To our knowledge, all of the court cases involving BSA membership or
employment discrimination revolve around the nature of the organization. Two
Is BSA a private group, like a church or a chapter of the Masonic order?
It would be called an "expressive association" in legal
language. Such organizations can discriminate freely against women or minorities, even if human
rights legislation exists which normally prohibits discrimination based on
sex, religion, sexual orientation, etc. Analogies would be the
Mormon church which once
prohibited African-Americans from being ordained, or the
Roman Catholic Church which
still discriminates on the basis of gender. The BSA takes the position that it is distinctly
private. In support of this argument BSA states:
It is basically a collection of small, local, intimate groups,
called troops or packs or posts.
Forcing the BSA to
accept homosexual members would be like requiring the NAACP to accept a
Klansman into their group.
Gays, Atheists, etc. who bring lawsuits against the BSA are not really
sincere members of the BSA. They are "testers" with a personal
Is it a "place of public accommodation" which attempts to
make scouting available to every boy who wants it. In favor of this
The BSA is the largest youth movement in the world. Between
1992 and 1996, the BSA total assets in the U.S. increased from 277 million to 441
BSA's federal charter obligates them to serve all boys.
Other than discriminating on the basis of sexual orientation and religious belief, BSA has no
barriers to membership. It aggressively recruit new members.
Many troops are sponsored by government agencies (e.g. public schools,
military base, fire department) and thus cannot discriminate on the
basis of religion.
Federal laws have been passed to allow the military to provide
transportation for Scouts and to loan them equipment without charge.
Every national Boy Scout jamboree since 1981 has been held on a military base.
All recent presidents of the U.S. have been honorary presidents
of the BSA.
Many local councils receive substantial funding from the United Way.
Such United Ways have a national and local policy of not ordinarily
funding any charitable organization which discriminates on a basis of
religion or sexual orientation. Some United Ways
have stopped funding the Boy Scouts. However, many still continue
BSA operates and licenses retail stores to sell Scouting materials and
literature to both BSA members and the general public.
Groups that are much smaller and private than the Boy Scouts have been
recognized as public accommodations. One example is Big Brothers of
the National Capital Area.
One source lists some criteria which determine whether a group is
"distinctly private": its selectivity in admitting members; its
advertising for members; its history; its commercial nature; the use of its
facilities by nonmembers; and the use of public facilities by its members.1
Results of recent court cases, and reactions to them:
The BSA policy of excluding persons with unacceptable religious beliefs and persons with homosexual or bisexual orientation
has been the topic of many court cases, starting in 1981. There has been no
clear pattern of wins or losses in lawsuits before the courts, and cases before
human rights commissions.
1998: The American Civil Liberties Union sued the City of
Chicago over both the religious and sexual orientation issues in the
Scouting units that the city entities sponsored. The city ended its affiliation with the
BSA. The Parent/Teacher Association has adopted a national policy of
not permitting its chapters to sponsor Scouting units.
1999-APR - Illinois: The ACLU initiated a suit against the Chicago public schools and
the Scott Air Force Base in southern Illinois. The ACLU position is that "Schools,
military bases and other publicly funded groups have no business sponsoring Boy Scout
troops so long as Scouts are required to take a religious oath...public
funding of Boy Scouts of America troops violates the constitutional requirement
of separation of church and state."
1999-AUG-5 - New Jersey court case: The New Jersey Supreme
Court "unanimously struck down the Boy Scouts' policy banning
gays from being members or leaders in the organization..."
Davidson, attorney for the Boy Scouts vowed to appeal the case to the
Supreme Court. The case was brought by James Dale, 29, of Matawan, NJ. He
had been in the BSA for 12 years, had earned about 30 merit badges, and was
an assistant Scoutmaster.
The ruling read, in part, ''To recognize the Boy Scouts' First
Amendment claim would be tantamount to tolerating the expulsion of an
individual solely because of his status as a homosexual - an act of
discrimination unprotected by the First Amendment freedom of speech.''
Another part of the ruling said that the BSA policy is "based
on little more than prejudice...The human price of this bigotry has been
BSA spokesman Paul Stevenson said: "The law against
discrimination as applied to the Boy Scouts is unconstitutional...'The
New Jersey law against discrimination applies [only] to public accommodations.
