healthy on this issue). Anyone who is interested to talk more about the issue, pls feel free to contact me or otherwise comment and let's keep it public

Rohanall4urwish_at_hotmail.comGay scout
Hai i'm from sri Lanka . i'm also a scout. i found my gay partnen in scout camping.

VisitorAnonymousGeneral Comment

Visitormasha18_at_mail.comGeneral Comment
I really like your great site, useful and pleasant for the eye. Warm regards !

I'm gay too and I think its a great feeling, but the bad thing is that no one knows I am and I don't know weather I should come out or not!!!!!!

i remember havin so much fun in the scout! and boy was hot in the tents! hahaha < who fro bath or bristol or near???

Anthonysongs4usa_at_adelphia.netI am gay but no one nows
I am gay but no one nows do i come out or not

The majority of you people are talking about stagitory rape. Which is punishable by jail time. Unless you are under the age of 18 and fuck someone under the same age that is fine, but if you are fucking someone under 18(if your older) you could be charged with rape, no matter if it is concentual or not. Just think about it before you make any decisions.

Chris from Essexbraintree_boy_at_hotmail.comnot enuff gay Scouts!
We need more gay scouts, i spent a week at essex jamboree 2004 My troop and i (leaders and all) spent da whole time searchin but we cudnt find one other gay scout for me!!!

ahhhAnonymousGeneral Comment
Your all a bunch of idiots site isnt about adverising or a place for fags to meet each other its to share your views about fags being alloud in scout wow poers u act retarded holy iddiots

i would lick your ass lick your dick and lick your sweety arm pit. I'm also looking for a guy that would do we any time.

considerate soulAnonymousGeneral Comment
they dont always prevent and when people and young teens alike are "in the moment" they either forget about them or dont care to put one on. I ve seen this happen b4. I donno, just a fair warning I spose thats all I am saying. If you wanna screw up your life go ahead fuck nebody whenever.

Isame as me b4Duh
consoms are a great way to prebent stds use them allways im tryin homo so i can get/give bjs so use rubbers they work if they dont break watch it USE 'EM

considerate soulAnonymousGeneral Comment
Well, if you want to be a stereotypical gay guy then go ahead fuck every1 in sight cuz you will get aids or worse. I suggest finding someone you trust and then stay with them. Finding people randomly is dangerous.

chriscgll2412_at_yahoo.comGAY SEX IS GOOD
i think that gay sex is good and should be allowed wherever, whenever. i think that gay marriage should be allowed. any1 lookin for a good time e-mail me.

sjocled boyAnonymousWe are all gay...
WOW Inesntein you are a detective? right cause damn u r perciptive keen insught well u r a loser duh

this isn't a funkin datin services it's a damn place to share your opinions on a Scout master who's a homosexual and express how one feels about homos with adolesents and I feel if a boy is raped not minorly fundled just rubed once its not a huge funkin deal please tell your O's not oh i have a tight early teen hole hump it

Fuck You All

dougdougperez1991_at_comcast.netI hate Gays
I thinks all you fags should be lined up against a wall and shot. Your all gona die of aids and go to hell, You are all mentally ill. To be gay is a wrong thing. You sickos should be tortured. Ha Ha

Jimmes2kwon_at_aol.comgetting gay though BSA
I felt the penis of another boy in BSA we jerked each others penises when I was 13 he was 15 it was magical we both cummed sp we liked it but I live in Brunsville, MD now am 5'3" size 6 shoe I'm James Edward Morin cum find me and force me in the back alle and make me tour "friend" forcfully so I dont scream and remember dont ask dont tell just do me Email me or find me make I'm TIGHT love me


- - - - - - - sex
I am 14 years old new gay looking for a gay kid around my in Minnesota.have sex if you want to.

-AnonymousGeneral Comment
if u havent had cock rubbed on your stink hole u shiuldnt pass judgement because you r speaking out of iggnorance so try and then talk down on it if you havn't done the dirty shut the funk up

erywtqiuwiAnonymousGeneral Comment
why do you like being gay?

I'm a scout and they are curious touch one anothers cocks when they hale them out I watch a 11 year old boy strip nude and rub his cock and nuts and a 13 year old boy said to him COOL I dare you to touch mine pull me out and rub your stink hole on chris butt hole chris said no way oh come on chris it'd be COOL ok then do it he did chris got a stiffy and asked me to try it with my chrink in him well our cocks are small so ok sure does it hurt no I love it from u it feels well bend over and u will feel how it feels I loved it try it I recomand amd I figured out bigger feels better so I have two by holes I still hump email me if u r 17 or so I like um 3-4 inches long and wide and unhaurie as us youngs r. O(==B

boy who likes pre-pub boys balls &....jojo121_at_cashetteGay boys
if you haven't tried it shut the funk up let the first non siner through a stone and ALL of U have sinned so if u r curious e-mail me and please be mature dont act 15 or > like you'll have been immature kids I got more 2 say email me if curious

