OF THE DISTRICT OF COLUMBIA
COMMISSION ON HUMAN RIGHTS
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - x
IN THE MATTER OF :
Roland D. Pool and Michael S. : Docket Nos.: 93-030-PA
Geller, : and 93-031-PA
Boy Scouts of America and :
National Capital Area Council :
Boy Scouts of America, :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - x
COMPLAINANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
David M. Gische
Julie P. Glass
ROSS, DIXON & MASBACK, L.L.P.
601 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Table of Contents
Table of Contents i
Table of Authorities viii
I. INTRODUCTION 1
II.THE BOY SCOUTS 2
A.Structure of the Boy Scouts Organization 2
B.The Scout Oath, Law, Motto, Slogan 8
III.ROLAND POOL 9
IV.MICHAEL GELLER 19
V. THE BOY SCOUTS' POLICY OF EXCLUDING HOMOSEXUALS IS BASED ON STATUS AND IS
NOT PART OF THE BOY SCOUTS PROGRAM 23
A. The Boy Scouts Have a Strict National Policy of Excluding Homosexuals Based
Upon Status, Not Based Upon Conduct 23
1. The Boy Scouts exclude homosexuals from Scouting simply on the
basis that they are homosexual, irrespective of conduct or other
2. The policy of excluding homosexuals from Scouting is a national
policy of the BSA to which no exceptions are allowed 24
3. Neither in statements, nor in fact, do the Boy Scouts have any
similar policy with respect to sexual status or conduct by heterosexuals
4. The national policy alone was the only basis upon which the Boy
Scouts demanded that Roland Pool and Michael Geller sever their
ties with Scouting 29
B. The Boy Scouts' Policy of Excluding Homosexuals is Not Part of Its Program
1. The morality of homosexuality and the policy or
procedures for excluding homosexuals is not part of
the Boy Scouts program 30
2. The morality of homosexuality is not something discussed in the vast
literature the Boy Scouts have published for use in Scouting 32
3.Scouters are not even supposed to raise with youth in private the
morality of homosexuality 41
C.The Boy Scouts' Various Articulations of the Policy Are Found in
Confused and Contradictory Public Relations Statements That Are Not
Generally Shared With The Volunteers Implementing The Boy Scouts'
1.The Boy Scouts' use of public relations statements 49
2.The 1991 position statements 53
3.The 1992 statements on the San Jose Troop and the United Way. 57
4.The Issues and Crisis Communications Guide 58
5.Other position statements 61
6.Scouting Magazine 62
7.The 1993 and 1994 statements 63
8.The response to the Merino decision 65
D.Because the Boy Scouts' Program and Its Program Materials Do Not Suggest
That Homosexuality is Immoral, Many Experienced Volunteers Were Unaware of the
1.Thornell Jones 69
2.Charles Wolfe 70
3.William Kirkner 71
4.Daniel Press 73
5.David Geller 73
6.David Rice 74
7.Michael Cahn 75
8.Michael Herde, Russell McLaren, Daniel Shaw and William Kealey 76
9.David Caffey and Gregory Hobbs 77
10.Virginia Boyce Lind 78
E.Even the Individuals the Boy Scouts Chose as Witnesses Are Unable to
Articulate a Policy That is Consistent or Even Coherent 81
1.The Boy Scouts' witnesses disagree over whether the words "known or
avowed" are in the policy 81
2.The Boy Scouts' witnesses disagree over what the words "known or
avowed" are supposed to mean 84
a. Every organizational representative designated by the Boy Scouts
changed his testimony on this issue after his deposition 84
b. The Boy Scouts' representatives do not agree on what the policy
is supposed to mean 87
c. None of the views expressed about what the policy is supposed to
mean jibes with either the public statements or the actual practice 89
(1) Several Boy Scouts' witnesses simultaneously maintain that the BSA
does not ask about a person's sexual orientation and that its application requests
that information 9
(2) Some Boy Scouts' witnesses seem to maintain that Scouters can swear
to be honest so long as they act dishonestly 91
(3) Other Boy Scouts' witnesses offer no explanation for the words "known
or avowed 92
(4) No formulation of "known or avowed" squares with the Boy Scouts'
approach to investigating allegations of homosexuality -- which is
itself a matter of confusion among the witnesses 93
(5) None of these theories is consistent with the fact that the Boy Scouts
also run programs in which youth have gay role models and mentors 96
F. The Boy Scouts' Various Articulations of the Policy of Exclusion Belie
Any Suggestion that this Policy is Fundamental To Scouting or that the
Policy Has Anything To Do with Advocacy or Conduct 97
VI. THE BOY SCOUTS ARE A PUBLIC ACCOMMODATION 99
A. The Boy Scouts are Enormous 99
B. The Boy Scouts are Almost Totally Non-Selective and Aggressively
Recruit Membership 99
C. The Boy Scouts are one of the most public organizations in existence.
D. The Boy Scouts Aggressively Use Public Relations in an Effort To
Increase Public Visibility, Support and Membership in the Community
E. The Boy Scouts Actively Promote and Sponsor Boy Scout Events in
the District of Columbia 111
F. Membership in the Boy Scouts determines access to numerous other
places of accommodation 113
G. The Boy Scouts are a large financial organization 114
H. Scouting Experience Provides Benefits Both to Youth and Adults 115
VII.THE BOY SCOUTS' DEFENSES ARE PRETEXTS FOR DISCRIMINATION 118
A. The Scout Oath and the Scout Law 120
1. The words "morally straight" do not support the Boy Scouts’
exclusion of homosexuals 120
2. The word "clean" does not support the Boy Scouts' exclusion of
3. The Scout Oath and Scout Law, in general, do not support the
Boy Scouts' exclusion of homosexuals 124
B. Scouting Since 1910 130
C. Traditional Family Values 133
D. The Boy Scouts' Reference to the Views of Some Religious Groups Does
Not Justify Their Policy of Excluding Homosexuals 135
1. The Boy Scouts have always been "absolutely non-sectarian" and
opposed to requiring Scouts to choose the moral views of one religion over another
2. The Boy Scouts' policy of excluding homosexuals, however, not only
picks and chooses among the diverse views of various religions, it
fails to track the views of any religion 140
3. The use by some religions of the religious emblems program does not
support the Boy Scouts' policy 146
4. The existence of a religious relationships committee does not support
the Boy Scouts' policy 147
5. The Boy Scouts failed to prove that sponsors would pull out
Scouting if the BSA's national office stopped requiring the
exclusion of homosexuals from Scouting 148
E. "Known or Avowed" 152
F. Role Modeling 153
G. Standardization -- The Least Common Denominator 161
H. Expressive Message 162
I. Other Possible Justifications 163
VIII. CONCLUSION 165
CONCLUSIONS OF LAW 167
I. THE BOY SCOUTS' DISCRIMINATION AGAINST ROLAND POOL AND
MICHAEL GELLER VIOLATES THE DISTRICT OF COLUMBIA HUMAN
RIGHTS ACT 167
A. The District of Columbia Human Rights Act is Intended to be aggressively
Applied to Eradicate Discrimination in the District of Columbia 167
B. Roland Pool and Michael Geller Easily Meet their Burden of Proof
Demonstrating that the Boy Scouts have Discriminated Against them in
Contravention of the Act 169
C. The Boy Scouts are a Place of Public Accommodation Subject to the
District of Columbia Human Rights Act 71
D. The Record Does Not Support the Boy Scouts' Claim That They Are a
"Distinctly Private" Organization 177
1. The "distinctly private" exemption is extremely narrow and does
apply to the Boy Scouts 177
2. The Boy Scouts' nonselectivity in admitting members demonstrates
that they are not "distinctly private 179
3. The Boy Scouts' intensive promotional efforts belie the
that they are a "distinctly private" organization 181
4. The purposes which brought the Boy Scouts together preclude
finding that the organization is "distinctly private 182
5. The Boy Scouts' connection with nonmembers and public facilities
weakens their argument that they are "distinctly private 183
II. THE DCHRA DOES NOT INFRINGE ON THE BOY SCOUTS' RIGHTS OF ASSOCIATION 185
A. The Exclusion of Homosexuals is a Discriminatory Practice That Cannot
be Protected on the Basis of Pretextual Claims to Freedom of "Intimate
B. An "Expressive Association" Defense is Unsupported by the Facts 187
1. Exclusion of homosexuals is a discriminatory policy of the Boy Scouts'
leadership and is not an expressive goal of the organization 191
2. Enforcement of the Act would not substantially burden the Boy Scouts'
expressive goals 196
3. The District of Columbia has a compelling interest in eradicating
discrimination that justifies enforcement of the DCHRA 199
4. The Supreme Court's Decision in Hurley lends further support to this
III. OTHER ARGUMENTS BY THE BOY SCOUTS ARE NOT LEGALLY-
COGNIZABLE DEFENSES 203
IV. ROLAND POOL AND MICHAEL GELLER ARE ENTITLED TO RELIEF 206
A. Injunctive Relief 206
B. Compensatory Damages 207
C. Attorneys' Fees & Costs 208
TABLE OF AUTHORITIES CASES
Board of Directors of Rotary International v.
Rotary Club of Duarte, 481 U.S. 537
Brounstein v. American Cat Fanciers
Association, 839 F. Supp. 1100 (D.N.J.
Brown v. Dade Christian Schools, Inc., 556
F.2d 310 (5th Cir. 1977), cert. denied,
434 U.S. 1063 (1978) 191,193
Curran v. Mount Diablo Council of the Boy
Scouts of America, 72 Cal. Rptr. 2d 410
(Cal. 1998) 47,49,74,175,176
Dale v. Boy Scouts of America, 706 A.2d 270
(N.J. Super. Ct. App. Div. 1998) 174,176,184,185,186,
Dale v. Boy Scouts of America, No.
MON-C-330-92 (N.J. Super. Ct. Ch.
Div.), rev'd, 708 A.2d 270 (N.J. Super.
Ct. App. Div. 1998) 68,128
Dean v. District of Columbia, 653 A.2d 307
(D.C. 1995) 174,205
Dickerson v. D.C. Department of Human
Services, No. 89-465-PA (N) 173
EEOC v. G-K-G, Inc., 39 F.3d 740 (7th Cir.
Gay Rights Coalition v. Georgetown
University, 536 A.2d 1 (D.C. 1987) 168,174,200
Gould v. Big Brothers of the Nat'l Capital
Greater Washington Business Center v.
District of Columbia Commission on
Human Rights, 454 A.2d 1333 (D.C. 1982) 169
Green v. Kinney Shoe Corp., 704 F. Supp. 259
(D.D.C. 1988) 177,206
Havens Realty Corp. v. Coleman, 455 U.S. 363
Hishon v. King & Spalding, 467 U.S. 69 (1984) 185
Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557
In the Matter of Michael Lewis, Esq. on
behalf of Gregory Smith v. Dr. Richard S.
Runckle, COHR Docket No. 92-154-PA
In the Matter of Richardson v. Chicago Area
Council of the Boy Scouts of America,
No. 92-E-80 (Chicago Comm'n on Human
Relations) 74, 75, 88,170,187,
Invisible Empire of the Knights of the Ku
Klux Klan v. Mayor of Thurmont, 700 F.
Supp. 281 (D. Md. 1988) 188
Irish-American Gay, Lesbian and Bisexual
Group v. City of Boston, 636 N.E.2d
1293 (1994), rev'd sub nom., Hurley v.
Irish-American Gay, Lesbian and
Bisexual Group, 515 U.S. 557 (1995) 201,202
Matthews v. Automated Business Systems &
Services, Inc., 558 A.2d 1175 (D.C.
McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973) 169,170
NAACP v. Alabama, 357 U.S. 449 (1958) 185
National Organization for Women, Essex Ch. v.
Little League Baseball, Inc., 318 A.2d
33 (N.J. Super. App. Div.), aff'd, 338
A.2d 198 (N.J. 1974) 179
New York State Club Association v. City of
New York, 505-N.E.2d 915 (N.Y. 1987),
ff'd, 487 U.S. 1 (1988) 178
New York State Club Association v. New York,
487 U.S. 1 (1988) 188,189,190,191,192,
Norwood v. Harrison, 413 U.S. 455 (1973) 185
Price Waterhouse v. Hopkins, 490 U.S. 228
Ouinnipiac Council BSA v. Commission on Human
Rights and-Opportunities, 528 A.2d 352
(Conn. 1987) 175
RAP, Inc. v. District of Columbia Commission
on Human Rights, 485 A.2d 173 (D.C.
Randle v. Lasalle Telecommunications, Inc.,
876 F.2d 563 (7th Cir. 1989) 169,170
Roberts-v. United States Jaycees, 468 U.S.
609 (1984) 178,179,183,185,186,
Rogers v. International Association of Lions
Club, 636 F. Supp. 1476 (E.D. Mich.
Runyon v. McCrary, 427 U.S. 160 (1975) 185
Schwartz v. The Cosmos Club 173,179
Seabourn v. Coronado Area Council, Boy Scouts,
of America, 891 P.2d 385 (Kan. 1995) 175
TWA v. Thurston, 469 U.S. 111 (1985) 170
Timus v. D.C. Department of Human Rights, 633
A.2d 751 (D.C. 1993) 174
U.S. Power Squadrons v. State Human Rights
Appeal Board, 452 N.E.2d 1199 (N.Y.
United States Jaycees v. Bloomfield, 434 A.2d
1379 (1981) 174
Welsh v. Boy Scouts of America, 993 F.2d 1267
(7th Cir. 1993), cert. denied, 510 U.S.
1012 (1993) 175,176
10 U.S.C. 2544 109
10 U.S.C. 4682 109
10 U.S.C. 7541 109
10 U.S.C. 9682 (statutes authorizing the
military to sell obsolete or excess
material to the Boy Scouts of America) 109
13 U.S.C. 641 109
36 U.S.C. 23 (1916) 2,106
Civil Rights Act of 1964, 42 U.S.C. 2000e,
et seq 169,175
D.C. Code 1-2501 (1987) (emphasis [in opinion]) 167,168,170,171,176,
D.C. Code 1-2512 (1987) 205
D.C. Code 1-2553(a)(1)(E) and (F) 208
Pub. L. 87-459 109
DCHRA 1-2502(24) 176
DCHP,A 1-2501 168,171,206,207
DCHRA 1-2503(a) 204
DCHRA 1-2519 168
DCHRA 1-2531 172
34 D.C.R. 6887 172
GOVERNMENT OF THE DISTRICT OF COLUMBIA
COMMISSION ON HUMAN RIGHTS
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - x
IN THE MATTER OF :
Roland D. Pool and Michael S. : Docket Nos.: 93-030-PA
Geller, : and 93-031-PA
Boy Scouts of America and :
National Capital Area Council :
Boy Scouts of America, :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - x
COMPLAINANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Complainants Roland D. Pool and Michael S. Geller, by their attorneys,
Ross, Dixon & Masback, L.L.P., hereby propose the following Findings
of Fact and Conclusions of Law in this matter.
FINDINGS OF FACT
1. This case is about discrimination and, unfortunately, prejudice.
The National Office of the Boy Scouts of America ("BSA") discriminates
against gays and lesbians by absolutely excluding them from membership
or participation. The National Capital Area Council, Boy Scouts of America
("NCAC") (collectively with the BSA, the "Boy Scouts"), which the BSA charters,
carries out that discrimination.
2. The Boy Scouts' discrimination is not based on conduct or expression.
It is based upon status. This discrimination does not effectuate any protected
expressive purposes of the BSA or the NCAC; rather, it exists in direct
contradiction to their expressed purposes. And what purports to be a constitutional
defense of this discrimination actually amounts to nothing more than a
grab bag of excuses each one more clearly pretextual than the last.
3. The Boy Scouts' conduct is illegal. In this instance, it has hurt
not only Complainants Roland Pool and Michael Geller -- two eminently qualified
adult Eagle Scouts -- but the numerous scout leaders who were more than
happy to make use of their skills and the scouts who could have benefited
II. THE BOY SCOUTS
A. Structure of the Boy Scouts Organization.
4. Respondent BSA is a non-profit corporation. The BSA was originally
incorporated in the District of Columbia in 1910. Now, however, it is a
Texas corporation, with its national office in Irving, Texas. Jere B. Ratcliffe
is the current Chief Scout Executive -- the BSA's Chief Executive Officer.