The Boy Scouts is a private accommodation, and as such we're not
Plaintiff James Dale said that his Scouting experience prepared him for the
legal battle. "[This is] exactly what Scouting has taught me: to believe in the system and that
justice will prevail...When I was growing up, I didn't know I was gay, but the
Boy Scouts made
me feel good about who I was. Whether or not they know it,
the Boy Scouts do wonderful things for gay kids across the country.''
The American Family Association Center for Law & Policy is
a conservative Christian group. Their Chief Counsel, Steve Crampton,
stated: "traditional moral values were placed squarely in the
cross-hairs today when it pulled its rhetorical trigger-equating the
reasons for BSA's revocation of Dale's membership with 'the cancer of
discrimination.' The New Jersey Supreme Court's ruling is nothing less
than an official indictment of all who believe homosexuality is immoral
- it is a rejection of the moral teachings of over 2000 years of Western
Civilization." Brian Fahling, Senior Trial Attorney stated:
"the intrusion of the government into the affairs of private
organizations is now complete. First we were prohibited from expressing
our moral values in the public square, now we are told that we may not
express them even among ourselves in private associations."4
1999-AUG-11 - United Methodist Church troop sponsorship: 11,738 of the 37,000 congregations of the United Methodist Church sponsor Scout
troops. They sponsor a total of 421,579 boys. Methodist churches currently sponsor about 12% of all of the BSA troops in the U.S. A drive has been organized to have a troop in every church.
But the denomination has a ban on discrimination based on sexual
orientation. Jane Hall Harvey, UMC assistant general secretary said: "We
believe non-discrimination is the order of the day." The
denomination will shortly be asked if its ban on discrimination based on
sexual orientation applies to Scouting. If they pull out of the BSA the
possibility exists for UMC Scout troops to form the nucleus of a parallel Boy Scouts organization -- one that does not discriminate on the basis of
sexual orientation or religion.
1999-AUG-11 - Providence, RI decision: The Narragansett Council of
the BSA in Providence RI announced a new policy on gays that was approved by
the BSA head office in Irving TX. The council acknowledge publicly that a
Scout can be a homosexual, as long as he doesn't advertise it. This is, in
effect, the same don't ask, don't tell policy as is used by the U.S. military. This may
signal the path for the BSA in the future: to adopt a type of local option
concerning discrimination. Mary Bonauto,
a spokesperson for the Gay and Lesbian Advocates and Defenders in
Boston MA commented: "It sounds to me like the Boy Scouts are in
retreat...They acknowledge the sexual orientation of their members is none
of their business." The Westboro Baptist Church, owner of the
web site, announced that they will be picketing both Irving and Providence
1999-AUG-17 -BSA Study: The executive committee of the BSA had received a
resolution which would authorize a study by a 12-member panel to review
"the scientific and medical basis for the determination
of sexual orientation." They would also review "The
moral and religious basis for defining homosexuality as a moral issue."
The panel would call for input from medical experts and religious leaders.
Part of the mandate of the panel would be to consider changes to the BSA
membership policies. Gregg Shields, a BSA spokesperson, was keen to point
out that "This is a resolution. It's not a study, and it's not a
policy" The resolution was referred to the "relationships
committee...The nation [sic] executive committee is dedicated to the polices
that we have in place, and we don't foresee those changing"
Ongoing - San Diego CA: The American Civil Liberties Union
and the Tom Homann Law Association have asked the city of San Diego
to end its financial subsidies to the Boy Scouts until the BSA ends its
discrimination based on sexual orientation and religion. The legal groups
are also asking that the city council end its $1.00 annual lease to the Boy Scouts
council for their headquarters office in Balboa Park. An end to the
rent-free use of city-owned property on Fiesta Island was also sought. The
city and ACLU settled the case in 2004. The
city will pay almost $1 million in legal fees and court costs; the Boy
Scouts will be evicted.
1999-SEP: The Commission on United Methodist Men of the United
Methodist Church criticized the New Jersey court ruling.
