Challenging the discriminatory practices of the Boy Scouts of America

In December 1992, nearly seven years ago, I filed discrimination complaint with the Pennsylvania Human Relations Commission (PHRC) against the Chester County Council of the Boy Scouts of America (BSA) for rejecting the applications of my son, Matthew Schottmiller, and myself. Matthew, then fourteen years of age, had attempted to reinstate his Boy Scout membership; he'd previously been active in Cub Scout and Boy Scout troops in two states over a seven-year period. At the same time, I had applied to become a BSA adult volunteer. On the forms provided, we'd each crossed off the word God in the BSA's "Declaration of Religious Principle." Such honest clarification of our philosophical views was, in the eyes of BSA officials, enough to disqualify us. For we were told outright that it was necessary to "acknowledge the existence of God as a condition of becoming a Boy Scout or an adult volunteer."

After filing our complaint, matters in Margaret Downey-Schottmiller v. Chester County Council of the Boy Scouts of America progressed slowly, with the BSA denying that its discrimination against nontheists was unlawful. The BSA argued that membership in the organization was "not an accommodation, advantage, or privilege of a public accommodation" and emphasized that "the Boy Scouts are distinctly private" within the meaning of the law. Thus, the BSA held that it could enforce its rule "that all persons seeking youth or adult membership must agree to observe the Scout Oath and Scout Law," each of which includes reference to God. We, on the other hand, argued that, pursuant to its federal charter and bylaws, the BSA is mandated to make Scouting available to all boys who meet entrance age requirements--irrespective of race, religion, or ethnic origin.

Finally, on January 18, 1996, the PHRC issued a Finding of Probable Cause. The commission concluded:

Probable cause exists to credit the Complainant allegations that both she 
and her minor son were unlawfully discriminated against, in violation of
Section 6 (i) of the Pennsylvania Human Relations Act, because of religious
creed when Respondent [the BSA] advised the Complainant that belief in the
existence of God was a requirement to obtain the accommodations,
advantages, facilities, and/or privileges offered to Boy Scouts and adult
membership volunteers.

The BSA was then ordered to immediately advise us of our right to apply for membership at the appropriate levels; to notify all administrative personnel and volunteers in writing that " individuals who are unwilling or unable to acknowledge a belief in God for religious reasons may nonetheless apply for and be accepted as scouts and/or volunteers"; and to post and exhibit prominently the commission's public accommodations fair practices poster, advising people of the rights guaranteed under the Pennsylvania Human Rights Act. (By then, however, my son had turned eighteen, making him too old to continue as either a Boy Scout or Varsity Scout; only the Explorer and adult volunteer programs cover young people his age.)

Did the BSA comply? No. Three more years passed as the organization stood in opposition to the ruling and refused to cooperate with any conciliation negotiations. This culminated in a pre-hearing conference on January 20, 1999, at which the PHRC determined that its only recourse was to take the BSA to the next phase of forced compliance: a public hearing.

That hearing was held this past May but, unfortunately, we didn't prevail. On June 28, the decision of the full commission was seven to two against us. Our complaint was dismissed and the BSA was declared a private organization not subject to the anti-discrimination laws of Pennsylvania. Since then, however, the American Civil Liberties Union (ACLU) has taken up our cause and we have filed an appeal.

Similar results have occurred elsewhere. Randall v. Boy Scouts of America failed to prove that the BSA was a business subject to the Unruh Act, a California anti-discrimination law. Cases in Connecticut, Illinois, Kansas, and Oregon failed to identify the BSA as a "place of public accommodation" because of the technicality that local Scout troops don't operate at a fixed and permanent location. As a result, a new strategy for dealing with the Boy Scout issue has emerged.

This past April, the Chicago branch of the ACLU filed a federal lawsuit against schools, military bases, and other publicly funded groups entangled with the BSA. Filed on behalf of five taxpayers, the suit specifically names the Chicago Public Schools and the United States Transportation Command, headquartered at Scott Air Force Base in southern Illinois, as defendants. But these two defendants represent all federal agencies as well as any local agencies in Illinois that receive state funding.