Ex. C1129 at NCAC4925, 4930, 4933.
8. In 1916, the Boy Scouts obtained a charter by Act of Congress:
to promote, through organization and cooperation with other agencies,
the ability of boys to do things for themselves and others, to train them
in Scoutcraft, to teach them patriotism, courage, self-reliance, and kindred
virtues, using the methods which are now in common use by Boy Scouts.
36 U.S.C. § 23 (1916); Ex. C1300 § 3.
5. In the 1980s, the Boy Scouts issued a mission statement stating:
It is the mission of the Boy Scouts of America to serve others by
helping to instill values in young people and, in other ways, to prepare
them to make ethical choices over their lifetime in achieving their full
The values we strive to instill are based on those in the Scout Oath and
Ex. R1; Ex. C1600 at A2552.
6. The BSA is a nationwide organization that, since 1910, has had over
93,000,000 members. Ex. C1122 at NCAC4881. As of December 31, 1996, its
membership was approximately 4,400,000 youth and 1,200,000 million adult
members, including 3,540 professionals involved in Scouting nationwide.
Ex. C1310 at 27.
7. There are a number of Scouting programs. Cub Scouts is for boys ages
7-10, including Tiger Cubs (the program for seven-year-olds) and Webelos
(the transition program for 10-year-olds). Boy Scouts is for boys ages
11-18. Explorers is a coeducational program for young people ages 14-20.
Ex. C1134 at NCAC4888. Through a subsidiary, the BSA runs Learning for
Life -- a coeducational school-based program for youth from kindergarten
through high school. Exs. 1000-1004. In February 1998, the BSA's National
Executive Board voted, effective August 1, 1998, to separate Exploring
into two different programs -- Venture Exploring and Career Exploring --
and to move the latter program to the Learning for Life subsidiary. Tr.
2466-67 (Leet); Ex. C1007.
8. The BSA maintains four regional offices and divides each region into
smaller geographical "areas." C1300 at 112-13; Flythe Dep. at 10. The District
of Columbia is located in Area VI of the BSA's Northeast Region, which
has its regional headquarters in Dayton, New Jersey. Ex. C313 at A1172.
9. Within the areas of each of its geographic regions, the BSA charters
councils. Ex. C1300 at NCAC114. As of December 31, 1996, there were 335
councils nationwide. Ex. C1310 at 27.
10. Respondent NCAC is a District of Columbia corporation, chartered
by BSA for the purpose of carrying out the BSA's program in the District
of Columbia and 16 surrounding counties in Virginia and Maryland. Ex. C313
at NCAC1172; Tr. 567-68 (Press). Ron L. Carroll is the current Scout Executive
-- a professional who serves as the Chief Executive Officer -- of the National
Capital Area Council. Tr. 1095 (Carroll).
11. The NCAC is divided into districts. The District of Columbia is
covered by two such districts. The Benjamin Banneker District ("Banneker
District") of the NCAC covers Northwest Washington and Northeast Washington
to Maryland Avenue. Tr. 303 (Jones). The Horizon District covers the remaining
portions of the city. Id. Each of these districts has a District
Committee whose responsibility it is to provide activities for the chartered
organizations. Tr. 305-06 (Jones).
12. Each district has at least one professional District Executive,
a volunteer District Commissioner, who oversees Assistant District Commissioners
and Unit Commissioners, and a Chairman, which is also a volunteer position.
Ex. C909 at NCAC378. The Boy Scouts refer to the District Executive, the
District Commissioner and the District Chairman as the "Key Three;" collectively,
they are the persons in the district responsible for carrying out the BSA
program and seeking to achieve its objectives. Tr. 301-05 (Jones).
13. The District Commissioner runs a "Commissioner staff," which typically
includes Assistant District Commissioners, who report to the District Commissioner,
and Unit Commissioners, who report to the Assistant District Commissioners.
Ex. C906; Tr. 299-302 (Jones). Unit Commissioners assist adults in "units"
-- Cub Scout packs, Boy Scout troops, or Explorer Posts, Bond Dep. at 47
-- by conveying to them the information they need to run the program and
by performing quality control to make sure that the program is being run
properly. Ex. C906; Tr. 299-302 (Jones). The Commissioner staff is both
a channel of communication through which the BSA and its councils tell
adult leaders at the troop level what they need to know to run the Scouting
program and is also a source of expertise and guidance on how that program
is to be run. Id.
14. The BSA is required by its charter to operate its program through
cooperation with other organizations. Ex. C1300 § 3. Organizations
such as public schools, government organizations, churches, synagogues,
mosques, civic groups or groups of citizens obtain a charter from the Boy
Scouts to sponsor an individual Scouting unit. Ex. C1153. Troops and packs
also have a troop or pack committee made up of representatives from the
sponsoring organization, parents, and others, who pick the troops' Scoutmaster
and provide various types of support, including transportation, chaperons
and resources to the troop. Tr. 281-82 (Jones).
15. These outside organizations also play a central role in the governance
of the Boy Scouts. The "membership" of each local council does not consist
of all the members of the Boy Scouts within the Council. Rather, it consists
of "a chartered organization representative from each chartered organization
and additional members at large from within the territorial boundaries
of the local council totalling a minimum of 100 adults." Ex. C1300 at NCAC114
(Art. VI, § 7, cl. 1). These councils, in turn, choose approximately
2,000 adult representatives to the BSA's National Council, which, in turn,
chooses all but a small number of the members of the BSA's National Executive
Board. Id. at NCAC 108-109 (Arts. I-III); Tr. 2459-61, 2507-13 (Leet).
16. A Scoutmaster is the adult leader of a Scout troop. Assistant Scoutmasters
are adults who work with the Scoutmaster. A Junior Assistant Scoutmaster
is a senior youth scout in the troop. Ex. C701 at 21-22, 33-49. Boy Scout
troops are typically divided into patrols, which are groups of 3-8 boys,
led by a youth who acts as patrol leader. A senior patrol leader is an
experienced older scout who is elected by all the scouts in the troop.
17. As with all adult leaders, Scoutmasters, Assistant Scoutmasters
and troop committee members are required to be members of the BSA. Once
registered as members, however, they do not need to complete new applications
to remain in their positions. Instead, their names can be submitted on
an annual roster when the troop reregisters with the BSA. Hill Dep. at
164. Adult troop leaders are required to receive a "fast-start" training
to familiarize them with the program and a more intensive training now
called "Scoutmastership Fundamentals." Tr. 293 (Jones).
18. Individual scouts progress through ranks. The scout ranks are scout,
tenderfoot, second class, first class, star, life and the highest rank,
Eagle Scout. Tr. 55 (Geller). In order to progress, scouts must meet requirements
specific to each rank and earn merit badges. Ex. C700 at 589.
19. Becoming an Eagle Scout is Scouting's highest honor. Ex. C1313 at
NCAC2059; Bond Dep. at 82. Only about two percent of all Boy Scouts ever
attain the rank of eagle. Bond Dep. at 121; Ex. C1122 at NCAC4881.
20. The Order of the Arrow is a national brotherhood of scout campers
that recognizes those campers "who best exemplify the Scout Oath and Law
in their daily lives and by such recognition cause other campers to conduct
themselves in such manner as to warrant recognition." Ex. C115 at 14. Scouts
can only become members of the Order of the Arrow by being chosen from
the members of their troop. The Order of the Arrow (or "OA") has lodges
at the council level and sections at the area level. Tr. 515-18 (Press).
Youths can obtain leadership positions in their OA lodge by becoming vice
lodge chiefs and lodge chiefs. They can also progress through three advancements
- Ordeal, Brotherhood and Vigil Honor. Tr. 520-21 (Press).
21. "The Vigil Honor is the highest honor that the Order of the Arrow
can present its members for service to the local lodge and council." Ex.
C115 at 23; Bond Dep. at 122. It is for those deemed to have demonstrated
the highest level of altruistic service to the Scouting program and to
their community, Ex. C115 at 23, 71-72; Tr. 521 (Press), and available
only to a limited number of Order of the Arrow members in each council.
Ex. C115 at 70.
B. The Scout Oath, Law, Motto, Slogan.
22. The Scout Oath states:
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong, mentally awake, and morally straight.
Ex. C700 at 5, 550-551.
23. As set forth in the current Scout Handbook, the Scout Law states:
A Scout is TRUSTWORTHY. A Scout tells the truth. He keeps his promises.
Honesty is a part of his code of conduct. People can always depend on him.
A Scout is LOYAL. A Scout is true to his family, friends,
Scout leaders, school, nation, and world community.
A Scout is HELPFUL. A Scout is concerned about other people.
He willingly volunteers to help others without expecting payment or reward.
A Scout is FRIENDLY. A Scout is a friend to all. He is a brother
to other Scouts. He seeks to understand others. He respects those with
ideas and customs that are different from his own.
A Scout is COURTEOUS. A Scout is polite to everyone regardless
of age or position. He knows that good manners make it easier for people
to get along together.
A Scout is KIND. A Scout understands there is strength in
being gentle. He treats others as he wants to be treated. He does not harm
or kill anything without reason.
A Scout is OBEDIENT. A Scout follows the rules of his family,
school, and troop. He obeys the laws of his community and country. If he
thinks these rules and laws are unfair, he tries to have them changed in
an orderly manner rather than disobey them.
A Scout is CHEERFUL. A Scout looks for the bright side of
life. He cheerfully does tasks that come his way. He tries to make others
A Scout is THRIFTY. A Scout works to pay his way and to help
others. He saves for the future. He protects and conserves natural resources.
He carefully uses time and property.
A Scout is BRAVE. A Scout can face danger even if he is afraid.
He has the courage to stand for what he thinks is right even if others
laugh at him or threaten him.
A Scout is CLEAN. A Scout keeps his body and mind fit and
clean. He goes around those who believe in living by these same ideals.
He helps keep his home and community clean.
A Scout is REVERENT. A Scout is reverent toward God. He is
faithful in his religious duties. He respects the beliefs of others.
Ex. C 700 at 7-8, 553-561; Ex. R175 at 9-11 (transcript of Horne eagle
24. The Scout Motto is "Be Prepared." Ex. C700 at 562.
25. The Scout Slogan is "Do a Good Turn Daily." Ex. C700 at 563.
III. ROLAND POOL
26. Roland Pool has been a resident of the District of Columbia since
1987. Tr. 705-06.
27. Mr. Pool attended college at Louisiana State University in Baton
Rouge, Louisiana and graduated in 1985. Tr. 707. He attended Dartmouth
College on a graduate fellowship to study volcanology. Tr. 708. After working
for three years at the Smithsonian Institution as a computer specialist,
he became a geologist at the Museum of Natural History at the Smithsonian
Institution. Tr. 708-09. He planned and designed a volcano exhibit for
the new Rock, Gem and Geology Hall, which opened in 1997, and collaborated
on a one-book encyclopedia entitled, "Volcanoes of the World." Tr. 710.
28. In 1997, Mr. Pool entered the Wesley Theological Seminary in the
District of Columbia. Tr. 711. He is currently studying pastoral skills
and theology, with the goal of becoming a pastor in the Religious Society
of Friends. Tr. 711.
29. Mr. Pool is exceptionally well-qualified to be a Unit Commissioner
in the Banneker District of the NCAC. In addition to his educational background,
his training as a volcanologist, and his current religious studies, Mr.
Pool has had extensive experience with the Boy Scouts, both as a youth
and an adult. Roland Pool began scouting as a cub scout and progressed
through its levels of Bobcat, Wolf, Bear and Webelo. Tr. 716.
30. As a Boy Scout, Roland Pool rose through the levels from Scout,
Tenderfoot, Second Class, First Class, Star and Life. In 1979, he became
an Eagle Scout -- the first Eagle Scout in Troop 85 in Mandeville, Louisiana.
Tr. 722; Exs. C102, C106, C108, C109.
31. Mr. Pool was elected into the Order of the Arrow by the other boys
in his Troop. Tr. 740; Ex. 115. After completing the Ordeal, Mr. Pool advanced
to the Brotherhood rank and received the Vigil Honor, the highest rank
of the Order of the Arrow. Tr. 741. Mr. Pool was elected to the Vigil Honor
rank by a committee appointed by the Order of the Arrow Lodge. Tr. 741;
Exs. C101A, C101B, C101C, C105. He also served as Vice Lodge Chief and
later as Lodge Chief of the Order of the Arrow. Tr. 748-49.
32. Mr. Pool also became an Explorer as well as a Boy Scout, serving
as the Vice President of the Aquatics Explorer Post in Mandeville, Louisiana
from 1976 through 1977. Tr. 745.
33. On turning 18, Mr. Pool re-registered with the Boy Scouts as an
Assistant Scoutmaster with Troop 85. He actively participated as an Assistant
Scoutmaster for two years. Tr. 746-47, Ex. C104. In 1977 and 1981, he was
selected as an adult leader for the special troops assembled for the Boy
Scouts' National Jamborees. Tr. 723-25.
34. Mr. Pool also was actively involved with the Philmont Scout Ranch.
Philmont is "the premier high-adventure backpacking destination for Scouts
in the United States," and competition for positions at Philmont is "extremely
competitive." Tr. 439-440 (Herde). In addition to being a Scout participant
at the Philmont Scout Ranch in 1978 and 1979, Mr. Pool was a staff employee
at Philmont for five years from 1980 through 1984. Tr. 752-61. He was a
Ranger for two summers in 1980 and 1981; a Training Ranger for two summers
in 1982 and 1983; and the Assistant Director for Conservation in 1984.
Tr. 754-56; Ex. C111. As the Assistant Director for Conservation, Mr. Pool
had the responsibility to supervise a $70,000 grant from Tandy Corporation
to develop an environmental program. Tr. 756-57. The program that Mr. Pool
designed and implemented was used for three years by 17,000 scouts each
year. Id. He also wrote the Land chapter of the Philmont Field Guide,
published in 1985 by the Boy Scouts of America. Tr. 757-58, Ex. C120. At
the end of his summer as Assistant Director of Conservation, Mr. Pool was
recommended by his superiors to be Chief Ranger -- the supervisor of 150
Philmont rangers. Tr. 760-61; Ex. C111.
35. When Mr. Pool was a youth member of the Boy Scouts, his understanding
was that the term "morally straight" had to do with a person's character,
and had nothing to do with a person's sexual orientation. Tr. 763-65. Similarly,
Mr. Pool understood that the phrase "clean" in the Scout Law had to do
with being physically clean and clean in word and deed, and that there
was no sexual component to the term "clean" in the Scout Law. Mr. Pool
credibly testified that, during the period that he was a youth member of
the Boy Scouts, "there was never a single discussion about sex, period."
Tr. 765. Similarly, there was no discussion about homosexuality, and no
one ever taught on the subject of the morality of homosexuality. Tr. 766.
36. Mr. Pool became aware that he was gay at the age of 13. At no time
did his sexual orientation become a subject of discussion with others in
the Boy Scouts, including his five summers at Philmont. Tr. 766-68. Mr.
Pool testified that, if a Scout came to him at the time he was an Assistant
Scoutmaster to discuss issues regarding sexual orientation, he would listen
carefully and would help the Scout find a resource, a counselor, or someone
from the religious community with whom he could consult. Tr. 768-79.
37. Between 1985 and 1992, Mr. Pool went to graduate school, began work,
and was not an active Scouter. Nonetheless, he retained his interest in
Scouting, collecting Boy Scout memorabilia that line the walls of his home,
and attending the 1989 National Jamboree. Tr. 778, 942.
38. In February 1992, Mr. Pool read an article in The Blade,
which had referenced an article in "The Washington Post" indicating that
homosexuals were inappropriate for Scouting. Tr. 773. Prior to reading
that article in February 1992, Mr. Pool had no knowledge of any Boy Scout
policy excluding homosexuals. Tr. 773. From 1985 to 1992, several of Mr.
Pool's friends involved in Scouting became aware of his sexual orientation.
None of those individuals advised Mr. Pool that, because he was gay, he
could no longer participate in Scouting. Tr. 774-75.
39. In March or April 1992, Mr. Pool ran into an acquaintance, Bart
Church, and briefly discussed the Boy Scout's policy excluding homosexuals.
