The Washington PostDemocracy Dies in Darkness

The Boy Scouts’ decision to lift its ban on gays is limited. And that matters, politically.

FILE: Boy Scout Casey Chambers carries a rainbow flag during the San Francisco Gay Pride Festival in California in this June 29, 2014 file photo. REUTERS/Noah Berger/Files
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So, the Boy Scouts of America have announced a major change: Openly gay adults will no longer be barred from working for the national organization. For lawyers, scouts and parents who have been protesting and legally challenging the Boy Scout's policies on gay members, leaders and employees, this is a significant victory.

But, those changes also include a major exception -- one that's very likely to push the Boy Scouts into the 2016 campaign.

Under the Boy Scouts' new rules, local scouting units retain the right to limit volunteer leadership roles to heterosexual men. With a substantial share of scouting units meeting in spaces owned or controlled by faith-based organizations or partially supported by them, it probably won't be long before the real impact of the local exemption starts to become clear. And, with so-called religious liberty or moral objection arguments circulating in the wake of the Supreme Court's same-sex marriage ruling, what local troops decide to do will be watched closely. The issue will probably surface at least once or twice in the 2016 presidential campaign, as conservatives wrestle with this latest issue of gay rights vs. religious liberty.

[Boy Scouts of America votes to end controversial ban on openly-gay scout leaders]

And in some ways, the Boy Scouts and their policies already have.

This month, Wisconsin Gov. Scott Walker, a Republican contender for the White House, an Eagle Scout, said that the Boy Scout ban on gay leadership was meant to "protect" children.

[Scott Walker on whether being gay is a choice:'I don't know the answer to that question.']

On Sunday, former Texas governor Rick Perry said on NBC's "Meet The Press" that he thinks the scouts would be better off without gay scoutmasters.

The Boy Scouts are viewed as a quintessentially American, classically conservative, character-building organization. They are one of the nation's largest youth membership organizations.  And as such, it's a group with which lots of candidates, particularly Republican candidates, are eager to associate themselves with.

When talk show host, former Boy Scout and Arkansas governor Mike Huckabee announced his plans to make a second run for the White House in May, he did so while surrounded by Boy Scouts. He's been a vocal supporter of a ban on gay scouts and troop leaders. In 2012, a gay-centered publication, The Advocate, accused Huckabee of advancing the idea that gay adults are also child predators. Huckabee's comments weren't all that different than Walker's this year.

Back in 2013, former Pennsylvania senator Rick Santorum wrote in some detail about his fear that an end to a separate and now-eliminated ban on openly gay scout members would signal the end of the Boy Scouts. Around that same time, Texas Sen. Ted Cruz (R) (now a presidential hopeful as well) also expressed his support for a continued ban on gay scouts.

At the beginning of the year, the conventional wisdom was that the culture wars wouldn't figure prominently in the 2016 election. But by April, state legislatures began contemplating and in some cases passing laws that attempt to allow some businesses to legally refuse service to gay people on moral or religious grounds. Some cultural skirmishes were certainly happening. Then came the Supreme Court's gay marriage decision.

This month, a Washington Post-ABC News poll found some evidence that a lot of people aren't exactly at peace with what's happening -- not a majority, but, a lot.

Legally, the Boy Scouts had little choice but to make all the policy changes that they have in recent years, Suzanne B. Goldberg, the director of the Center for Gender and Sexuality Law at the Columbia University School of Law, told me.

Goldberg, who is also a law professor and a practicing attorney, filed a friend of the court brief making a legal argument against same-sex marriage bans before the Supreme Court's June decision. She has been involved with, researched and worked on cases involving sexuality and organizations like the Boy Scouts since the 1990s.

Goldberg explained things this way: Federal civil rights law requires almost all of the nation's employers to abide by federal anti-discrimination law. (Only religious employers have a pretty solid legal exemption.) The nation's civil rights laws specifically bar any form of discrimination in what the law calls "public accommodations." That's the term for any facility, business, organization or entity that is open to the public. So that applies to nonprofits and privately-owned businesses that serve the general public. That means restaurants and yes, it means wedding cake-making bakeries too.

Without that, the Civil Rights Act would amounted to a paper dragon, allowing businesses owners to bar non-whites from their facilities. Some stores might require separate entrances. And cities could have continued to restrict access to parks and pools on the grounds that integration offended local sensibilities.

Today, federal employment and public accommodation laws do not include a ban on discrimination on the basis of sexual orientation. But, some courts have interpreted their explicit ban on gender-based discrimination to include sexuality, Goldberg noted. And, there are lawsuits pending against the Boy Scouts in state courts in New York, Colorado and other states that do have state laws baring employment discrimination on the basis of sexuality. (The Human Rights campaign, a gay and transgender rights organization, maintains interactive maps where you an search for the details of employment, public accommodation and various policies in your state.)

And several gay rights groups have made this much clear in the wake of the Supreme Court's gay marriage decision this summer: Their next legal battles lie in public accommodation and employment matters.

There is also some recent data on what Americans think about those concepts. About 25 percent of Americans oppose the idea of  expanding these kinds of legal protections to gay people, according to a June Public Religion Research Institute poll. But majorities in both parties think those protections should exist.

That same poll also indicated that the idea that people should be able to cite religious or moral objections to policies also has some traction. About 34 percent support this. That's not a small number.

And that makes religious liberty claims and exceptions to the Boy Scout's  new national employment rules something that the crowded Republican presidential field will almost certainly seize upon -- or have to deal with, depending on your perspective.