One vote shy of tyranny

The argument rapidly descends from this perjury into a juristic pandemonium, where things so ghastly they were formerly unimaginable are explicitly stated, to justify the new law of mayhem the court is determined to write. "Considering the fact that those procedures seek to terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps horrifying to others," writes Breyer. `"Ihere is no alternative way, however, to acquaint the reader with the technical distinctions among different abortion methods and related factual matters, upon which the outcome of the case depends."

To explain why live-birth abortion (in this case referred to as a "D&X procedure") is a constitutional right, he quotes a statement from the American College of Obstetricians and Gynecologists:

"D&X reduces the incidence of a 'free floating' fetal head that can be difficult for a physician to grasp and remove."

As outrageous as this decision was, the court's deliberations in the Boy Scouts case were almost as troubling. Here it was not human life, but human liberty, that stood in the dock-as the State of New Jersey attempted to compel the Scouts to hue avowedly homosexual scoutmasters.

The Boy Scouts' defense was simple: Our mission is to instill character in young boys, through adherence to our Oath and Law, which call on our members to be "orally straight" and "clean." We have always believed that homosexual activity is neither. Therefore, it would violate our 1st Amendment freedom of association, and our freedom of conscience, to compel us to hire a self professed homosexual as a scoutmaster and set him up as a role model for the boys put in our charge.

Chief Justice William Rehnquist, writing in another 5-to4 decision, apted this argument without reservation. But four justice-John Paul Stevens, David Souter, Ruth Bader Ginsburg and Breyer-were fully ready to force the leaders of the Scouts to act against their consciences and do something they believe to be profoundly wrong: send boys an immoral message about homosexual behavior.

A Constitutional Nadir

Writing for the minority Justice Stevens repeatedly chal lenged the Boy Scouts' moral judgement, implying that the Scouts (and presumably other private associations of Americans) have no right tD adopt a view of homosexual activity that differs from his own. "It is plain as the light of day," writes Stevens, "thai neither one of these principles"morally straight' and 'clean'--says the slightest thing about homosexuality."

"Because a number of religious groups do not view homosexuality as immoral or wrong and reject discrimination against homosexuals:' he says, "it is exceedingly difficult to believe that the BSA nonetheless adopts a single particular religious or moral philosophy when it comes to sexual orientation."

In a footnote, he approvingly refers to an amicus brief submitted by the General Board of Church and Society of the United Methodist Church that lists religious denominations that accept homosexuality, implicitly criticizing other denominations that share the view of the Scouts that homosexual activity is wrong. The brief, says Stevens, describes "the views of the United Methodist Church, the Episcopal Church, the Religious Action Center of Reform Judaism, the United Church Board of Homeland Ministries, and the Universalist Association, all of whom reject discrimination on the basis of sexual orientation."