When Mr. Pool told Mr. Church that he had been an Eagle Scout, Mr. Church
referred him to the ACLU for legal advice. Tr. 775-76.
40. In June 1992 Mr. Pool called the NCAC about obtaining an Assistant
Scoutmaster position. He was directed to Banneker District Executive Stuart
M. ("Mike") Bond.
41. Mr. Bond suggested that Mr. Pool might be interested in the higher
position of Unit Commissioner. Tr. 778 (Pool); Bond Dep. at 114-15.
42. Unit Commissioners do not generally work with youth. Although Unit
Commissioners are supposed to attend troop meetings on occasion, it is
up to the Scoutmaster if youth in a troop are even introduced to a Unit
Commissioner. Tr. 310 (Jones); Ex. C909 at NCAC367. The contact with youth
would be so limited that experienced commissioners and youth may well not
even know each other by name. Tr. 529 (Press). And volunteer leaders at
the district level, such as Unit Commissioners, would "almost never" be
in direct supervision of youth. Kay Dep. at 80-81.
43. On Tuesday, June 23, 1992, Roland Pool attended the Banneker District
Committee meeting at Mr. Bond's request. Tr. 778-779 (Pool); Tr. 371 (Jones).
The meeting was held in the Banneker District at St. Paul's Episcopal Church
in the District of Columbia. Tr. 352 (Jones); Tr. 779 (Pool); C1105. At
the meeting, Mr. Bond introduced Mr. Pool as a new Unit Commissioner. Tr.
44. Mr. Pool's skills and experience were particularly well-suited to
serving as a Unit Commissioner. To perform well, a Unit Commissioner needs
to be personable and tactful; and the more he knows about the Scouting
program the better. Tr. 310 (Jones); Ex. C906 at 7.
45. Roland Pool clearly had these qualities. He impressed the people
with whom he would have worked -- Thornell Jones, Daniel Press and William
Kirkner -- as being "an open person," who was "enthusiastic and also had
a tremendous Scouting background," and was "a professional in life." Tr.
371-74 (Jones); Tr. 530 (Press); Tr. 1970-73 (Kirkner). His status as an
Eagle Scout, a Vigil Honor member of the Order of the Arrow, his extensive
experience at Philmont and his knowledge of conservation were particularly
high credentials. Tr. 372-74 (Jones); Tr. 533-34 (Press); Tr. 1971-72 (Kirkner).
Someone with his credentials would have been a significant addition to
Scouting anywhere, and especially in the Banneker District. Tr. 606-07
(Press); Tr. 1971-73 (Kirkner). As one witness put it, Roland Pool was
"a Godsend." Tr. 1973 (Kirkner).
46. At the District Committee meeting, various scouters spoke about
the need of the Banneker District to attract new members. Ex. C1105. One
also spoke about what the Boy Scouts refer to as the "three G's" -- the
Boy Scouts' policies of excluding "gays, girls and the godless [i.e.,
atheists]." Tr. 779 (Pool).
47. At the District Committee meeting, Mr. Pool was invited to a Unit
Commissioner training session that had been scheduled for that Saturday,
July 27, 1992. Usually this training is conducted in the Banneker District;
however, because of a conflict of schedule, it was conducted at the Council
headquarters in Bethesda, Maryland. Tr. 377 (Jones); Tr. 782 (Pool).
48. At the training session, Mr. Pool was handed a notebook identifying
him as "Unit Commissioner Roland Pool," Ex. C302; Tr. 405-406 (Jones);
Tr. 787-88 (Pool), an organizational chart with his name included as Unit
Commissioner, Ex. C300, and program materials concerning the Banneker District
assembled by the District Commissioner, Thornell Jones. Ex. C313; Tr. 378-89
49. The training session taught about the job of Unit Commissioner and
how to schedule matters and how to rate performance. Tr. 376 (Jones). It
was not part of the training to discuss the Boy Scouts' policy concerning
homosexuals. Tr. 376 (Jones); Tr. 785-89 (Pool); Bond Dep. at 124.
50. The subject of the Boy Scouts' exclusion of homosexuals, however,
arose at lunch. Mr. Press and Mr. Kirkner, who were both lawyers, discussed
the policy and expressed the view that the policy was wrong, illegal in
the District of Columbia and contrary to the principles of Scouting. Tr.
380-82 (Jones); Tr. 576-77 (Press); Tr. 1973-81 (Kirkner). Mike Bond was
present during that conversation. Bond Dep. at 124-25.
51. Roland Pool did not initiate this conversation or take any part
in it. Tr. 787 (Pool). He never mentioned his sexual orientation at the
meeting and no one was left with any knowledge about his sexual orientation.
Tr. 407-08 (Jones); Tr. 787 (Pool).
52. At the end of the training session, Mr. Pool received a patch and
certificate signed by Scout Executive Ron Carroll demonstrating Mr. Pool's
successful completion of his training as a Unit Commissioner. Ex. C301;
Bond Dep. at 117-19.
53. Mr. Bond first signed his approval on Mr. Pool's application and
then scratched his signature out. Ex. C305; Tr. 590 (Press). See
Bond Dep. at 151-52.*/
54. By letter dated July 3, 1992, Mr. Pool submitted to Mike Bond his
application to become a Unit Commissioner in the Banneker district. Exs.
C303, C304. In the cover letter, Mr. Pool advised Mr. Bond that he was
gay. Ex. C303. In the attached application, Mr. Pool stated that he was
a member of the Smithsonian Lesbian and Gay Issues Group, had previously
been affiliated with the Sexual Minority Youth Assistant League ("SMYAL"),
and had served as a peer counselor at Whitman-Walker Clinic. The Application
Mr. Pool completed did not refer to sexual orientation. In a Section "6"
entitled Additional Information, the application asked whether the applicant
used drugs, was ever convicted of an offense, was charged with child neglect
or abuse or had his driver's license suspended or revoked. Ex. C304. Question
6e asked whether there was "any fact or circumstance involving you or your
background that would call into question your being entrusted with the
supervision, guidance, and care of young people." Mr. Pool answered "no"
to each of the subparts in question 6 of the Application, including Question
6e. Ex. C304, Tr. 791-95.
55. On July 14, 1992, 11 days later, Ron Carroll wrote to Roland Pool
stating that, "[a]fter careful review, we have decided that your registration
with the Boy Scouts of America must be denied. We are, therefore, compelled
to request that you sever any relations that you may have with the Boy
Scouts of America." Ex. C309. Mr. Carroll's letter did not state the reason
why Mr. Pool's registration with the Boy Scouts of America must be denied.
56. Mr. Carroll's decision to send this letter in the mail, with no
explanation, violated the Boy Scouts' own procedures. Under the Boy Scouts'
procedures, the Scout Executive was supposed to hand deliver the letter
and to provide an explanation for the decision. Ex. C603 at NCAC2581 (Item
6); Mack Dep. at 162-64.
57. On the same day of Mr. Carroll's letter, Steven Montgomery, Associate
Scout Executive, sent information to Paul Ernst, Director, Registration
Service of the Boy Scouts of America, for the purpose of adding Mr. Pool
to the Ineligible Volunteer File maintained by the Boy Scouts of America
in Irving, Texas. Ex. C307. The BSA developed this "Ineligible Volunteer
File" "in the early days of Scouting to record and bar from membership
those people seeking to register in Scouting who were known to be unfit
for membership." Ex. 604 at NCAC4285. It includes people who have engaged
in all manner of crimes and financial misdealing, theft, child abuse, as
well as homosexuals. Ex. C1505 ¶ 4. Mr. Carroll's letter to Mr. Pool,
however, did not inform him that the Ineligible Volunteer File existed
or that he was being placed in it. Ex. C309.
58. On July 29, 1992, Mr. Pool wrote Mr. Carroll expressing his disappointment
over the Boy Scouts' decision and requesting a reason why he had to sever
his relations with the Boy Scouts. Tr. 798-99, Ex. C310. In response, Mr.
Carroll wrote Mr. Pool on August 6, 1992:
I'm sorry, Roland . . .
. . . that it was necessary for you to write a letter to me requesting
an explanation as to why your membership in Scouting has been rejected.
It was my impression that you were made aware of the policy that the Boy
Scouts of America does not accept homosexuals as youth leaders.
Ex. C311. Mr. Carroll concluded "I would share with you that this is a
policy of our National organization which this council is bound to comply
with and one that our council leadership supports." Id.
59. The Boy Scouts have not produced anyone on the Commissioner staff
with whom Roland Pool would have worked who would have had the slightest
problem working with a homosexual, in general, or Roland Pool in particular.
Thornell Jones testified that he was "very upset" when he learned that
Mr. Pool's application had been rejected, and that Mr. Pool's homosexuality
would not have had anything to do with his performance as a Unit Commissioner.
Tr. 408 (Jones). Daniel Press and William Kirkner both had similar reactions.
Tr. 591-94 (Press); Tr. 1970-73 (Kirkner).
60. Indeed, after he learned of Roland Pool's rejection, Mr. Jones raised
the issue of whether anyone would have a problem with a homosexual Unit
Commissioner both at a meeting of his commissioner staff and at a round
table attended by 20 to 40 Scoutmasters, Assistant Scoutmasters and other
adult leaders in the Banneker District. Tr. 409-10 (Jones). Not one of
them expressed any view that it was appropriate to exclude Roland Pool
from Scouting. Id.; Tr. 593 (Press). Mr. Jones expressed no doubt
that the Banneker District had been made worse by excluding Roland Pool
from Scouting. Tr. 411-12 (Jones). Mr. Press put it "[w]e needed him. We
needed people, and particularly we needed people like him to be able to
. . . serve the Scouts that we were charged with serving." Tr. 594.
IV. MICHAEL GELLER
61. Michael Geller has been a resident of the District of Columbia since
1987. Tr. 28. He is currently employed at The World Bank. Tr. 40. After
growing up in Owego, New York, he attended Cornell University in Ithaca,
New York, graduating in 1984. Tr. 27-29. He has worked at The World Bank
since late 1992 or early 1993. Tr. 38.
62. Mr. Geller comes from a family steeped in Scouting tradition. Two
of his uncles were Eagle Scouts. His father is a Life Scout who in 1997
celebrated 55 years in Scouting. His father received the Silver Beaver
Award from the Boy Scouts for his dedicated years of service. Michael Geller's
brother, David, is also an Eagle Scout, as are his three cousins. Tr. 43.
63. Michael Geller was a member of Troop 37 in Owego, New York, sponsored
by St. Paul's Episcopal Church. Tr. 46. His troop was located in the Baden-Powell
Council, named after the founder of the scouting movement in England in
1907. Tr. 47. Mr. Geller became a Boy Scout on his eleventh birthday, the
first day he was eligible. He became an Eagle Scout in 1979 after six years
of scouting. Tr. 55-56, Ex. C202. Upon attaining the rank of Eagle, he
received congratulatory letters from President Carter, Ex. C204, and Congressman
Matthew McHugh. Ex. C205.
64. In 1977, Mr. Geller was elected to the Order of the Arrow, the National
Brotherhood of Scout Honor Campers. Tr. 67, Ex. C209. The election signified
that Mr. Geller was "one who lives according to the Scout Oath or promise
and Law." Ex. C209a.
65. During the time that Mr. Geller was a youth member of the Boy Scouts,
he understood the term "morally straight" in the Scout Oath to require
that one conduct oneself in an upright manner. Tr. 74-75. During that time,
he never had an occasion in which a Scoutmaster or other adult leader gave
instructions or comments on sexual conduct, the morality of any particular
sexual conduct, or sexual orientation. Tr. 76-77. Mr. Geller understood
the term "clean" in the Scout Law to mean literally to keep oneself clean
and to have a clean body and mind. Tr. 77-78. Other than certain health
issues related to sexual conduct, there was never any discussion regarding
sexual conduct or sexual orientation in the context of the term "clean"
in the Scout Law. Tr. 77-78. No one ever told Mr. Geller, and he never
formed the understanding, that homosexuality was inconsistent with the
Scout Oath or the Scout Law. Tr. 79.
66. From 1980 through 1992, Michael Geller was continually registered
as an adult leader of Troop 37 in the Baden-Powell Council. Tr. 93-98,
Exs. C210, C211.
67. Mr. Geller became aware that he was gay in 1983. Tr. 94. Shortly
thereafter, he told both his parents and his brother that he was gay. Tr.
95. At no time did his father tell him or believe that his sexual orientation
would require him to withdraw his registration from the Boy Scouts. Tr.
96; Tr. 479 (D. Geller).
68. On February 25, 1992, Michael Geller read an article in The Washington
Post that included a statement by Ron Carroll to the effect that he
did not believe that homosexuals made good role models for youth as they
progress into manhood and, therefore, the Boy Scouts did not accept homosexuals
as adult leaders. Tr. 100-01, Ex. C400. Prior to that time, Mr. Geller
was unaware of any Boy Scout policy excluding homosexuals. Tr. 102.
69. In response to this article, Mr. Geller wrote Ron Carroll on February
26, 1992 to express his disagreement with Mr. Carroll's view that homosexuals
were inappropriate role models within the Boy Scouts. Tr. 100, Ex. C400.
70. On February 27, 1992, the very same day that Mr. Carroll received
Mr. Geller's letter of February 26, 1992, Mr. Geller's membership in the
Boy Scouts was deleted from the Boy Scouts' membership database. Ex. C401.
71. On March 2, 1992, Rudy Flythe wrote Mr. Geller that, "[a]fter careful
review, we have decided that your registration with the Boy Scouts of America
should be denied," and requested that Mr. Geller sever any relations that
he may have with the Boy Scouts of America. Tr. 118-19, Ex. C402. Mr. Flythe
did not give any reason for the Boy Scouts' decision to require Mr. Geller
to sever all relations with them.
72. Mr. Flythe's decision to send this letter in the mail violated several
Boy Scout procedures. First, as noted above, such letters are supposed
to be hand-delivered and should contain an explanation. Ex. C603 at NCAC2581
(Item 6); Mack Dep. at 162-64.
73. More importantly, "[t]he Scout Executive or his delegate should
be the only individuals engaged in implementing" the Boy Scout procedures
for removing someone from membership. Ex. C603. It is the responsibility
of the Scout Executive to make decisions on excluding people from Scouting.
Id.; Fullman Dep. at 27; Carroll Dep. at 137. Even Mr. Flythe, himself,
testified that his office had no involvement in the revocation of membership.
Flythe Dep. at 37.
74. In fact, the Boy Scouts did contact the Scout Executive for Mr.
Geller's council -- Del Newquist of the Baden-Powell Council. Tr. 482-485
(D. Geller). On May 5, 1992, the Baden-Powell Council, however, wrote a
letter to the National Board of the BSA objecting to Mr. Geller's severance
from the Boy Scouts and urging that the BSA allow local troops to decide
whether they want homosexuals as adult leaders. Tr. 142, Ex. C1210. Although
Mr. Newquist did not testify, it is a fair inference from the evidence
in the record that Mr. Newquist declined to demand that Mr. Geller sever
his ties with the Boy Scouts, thus necessitating that Mr. Flythe, as Director
of the Northeast Region, write the letter instead of Mr. Newquist.
75. In response to Mr. Flythe's letter of March 2, 1992, Mr. Geller wrote several
letters to the Boy Scouts requesting them to state the reason for their decision
requiring him to sever all ties with the Boy Scouts. See, e.g., Exs.
C403, C406. The Boy Scouts never advised Mr. Geller of the reasons for their
decision. On April 6, 1992, while Mr. Geller's appeal of their decision was
pending, the Boy Scouts placed Mr. Geller in the Ineligible Volunteer File as
"an admitted gay leader." Ex. C407. On April 21, 1992, David K. Park, the Boy
Scouts' National Legal Counsel, advised Mr. Geller that there would be a national
review of the revocation of his registration, and that he would be advised accordingly.
Ex. C408. On September 11, 1992, Ben Love, Chief Scout Executive, advised Mr.
Geller that on September 9, 1992, a review committee of the Boy Scouts of America
conducted a review of the denial of his registration and upheld the action of
the Regional Review Committee in denying that registration. Ex. C409. Mr. Geller
was not given the opportunity to appear before the committee in his own defense.
V. THE BOY SCOUTS' POLICY OF EXCLUDING HOMOSEXUALS IS BASED ON STATUS AND
IS NOT PART OF THE BOY SCOUTS PROGRAM.
