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In August, New Jersey's state Supreme Court ruled that the Boy Scouts had to reinstate James Dale as scoutmaster, whom they had expelled for being gay. Was the decision about promoting freedom and same-sex love? Or was it about advancing a curiously sex-less notion of gay identity-- and at the same time extending the power of state and its sex police to tell individuals and organizations how to run their lives?

On one level, New Jersey's court decision seems fair. Dale, now 29, had been in Scouting since he was eight, and attained Eagle Scout, the group's highest rank. While attending Rutgers University, he became assistant scoutmaster of Troop 73 in Matawan, New Jersey. In July 1990, Dale's picture appeared in the Newark Star-Ledger as co-president of Rutgers' Lesbian/Gay Alliance. When Scouting authorities found out, Dale got the boot.

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In 1990 Dale went to court, challenging the Scouts' right to expel him, and lost, with the trial court upholding the right of the Scouts, as a private organization, to choose its members. A New Jersey appellate court sided with Dale, and the Scouts appealed to the state's highest court. The Lambda Legal Defense Fund took on Dale's cause. In a similar case, California's state Supreme Court ruled in March 1997 that Scouts could exclude gay people, agnostics, and atheists. So the Scouts had reason to think New Jersey's high court would buy their argument.

They were wrong. The New Jersey court's unanimous ruling gave the Scouts' anti-gay policy a one-two punch.

First, the court said, the Scouts were a public accommodation under New Jersey's antidiscrimination law-- like a restaurant, town swimming pool, or movie theater. The court noted that the Scouts are closely mingled with public institutions, such as fire or police departments and schools. Moreover, boys are not queried about their beliefs or sexuality before being accepted as members; the door is open essentially to all comers. Therefore the court rejected the Scouts' claim that as a private organization they should be exempt from the discrimination law. The Scouts, the judges ruled, were not private enough or choosy enough.

For its second punch, the court invoked the First Amendment guarantee of free expression. The court said that the Scouts had violated James Dale's First Amendment rights by punishing him for something he said-- a declaration of his homosexuality in the newspaper. Although the Scouts had contended they have a First Amendment right of their own-- to express their own beliefs by rejecting open homosexuals-- the court rejected this claim, finding that opposition to homosexuality wasn't part of Scouting's basic purpose. "The words 'morally straight' and 'clean' [in the Scout oath] do not, on their face, express anything about sexuality," wrote Chief Justice Deborah Poritz. Indeed, she noted, scoutmasters were discouraged from talking about sexual matters. Moreover, the court said that First Amendment rights only apply to groups that are "intimate associations"-- organizations advancing a particular point of view.

Boy Scouts of America has vowed to appeal the New Jersey ruling to the US Supreme Court. The 1997 California ruling, based on that state's constitution, could not be appealed.

Clear logic?

Whatever the rationale, it seems right that James Dale should be reinstated in Scouting. If Dale was good enough to earn the group's top honor, and if he was, as seems by all accounts, an exemplary scoutmaster, why shouldn't he come back? Whatever BSA wanted to appear to think about homosexuality, it was churlish to treat so badly a person who had served Scouting so well, and in whom Scouting had invested so much.

And yet under scrutiny, it's hard to believe that the court was convinced by its own logic. The justices said that since it takes virtually all who apply, since it has members with different views on homosexuality, the Scouts lack the "intimate association" needed for them to assert First Amendment rights. Yet it's inconceivable that the same judges would apply those protections in defense of a scoutmaster expelled for being quoted in the paper espousing drug legalization, Islamic revolution, or polygamy.

Saying the Scouts are a "public accommodation" is less absurd than claiming that a parade is, which is what some gay activists argued seeking to gain inclusion into a Boston St. Patrick's Day parade, whose organizers are resolutely homophobic. The US Supreme Court rightly rejected that argument in 1997, preserving parades as an area of expression not subject to antidiscriminaton laws.

Still, the New Jersey Scout decision chips away at the right of private organizations to declare who they are. To be sure, there would be no controversy in the courts if the Boy Scouts of America tried overtly to practice racial discrimination, as they did for years. Nonetheless, it's objectionable for a court to second-guess an organization's assertion of what it stands for in order to force it to do something it doesn't want to.

"Freedom of association is one of our most precious gifts," said Rick Sincere of Gays and Lesbians for Individual Liberty, a Washington, DC, libertarian group, which contends the New Jersey ruling undermines "all of us who want to set standards for our organizations, including gay men and lesbians." The sanctity of all-queer or all-female spaces would be limited if private associations couldn't discriminate. The Scouts were wrong in their rationale for excluding gay people, Sincere contends, but the task is "to persuade the Boy Scouts of America to change its membership requirements voluntarily, not have the state impose new rules."

