In the entry on judicial activism found in the classic Prejudices: A Philosophical Dictionary, Robert Nisbet wrote of the “whole web of authority that naturally exists in any society, a web spun by family, locality, voluntary association, business enterprise, profession, and civil law.” Conservatives properly cherish the autonomy of this “web of authority,” while recognizing that it can, at times, be a haven for terrible injustice.
Having read that last sentence, the Jim Crow regime of the old South is probably on the tip of your tongue: wasn’t it necessary, in that case, for the federal government to intrude into that that web and impose its will?
I agree that it was.
But not every injustice rises to the level of Jim Crow.
Take the question of the Boy Scouts of America’s policy of barring membership to gays. Even if one believes that gays fundamentally have the right to marry, it’s less obvious to me that they have a right to join the Boy Scouts. As the Supreme Court, narrowly but correctly, decided in a 2000 case involving an expelled scoutmaster in New Jersey, the BSA is not a motel, restaurant, or “public accommodation” of any kind; it is a private organization whose First Amendment-guaranteed freedom of association trumps your desire, however blameless, to serve in it.
But if the Supreme Court is the court of final appeal in our legal system, it is not the final word of civil society. Thirteen years later, the BSA has signaled, with a microcosmic nod to the principles of federalism, that it will let local chapters decide whether to admit gay scouts and scout leaders.
So instead of a controversial legal remedy, followed by years of embittered acquiescence, the BSA is changing voluntarily. The Family Research Council’s Tony Perkins would insist, not without reason, that we should use the word “voluntarily” advisedly. “If the board capitulates to the bullying of homosexual activists, the Boy Scouts’ legacy of producing great leaders will become yet another casualty of moral compromise. The Boy Scouts should stand firm,” he said in a statement.
Time will tell if the Boy Scouts’ compromise renders their mission, well, compromised. But it strikes me that private actors adjudicated this conflict on their own. It required no diktat from the executive branch or the federal bench. Social peace has been preserved.
Reform, sometimes, is organic.
Says civil society: “Yes we can.”