September 1999 Cover
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The New Jersey Supreme Court declared this month that the Boy Scouts cannot discriminate against
members who declare themselves to be gay. Though the ruling is a welcome victory for freedom of speech, those
who value sexual freedom should remain wary of much of the judges' reasoning; the fundamental fight is not
about an individual's right to label himself "gay" but instead about everyone's right to enjoy gay sex. As
sexual liberationists, we must be mindful not to trade the freedom to act on gay desires for a court-sanctioned ability
to assert only a theoretical gay identity.
The New Jersey judges were right to recognize that the Boy Scouts cannot claim that they are a
private group and thus shielded from the state's anti-discrimination laws. The Boy Scouts use public schools and
parks for free, and are often sponsored by taxpayer-financed police and fire departments. The Boy Scouts should
not be able to enjoy public support when it suits their pocketbook, but claim status as a private organization
when they wish to discriminate.
And the judges were right to note that the scouts treated Eagle Scout and assistant scoutmaster
James Dale unfairly and illegally when they kicked him out after his photograph and name were published in a
local paper identifying him as an official in a nearby college gay student group. Declaring yourself gay should
not endanger your access to public accommodations.
But the judges were careful to note that they were protecting Dale's "status" as a homosexual and
his verbal "expression" of that status. They said he had the right to "be" gay and to
say he was gay, but they did not affirm his right to
act gay by actually having sex. Indeed, any plaintiff who were to advocate for gay
sexual freedom would find out how limited the court's willingness to protect individual liberties really is. And
any brave soul who asserted that scouts had something to gain by exploring homoeroticism, either with each other
or under a scoutmaster's more experienced direction, would likely find himself in jail.
Hundreds of scouts and scoutmasters are in prison now, convicted not of violence, but of
truly gay activity. Circle jerks, pup tent hijinks, and all sorts of homoerotic games long part of scouting are now
branded horrendous felonies by our hysterically sexphobic culture; those accused are legally damned, no matter
the facts. The New Jersey case does nothing to right those injustices. In fact, the judges, by stressing that
homosexuals are no more likely to "molest" children than heterosexuals, underscore that they're protecting
homosexuality in theory only. And none of the gay groups expressing elation over the court's decision have spoken
out against the routine travesty of scouts and scoutmasters facing decades in prison for affectionate homo sex play.
The fundamental problem is that the courts' and many people's attitudes are mired in the mindset of
the Catholic Church: the "sinful" gay person can be accorded respect as long as he or she doesn't act on gay
desires, but any decision to engage in "intrinsically evil" gay sexual activity remains condemnable.
As gay people, we must attack the notion that consensual sex of any sort is inherently sinful.
The struggle for sexual liberation isn't about creating new categories (like "gay") for people burdened with
old sexual fears. It's about freeing us all from the destructive attitudes that come from thinking of sex as
wicked. And we'll know we're succeeding when scouts, like all others, are not just able to proclaim their gayness
in thought and word, but also in deed. **
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