The Boy Scouts have good reason to fear this intrusion of the state into how they run themselves-- under the New Jersey ruling, as a "public accommodation" without First Amendment rights, they stand a hair's breadth away from being declared in violation of the law for excluding girls and women.

In the big tent

Bobby Stevens, a 45-year-old Bostonian, remembers his initiation the second summer he went away to Boy Scout camp in 1967. "I was 13 and a Tenderfoot," he says, "and I was called into the big tent. I had some idea that something illicit was going on. There was a crowd of maybe 15 boys in there, and the patrol leader, the big guy in our area, was lying there on the table with a hard-on. I was told it was my job to blow him."

Bobby recalls getting down to business. "I was a little bit nervous about it, because I didn't have a lot of experience, but I found that it was natural the way his penis fit in my mouth. I remember getting turned on. And the funny thing was they had to sort of say 'OK, that's enough! You can stop now.'"

Sex play wasn't all there was to being a Boy Scout. "Scouting was great," Stevens says. "It wasn't the uniforms or the merit badges-- they were silly. It was spending all this time out in the woods with your friends, learning how to survive in the wilderness, how to cook, dig latrines, learning how to take a shit in the woods, getting all sweaty and smelly."

But the blow-job in the tent holds special place. "It was like a whole rite of passage," Stevens says, "I'll always remember it."

Ask any one-time Boy Scout, and chances are he'll have stories of queer tomfoolery.

"When I came out to my father as a 14-year-old he told me I was too young to know," says George Willard, who is 33 and lives in Boston. "He told me about his best friend Al in the Boy Scouts during World War II, a boy who grew up to become a famous union leader. With so many men drafted, the Scouts recruited older boys as scoutmasters. When they went to Scout Camp in New Jersey, Al the teenage scoutmaster would initiate all the new boys in sex games, and he ended up getting married and having a family. My father's only frame of reference for being gay was the Scouts."

"The evidence available points inexorably to the conclusion that Lord Baden-Powell [Scouting's founder] was a repressed homosexual," writes Tim Jeal in his 1989 biography.

But the vast, if mostly unwritten, history of homosexuality and Scouting was strangely ignored last month amidst all the voluminous discussion of the New Jersey ruling.

Scouts in jail

If Scoutmaster Al, who grew up to be a labor leader, had been born 50 years later, he would likely have been a convicted rapist. For in the Boy Scouts of the 1980s and 90s, sex games are frequently transformed into major felonies.

Consider Michael Nickerson, of Duxbury, Massachusetts, who was 17 when he was charged with numerous counts of "rape" stemming from sex play that went on with fellow Boy Scouts a few years younger. The sex occurred "repeatedly," authorities said, sometimes during games of "manhunt" at Scout meetings at the Pembroke Community Center. Police said that they had trouble extracting details of the encounters from the Scouts. "We feel that numerous victims are withholding information out of embarrassment," the Boston Herald reported.

Nickerson was sentenced to ten to 15 years, with two years to be served in prison-- a punishment which provoked outrage from the Massachusetts' governor for its "leniency." But soon after his release in 1995, Nickerson, then 20, was rearrested for having contact with a person under 18. He was then ordered to serve his full 15-year sentence in prison. Nickerson's case is just one of many sex scandals that have wracked Boy Scouting since the 80s, few of which would have been noticed in the decades before.

Coming in, not coming out

Scouting's founder, Lord Baden-Powell, encouraged nude swimming and wrote casually in his diary about enjoying photos of naked youths. But the eroticism of Scouting does not just emanate from its leaders, many of whom must be drawn to the work of shepherding adolescents because of at least unconscious identification with them. Teenage males have sex on the brain. Skinny-dipping, campfire circle-jerks, strip poker, and sexual initiation rites may not be chapter headings in Scouting for Boys, but they remain expressions of the male bonding that is the organization's glue. Maybe it's better called "homosociality" than homosexuality. But eroticism is a prime ingredient.

It's their shared homosexuality that makes Lambda and the Boy Scouts' legal positions-- and dishonesty-- oddly parallel. At heart, Lambda contends that Scouting has nothing to do with homosexuality, therefore the Scouts shouldn't care whether their members or leaders are gay. The Boy Scouts agree completely that Scouting has nothing to do with homosexuality, and say that's just the way they like it. But Lambda and the Scouts' mutual presumption is false to history.

The legal dispute before New Jersey's Supreme Court affirmed the triumph of one of two rival cultures of homosexuality. The gay movement, in the West anyway, has largely eclipsed the much older form of homosexuality, transacted by winks and nods, leading to spontaneous connections that do not ask questions or anchor anyone's public sense of self. This older form is homosexuality without identity, a coming into shared secrecy, not a coming out into visibility. This is the homosexuality that emerges in armies, prisons, labor camps, or whenever males congregate by themselves. It releases superfluous animal energy, and at once expresses and contains aggression. Such eroticism is almost universal among adolescent males whatever sexual roles they later settle into. This is homosexuality as it has always existed, and sometimes flourished.