1999-SEP-16:Presidential candidates: A newsletter that
opposes equal rights for gays and lesbians, "Straight from the Heart,"
asked various Republican presidential candidates for their opinions on
homosexuals in the Boy Scouts. A spokesperson for Governor George Bush wrote
"He believes the Boy Scouts is a private organization and they
should be able to set their own standards." He added that the
New Jersey Supreme Court erred when it struck down the Scouts' ban on
homosexuals serving as scoutmasters. A spokesperson for Elizabeth Dole's
campaign said that she "supports the right of private organizations
to set their own membership rules."
1999-OCT-10 - United Methodist Church troop sponsorship (continued): The
United Methodist board of Church and Society approved a statement on
homosexuals within the Boy Scouts by a two-thirds vote. The statement said,
in part: "While the General Board of Church and Society would like
to enthusiastically affirm and encourage this continuing partnership of the
church and scouting, we cannot due to the Boy Scouts of America's
discrimination against gays...The United Methodist Church ... strongly
condemns discrimination based on sexual orientation." The Boy
Scouts' policy "conflicts with our [church's] Social Principles."
According to the Washington Times, the board will support the Lambda
Legal Defense Fund during the appeal of the New Jersey decision to the
U.S. Supreme Court. The LLDF is a homosexual support group seeking equal
rights under law for gays and lesbians. Any decision to disengage the UMC
from the BSA would have to be made at the UMC General Conference.
1999-OCT - New Jersey court case (cont'd): The BSA filed an appeal
of the New Jersey Supreme Court decision with the U.S. Supreme
Court. Spokesperson Attorney Steve Crampton, of the American Family
Association's Law Center, was pleased with the appeal. He commented:
"As we understood it, there was some discussion and debate
internally as to whether they would pursue the case on appeal."
1999-OCT - New Jersey court case (cont'd): The Family Research Council
discussed the New Jersey decision in its October issue of Washington Watch.
Author and Senior Director of Cultural Studies, Robert H. Knight, raised some interesting points:
Knight described an incident in his childhood when he was a Scout.
Another Scout in his troop tried to sexually molest a fellow scout. The
perpetrator was expelled by the Scoutmaster. Knight wrote that: "Under
an August 5 unanimous New Jersey Supreme Court ruling...my scoutmaster
would be in hot water." [Author's note: This appears to be a non sequitur.
court ruling dealt with BSA membership entry rules. It did not touch in
any way on the conditions under which a Scout could be expelled.]
Justice Allan B. Handler's mentioned in his ruling that a homosexual
"is no more or less likely to be moral that a person who is
heterosexual." Knight commented "This means that
homosexual behavior must be inherently moral..." [Author's
note: This also appears to be a non sequitur. The judge's seems to imply that
some heterosexuals engage in moral acts, that some homosexuals do as
well, and that the rate of moral acts is the same for gays and
straights. Knight's interpretation of the ruling seems to imply that all
homosexual behavior is inherently moral. It is not. Homosexuals can
engage in coercive, manipulative, non-consensual and unsafe sex, just as
Knight commented that "In declaring the BSA to be a 'public
accommodation,' Chief Justice] Poritz and her colleagues couldn't find
any distinction between a Scout troop and, say, a bus station."
[Author's note: This appears to be a misrepresentation of the facts. Some youth groups
are private clubs; others are public accommodations. The court decided
that the BSA was one of the latter. But anyone can see that the BSA does not resemble a bus station.
Just about the only thing that they share in common is that they are
both public accommodations.]
Knight concluded by saying that "Judaism, Christianity and
Islam all teach that homosexuality is wrong. If the judges are
right...then religious people should expect their congregations to come
under severe legal attack." He is apparently implying that if a
minister teaches that homosexual behavior is immoral that they can
expect to be sued by the state on civil rights charges. [Author's
note: Again, this does not make sense. Ministers' free speech is
protected under the 1st Amendment of the U.S. Constitution. In the past,
some ministers have promoted slavery, opposed racial integration,
opposed inter-racial marriage, promoted the unequal treatment of women,
etc. without having been charged by the state. They will certainly be
able to safely to include homophobia in their sermons if they wish.]