76. Roland Pool and Michael Geller were told to sever their ties with Scouting
because of a BSA national policy of excluding homosexuals. This policy is strict
and status-based. It cannot be found in the Boy Scouts' program or in their
message to Scouts, it is in public relations documents to be used to respond
to press inquiries. And its specifics and justification lies in almost total
A. The Boy Scouts Have a Strict National Policy of Excluding Homosexuals
Based Upon Status, Not Based Upon Conduct.
1. The Boy Scouts exclude homosexuals from Scouting simply on the basis
that they are homosexual, irrespective of conduct or other qualifications.
77. "The Boy Scouts of America Does Not Accept Homosexuals as Members or Leaders."
Ex. C508 at 1023. This exclusion is purely based upon status. The Boy Scouts
exclude anyone whom they learn is a homosexual, irrespective of whether the
homosexual has ever engaged in sex or ever intends to do so. Tr. 1201-1202 (Carroll);
Tr. 1900-1901 (Ellison); Teare Dep. at 76; Mack Dep. at 54-55; Hill Dep. at
18-19, 145-46; Fullman Dep. at 31-33. They exclude homosexuals irrespective
of whether the homosexual ever intends to mention his/her sexual orientation
to anyone else. Hill Dep. at 19. Indeed, once an individual is identified as
a homosexual, there is no information that person could give the Boy Scouts
that would allow his/her application to be accepted. Hill Dep. at 19; Kay Dep.
at 99; Fullman Dep. at 31-31. "There should be no ifs, ands or buts." Teare
Dep. at 161.
78. Although the Boy Scouts have sought to recast the policy as one limited
to "known or avowed" homosexuals, even by the Boy Scouts' formulation, the knowledge
or avowal has nothing to do with conduct. The Boy Scouts maintain that someone
who is required to reveal his/her sexual orientation by being compelled in a
legal proceeding to testify under oath is an "avowed homosexual" and will therefore
be excluded from Scouting. Tr. 1197 (Carroll); Carroll Dep. at 161. As Marcus
Mack, one of the witnesses named by the BSA to testify as its representative,
stated, "[i]f a homosexual rabbi wants to join the Boy Scouts, he would not
qualify as a member based [o]n that he does not live a morally straight life."
Mack Dep. at 54.
2. The policy of excluding homosexuals from Scouting is a national policy
of the BSA to which no exceptions are allowed.
79. No unit, sponsor, district, council, area or region is authorized to permit
a homosexual to be a scout or scout leader. Tr. 1135-36 (Carroll); Mack Dep.
at 237-38. In words provided to professional Scout Executives as guidance on
how to articulate the "national position statement on homosexuality," "[t]he
BSA's position is unyielding." Ex. C508 at 1023. "[E]xceptions to the national
policies of the BSA [on this issue] are not granted." Ex. C512 at 1029. Indeed,
former BSA President Richard Leet had initially sought to emphasize the extent
of local control in the Boy Scouts generally, see Tr. 2463-65; but, when
asked about a resolution of a troop that opposed the Boy Scouts' policy, he
stated flatly, "[y]ou know, a Troop is not an organization that is part of a
policymaking chain." Tr. 2548.
3. Neither in statements, nor in fact, do the Boy Scouts have any similar
policy with respect to sexual status or conduct by heterosexuals.
80. The Boy Scouts have no general policy of excluding persons who engage
in adultery or premarital sex and the Boy Scouts do not generally police the
sexual conduct of heterosexuals. Teare Dep. at 82-84; Tr. 341 (Jones); Hill
Dep. at 67-69; Carroll Dep. at 150-155. As James Kay, a scout executive who
had over 27 years of experience as a professional in several councils in the
Northeast Region, Kay Dep. at 4-6, testified at deposition: Q: Does the Boy
Scouts have a policy concerning any other sexual practices, other than homosexuality?
A: None that I'm aware of.
* * * *
Q: Are you aware of anyone having their membership revoked on the
basis of failing to satisfy the standard of "clean" who was not a homosexual?
A: I'm not aware of that.
Q: Are you aware of anyone having their membership revoked under the
standard of "morally straight" who wasn't a homosexual?
A: I'm not aware of that.
Kay Dep. at 121; accord Hill Dep. at 67.
81. There is no one who recalls any adult being denied membership in
the NCAC on the grounds of adultery or premarital sex. Carroll Dep. at
172-73; Bond Dep. at 142. Heterosexuals have routinely been permitted to
stay in Scouting even though they openly engage in sex outside of marriage,
and without regard to whether they engage in sexual practices that might
violate a sodomy statute. Tr. 342-43 (Jones); Tr. 588-90 (Press). The Boy
Scouts have active outreach programs to encourage participation in Scouting
by single parents, irrespective of the circumstances under which their
children were born. Tr. 342 (Jones). The Boy Scouts do not kick out boys
who have experience with sex; it is not part of the program. Tr. 400-01
82. The Boy Scouts do not have a general policy of excluding heterosexuals
who believe that homosexuality is moral -- even if they publicly avow such
a belief or, for example, march in a gay and lesbian parade. Tr. 1306-09
(Thomas); Teare Dep. at 85-86; Mack Dep. at 241-45; Kay Dep. at 126-27;
Fullman Dep. at 36-37. See also Tr. 1718-20 (Wolfe); Cahn Testimony
at 85-86, 88-89; Ex. C506 at NCAC5460 (discussing Boy Scouts' reaction
to a troop that passed a resolution denying that homosexuality is immoral
or relevant to Scouting); Rice Testimony at 248-52 and Exs. C1230-C1232.
See also Tr. 2470 (Leet) (heterosexual adults only removed if they
make the Boy Scouts' policy on homosexuality an issue with youth).
83. If a youth comes to a Scoutmaster and admits to doing wrong, like
stealing, lying, cheating or vandalizing, the normal procedure is to counsel
the youth privately and sympathetically. Ex. C727 at 6927-6932. If the
youth admits to being a homosexual, the Boy Scouts' policy is to instantly
terminate his association with Scouting. Teare Dep. at 88-89; Mack Dep.
84. As Mr. Bond, the District Executive who terminated Roland Pool's
association with Scouting, testified:
Q: What other activities or avowed expressions would fall outside
of traditional family values? Is it just homosexuality?
A: Murder, arson, rape. You know, criminal activity. Any type of conduct
that would serve as a bad example to kids in a Scouting program.
Bond Dep. at 138.
85. The contrast between the Boy Scouts' treatment of homosexuals and
heterosexuals is amply illustrated by the files maintained by the NCAC
involving the possible removal of individuals from Scouting. Of the ninety-nine
(99) files maintained by the NCAC and produced to complainants in discovery,
seven (7) files involved individuals identified as or alleged to be homosexuals.
(NCAC File Nos. 19, 25, 33, 58, 74, 77, and 89). All seven (7) of these
individuals (including Mr. Pool and Mr. Geller) were told to sever all
of their ties with the Boy Scouts. Id. The NCAC forwarded the files
on all seven (7) of these individuals to Irving, Texas for inclusion in
the Ineligible Volunteer File. Id. In most instances, the NCAC took
action to sever these individuals from the Boy Scouts within one or two
days of learning of their homosexuality. Id.
86. In contrast, none of the ninety-nine (99) individuals in the NCAC
files were terminated from the Boy Scouts for adultery or pre-marital sex.
For example, NCAC File No. 38 involves a letter dated March 8, 1993 to
Steven Montgomery, alleging that an adult leader was openly engaged in
an adulterous affair and had confessed to several other affairs with a
number of women over the past several years. NCAC File No. 38. A number
of Boy Scouts in his troop had seen him with other women. Id. The
NCAC took no action in response to this letter until June 15, 1993, more
than three months later, at which time Mr. Montgomery forwarded the letter
to Carl Gell, the Head of the Membership Committee, for discussion. Id.
The file reflects that, following a discussion between Mr. Montgomery and
Mr. Gell, the NCAC decided that no action was required. Id. The
person who had openly engaged in an adulterous affair did not receive any
correspondence asking him to sever all ties with the Boy Scouts, and his
file was not forwarded to Irving, Texas to be placed in the Ineligible
Volunteer File. Id.
87. NCAC File No. 23 further demonstrates that the Boy Scouts treat
heterosexual issues far differently than homosexuality. The individual
involved in NCAC File No. 23, while working at a Boy Scout camp within
the NCAC, allowed scouts to distribute pornographic magazines among themselves
and encouraged various sexual pranks. Id. at NCAC9341, NCAC9360-63.
The individual had his membership reinstated on appeal. Id. at NCAC9349.
The file materials establish that, at various staff meetings, the camp
supervisors affirmatively allowed staff people over age 18 to have pornographic
magazines in their possession while at camp. Id. at NCAC9360.
88. Because the Boy Scouts refused to produce in discovery any materials from
the Ineligible Volunteer File (other than those of complainants and the witnesses
at the hearing, whose files were produced following a specific order of the
Commission), the Boy Scouts were not allowed to produce any Ineligible Volunteer
Files into evidence at the hearing. The Boy Scouts proffered two Ineligible
Volunteer Files purportedly demonstrating instances of suspension for heterosexual
sexual immorality. Exhibit R179 (not introduced into evidence). The Boy Scouts'
proffer does not support any conclusion that the Boy Scouts require individuals
who commit adultery or pre-marital sex to sever their ties with the Boy Scouts.
One of the two proffered files involves an individual who had engaged in group
sexual encounters and had published a group-sex magazine known as "The Swinging
Star," in which his picture appeared. Id. The second file involved an
attorney who was suspended from the practice of law for two years for violation
of ethical standards by initiating or attempting to initiate sexual relationships
with eight (8) female clients and by filing false instruments in a divorce case.
Exhibit R179 at NCAC0012414 (not introduced into evidence). Thus, the Boy Scouts'
proffer only highlights the contrast between the extraordinary conduct required
before the Boy Scouts will exclude heterosexuals from Scouting and the automatic,
status-based exclusion of homosexuals without regarding to conduct.
4. The national policy alone was the only basis upon which the Boy Scouts
demanded that Roland Pool and Michael Geller sever their ties with Scouting.
89. The uncontradicted evidence of record is that Roland Pool and Michael Geller
were eminently qualified to continue their involvement in Scouting, and that
those who would have worked with them -- Michael Geller's troop and council
and the Commissioner staff of the Banneker District for which Roland Pool was
trained -- were more than happy to have these individuals participate in Scouting.
Tr. 142 (Geller); Tr. 371-74, 408 (Jones); Tr. 533-34, 591-94 (Press); Tr. 1973
(Kirkner). The Boy Scouts have not provided any evidence to contradict the clear
evidence that the only reason these individuals were excluded from Scouting
was because they are homosexual.
B. The Boy Scouts' Policy of Excluding Homosexuals is Not Part of Its Program.
90. The Boy Scouts' policy of excluding homosexuals is as extraordinary in
its implementation as it is extreme in its terms. Unlike scores of other policies
implemented by the Boy Scouts on matters large and small, the exclusion of homosexuals
from Scouting cannot be found, or even fairly inferred, from the thousands of
pages of program materials, training materials, manuals, brochures, pamphlets,
volunteer recruitment materials, or financial solicitation materials routinely
given to Scouts, Scouters, prospective members or parents as an expression of
the aims or methods of Scouting. To the contrary, these materials contradict
the inference that such a policy would exist.
91. Instead, the policy can be found in public relations statements,
distributed primarily to professionals for their use if called by the press.
Because it is not part of the program to discuss homosexuality or the Boy
Scouts' policy excluding homosexuals, and because these public relations
statements were not distributed to volunteers, Scouters with scores of
years of Scouting experience had no clue for years that the Boy Scouts
excluded homosexuals and, to this day, only know of the policy through
what they read in the press.
92. What they read, however, is hopelessly confused. The various policy statements
the Boy Scouts have issued cannot be reconciled either with each other, or with
the Boy Scouts' practices, or with their own professionals' understanding of
the policy or practice. Indeed, even the Boy Scouts' chosen representatives
do not articulate the policy either consistently or coherently.
1. The morality of homosexuality and the policy or procedures for excluding
homosexuals is not part of the Boy Scouts program.
93. It is no part of the program of the Boy Scouts to discuss homosexuality
or sexual practices or their morality. Teare Dep. at 86; Tr. 322-23, 390 (Jones);
Tr. 1712, 1760-61 (Wolfe); Tr. 538-40 (Press); Hayes Dep. at 80; Kay Dep. at
94. The Boy Scouts do not discuss their policy of excluding homosexuals
when they recruit either youth or adults to become members, Hill Dep. at
85, 88, Tr. 322, 399-400 (Jones); Carroll Dep. at 87-88, 113-114; Mack
Dep. at 145-47; Kay Dep. at 100, or generally when they speak to prospective
sponsors. Mack Dep. at 51-52; Kay Dep. at 100. As stated by Azzie Mae Hill,
a former District Executive Multiple Persons in the Banneker District,
when asked whether parents of prospective scouts are told about the exclusion
of homosexuals when they attend "Join Scouting Night" recruitment activities,
"we don't ever bring that out." Hill Dep. at 85. Applicants are not told
anything about this policy, unless they ask. Hill Dep. at 143-50.
95. The Boy Scouts do not discuss homosexuality or its morality at the
Boards of Review -- the reviews for possible advancement in the ranks of
Scouting, where Scout leaders meet with Scouts to discuss "very thoroughly"
the Scout Oath, the Scout law, and the Scout's efforts to live up to these
ideals. Tr. 1709-10 (Wolfe).
96. The Boy Scouts do not mention the policy of excluding homosexuals
when they provide training for adult volunteers or youth. Tr. 322, 425-26,
431-33 (Jones); Tr. 539-540 (Press); Fullman Dep. at 20, 23; Rice Testimony
at 240-42; Cahn Testimony at 79, and, if it does come up, it is in the
context of telling Scout leaders not to mention homosexuality unless someone
else brings it up. Hill Dep. at 27, 85-87, 140-41.
97. The policy of excluding homosexuals is not articulated at various
Boy Scout events where Scouting values are discussed. Tr. 152-154 (Carroll);
Carroll Dep. at 102-07, 113-114.
98. The Boy Scouts have monthly round tables at which adult scout leaders
discuss matters of importance to their operation; but it is not a part
of these meetings to discuss the role of homosexuals in Scouting. Hill
Dep. at 137, 139.
99. The Boy Scouts' policy of excluding homosexuals is never mentioned
as part of fundraising efforts. Tr. 1157-1158 (Carroll); Carroll Dep. at
102-107, 113-114. Tr. 1704 (Wolfe); Tr. 393-94 (Jones).
100. The Boy Scouts run a Learning for Life program in public schools, in which
they bring "`Scouting values to an otherwise hard-to-reach population." Ex.
C1312 at NCAC2060. See also, e.g., Mack Dep. at 57 ("[Learning
for Life] is an educational program that was designed for school participants
so that they might enjoy the benefits of the Boy Scout program of values and
ethical decisionmaking"); id. at 76-78; Ex. C1134 at NCAC4889. For some
five years they required adult leaders in that program to promise to uphold
the Scout Oath and Scout Law without ever telling them, or the school districts,
that they were making any statement about their sexual orientation or the morality
of homosexuality. Tr. 1118-19 (Carroll).
2. The morality of homosexuality is not something discussed in the vast
literature the Boy Scouts have published for use in Scouting.
101. The Boy Scouts' program is as careful and conscious about articulating
the principles the Boy Scouts seek to instill as any organizational program
imaginable. "Few organizations have such an abundant reservoir of manuals, guidebooks,
pamphlets and training tools available for their leaders as does the Boy Scouts
of America." Ex. C909 at NCAC360. The Boy Scouts routinely provide volunteer
scout leaders with policies on matters such as "two-deep leadership," aquatic
safety, use of alcohol and tobacco, first aid, accommodating religious practices,
themes for scouts meetings, national and council initiatives, recruitment, fundraising,
program activities, camping procedures and facilities, merit badge requirements,
scouting awards, proper wearing of uniforms, ceremonies and scores of others,
and have detailed the aims, principles and methods of Scouting in tens of thousands
of pages of material. Tr. 534-71 (Press). See, e.g., Exs. C313; C900,
and generally, Exs. C1400-1420 (fundraising materials).