Ranked injustice

The forces that came to bat for James Dale-- the Lambda Legal Defense Fund and the American Civil Liberties Union-- have never-- and never would-- defend the likes of Nickerson, the Scout sent to jail for actual homosexuality. Nor, in the climate of sexual panic that now pervades Scouting, would they defend a scoutmaster expelled for allowing his troop to go skinny-dipping or for spending five minutes alone with a Scout-- an act almost as risky in America today as a black man's smiling at a white woman on the streets of Scotsboro in 1930. Freedom of "identity" is evidently consistent with severe repression of sex.

This contradiction points to a curious instability of identity politics. On the one hand, progressives insist that race, sex, and sexual orientation are the key categories for understanding history and society, and the essential rallying point for politics. On the other, there is firm insistence that these categories have no real content. Everyone is really just alike, and anyone who contends otherwise is a bigot.

Assertion of the simultaneous significance and emptiness of identity-categories makes them resemble nothing so much as brands-- repositories of carefully constructed meaning and emotion that refer to nothing. There is little difference between Coke and Pepsi, Tide and Fab-- and everyone knows that. But the small difference is worth billions, and untold effort is expended maintaining and furthering it. A Coca Cola logo needs no context-- it can appear anywhere, and everyone knows its purpose-- to promote the concept of Coca Cola. It is a sign that refers mostly to a stream of signs about itself.

The separation of symbol from content and history-- the secret power of brands-- is part of what makes the capitalist marketplace so dynamic. Tommy Hilfiger clothes can be marketed separately to aspiring yuppies and just-scraping-by urban blacks. If the "Buick Makes Driving Fun" campaign wears thin, just switch the tag-line to "A Buick Makes Neighbors Think You're Rich." The pure play of the sign allows marketeers and politicos to divide up and separate things that were formerly conglomerate wholes, to mix and match the parts according to expediency and the chance for power and profits.

It was Homosexuality the brand that Lambda Legal Defense sold to the New Jersey court, and they ate it up like Haagen Daz. This is homosexuality that has no history and refers to nothing, certainly not sex. It is telling that the justices declared that the essence of Dale's gayness was simply his assertion of it, as if homosexuality were nothing more than a label. To say gayness is just a sign is not to claim homosexuality as heterosexuality's equal, but as something even more insubstantial. After all, the Girl Scouts and Campfire Girls don't welcome single men as troop leaders, partly from acknowledgment of the erotic temptation involved. But such are the demands of political correctness today toward homosexuality that even the Boy Scouts, wracked by sex scandals, couch their opposition to gays only in terms of a bogus morality, never claiming that homosexuals are a threat. It was left to the New Jersey court's most liberal justice to write a separate, concurring opinion contending that gay men are not the same as child molesters, thus replying to an argument too dicey for the Boy Scouts to raise themselves.

To treat homosexuality as a brand, just an empty sign, allows one to ignore facts about male sexuality that are inconvenient when seeking favor from power. There are individual variations aplenty, but male desire has a distinct overall character. In male homosexuality, undamped by feminine constraint, these qualities express themselves most clearly. Compared to women, men tend to crave variety, seeking more sex with more partners. They tend to be highly visually oriented in their eroticism, which ties in with tendencies toward versatility and opportunism in getting off one's rocks. Males on average prefer partners younger than do females, who tend to prize stability and security. Sexual performance in guys is linked closely to sense of self and group, in a way that leads boys but not girls to go in for collective masturbation in the woods. Whatever the mix of nature and nurture yielding these traits, they are remarkably constant across cultures and over time. Such features of male desire are vital to grasping what has always been the positive connection between homosexuality and Boy Scouts. For the sake of winning judicial acceptance for openly gay scoutmasters, it is opportune, however, to deny them.

The ability to divide and forget, to make assertions without content, makes for effective brands, but bad politics. The pure play of the sign owes as much to this century's invention of totalitarianism as to capitalism's innovations in marketing. The more politics becomes aesthetics, pretty imagery and slogans devoid of meaning, the more it slouches toward the totalitarian. The Lambda Legal Defense Fund doesn't care how many thousands of Baden-Powells or Michael Nickersons are thrown in prison so long as it can rack up more court victories for "gay rights."

Of course it is fair that James Dale should be either back with Troop 73, or compensated for his unjust expulsion. But the means by which this laudable outcome was attained are lousy. Written all over Dale v. Boy Scouts of America is the irony of a battle between a homosexual institution intolerant of actual gays, and gay activists intolerant of actual homosexuality. In a contest framed by such fraudulent contenders, it's not just Scouts sharing blow-jobs in a tent who are the losers. **

Author Profile:  Bill Andriette
Bill Andriette is features editor of The Guide
Email:	theguide@guidemag.com