The argument in this case is that, if the BSA is indeed a private religious club, as it claims, then publicly funded groups that aid or support Scouting are in violation of the church-state separation provision in the U.S. Constitution. When the suit was filed, ACLU attorney Roger Leishman declared, "Government agencies simply cannot spend tax dollars on programs that exclude people because of their religious beliefs." In saying this, he was following up on the ACLU's 1998 success with a suit against the city of Chicago over the BSA's discrimination against atheists and gays. The city had sponsored Scout troops but has since ended that affiliation.

Taking a similar approach, the Minnesota Civil Liberties Union (MCLU) filed a lawsuit in May against the St. Paul School District. The suit is on behalf of David Perry, a second-grade teacher employed at Dayton's Bluff Elementary School in St. Paul. The suit alleges that school officials required Perry to yield classroom instructional time to allow BSA representatives to recruit new members from his class. Perry subsequently complained to the school district, explaining that the BSA is a religious group that discriminates against atheists, gays, and bisexuals. Getting no satisfaction, he turned to the MCLU.

"This lawsuit has nothing to do with whether the Boy Scouts have the right to discriminate or whether they have a right to use school facilities like any other community group," says MCLU Executive Director Chuck Samuelson. "This case is about government sponsorship and promotion of a religious group that conditions membership on a religious oath. Public schools have no business putting their official stamp of approval on such a group."

Meanwhile, an older case in Oregon may finally be moving forward. It began in 1996 when a Boy Scout recruiter, during class time, placed plastic wrist bracelets on public school boys. The bracelets, removable only by being cut off with scissors, read: "Come Join Cub Scout Pack 16! Round-Up for New Cub Scouts for Boys in Grades 1-5 ... Scott Elementary School." Nancy Powell, mother of one of the boys, who is an atheist, complained to school authorities because of BSA religious discrimination policies. When her effort failed, she turned to the ACLU of Oregon, which in 1998 represented her and her son in a complaint filed in the Multnomah County Circuit Court.

The case went to trial and, on August 31, 1999, the court found that the BSA discriminates on the basis of religion and bars membership to boys and Scoutmasters who don't acknowledge the existence of God. But the court paradoxically held that BSA recruitment activities in schools still don't violate Oregon's constitutional requirement of separation of church and state. The ACLU may appeal.

These recent efforts seem to have in common a kind of unhappy resignation--a capitulation to the BSA's position that Scouting is both private and religious. And thus, the only appropriate response under the U.S. Constitution and the various state and federal anti-discrimination laws becomes one of doing everything possible to remove government benefits and privileges formerly granted to Scouting. This, of course, can only hurt the program and, more importantly, hurt a new generation of Scouts who will increasingly be denied many of the wonderful adventures and opportunities that former Scouts had so frequently enjoyed.

Can there still be hope for the position taken by myself and so many others: that Scouting is a program more than worthy of public support--so worthy, in fact, that it should truly be open to all boys? Thankfully, James Dale has answered that question with a resounding "yes."

James Dale became a Cub Scout in 1978 at the age of eight. Graduating to the Boy Scouts, he remained in the program until his eighteenth birthday in 1988. He was an exemplary member, ultimately earning the coveted Eagle Scout honor. Then in 1989, Dale sought adult membership. His application was approved and, for sixteen months, he held the position of Assistant Scoutmaster.

During that time, Dale became a student at Rutgers University. It was there that he first acknowledged to himself, his family, and his friends that he is gay. Eventually, he became co-president of the Rutgers University Lesbian/Gay Alliance. And in that capacity, he was interviewed by a newspaper reporter whose story, with Dale's photograph, was published on July 8, 1990.

Within a month, Dale received a letter from the Monmouth Council of the BSA revoking his membership and asking him to sever all relations with the Boy Scouts of America. When Dale inquired as to the basis for the termination, he was informed in writing that he had violated "the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals." After futilely seeking a BSA review hearing, he turned to Lamda, the gay and lesbian legal defense fund, through which he filed a six-count complaint in state superior court against the BSA for violating the New Jersey Law Against Discrimination. This was in July 1992.