102. The Scout Oath, the Scout Law, the Scout Motto and Scout Slogan
do not mention homosexuality. Ex. C700 at 5-9; Hill Dep. at 27. Although
the Boy Scouts provide extensive explanations of these principles of Scouting
in the Scout Handbook, and inform Scouts that these explanations are to
help them understand what they are promising to uphold, Ex. C700 at 550;
Mack Dep. at 43-44, there is nothing in these explanations, Ex. C700 at
550-63, or anywhere in the entire Scout Handbook, id., or in previous
versions of the Scout Handbook, Ex. C714 at 14-16; Ex. C716 at 7824-7826;
Ex. C717 at 1560-1562; Ex. C718 at 2182, 2189, 2194-2195; Ex. C719 at 2802-2803,
2809-2810; Ex. C720 at 38-39, 43, 50-51; Ex. C212 at 38-51; Ex. C119 at
30-41, that mentions homosexuality or its morality. Indeed, the Scout Handbook
has a section on sexual responsibility, Ex. C700 at 527-28, which does
not address homosexuality. Tr. 1947-54 (Kirkner); Bond Dep. at 141-42.
103. When the Boy Scouts excluded women from leadership positions, they
told Scoutmasters and troop committees about it in the training materials.
Ex. C900 at A1066-67. When the Boy Scouts speak of the requirement that
individuals swear to uphold a duty to God, they speak of it "proudly" and
cite their bylaws and editions of the Boy Scout Handbook, old and new,
to reflect that policy. Ex. C607 at NCAC8133.
104. Yet, the Boy Scouts cannot point to anything among these materials
that discusses the general exclusion of homosexuals from Scouting, much
less explains any reason why excluding homosexuals would be basic to Scouting.
See Tr. 538-40 (Press). Unlike the exclusion of atheists, the exclusion
of homosexuals is, to the Boy Scouts, an embarrassing negative that does
not affirmatively promote Scouting. Teare Dep. at 81; Carroll Dep. at 88.
105. Indeed, despite being in litigation over the exclusion of homosexuals
since 1981, the Boy Scouts' publications issued as part of their program
both before 1981, and in the 17 years since, belie the notion that excluding
homosexuals is an aim or method of Scouting. The Boy Scouts' program materials
articulate, over and over again, principles of tolerance. In the Scout
Oath, a Scout promises to do his best "[t]o do my duty to God." This duty,
however, specifically means following one's own conscience on religion,
and it is as important to respect the religious beliefs of others as to
be true to one's own religion. As the Scout Handbook explains:
Your family and religious leaders teach you to know and love God and
the ways in which God can be served. As a Scout, you do your duty to God
by following the wisdom of those teaching in your daily life, and by
respecting the rights of others to have their own religious beliefs.
Ex. C700 at 550; Tr. 1976-78 (Kirkner); Tr. 328 (Jones). See also, e.g.,
Ex. 112 at 67; Ex. 113 at 70, 72; Ex. 118 at 36, 51.
106. When the Scout Oath refers to doing a duty to "my country," it
refers to obeying its laws. Scouts are advised to "[h]elp keep the United
States strong by obeying its laws." C700 at 550. As far back as 1915, the
Boy Scouts told youth that obeying laws meant standing for "equal opportunity
Good citizenship means to the Boy Scout not merely the doing of things
which he ought to do when he becomes a man, such as voting, keeping the
law, and paying his taxes, but the looking for opportunities to do good
turns by safeguarding the interests of the community and by giving of himself
in unselfish service to the town or city, and even nation of which he is
a part. . . . [I]t means that he will stand for the equal opportunity and
justice which the Declaration of Independence and the constitution guarantee.
It means that in every duty of life he may be on the right side and loyal
to the best interests of state and nation. By the "good turn" that he does
daily as a Boy Scout, he is training himself for the unselfish service
that our cities and land need so much.
Ex. C715 at 737 (Handbook for Boys, 2d ed.); Tr. 1978 (Kirkner). The Boy
Scouts have repeated that message countless times since. See, e.g.,
Ex. C716 at 7814, 7818-20, 8071, 1974; Ex. C717 at 1480; Ex. C718 at 2189;
Ex. 719 at 2736; Ex. 727 at 6905; Ex. C1136 at NCAC2930.
107. The Scout Oath says that a Scout is supposed "to help other people
at all times." The Scout Handbook explains these words as follows:
There are many people who need you. Your young shoulders can help
them carry their burdens. A cheerful smile and a helping hand will make
life easier for many who need assistance. By helping whenever aid is needed
and by doing a Good Turn daily, you prove yourself a Scout. You are doing
your part to make this a better world.
Ex. C700 at 551; Ex. C722 at 7230. "Helping others" is the antithesis of
putting people down. Tr. 335-36 (Jones).
108. The Scout Handbook informs Scouts in discussing the term "mentally
awake" that "with an open attitude and the willingness to ask questions,
you will get the most out of your life." Ex. C700 at 551.
109. The Scout Handbook defines the words "morally straight" in the
Scout Oath as follows:
To be a person of strong character, guide your life with honesty,
purity and justice. Respect and defend the rights of all people. Your relationships
with others should be honest and open. Be clean in your speech and actions,
and faithful in your religious beliefs. The values you follow as a Scout
will help you become virtuous and self-reliant.
Ex. C700 at 551. See Tr. at 336-37 (Jones). See also, e.g.,
Ex. 118 at 37; Ex. C720 at 3610 ("your conscience speaks to you about your
relationships to other people -- respecting their rights, treating them
justly, giving them a fair chance.").
110. The first point of the Scout Law, that "A Scout is Trustworthy,"
makes honesty part of a Scouts' "code of conduct," and requires a Scout
to be true to himself. Ex. C700 at 553-54; Tr. 324 (Jones).
111. The third point of the Scout Law, "A Scout is Helpful," includes
being concerned about other people and doing a good turn. Ex. C700 at 554;
Tr. 324-25 (Jones).
112. The Boy Scouts describe the fourth point of the Scout law, "A Scout
is Friendly," as follows:
A Scout is Friendly -- A Scout is a friend to all. He is a brother
to other Scouts and to all the people of the world. He seeks to understand
others. He respects those with ideas and customs that are different from
Friendship is like a mirror. When you have a smile on your face as you
greet someone, you are more likely to receive a smile in return. If you
are willing to be good friend, you will find that others enjoy being with
The moment you become a Scout, you join a brotherhood of friends that
circles the world. Those in it are of different countries and colors and
creeds, but they are all brother Scouts. They live up to Scout Oaths
and Laws just as you do.
Making a friend is fairly easy if you are friendly yourself. Keeping
a friend is more difficult. Every person is an individual with his or
her own ideas and ways of doing things. To be a real friend you must accept
other people as they are, show interest in them, and respect their differences.
Accept who you are too. You don't have to be just like everyone
else. Real friends will respect the beliefs, interests, and skills that
make you unique.
Ex. C700 at 555 (underlining added; italics in original); Tr. 325-28 (Jones);
Tr. 1382-84 (Turner). See also, e.g., Ex. 113 at 9-11 (fairness
and friendliness part of Cub Scout promise); Ex. 114 at 297 (same); C115
at 7 (spirit of Order of Arrow is one of "brotherhood"); Ex. C118 at 42;
Ex. 718 at 2189; Ex. 719 at 2803; Ex. 720 at 43.
113. In describing the sixth point of the Scout Law, "A Scout is Kind,"
the Boy Scouts tell Scouts to "[t]ake time to listen to the thoughts of
other people," to "[i]magine what it would be like if you were in someone
else's place," to be "kind to people you don't know or don't understand,
and to people with whom you disagree," and that "compassion for all people
is a good antidote to the poisons of hatred and violence." Ex. C700 at
555-56; Tr. 328-29 (Jones). See Tr. 1978-81 (Kirkner).
114. In discussing the seventh point of the Scout Law, "A Scout is Obedient,"
the Boy Scouts say that a Scout "obeys the laws of his community" and city,
Ex. C700 at 557 -- laws that in this city includes the District of Columbia
Human Rights Act. The Boy Scouts also teach boys that "you must also trust
your own beliefs and obey your conscience when you know you are right."
115. The Boy Scouts' discussion of the tenth point of the Scout Law,
"A Scout is Brave," tells Scouts "[y]ou are brave every time you do what
is right in spite of what others might say." Ex. C700 at 561; Tr. 331-32
116. The eleventh point of the Scout Law is "A Scout is Clean." The
Boy Scouts' discussion of this point explains:
Swear words, profanity and dirty stories are weapons that ridicule
other people and hurt their feelings. The same is true of racial slurs
and jokes making fun of ethnic groups or people with physical or mental
limitations. A Scout knows there is no kindness or honor in such mean-spirited
behavior. He avoids it in his own words and deeds. He defends those
who are targets of insults.
Ex. C700 at 561 (emphasis added).
117. The final point of the Scout Law, "A Scout is Reverent," reiterates
the basic philosophy of being true to one's own religion and respectful
of others. Again, in the Boy Scouts' words:
The United States Constitution gives each of us complete freedom to
believe and worship as we wish without fear of punishment. All your life
you will encounter people who hold different religious beliefs or even
none at all. It is your duty to respect and defend the rights of others
whose beliefs may differ from yours.
C700 at 561.
118. The Scout Slogan, "Do a Good Turn Daily," Ex. C700 at 9, is "the
essence of Scouting." Ex. C722 at 219 (Bates 7412); Tr. 315-16 (Jones);
Ex. C709 at 8222; Ex. C714 at 10; Ex. C715 at 744; Ex. C716 at 7818-20;
Ex. C717 at 1481; Ex. C726 at 6056. The BSA traces its origin to a "good
turn" done by a Scout in England who assisted William Dixon Boyce through
a fog and refused to accept any money for it. Ex. C700 at 579-80; Tr. 314-16.
119. The Boy Scout uniform is intended as a way of showing that scouts
are "equals in the spirit of brotherhood." C700 at 566.
120. The Boy Scouts proudly quote Lord Baden-Powell in saying that,
"[o]ur aim is to give equal chances to all and to give the most help to
the least fortunate." Ex. C910 at NCAC486. They tell Scouts to understand
and to explore the meaning of the words of Reverend Martin Luther King,
Jr., when he said that "[i]njustice anywhere is a threat to justice everywhere,"
Ex. C700 at 465, of Abraham Lincoln when he said that "[a]s I would not
be a slave, so I would not be a master," id., of Susan B. Anthony
when she said, "[m]en, their rights and nothing more. Women, their rights
and nothing less," id., and Henry David Thoreau when he said that
"[i]f a man does not keep pace with his companions, perhaps it is because
he hears a different drummer." Id. See also, e.g., Ex. C1136
at NCAC2930 ("The BSA endeavors to develop American citizens who . . .
have a keen respect for the basic rights of all people. . . ."). See
also Ex. C703 at 1 (Boy Scout Fieldbook citing Walt Whitman with approval).
121. The Explorer Code requires that each youth pledge that, "I will
recognize the dignity and worth of all humanity and will use fair play
and goodwill in my daily life." Ex. C919 at 9810. Explorer materials similarly
advise adult leaders to treat "[e]ach young man and woman as an individual
-- different, unique, special. Young people are not a class you can put
quick labels on or classify into stereotypes." Id. at 9815.
122. "Ethics in Action" uses intensive exercises designed to teach cub scouts
that it is wrong to discriminate against people, that people must be treated
as individuals and that differences among people should be celebrated. Ex. C709,
esp. 8216-20, 8242-44; Tr. 1955-65 (Kirkner). Among the definitions the
Boy Scouts provide for use in that program are:
Prejudice. Judging people without really knowing anything about them
just because they belong to a certain group.
Discrimination. Keeping someone from something they want to do
or join because they belong to a certain group.
Stereotype. A way of thinking based on the belief that all members
of a certain group are alike and will act the same way.
C709 at 8244 (Page 11-30); Tr. 1958-61 (Kirkner); Hill Dep. at 153-54.
123. The BSA touts Ethics in Action as having "brought Scouting's ideals
to life in den and home settings," Ex. C1305 at NCAC5528, as "directly
respond[ing]" to Boy Scouts' mission statement, Ex. C710 at A1548, and
as "teaching today's young people how to apply the abstract ideas [of
the Scout Oath and Scout Law] in everyday situations." Ex.C710 at A1549.
The Boy Scouts include Ethics in Action as part of Cub Scout Leader Basic
Training, Ex. C1306 at NCAC1903, and advise leaders that "Ethics in Action
activities may be the most important thing you do for the boys in your
pack." Ex. C313 at A1257.
124. Boy Scouting's version of Ethics in Action is called "Youth's Frontier."
It, too, teaches principles of honesty, fairness and respect for others
with messages like "[i]f you punish a child for being honest, the child
learns quickly not to do that again," and "[t]o treat someone unfairly
is to say, `You don't have the same rights as others.'" Ex. C707 at NCAC3468-69;
Tr. 1964-65 (Kirkner). The Boy Scouts use Youth's Frontier as part of its
Scoutmastership Fundamentals training, Ex. C900 at A993, and its wood badge
training, Ex. C912 at NCAC3330, and instructs Scoutmasters to give new
Tenderfoot Scouts a copy of "Youth's Frontier" and to look through these
program materials with them. Ex. C701 at 103.
125. Explorer leaders are also taught to use "ethics in action" and
to have youth "formulate their own value systems." Ex. C919 at 9817.
126. The Learning for Life program similarly teaches "moral and character development,"
Ex. C1002 at 15668, with lessons on "race, religion and culture," "respecting
differences," and "respecting my peers." Id. at 15774-15781. "Through
Learning for Life, [the Boy Scouts] plan to instill in youth the importance
of respecting the rights of all people. . . ." Id. at 15669 (emphasis
in original). For example, the Boy Scouts teach that, if students "are surrounded
by people who are prejudiced against others or intolerant of persons with differences,
students will tend to reflect those prejudices." Id. at 15774. Tr. 2536
3. Scouters are not even supposed to raise with youth in private the morality
127. The Seventh Edition of the Scoutmaster Handbook in use between 1980 and
1989, immediately before the Boy Scouts began publishing the current version,
recognizes that the question of what is "moral" is one that must be addressed
to a boy, his parents and his religious leaders, not something that the Boy
Scouts dictates Moral Fitness. Morality is a somewhat more difficult
area than [physical or mental fitness] because of the moral contradictions we
all encounter. What you consider moral or immoral depends upon your upbringing
Moral questions often fail to come out nice and neat. The town's chief
industry employs hundreds but pollutes the air and the river. A young man
who marches in a picket line is immoral to some. If you don't march, you
are immoral to others.
Despite moral contradictions, we cannot let boys go unprepared to face
the assorted moral crises that will confront them. They must go prepared
-- but with what?
As evidence of a boy's ability to act correctly when faced with a moral
decision you might look for:
• Courage about what he believes, being called "chicken" doesn't divert
him from doing what he believes is right -- or not doing what he believes
• Respecting the rights of others.
• Compassion for other's feelings and needs.
• Acting as if rights of others matter to him.
• Accepting others as equal in worth and dignity.
Ex. C727 at 6907-08. See also, e.g., C919 at 9817, 9855-59, 9901
(Explorer Leader Handbook recognizing the need for explorers to "formulate
their own value systems," and to have "constructive controversies" in order
to appreciate the perspectives of others).**/
128. Consistent with this definition of "moral fitness," the Boy Scouts
both historically and repeatedly have avoided dictating to Scouts what
"moral" views Scouts should take on issues on which reasonable people differ
-- and in particular on sexual morality. As the witnesses attested, even
in conversations between a Scout and Scoutmaster, the Boy Scout approach
to counseling is to "refrain absolutely from giving advice," and instead
"to listen, and to support and encourage the boy being counseled to think
out his needs and goals and solve his own problems." Ex. C727 at 6941;
Ex. C912 at 3356-61. Tr. 338 (Jones); Tr. 768-769 (Pool); Tr. 1058-1060
129. The Boy Scouts tell Scoutmasters, "[y]ou do not undertake to instruct
Scouts, in any formalized matter in the subject of sex and family life.
