On Feb. 27, U.S. Secretary of War Pete Hegseth posted a video announcing that he had forced Scouting America (formerly the Boy Scouts of America) to bend the knee regarding its inclusive policies. Hegseth said the organization would purge what he called "an insidious, radical, woke ideology" and membership would be based on birth certificates. Hegseth gave the organization's leaders six months to prove themselves, and he closed with a threat: "We're watching, and we're watching closely."
I know that rhetoric. I heard it in 1990 at 19 years old, when the Boy Scouts of America expelled me for being openly gay. I was an Eagle Scout and an assistant scoutmaster in Matawan, New Jersey, and a one-page form letter told me I no longer met the standards
for leadership.
I spent the next decade fighting that decision all the way to the Supreme Court, and in 2000 I lost 5-4. The conservative court held that the scouts had a First Amendment right to decide their own membership, free from government interference, overturning a unanimous decision of New Jersey's highest court.
Memo behind the Pentagon's newfound support for Scouting America
Beneath the bluster in Hegseth’s video, he kept referencing an agreement or memorandum but never shared it.
Scouting America's news release described a "renewed, strengthened partnership with the Department of War" but didn’t mention a memorandum. The Scouting CEO told the media that transgender members would remain in the program.
Hegseth and the organization he claimed to have broken were describing two different agreements.
Not comfortable with the gap between what was being publicly said, I filed a Freedom of Information Act (FOIA) request to see the memorandum. When the Pentagon stonewalled, I appealed. When officials stonewalled again, I sued them in federal court.
What did the most fearsome-sounding man in the Cabinet do when a private citizen asked a judge to make him show his homework? He crumbled.
Just weeks after I sued, the Department of Defense handed over all six pages of the memorandum, with nothing redacted but a few phone numbers and email addresses. No trial. No fight. The man who told America he was watching closely could not handle being watched himself.
Pete Hegseth's power is all bluster
The document is worth reading. Hegseth told the public there would be a single six-month review. The memorandum he signed requires compliance reviews every 90 days. He framed the restrictions as being about membership. The document extends birth-sex requirements to adult leaders, volunteers, staff and partner organizations.
He hid the agreement because it’s worse than his speech and because secrecy was the point.
I ran from bullies as a kid. Many of us did. What 36 years of this fight have taught me is that the bluster is the act itself. Hegseth is a blowfish: He puffs up, looks enormous and there is nothing inside. His method depends entirely on nobody checking.
Now for a healthy dose of irony. The Supreme Court case I lost, Boy Scouts of America v. Dale, established that the government cannot dictate the membership of a private expressive organization. The precedent built on my expulsion is now the strongest legal shield Scouting America has against the Pentagon's coercion. The weapon that scouts leaders used on me is sitting there, waiting for them to pick it up.
In 2000, Scouting told the Supreme Court it was a values-based organization. It is time to live those values and fight the Pentagon.
Across the country, this administration is pressuring schools, hospitals, churches and companies the same way. The Freedom of Information Act belongs to every citizen. Filing mine took about 15 minutes and an internet connection. It took a lawsuit to learn what the secretary of Defense was hiding, and it cost the government its entire posture of invincibility to admit it.
I sued the Pentagon with a single lawyer, and the Department of Defense surrendered in weeks. They may be loud. But they are not strong.
The bullies I ran from as a child never actually chased me. I understand that now. They were standing on their heels the whole time, hoping I wouldn't turn around and push back.
James Dale was the plaintiff in Boy Scouts of America v. Dale (2000) and now sits on the board of Lambda Legal. He is currently suing the Department of Defense over its dealings with Scouting America, and writes atjamesrdale.com and on Substack atjamesrdale.substack.com.
This article originally appeared on USA TODAY: Hegseth bullied Scouting America. One lawsuit made him fold. | Opinion
