New York Times

April 27, 2000

Good Causes Make Bad Law

By CHARLES FRIED
New York Times

The Supreme Court heard two cases this term that seem to take the measure of our society -- one, for the way we treat homosexuals and the other for the way we protect women from barbarity.

In Boy Scouts of America v. Dale, argued yesterday, the court will decide whether the scouts can ban gay troop leaders. In United States v. Morrison, the government and the NOW Legal Defense and Education Fund have asked the court to uphold the constitutionality of the Violence Against Women Act, which allows victims to file federal lawsuits against those who treat them violently.

Advocates say these cases involve vital protections of the rights of women and homosexuals. But also at stake are important legal principles, and these principles should preclude the court from ruling for gays in the Boy Scouts or for the constitutionality of the Violence Against Women Act.

The national government has only those powers that the Constitution assigns to it. For instance, the federal government can "tax and spend for the general welfare," regulate interstate commerce and enforce constitutional amendments, but it has no power to regulate just because something seems to need regulating. That is the job of the states.

The Violence Against Women Act, then, is plainly unconstitutional. The act's proponents, however, as their main argument, resort to a familiar sophistry to argue that the law is a regulation of interstate commerce: They claim that violence against women lowers their earning power, discourages them from traveling between states and subtracts them from the national labor force. (Full disclosure: I was of counsel to the other side of the case.)

If that argument were accepted, then almost any activity would also be susceptible to federal regulation. A street-corner mugging, for instance, could become grounds for a federal lawsuit.

The Boy Scouts case is also about the basic structure of our government. In that case, the New Jersey Supreme Court ruled last year that the state law forbidding discrimination against homosexuals prevents the Boy Scouts from denying a leadership position to an openly gay man. The scouts argue that the state and federal governments cannot coerce their choice of leaders.

This contest is not about states' sovereignty, as the lawsuit over the Violence Against Woman Act is, but about the sovereignty of the individual. This sovereignty is enshrined in the First Amendment's freedoms of speech, thought and association, and the Supreme Court has acknowledged it in decisions protecting the right of individuals to use contraceptives and the right of women to choose abortion. And it is the very principle gay rights advocates must invoke to overturn cruel laws criminalizing consensual adult homosexual relations.

But the Boy Scouts case pushes an argument that undercuts that fundamental principle of individual liberty. The right to join with others in associations, expressing personal values, is as much a part of individual liberty as the right to abortion. It cannot be up to the government, at any level, to decide which values individuals may choose to join together to express. Just as the Nazis were rightly allowed to march in Skokie, Ill., and just as the organizers of the St. Patrick's Day parade in Boston were allowed to exclude marchers carrying gay-pride banners, so the scouts should be allowed to inculcate their values, however much we may disapprove.

There are two arguments being used against the Boy Scouts, which are being pressed with the sophistry that is now a hallmark of the teaching in most law schools. First, the Boy Scouts are being compared to a Junior Chamber of Commerce, which the Supreme Court has said is a commercial association and therefore forbidden from excluding women. Second, the scouts are said not to be really a private group, but, because of their numbers, a state actor and susceptible to regulation as such.

Both arguments are unacceptable. By this logic, any large organization could be characterized as commercial and as involved with government in some way or another. Indeed these same claims could easily be made on behalf of gay or women candidates for the priesthood. Or for that matter, for male leaders in the National Organization for Women.

Our legal principles might lead us to outcomes that we don't always desire. But we must trust that our society is robust enough that we need not sacrifice our constitutional principles, which keep us free and diverse, for the sake of gratifying pronouncements that may come back to haunt us.

Charles Fried, a law professor at Harvard, is a former Solicitor General.

Copyright 2000 The New York Times Company