The reasons are that it is not construed to be Scouting's responsibility,
and you may not be qualified to do this." Ex. C727 at 6934. Because "Scouting
believes that boys should learn of sex and family life from their parents,
consistent with their spiritual beliefs," Ex. C900 at 994-95, Scoutmasters
are to "respect the right of parents to teach their sons about life," and
to "refer boys with sexual problems to persons qualified to handle them."
Ex. C727 at 6934.
130. In the seventh edition of the Scoutmaster Handbook, the Boy Scouts
made it clear that, even in the situation where a Scout of 15 or older
is attempting to make sexual contact with other boys in the troop, the
Scoutmaster is not supposed to tell the Scout that homosexuality
is immoral, or to remove the Scout permanently from Scouting; rather,
the Scoutmaster is supposed to "[a]ssist [the scout] in securing professional
help." Id. at 6935.
131. The "sexual curiosity" discussion of the current eighth edition
of the Scoutmaster Handbook dispenses with even this discussion in favor
of a general instruction that Scoutmasters are to "[a]ccept all youth as
they are. Your acceptance will reassure them that they are normal." Ex.
C701 at 164.
132. These excerpts are fully consistent with dozens of references in
the Boy Scout literature that reiterate the longstanding view of Scouting
that Scouting should be open to all and that issues of personal, religious,
and, in particular, sexual morality are matters to be addressed by parents
and religious leaders and not dictated by the Boy Scouts. See, e.g.,
Ex. C714 at 9, 250; Ex. 715 at 737-38, 742-43, 1002-03; Ex. C716 at 530
(Third ed., 1927, referring to the "five basic moral laws of standards"
as "The Law of Truth (no falseness)", "The Law of Honor (consciousness
of living in truth)", "The Law of Justice (Fairness -- truth in action)",
"The Law of Duty (The return ticket from privilege)" and "The Law of Love
(Brotherhood, courtesy -- good will to all)."
133. Thus, Mr. Carroll testified that, even in a situation where a Scout
privately reveals his homosexuality to a Scoutmaster, it is still not the
place of the Scoutmaster to inform the Scout that homosexuality or its
conduct is immoral. Tr. 1220-21 (Carroll). Whether in private or in public,
a Scoutmaster is certainly not expected to discuss his/her own sexual orientation
or conduct with a Scout. Tr. 1077-78 (Horne).
134. In short, an extensive study of thousands of pages of Boy Scout literature
and the testimony about the implementation of the Scout program leads inexorably
to the conclusion that views on the morality of homosexuality are not part of
the message Scouting seeks to convey to Scouts. As James Kay, a Scout Executive
with 27 years of professional experience, testified: Q: How would a prospective
Boy Scout learn of the policy? When I refer to "the policy" I'm referring to
the policy of the Boy Scouts of America concerning homosexuals, as set forth
in the "POSITION STATEMENT." * * * * A: If he became in violation -- If he became
in violation -- If he were an avowed homosexual he would be informed of the
policy. Kay Dep. at 101.
C. The Boy Scouts' Various Articulations of the Policy Are Found in Confused
and Contradictory Public Relations Statements That Are Not Generally Shared
With The Volunteers Implementing The Boy Scouts' Program.
135. Although the Boy Scouts have sought to suggest that at least at some period
of time, the members of the Executive Board knew of and supported the Boy Scouts'
policy concerning the exclusion of homosexuals, and the Commission will assume
that this is correct, the Boy Scouts concede that its Executive Board never
adopted a resolution on the policy and that, if there is anything reflected
concerning this policy in the minutes of the National Executive Board, it appears
in a privileged discussion with attorneys. Ex. C1507 at 42-48; Tr. 2473-74,
2479-80. More importantly, the only written materials reflecting the policy
are two 1978 memoranda and "Position Statements" generated for media relations
purposes in the 1990s.
136. According to the Boy Scouts' interrogatory responses, the "earliest
document of the Boy Scouts which mentions homosexuals specifically is a
March 17, 1978 Memorandum." Ex. C1501 at 17 (Resp. to Int. 17). Actually,
Ex. C500 is a memorandum dated February 13, 1978 from the BSA's Director
of Public Relations to Scout Executives on the subject of "Homosexual Unit
Members." A second memorandum is dated March 17, 1978. Ex. C501.
137. The February 13, 1978 and March 17, 1978 memoranda are the first
documents that purport to set forth a Boy Scouts' policy concerning homosexuals,
to set out procedures for implementing such a policy or to articulate the
reasons for such a policy. Neither of these memoranda purported to reaffirm
any historic policy. Both state that they were issued in response to inquiries
asking that the BSA express "its official position to the field" on, among
other things, the appointment of homosexual volunteer and professional
leaders. Exs. C500, C501.
138. In these memoranda, the Boy Scouts answered "no" to the question
of whether "an individual who openly declares himself to be a homosexual"
can be a volunteer Scout leader, Ex. C501 at NCAC2521, and then adopted
procedures that went beyond persons who had made open declarations. The
Boy Scouts informed professionals that when situations arose involving
homosexuals they should use procedures from "Maintaining Standards of
Leadership," id. at NCAC2523 -- a document that explains how
to investigate and to exclude persons from Scouting when they are alleged
to be involved in crimes, child molestation or other offenses, see
Exs. C600-01; C603-04; C1505 ¶ 5; C1506 ¶¶ 4, 6. The March
17, 1978 memorandum also explained that, "in the event that an individual
involved in Scouting is alleged to be a homosexual":
The matter should be investigated in a discreet and responsible fashion,
with the utmost regard for the concerned individual's civil rights.
Ex. C501 at NCAC2523 (emphasis added).
139. The only reasons these memoranda provided for investigating persons
alleged to be homosexuals, or excluding them from Scouting, were that the
BSA "is a private membership organization and leadership therein is a privilege
and not a right"; that "[w]e do not believe that homosexuality and leadership
in Scouting are appropriate;" and that "[w]e will continue to select only
those who in our judgment meet our standards and qualifications for leadership."
Ex. C501 at NCAC2521; see Ex. C500.
140. There is no suggestion in these documents -- or, as it turns out,
in any Boy Scout document pre-dating 1991 -- that the reason homosexuals
are inappropriate for Scouting is that homosexuality is contrary to the
Scout Oath or the Scout Law, or that homosexuals cannot be appropriate
role models, or that homosexuality contradicts some concept of "traditional
family values" that is supposed to be part of Scouting, or even that the
Boy Scouts would take the position that, in the event a law were found
to apply to them, they have a constitutional right to discriminate where
others do not. To the contrary, the March 17, 1978 memorandum states:
Q: Should a professional or non-professional individual who openly
declares himself to be a homosexual be terminated?
A: Yes, in the absence of any law to the contrary. At the present
time we are unaware of any statute or ordinance in the United States which
prohibits discrimination against individual's employment upon the basis
of homosexuality. In the event that such a law was applicable, it would
be necessary for the Boy Scouts of America to obey it. . . .
Ex. C501 at C2522 (emphasis added).
141. What little there is on the Boy Scouts' policy between 1978 and
1991 reinforces the conclusion that the various rationales eventually proposed
by the Boy Scouts in litigation in an attempt to justify this policy are
post hoc. In 1981, as part of Curran v. Mount Diablo Council
of Boy Scouts, litigation over the exclusion of a gay Scout leader
in California, the BSA's legal counsel, David Park, sent a letter to individuals
identified as being registered with the Boy Scouts as of 1916 in an effort
to demonstrate that there had always been a BSA policy of excluding homosexuals.
Ex. R152. As evidence that such a policy in fact existed, the letter and
the affidavits he received are of no value. The letter sought to predetermine
the conclusion by informing the affiants, "You may have read in the paper
recently that the Boy Scouts of America has been sued by an individual
in California to compel the organization to admit homosexuals. As you know,
it has always been our policy to exclude homosexuals. You were a registered
member of the Boy Scouts of America and undoubtedly are familiar with this
policy." And the Boy Scouts have provided no evidence from which to conclude
whether the Boy Scouts needed to send letters to tens, hundreds, thousands,
or even tens or hundreds of thousands of people before obtaining
the handful of form affidavits they filed.
142. The letter and affidavits are, however, instructive in what they
do not say about the Boy Scouts' policy. The legal counsel of the Boy Scouts
and the form affidavits declared that the policy applied to "homosexuals"
-- not known homosexuals, not avowed homosexuals. They make
no suggestion that the policy is based on the Scout Oath or Scout Law.
They do not suggest that the policy reflects concerns about role models.
They make no mention of traditional family values.
143. It is not until at least two years later, according to an unidentified
single-page document, that the legal counsel expressed the opinion that
"[a]vowed or known" homosexuals are to be excluded from Scouting. Ex. C502.
And this statement still contains no rationale for the policy and reaffirms
that, although the BSA "does not knowingly employ admitted homosexuals
in its professional or clerical staffs," the organization "does comply
with all applicable laws." Id.
144. As late as November 1989, the Boy Scouts were indicating, with
respect to employees, that it was the policy of the councils to "offer
equal employment opportunity . . . on the basis of qualifications and ability
without regard to race, color, national origin, sex, age, religion, handicap
. . . or any other criterion prohibited by applicable law." Ex.
C2000 at A1556 (Emphasis added). The BSA did not even require professional
employees to subscribe to the Scout Oath or Scout Law, only to "the Declaration
of Religious Principle, a fundamental precept of Scouting." Id.
And it cautioned that "[t]otal and continued adherence to this employment
policy will guarantee compliance with the various laws against discrimination."
145. In the meantime, the Boy Scouts avoided numerous opportunities
to articulate a policy of excluding homosexuals to the Scouts or volunteer
Scouters (i.e., adults) who were supposed to be implementing its
program. For example, during the 1980s, as part of Scoutmastership Fundamentals,
a required training course for adult troop leaders, the Boy Scouts informed
leaders of numerous policies, including the Boy Scouts' policy (changed
in 1988, see Ex. C607 at A8122) of excluding women from being Scoutmasters,
Assistant Scoutmasters, Webelos Den Leaders, Assistant Webelos Den Leaders
and certain other leadership positions. Ex. C900, esp. at A1066-67.
However, the Boy Scouts sent nothing to its members about a policy of excluding
homosexuals and, apparently, prepared no statements for the press about
the policy either.
146. In the early 1990s, however, the Curran case went to trial,
the policy of excluding homosexuals received large amounts of publicity,
see Tr. 828-30 (Church), and the BSA's expressions of its views
on homosexuality shifted from an approach of almost total silence to an
extensive public relations campaign.
1. The Boy Scouts' use of public relations statements.
147. The Boy Scouts are an intensely public-relations (and especially
media-relations) conscious organization. See Exs. C518, C519, C520, 522,
523; Ex. C607 at NCAC8118; Teare Dep. at 112-14; Lewis Dep. at 119-22 (discussing
Ex. C518); id. at 161-62 (discussing Ex. C519); Carroll Dep. at
125. The Boy Scouts consider media relations to be "the art and science
of systematically building and maintaining favorable contact with reporters
and other members of the news media." Ex. C520 at NCAC5581; C518 at NCAC2812.
148. The BSA looks upon "promoting positive messages about Scouting"
as one of the areas that is "critical to growth and a quality Scouting
program." Ex. C1307 at NCAC3428, NCAC3438, 3441, and touts its success
in obtaining "positive public relations" as a routine section of its annual
reports. See, e.g., id.; Ex. C1308 at NCAC1943-45; Ex. C1309
at NCAC1983-85; Ex. C1310 at NCAC at 20-23. The Boy Scouts actively look
for opportunities to "shap[e] the public's perception of the Boy Scouts
of America," Ex. C520 at NCAC5578, and to "[p]osition the BSA as the
credible, leading expert on the subject of youth development." Id.
at NCAC5580 (emphasis in original).
149. As part of its public relations efforts, the BSA advises professional
Scout Executives that "[e]very favorable news story about Scouting reinforces
the BSA's image as a positive force in the lives of young people. So too,
then does a negative story hinder the way Scouting is perceived by the
public." Ex. C518 at NCAC2812.
150. Accordingly, the Boy Scouts aggressively train their professional
staff so that they can "truly `win' in interview situations." Ex. C519
at NCAC2796; Teare Dep. at 58-59. The Boy Scouts advise designated council
spokespersons that they have "a crucial role in shaping the image of Scouting;
don't forget to BE PREPARED." C520 at NCAC5609; Tr. 672 (similar language
transcribed from Ex. C522).
151. According to the BSA, "[l]ack of direction during an interview
can spell disaster for the image of both Scouting and the local council.
Thus, it is critical to be clear on what will be said before an interview
occurs." Ex. C520 at NCAC5580. The Boy Scouts consider "[t]he most important
lesson you can learn from this training is that interviewing is not a passive
experience. YOU MUST SET AN AGENDA FOR THE INTERVIEW AND COMMUNICATE
IT EFFECTIVELY TO THE REPORTER." Ex. C519 at 2796 (emphasis in original).
Designated Boy Scouts spokespersons are supposed to "[c]ontrol the interview,"
id. at 2797; Ex. C520 at NCAC5586, and to use "bridging," defined
as "making your point no matter what the question." Tr. 636 (transcribing
Ex. C522). See also, e.g., Ex. C520 at 5586.
152. In order to be confident about the agenda that would be used at
such interviews, the BSA developed a series of position statements about
"issues" perceived to be national in importance. Ex. C520 at NCAC5586;
Teare Dep. at 130-31; Mack Dep. at 191-94, 205-08, 224-25. According to
the Boy Scouts, "[a]n issue is a significant focus of attention
on a policy, value or standard of Scouting." Ex. C520 at NCAC5580 (emphasis
in original). The Boy Scouts distinguished an "issue" from a "crisis,"
in that an issue "routinely emerges over a relatively long period of time,
generally measured in weeks, months, or frequently, even years," whereas
as a "crisis is an immediate and intense focus from the media, and
ultimately the public, on a particular activity or event," that "develops
unexpectedly over a relatively short period of time, generally measured
in hours or days." Id. at NCAC5580-81 (emphasis in original).
153. By the early 1990s, homosexuality had become one of the "issues"
perceived by the BSA as receiving a "significant focus of attention," Ex.
C520 at NCAC5580; Teare Dep. at 66, and the potential that a Scout leader
might "declare[s] his homosexuality to the media and proceed[s] to publicly
condemn the BSA's position on the six o'clock news and the front page of
the local newspaper," became the Boy Scouts' example of a "crisis." Id.
154. The Boy Scouts issued a series of position statements, Q&As
and media training materials designed to inform designated spokespersons
at the national and council level what to say about the Boy Scouts' policy
on homosexuals in Scouting. Exs. C503-523; Teare Dep. at 130-31. These
were updated or reissued when the Boy Scouts determined that its position
was not well understood in the media. Lewis Dep. at 139-40.
155. These position statements on excluding homosexuals were not drafted
by the program divisions of the BSA -- the Cub Scout Division, the Boy
Scout Division or the Exploring Division, who draft the various manuals
and guides for their respective programs, Teare Dep. at 23; they were drafted
by a public relations firm hired by the Boy Scouts, Edelman Worldwide,
with help from the Boy Scouts' office of External Communications -- the
internal office that deals with how the Boy Scouts relate to the public.
Lewis Dep. at 27, 34-35, 130, 141-42; Teare Dep. at 126, 135-36; Tr. 2543-44
(Leet). For years, the Boy Scouts have designated an Edelman employee as
its "national spokesperson" and empowered that spokesperson to speak for
its National Board. Teare Dep. at 56-57; Lewis Dep. at 18-20; Ex. C519
at NCAC2806; Tr. 622 (transcribing Ex. C522).
156. The BSA informed Scout Executives or their designated local spokespersons
that they should:
Know the local and national position statements on the issue in question
and build on these statements in every response. Form an interview agenda
with talking points from these documents.
Ex. C520 at NCAC5586; id. at NCAC5591 (communicate facts "consistently,
in accordance with local and national position statements.").
157. The BSA repeatedly instructed that copies of the various position
statements were never to be given to reporters or to other media
staff. Tr. 629-30 (transcribing Ex. C522); Ex. C520 at NCAC5587; Ex. 607
at NCAC8118. Council spokespersons were also told that "[i]f the interview
centers around a National policy or issue, refer the reporter to BSA Public
Relations. Speak on National issues only to the extent of your Council's
involvement in that policy or issue." Tr. 634-35 (transcribing Ex. C522).
