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Gay legal groups and activists roundly condemned a ruling by the California State Supreme Court March 23rd that the Boy Scouts could bar gay people, along with atheists and agnostics, as scouts and scoutmasters. The Scouts, the court ruled, are a private organization, not a "public accommodation" like a hotel or bus line, and so can keep out whom they like.

The ruling marks the second time in recent years that major US courts have invoked freedom of speech or association against gay people seeking entry someplace. The US Supreme Court ruled that a Boston Irish group could bar gay people from their St. Patrick's Day parade because parades are a mode of expression, not a "public accommodation."

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Gay groups smelled a rat in the California court's legal thinking. The Scouts' activities are deeply enmeshed in schools and other public institutions. If the Boy Scouts decided to bar black people or Jews, they could never today get away with it in practice, and no US court would invoke the right to free private association to allow such discrimination.

Gay legal campaigners have long tried to portray homosexuality as being like race is often supposed to be-- a obvious, deep, and unchanging fact about a person, rather than something rooted in choices about identity and self-presentation. Whether that analysis is right-- even about race-- can be questioned. But there's no doubt the California court meant to slap gay activists in the face.

The California court's decision, like the parade ruling, won praise, however, from some civil libertarian quarters. "Freedom of association is one of our most precious gifts," said Rick Sincere of Gays and Lesbians for Individual Liberty, a Washington, DC, libertarian group. "The California Supreme Court ruling protects all of us who want to set standards for our organizations, including gay men and lesbians." The sanctity of all-queer or all-female spaces would be limited if private associations couldn't discriminate. The Scouts were wrong in their rationale for excluding gay people, Sincere contends, but the task is "to persuade the Boy Scouts of America to change its membership requirements voluntarily, not have the state impose new rules."

But in the case of the Boy Scouts, at least, the conflict isn't gay versus anti-gay, so much as a clash between two different and incompatible cultures of homosexuality. Different forms of queer often coexist badly. Witness the skirmishes between folks who like cruising parks 'n' peeps and the gay marriage crowd. The US Navy had been the hottest bed of homosex among the armed services, but under "don't ask don't tell" has become the most sodomy-phobic. From its founding by the right-wing dandy Lord Baden-Powell, Boy Scouting been suffused with homoeroticsm. But it doesn't know what to do with overt gayness. As with wars generally, all sides have lost. Pup-tent sex games at scouting jamborees are probably at an all-time low thanks to the battles over gay scouts. Why can't homos just get along?