In 1993, the court ruled against Dale and in favor of the BSA. Dale appealed the case and, in 1998, the appellate court reversed the lower-court decision and ruled in Dale's favor. It was then the BSA's turn to appeal to the New Jersey Supreme Court. Finally, on August 4, 1999, that court ruled unanimously against the BSA and in Dale's favor. The arguments stated in the decisions of the justices are illustrative of how strong a case there still is that the BSA is, in fact, subject to anti-discrimination laws.

The justices found the BSA to be "a place of public accommodation," in part because of its broad-based membership solicitation and the organization's historic partnership with various public entities and public service organizations. Specifically cited was the fact that, in New Jersey alone,

public schools and school-affiliated groups sponsor close to 500 scouting 
units, comprising approximately one-fifth of the chartering organizations
in the State. Other governmental entities, such as law enforcement
agencies, fire departments, city governments, and the military, sponsor
approximately 250 scouting units in New Jersey.

The BSA didn't meet the requirements for being a private club because its membership wasn't sufficiently limited. This was particularly the case with regard to homosexuality. The court found that "BSA members do not associate for the purpose of disseminating the belief that homosexuality is immoral; BSA discourages its leaders from disseminating any views on sexual issues; and BSA includes sponsors and members who subscribe to different views in respect of homosexuality." It was also the case with regard to religion. The court found:

BSA also does not espouse any one religion, explaining in the Scoutmaster 
Handbook that "It]here is a close association between the Boy Scouts of
America and virtually all religious bodies and denominations in the United
States" ... Consistent with its nonsectarian nature, BSA Bylaws require "
respect [for] the convictions of others in matters of custom and religion."
Boy Scouts "encourages no particular affiliation, [and does not] assume[]
[the] functions of religious bodies," ... indeed, in a training manual
entitled Scoutmaster Fundamentals prepared "for Scoutmasters, Assistant
Scoutmasters, Troop Committee members, and parents," BSA categorically
states: "Religious instruction is the responsibility of the home and
church."

The court went on to say:

We acknowledge that Boy Scouts' membership application requires members to 
comply with the Scout Oath and Law. We do not find, however, that the Oath
and Law operate as genuine selectivity criteria. To the contrary, the
record discloses few instances in which the Oath and Law have been used to
exclude a prospective member; in practice, they present no real impediment
to joining Boy Scouts. Joining requirements are insufficient to establish
selectivity where they do not function as true limits on the admission of
members.... Here, there is no evidence that Boy Scouts does anything but
accept at face value a scout's affirmation of the Oath and Law.

Subsequently, in a feature story on Dateline NBC, Dale stated that, in all his years in the BSA, he had never heard of any policy against gays. So he never had cause to interpret the Scout Law--which states that a Scout is "clean"--as being against homosexuality. Nor did he take the Scout Oath--which calls on Scouts to be "morally straight"--as meaning that they are to be sexually straight. Indeed, as was pointed out in the court case, The Boy Scout Handbook defines morally straight as being "a person of strong character" who has relationships with others that are "honest and open" and who is willing to " respect and defend the rights of all people." James Dale wants the BSA to live up to these standards.

Immediately upon the decision of the New Jersey Supreme Court, however, the BSA announced its intention to appeal the case to the U.S. Supreme Court. And so the struggle must continue--by those on both the inside and outside--to save the Boy Scouts of America from itself. Filmmaker and BSA Advisory Council member Steven Spielberg is particularly adamant on the matter:

I have spoken out publicly and privately against intolerance and 
discrimination based on ethnic, religious, racial, and sexual orientation.
While I support the principles of Scouting, that does not imply that I
support every current policy. Although I have no direct active role in the
Boy Scouts, I encourage efforts to end intolerance and discrimination once
and for all.

Margaret Downey is president of the Anti-Discrimination Support Network, an organization seeking to end BSA discrimination, and is a member of the board of directors of the American Humanist Association. Her e-mail address is [email protected]

COPYRIGHT 1999 American Humanist Association
This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan. All inquiries regarding rights should be directed to the Gale Group.

 

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