And the BSA added:
If it's known or even suspected that the interview will deal with
one or more national issues, consult BSA Public Relations for assistance
before the interview.
C520 at NCAC5590.
2. The 1991 position statements.
158. On "2/15/91" and "6/6/91," the BSA's National Office and its public
relations firm issued, in different typeface, otherwise identical documents
entitled "POSITION STATEMENT HOMOSEXUALITY AND THE BSA." Exs. C503; Ex.
C504. These statements read:
For more than 80 years, the Boy Scouts of America has brought the
moral values of the Scout Oath and Scout law to American boys, helping
them to achieve the objectives of Scouting.
The Boy Scouts of America also places strong emphasis on traditional
family values as being necessary components of a strong, healthy society.
The Scouting program is designed to be a shared, family experience.
We believe that homosexual conduct is inconsistent with the requirements
in the Scout Oath that a Scout be morally straight and in the Scout law
that Scout be clean in word and deed, and that homosexuals do not prove
a desirable role model for Scouts.
Because of these beliefs, the Boy Scouts of America does not accept
homosexuals as members or as leaders, whether in volunteer or professional
Our position on this issue is based solely upon our desire to provide
the appropriate environment and role models which reflect Scouting's values
As a private membership organization, we believe our right to determine
the qualifications of our members and leaders is protected by the Constitution
of the United States.
Ex. C503; Ex. C505.
159. In a Questions and Answers document that is dated 2/15/91, the
Boy Scouts reiterated the 1978 statement concerning their determination
to investigate allegations of homosexuality "in a discreet and responsible
fashion," Ex. C504 (Q&A 5). They also avoid any statement about
the Boy Scouts' position on the morality of homosexuality:
Q: Are you implying by your policy that homosexuals do not have good
moral or emotional character?
A: Our position is that they do not present a role model which we seek
for our youth members.
Ex. C504 at NCAC2596.
160. The words, "the Boy Scouts of America does not accept homosexuals
as members or as leaders, whether in volunteer or professional capacities,"
contain no qualification to the definition of whom the Boy Scouts are excluding.
These 1991 position statements explain that the Boy Scouts are excluding
all homosexuals, not merely those who are "known" or "avowed" or only those
engaged in any conduct.
161. These 1991 position statements also contain a wholly new series
of purported reasons for the Boy Scouts' policy. These position statements
represent the first time any Boy Scout document that either party has been
able to locate, in any context, that (1) asserts that the exclusion of
homosexuals is based upon the terms "morally straight" or "clean," or,
for that matter, any provision of the Scout Oath or Law; (2) references,
at all, a concept called "traditional family values," or suggests
the Boy Scouts "also" seek to emphasize those values in addition to the
Scout Oath and Scout Law; or (3) states that homosexuals were being excluded
based upon a view that "homosexuals do not provide a desirable role model
for Scouts" or would promote an "[in]appropriate environment" for Scouting.
162. Unlike the previous statements, these 1991 position statements
also make clear that the BSA would not merely agree to follow laws against
discrimination, but rather assert a constitutional right not to follow
163. The additions in these position statements are neither accidental
nor trivial. As of 1991, the Boy Scouts had published ten editions of the
Boy Scout Handbook and eight editions of the Scoutmaster Handbook. They
had devoted thousands of pages to detailing the values and beliefs for
which Scouting stood and, in particular, the meaning of the Scout Oath
and the Scout Law. The Boy Scouts were sued over their policy of excluding
homosexuals as early as 1981. It strains credulity to imagine that it was
simply oversight that led the Boy Scouts never to mention any of these
rationales in a policy document until 1991.
164. The "morally straight" rationale for excluding homosexuals does
not appear to have been entirely thought out. By answering the question,
"[a]re you implying by your policy that homosexuals do not have good moral
or emotional character?" with the statement "Our position is that they
do not present a role model which we seek for our youth members," Ex. C504
at NCAC2596, the BSA's Question and Answer document leaves it entirely
unclear whether, as of 1991, they believed that homosexuals were immoral.
If the Boy Scouts had actually believed for more than 80 years that a homosexual
could not be "morally straight," they would certainly have had no problem
saying so. The Boy Scouts expect Scouts to "speak the truth" and "to do
what is right in spite of what others might say." Ex. C700 at 561.
165. As of 1991, the Boy Scouts clearly prevented homosexuals from serving
as professional employees. See Ex. C501. They did not, however,
require professional employees -- even those who had "direct involvement
in its program" -- to subscribe to the Scout Oath or Law. Ex. C2000 at
A1556. That requirement was added in a December 1, 1992 revision to its
professional employment policy. Ex. C2000 at A1557. This revision also
changed the Boy Scouts' previous statement that it would refrain from discriminating
on any "criterion prohibited by applicable law." Ex. C2000 at A1156. Now,
the Boy Scouts said they would only follow "non-discrimination laws to
the extent that they may constitutionally be applied to it." Ex. C2000
166. The change in the Boy Scouts' position from following law to claiming
a constitutional right not to do so was itself significant. As noted above,
the Seventh Point of the Scout Law says that "a Scout is Obedient" and obeys
laws, even if he thinks these are unfair. C700 at 557. In its first three decades
or more, the Boy Scouts followed laws that required racial segregation, without
invoking any argument that they were a "private membership organization" above
the necessity of following such laws. Ex. C1600 at A2391, A2430-32, A2473-76.
3. The 1992 statements on the San Jose Troop and the United Way.
167. The BSA's national office next discussed its policy of excluding homosexuals
in February 1992 in the context of responding to news reports. On February 4,
1992, the San Jose Mercury News published a report that a Scout troop
there had issued a resolution stating that being homosexual was not contrary
to the words "Morally Straight." C506 at NCAC5460. Later that month, a "Boy
Scout Task Force" commissioned by the United Way in the San Francisco Bay Area
issued a draft report recommending that the Boy Scouts cease disallowing homosexuals
to be members or leaders, or to adopt a local policy that allowed homosexuals
to participate in Scouting. Exs. C507 at NCAC5462; C519 at NCAC2804-05.
168. The BSA's National Office responded to these events. First, it
issued a memorandum to Scout Executives attaching the San Jose Troop resolution
and stating that troops are obligated to follow national BSA policies.
Ex. C506. Then, it issued a memorandum to the National Executive Board,
Ex. C507 at NCAC5461, a news release, id. at NCAC5462, and a "Media
Training Guide," drafted by its public relations firm, Edelman Worldwide,
Lewis Dep. at 161-62, that included a "Q&A for United Way of the Bay
Area Task Force Issue." Ex. C519 at NCAC2804-09.
169. The response to the San Jose Troop Resolution did not discuss the
Boy Scouts' policy itself. However, it did give the San Jose Troop the
opportunity to "reaffirm their agreement to uphold national policy," Ex.
C506 at NCAC5458. The Boy Scouts took the position that Scouts and Scouters
could remain with the BSA even if they did not believe that "homosexuality"
was contrary to the requirement to be "Morally Straight," at least so long
as they did not actually choose a homosexual leader. Cahn Testimony at
88-89; Ex. C506 at NCAC5460.
170. The BSA's public relations firm reacted to the draft report of
the United Way Task Force by characterizing the Task Force as a group commissioned
"to examine ways of molding the Boy Scouts into conformation with the [United
Way of the Bay Area's] `politically correct' values and standards." Ex.
C519 at NCAC2804. The BSA stated that it "has always served to support
the values of traditional American families," id.. Now, however,
the BSA said that it "define[s] `traditional family values,'" not, as something
in addition to the Scout Oath and the Scout Law, but rather as "those
values that are inherent in the Scout Oath and Law." Id. (emphasis
4. The Issues and Crisis Communications Guide.
171. In March or April 1992, the BSA's public relations firm, Edelman
Worldwide, produced a video with companion written modules called the "Issues
and Crisis Communications Guide." Lewis Dep. at 30-31, 149-51, 159-60;
Exs. C520, 522, 523. The BSA created this Guide and distributed it to councils
to be used "if the local Scout executive had something come up and needed
to have some verbiage or some help in explaining something to the media,
or for him to share with local council volunteers when they needed some
help in sharing or explaining something with media." Teare Dep. at 66;
Lewis Dep. at 32.
172. Although issued in 1992, the Issues and Crisis Communications Guide
is still in use. Id. The Guide begins with basic training material
on how policies were to be characterized if the press ever inquired. Ex.
C520 at NCAC5579-5599; C522. It also contains specific modules on various
"issues," including "Module 4 Homosexuality." Ex. C520 at NCAC5605-5609;
Ex. C508. The Guide discusses homosexuality, because the BSA's policy on
homosexuals and other matters "were the issues of the time that were in
the media, both in newspapers and in television." Teare Dep. at 66. The
Guide "zeroed in" on what Boy Scouts professionals were supposed to tell
the media about this and other policies. Teare Dep. at 64-65.
173. On the videotape, Module 4 begins by referencing the San Jose Mercury
News story about the Boy Scout Troop resolution. Tr. 667 (Transcribing
Ex. C522). The Guide advises that "gay rights organizations have attacked
Scouting to further their own agenda. Scouting isn't changing. Scouting
won't change." Ex. C508 at NCAC1023.
174. In bold block letters, the Guide informs Scout Executives that
the "BSA's position regarding homosexuality is as follows":
THE BOY SCOUTS OF AMERICA HAS EMPHASIZED TRADITIONAL FAMILY VALUES
SINCE INCEPTION OF THE MOVEMENT. WE BELIEVE HOMOSEXUALS DO NOT PROVIDE
A ROLE MODEL FOR SCOUTS THAT IS CONSISTENT WITH THESE TRADITIONAL VALUES.
ACCORDINGLY, THE BOY SCOUTS OF AMERICA DOES NOT ACCEPT HOMOSEXUALS AS MEMBERS
Ex. C508 at A1023.
175. The Guide also says that:
This issue isn't only a challenge to the values of Scouting. It is
also about the rights of a private organization to set and maintain its
own leadership qualifications. The BSA believes homosexuals are not appropriate
role models for our youth membership. The BSA's position is unyielding.
Nevertheless, gay activists haven't put the issue to rest. The local spokesperson
has an opportunity to help reaffirm the BSA's stance on homosexuality.
176. The Guide then provides another set of questions and proposed answers.
In explaining how to answer the question, "What Aspects of Scouting are
Incompatible with Homosexuality," the Boy Scouts return to the view that
"traditional family values" is really something in addition to the
Scout Oath, not part of it:
Simply put, the Boy Scouts of America places a strong emphasis on
traditional family values as being necessary components of a strong, healthy
society. Further, the Scout Oath mandates that members and leaders be morally
Ex. C508 at NCAC1024. The Boy Scouts do not attempt to defend the policy
based upon the Scout Law or the word "clean" at all. Id.
177. Module 4 closes by directing council spokespersons that:
When explaining the BSA position regarding homosexuality, remember
the following key points:
• The BSA has emphasized traditional family values since inception
of the movement.
• We believe homosexuals do not provide a role model for Scouts that
is consistent with these traditional values.
• The Boy Scouts of America does not accept homosexuals as members or
The spokesperson has a crucial role in shaping the image of Scouting;
don't forget to BE PREPARED. As always, please contact BSA Public Relations
for assistance or additional counsel on this or any other media issue.
Ex. C508 at NCAC1026.
5. Other position statements.
178. On May 6, 1992, the Boy Scouts issued another POSITION STATEMENT
HOMOSEXUALITY AND THE BSA. Ex. C509. This statement again states that the
Boy Scouts "also places strong emphasis on traditional family values,"
in addition to bringing the "moral values of the Scout Oath and
Scout Law to American boys." Id., (emphasis added). It also states:
We believe that homosexual conduct is inconsistent with the requirements
in [sic] the Scout Oath and Scout Law. Because of these beliefs, the Boy
Scouts of America does not accept homosexuals as members or as leaders,
whether in volunteer or professional capacities.
Id. The paragraph is word-for-word identical to a paragraph in the
two 1991 position statements, with two exceptions: The 1991 position statements
state "the requirements in the Scout Oath that a Scout be morally straight
and in the Scout law that a Scout be clean in word and deed."
Ex. C503, C505. The May 1992 position statement simply deleted the references
to "morally straight" and "clean" being the portions of the Scout Oath
and Law that are supposed to apply to homosexuals.
179. Another, undated, position statement on HOMOSEXUALITY AND THE BSA
" refers to "family values" and "role models" as the bases for the policy
that the BSA "do[es] not accept homosexuals as members or leaders." Ex.
C510. This version contains no reference to the Scout Oath or the Scout
Law at all. Id.
6. Scouting Magazine.
180. In September 1992, after Michael Geller and Roland Pool had been
told to sever their ties with Scouting, the BSA, for the first time in
its history, issued a document directed to its general membership that
mentioned a policy of excluding homosexuals. In Scouting Magazine
-- the magazine for adult Scouters -- the Boy Scouts published an editorial
entitled "Maintaining BSA Standards." Ex. C511 at NCAC5286.
181. This editorial, however, did not explain how the BSA's policy operated
or whether it applied to "all" homosexuals, "known" homosexuals, "avowed"
homosexuals or some combination of "known or avowed." Ex. C511 at NCAC5286.
Although the editorial generally referenced the Scout Oath and Scout Law,
it did not explain how the Oath or Law applied to homosexuality. It also
asserted that "[f]or more than 82 years, the BSA has taken a strong stand
for the teaching of traditional American family values," and that, "[t]he
BSA is committed to maintaining its rights under the Constitution of the
United States," without explaining how these applied to homosexuals. Id.
182. Instead of explaining what the policy was, the editorial attacked
those who were challenging the BSA's exclusion of homosexuals. The editorial
began by saying "[r]ecently, the Boy Scouts of America has been attacked
by special interest groups who claim that we will not allow them to participate
in the BSA because of their differences with our long-held standards."
C511 AT NCAC5286. Referring to Timothy Curran as "an acknowledged homosexual,"
as opposed to an Eagle Scout, the editorial characterized those challenging
its policies as "special interest groups" with a "sociopolitical agenda,"
who "claim they want involvement in Scouting" and "are intent on destroying
the BSA this nation has come to expect and count upon." Id. The
editorial made no reference to any of the messages, either historic or
current, that the Boy Scouts had made to Scouts or Scouters about inclusiveness
or tolerance within Scouting.
7. The 1993 and 1994 statements.
183. In January 1993, four months later, the Boy Scouts issued another
"POSITION STATEMENT HOMOSEXUALITY AND THE BSA" that took a very different
tack. This statement asserted as "Support Points" that:
The Boy Scouts of America does not ask prospective members about their
sexual preference, nor do we check on the sexual orientation of boys who
are already Scouts.
The reality is that Scouting serves children who have no knowledge of,
or interest in, sexual preference. We allow youth to live as children and
enjoy Scouting and its diversity without immersing them in the politics
of the day.
Membership in Scouting is open to all youth who meet basic requirements
for membership and who agree to live by the applicable oath and law.
Scouting involves poor, middle-class and rich youth, boys from the city,
suburbs and the country; boys from all faiths, from Judaism, Christianity
Scouts come from all walks of life and experience diversity that they
often cannot see elsewhere in their lives.
The position of the Boy Scouts of America has been conveyed to the American
public frequently and consistently; exceptions to the national policies
of the BSA are not granted, and any youth or adult presenting himself to
any office of the Boy Scouts of America will be reinformed of our policy
and position. However, a youth does not join the BSA through a council
or office, but rather, through a local troop or pack.
The BSA respects the rights of persons and groups with values which
differ from those of the BSA; however, the BSA expects that those who oppose
Scouting's positions exercise the same respect for the rights of the BSA.
184. This January 1993 position statement appears to acknowledge that
teaching about the morality of homosexuality is not part of the Boy Scouts'
program. Although it references the "applicable oath and law," it does
not even refer specifically to the Scout Oath and Law (as opposed to, for
example, the Explorer Code) or assert that the Scout Oath and Law are what
require the exclusion of homosexuals. Instead of the previous discussion
of "traditional family values," it now discusses tolerance. Id.