Harry Hamiltonhhamilton_at_insightbb.comgay boy scouts
I served proudly for thirteen years in boy scouts and it wasn't until the supreme court made it's decescion that I suddenly became ashamed of all those years.As a gay man and an Eagle Scout I think it is a total violation of my rights that I cannot pass on my knowledge to the next generation.It is time for all forward thinking people to step up and tell these other individuals that you cannot tell me who I can and cannot give my knowledge and experience to.

i think if you are gay you are sick and should be treated before you infect anyone else. in no way should you be allowed around small children, male or female.

kokisel_at_37.combeing a gay boy
gay boys have no problems with having sexual relationships with someone of the same sex and is older. Only boys who do not consent to such a relationship, either because they are straight or they have already committed themselves to someone else - which is why pedophiles are jailed - it is weird sort of discrimination, one can have sex with someone of the same not someone younger than oneself

Mikeht85769_at_hotmail.comGay Scout Masters
Okay, lets get rid of them, and while we are at it, no Scout Master can cuss even in private, drink acohol even in his own home, smoke no matter where. He now must be at least 6' tall, and have no hands, mind or feet. Or should we make the restriction even harder. My scout master was gay, he was a saint when it came to patientence to teach us no matter how many time he had to go over it, because all he wanted was for us to be whatever we ever wanted. He taught me that with enough effort anything was possible.

Jennsneekerz16_at_aol.comGay Boy Scouts
I would just like to mention that there is NO proof that just because you happen to be a homosexual that oyu are a pedafile. We seem to treat homosexuals differnetly but in all reality they are the same as us they have the right to have the same rights as we do. We are all humans some of us just take things to far, i say there people and if a homsexual wants to be a Boy Scout Leader who are we to tell them NO??

ouk mommanithmanith16_at_yahoo.comGay
I think that is right tha gay boy should be live in the world because they are a human!

me gusta toda clase de sexo

someone out "there" hurts
i find it hard to believe that in this day and age people can still be so narrow minded...

trojan mantrojanman_at_condomworld.comwarning
Practice safe sex!

VisitorAnonymousGay ASS Scouts
the last person to write something was indeed a catholic who was once accused of touching a choir boy. do not take any of his lip. he likes men and he loves little boys. he only defends the gays because he himself wants to be in close contact with the young boyscouts. people like him need to go ahead and try that little thing called SUICIDE. ouch that really hurts

VisitorAnonymousGay Boy Scouts
Just because someone is gay does not necessarily mean that they are a bad person. That is almost like saying being cathloc is being a pedophile. In this day and age race and sexual orientation do not mean anything as far as a persons character. Times change and I thnk that is time to recognize that the gay community should have the smae rights that the strait community has. Now mind you I am not gay, but I have an open mind and am willing say things as I see them. Why discriminate against a good upstanding member of society beacuse they do not thnk like you or I? Just stop and think about the big picture. Look past yourself and see that there are alot more people out there.

CooMySterAnonymousgay boy scouts
i think it is wrong if they want to be gay they should keep it away from boy scouts keep it to them selves and not talk about it to other members or leaders.

Tomamonymous_at_aol.comGay scouts
I think that if you are opening gay, everyone has less to fear. You know that you must be behond reproatch. However someone who rants on about gays,is more likey to abuses his position. Less you forget that girls are in scouts now. It not being Gay or straight. Its being honest that counts.

VisitorAnonymousGeneral Comment
how old you have to be

SteenAnonymousGay Boy Scouts
Pat, being gay has nothing to do with molesting young kids, as little as being straight has anything to do with adult males molesting young females. Your comment is offensive and demonstrates ignorance. My kid is safer with an openly gay scout master, than with any morally and religiously submissive priest.

Richard deLyonAnonymousgay boy scouts
Your sexuality is your affair. Let no one tell you what it should be that makes you happy, at any age.

PatAnonymousanswer "gay" scouts
Notice how vile we think of Catholic priests who molest young children. These perverts are "gay". Do you want your son or even yourself being with these men? Are "gay" scout leaders exempt from such behavior?

MossAnonymousGay Boy Scouts
I think that in scouting we where taugh not to be like the outside world cause we deffer a lot from them;(during apartheid blacks and white were sleeping;eating and have fun together)so I do not see any problem with gays unless there is something someone can tell us about gay,whether gay are Animals that should not mix with people or not.

vistorAnonymousGay Boy Scouts
Sexual abnormal behavior is plainly a mental problem. How it can be openly excepted is a mystery to reasonable people. Boy Scouts should be a cut or two above the moral norm.

VisitorAnonymousgay boy scouts
i think that it is not right that gay boy scouts should be kicked out of the boy scouts just because of there sexual orientation

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