185. Indeed, this January 1993 position statement suggests that, contrary
to the purported moral conflict about which the Boy Scouts editorialized
just a few months before, the Boy Scouts have no problem with homosexuals,
only people who would admit to being homosexuals. In this statement, the
BSA says that it excludes "avowed" homosexuals and suggests that it does
so, not because it is basic or necessary to Scouting, but merely because
people expect the BSA to do so:
The Boy Scouts of America has always reflected the expectations
that Scouting families have had for the organization.
We do not believe that homosexuals provide a role model consistent with
Accordingly, we do not allow for the registration of avowed homosexuals
as members or as leaders of the BSA.
Ex. C512 (emphasis). In November 1993 and June 1994, the public relations
office issued two other similar statements. Exs. C514, C515.
186. Meanwhile, in February 1993, Jere B. Ratcliffe succeeded Ben H.
Love as Chief Scout Executive, Ex. C1129 at NCAC4933, and on March 29,
1993, he broadcast a speech to Boy Scout professionals nationwide. Ex.
C513; Teare Dep. at 141-143.
187. The speech, which was written by Scott Teare, then Director of
BSA External Communications, noted that "ANOTHER SET OF ISSUES THAT WE
FACE ARE THE CONSTITUTIONAL ISSUES WE DEAL WITH -- THOSE REFERRED TO IN
THE FIELD AS THE `THREE G'S'. Ex. C513 at NCAC2784. Although citing the
Scout Oath in the context of discussing the Boy Scouts' exclusion of atheists,
id. at NCAC2784-85, in discussing homosexuals, this speech made
no mention of the Scout Oath or Scout Law; rather, it repeated the message
that the "BSA HAS ALWAYS REFLECTED THE EXPECTATIONS THAT SCOUTING FAMILIES
HAVE HAD FOR THE ORGANIZATION AND WE DO NOT BELIEVE THAT HOMOSEXUALS" --
not "known or avowed" homosexuals -- "PROVIDE A ROLE MODEL CONSISTENT WITH
THESE EXPECTATIONS." Id. at NCAC2784.
188. Chief Scout Executive Ratcliffe added "AS A MOVEMENT, WE NEED TO
STOP DWELLING ON THE NEGATIVES OF THESE ISSUES. WE HAVE MADE OUR POSITION
STATEMENTS KNOWN AND WE ARE ALL SINGING FROM THE SAME SONG SHEET." Ex.
C513 at NCAC2785-86.
8. The response to the Merino decision.
189. On July 7, 1994, the Superior Court of San Diego decided a case
-- the "Merino" case -- in favor of a gay police officer and post
advisor whom the Boy Scouts had expelled from Scouting. Ex. C516. The Boy
Scouts' "position statement regarding this decision" said:
Boy Scouts of America is disappointed that the Superior Court of San
Diego has ruled against the BSA. Scouting has a right as a private organization
to teach youth the traditional values it has taught since 1910.
Ex. C516. Scout Executives were also instructed to refer to the Boy Scouts'
most recent position statement and also to Module 4 of the Issues and Crisis
Communications Guide "for additional information and sample questions and
answers regarding this issue." This meant that the Boy Scouts were again
directing Scout Executives to the clear statement that the Boy Scouts of
America exclude "homosexuals."
190. In February 1996, the Boy Scouts issued a Scout Executive Reference
Manual with a number of policy statements in it on various issues. Ex.
C607. This Manual contains a "POSITION STATEMENT" ON "HOMOSEXUALITY AND
THE BSA." Id. at NCAC8132. This position statement is word for word
identical, and in the same typeface, as the Boy Scouts' 6/6/91 statement,
Ex. C505, with the exception that, where the 6/6/91 statement says "[b]ecause
of these beliefs, the Boy Scouts of America does not accept homosexuals
. . . ," the version that appears in the Scout Executive Reference Manual
adds the words "known and avowed" before the word "homosexuals." Ex. C607
191. Although the Boy Scouts assert that the statement in the Scout
Executive Reference Manual is their "latest" and "current" position statement,
this is not correct. It is clear that the statement uses points, format
and typeface that the Boy Scouts were using in 1991, but ceased to use
in 1992 and 1993. Cf. Ex. C505 (from 1991) with Exs. C509,
C514, C515. Like the June 6, 1991 statement, to which it is almost identical,
the position statement in the Manual begins with the phrase, "[f]or more
than 80 years, the Boy Scouts of America has brought the moral values of
the Scout Oath and Law to American boys," id. at NCAC8132, even
though other statements by the Boy Scouts reflect the passage of time.
See, e.g., Ex. 507 at NCAC5462 (1992 document using phrase beginning
"[f]or more than 82 years"); Ex. 511 at NCAC5286 (same).
192. The logical conclusion is that this is a 1991 statement that happened
to be included in the February 1996 Manual. The Scout Executive Reference
Manual does not merely contain recent statements; it contains a series
of statements dating back to the 1980s, most of which are dated, and all
of which appear to be in strict chronological order. See Ex. C607
at NCAC8120-8196. The Homosexuality Statement appears immediately after
various policy and position statements dated February 11, 1988, C607 at
NCAC8122-23; January 4, 1989, id. at NCAC8124-29; and June 1989,
id. at NCAC8131, and, with some other undated statements, precedes
a memorandum dated October 21, 1991. Id. at NCAC8136.
193. But even assuming that the Scout Executive Manual position statement
dates from February 1996, it would still not be the Boy Scouts' "last word"
on this subject. On December 11, 1996, Chief Scout Executive Ratcliffe
sent the National Executive Board and Advisory Council a memorandum stating
that "[t]he policy of the Boy Scouts of America has not changed," and that
"[a]ll councils are to continue to follow the position on homosexuality
which is attached." Ex. C517 at NCAC4950. The statement the councils are
instructed to follow is the 6/1/94 position statement, which refers to
"avowed homosexuals," not "known or avowed" homosexuals. Id.
at NCAC4951; Ex. C515.
194. On March 2, 1998, the New Jersey Superior Court, Appellate Division decided
Dale v. Boy Scouts of America, finding that the Boy Scouts' policy of
excluding homosexuals violated New Jersey law and was not constitutionally protected.
The next day, the Boy Scouts' current national spokesperson, Gregg Shields of
Edelman Worldwide, Teare Dep. at 52, was quoted as saying that the Boy Scouts
"have long taught traditional family values and a homosexual" -- not
a "known or avowed" homosexual -- "is simply not a role model for those values."
Ex. C528 (emphasis added).
D. Because the Boy Scouts' Program and Its Program Materials Do Not Suggest
That Homosexuality is Immoral, Many Experienced Volunteers Were Unaware of the
195. In the Boy Scouts, volunteers are supposed to be the persons running the
district, with professionals serving only as assistants. Carroll Dep. at 28-31;
Hill Dep. at 46-47, 51; Bond Dep. at 23; Tr. 2467 (Leet). The Boy Scouts' policy
of excluding homosexuals, however, is so foreign to its mission, aims, methods
and program materials that numerous credible Boy Scout volunteers have been
involved in Scouting for decades without knowing that there was any policy or
general reason to exclude homosexuals. These witnesses credibly testified that,
to this day, the only notice they have ever received of this policy is through
articles they read in the newspaper. The Boy Scouts have issued public relations
statements to people outside of Scouting attempting to defend a policy of excluding
homosexuals, Lewis Dep. at 140, but have never issued anything to volunteers
to tell them what policy they are supposed to implement.
1. Thornell Jones
196. For example, Thornell Jones is a member of the District Committee of
the Banneker District and its Adult Leader Training Chairman. Tr. 283, 305-06
(Jones). Between 1992 and approximately 1995, Mr. Jones was the District Commissioner
for the Banneker District. Tr. 283 (Jones). He has been a Scout himself and
a troop committee chairman. Tr. 288-90. He took wood badge training -- the Boy
Scouts' highest adult leadership program -- and then taught it four times. Tr.
293-96. As District Commissioner, Mr. Jones was a council-level officer; he
was one of the "key three" in the Banneker District, responsible for making
sure that the Boy Scout program within the District of Columbia meets its standards;
and he supervised the Commissioner staff responsible for communicating those
standards to adult leaders at the unit level. Tr. 301-05 (Jones). Any policy
that the Boy Scouts wanted to convey as important to the implementation of the
Scouting program would have to be conveyed through him. Id.
197. The first time Mr. Jones heard that the Boy Scouts had a policy
of excluding homosexuals was in 1992, when two of the Commissioners on
his staff, Mr. Kirkner and Mr. Press, told him that they were incensed
about it. Tr. 380-81 (Jones). The BSA never shared with him any of the
position statements, question and answer statements or other public relations
documents in which it articulated its policy. Tr. 384-404, 423-25 (Jones).
198. Nor did the BSA share with Mr. Jones the substance of these position statements.
No one told him that the Boy Scouts investigate allegations of homosexuality.
Tr. 385-86 (Jones). He has never heard of the term "traditional family values"
used in the context of Scouting. Tr. 387-88 (Jones). No one in or out of Scouting
left him with the impression that homosexuals cannot be appropriate role models.
Tr. 388-91 (Jones). Nothing in his Scouting experience led him to understand
that homosexuality was supposed to be contrary to the words "morally straight"
in the Scout Oath or "clean" in the Scout Law. Id. at 389-90. In all
of his experience, it never crossed his mind that the Boy Scouts of America
would exclude homosexuals, or that he was supposed to care about people's sexual
orientation. Tr. 390-91, 399-400 (Jones).
2. Charles Wolfe
199. Charles Wolfe, who is currently the Director of External Affairs for Governor
Lawton Chiles of Florida, Tr. 1689, served in an array of Boy Scouts' youth
and adult leadership positions between 1970 and 1996. He is an Eagle Scout and
was a leader of the Explorers at the post and council level. Tr. 1690-92. In
1981, he was elected National Explorer President of the Boy Scouts of America.
Tr. 1692-94. In that capacity, he traveled some 75,000 miles representing the
Boy Scouts across the country and, from 1981 to 1983, served as a voting member
of the Executive Board of the BSA's National Council. Tr. 1694-95. He
was a member of the BSA's National Exploring Committee and the BSA's National
Relationships Committee. Tr. 1696-97. In 1985, when Mr. Wolfe was age 23, the
Boy Scouts chose him to be a BSA youth representative in a 40-state tour made
on behalf of the BSA in connection with its Diamond Jubilee. Tr. 1697-98, 1763.
The BSA gave him responsibilities for fundraising and sent him to fundraising
meetings with business leaders. Tr. 1699.
200. Mr. Wolfe thereafter remained with Scouting until 1996 and served
as an Assistant Scoutmaster, a troop committee member, a Scouting coordinator
for his church and a member of the Executive Board for his council. Tr.
1699-1703. He was active in Boards of Review that evaluated whether Scouts
had met the requirements for advancement through the ranks of Scouting
and discussed whether Scouts were living up to the ideals of the Scout
Oath and Law. Tr. 1703, 1709. He is also a recipient of Exploring's National
Leadership Award. Tr. 1703.
201. Mr. Wolfe, however, did not find out from the Boy Scouts about the BSA's
policy of excluding homosexuals. Tr. 1703-04. He learned about the policy from
a newspaper article, and assumed that it could not be true because the Boy Scouts
"don't say no to anybody." Tr. 1705-06. Despite his positions at the national
and council levels, the Boy Scouts never showed him any of its position statements.
Tr. 1706-08. He was never told that "morally straight" or "clean" was supposed
to mean heterosexual, Tr. 1710-12, or that Scouting included some concept called
"traditional family values." Tr. 1720-21. When he was on the National Executive
Board, a major effort was made to expand Scouting to non-traditional families,
such as those with single parents, latch-key kids and grandparents or non-relatives
serving as the caregiver. Tr. 1720-23, 1764-67. Mr. Wolfe explained that even
membership on council or national executive boards does not necessarily connote
knowledge, much less agreement, on the Boy Scouts' policy of excluding homosexuals.
Tr. 1725-30 (Wolfe).
3. William Kirkner
202. William Kirkner, a licensed attorney and a product manager for MCI in
charge of the technical details of its dial-up Internet service, Tr. 1912-13,
was first involved in Scouting at age 7. Tr. 1915 (Kirkner). He received his
Arrow of Light in the Cub Scouts, became an Eagle Scout in the Boy Scouts, received
the Explorer Achievement Award in the Explorers and became a Vigil Honor member
of the Order of the Arrow. Tr. 1915-17, 1937-39. He was also a Section Chief
of the Order of the Arrow for the section that included Washington, D.C., the
NCAC and virtually all of Maryland; in that capacity, Mr. Kirkner organized
its training conclave and reviewed and commented on the Boy Scout Handbook's
section on sexual responsibility. Tr. 1918-19, 1947-54.
203. Between 1990 and March 1994, Mr. Kirkner was a Unit Commissioner
and subsequently Assistant District Commissioner in the Banneker District.
Tr. 1919-21. He received the Arrowhead Honor, a training service award
for Commissioners. Tr. 1939-40.
204. Between 1989 and 1993, Mr. Kirkner held leadership positions on
the staff of Camp Spencer, including Camp Commissioner, Assistant Instructor,
Program Director and Section Director. Tr. 1921-22, 1925-26. Camp Spencer
is a National Camp School; it is operated by the Boy Scout's Regional Office
as a week-long training for the adults who will be running Boy Scout summer
camps. Tr. 1923-25. As Camp Commissioner, in particular, he was responsible
for training adults about how to communicate the Boy Scouts' program and
its mission. Tr. 1929-37; Fullman Dep. at 21-23, 62.
205. The first time Mr. Kirkner heard about the Boy Scouts' policy of excluding
homosexuals was in approximately 1991 or 1992, while he was giving an enthusiastic
talk at a Boy Scouts dinner about the Boy Scouts' Ethics in Action program.
Tr. 1954-55. Someone in the audience at Mr. Kirkner's talk asked how the principles
of tolerance taught to Cub Scouts in the Ethics in Action program squared with
the Boy Scouts' exclusion of gay Eagle Scout, Timothy Curran, from Scouting.
Tr. 1965-66. Mr. Kirkner responded that the questioner had to be wrong about
the Boy Scouts' position, for the position did not match what he had been reading
in the Ethics in Action program; he then received a tug on his sleeve from a
professional Scouter who told him that "[y]ou don't want to get too deep into
this." Tr. 1966-67.
4. Daniel Press
206. Daniel Press, a lawyer, was an active Scout, Order of the Arrow leader
and Scouter for 18 or 19 years, and also a Unit Commissioner and Assistant District
Commissioner in the Banneker District. Tr. 512-22 (Press). Over the course of
his Boy Scouts experience, Mr. Press attended hundreds of training sessions
and he himself conducted 50 or maybe 100 such sessions. Tr. 523-24, 599-604
207. Mr. Press also heard about the Boy Scouts' policy of excluding homosexuals
"through the grapevine." Tr. 574-75 (Press). No one sent him any position statements
on the subject and it was not in any of the tens of thousands of pages of Scouting
materials with which he was familiar. Tr. 537-40 (Press).
5. David Geller
208. David Geller, Michael Geller's father, has maintained continuous registration
with Boy Scout Troop 37 in Owego, New York for over 56 years. Tr. 472 (D. Geller).
During this time he has been a Scout, Scoutmaster, troop committee chairman
of Troop 37. He has also served as a merit badge counselor for Troop 37 and
member of the Executive Board of the Baden-Powell Council, positions which he
continues to hold to this day. Tr. 466-469. Based on his many years of committed
service to Scouting, the Baden-Powell Council honored Mr. Geller with the Silver
Beaver award which, in Mr. Geller's words, "is presented to somebody that has
been outstanding in many ways in Scouting." Tr. 471.
209. Over his many years of service, Mr. Geller has never understood
the Scout Oath or Law to have a sexual component or, for that matter, has
never understood the Boy Scout program to involve in any way the morality
of homosexuality. Tr. 473-476.
Mr. Geller did not know of the Boy Scouts' national policy of excluding homosexuals
until following his son Michael Geller's expulsion from Scouting. Tr. 481. In
fact, he observed that he "couldn't believe that the Boy Scouts would throw
him out" on account of his sexual orientation.
6. David Rice
210. At the time of his testimony in In the Matter of Richardson v. Chicago
Area Council of the Boy Scouts of America, No. 92-E-80 (Chicago Comm'n on
Human Relations) ("Richardson"), David A. Rice had been active in Scouting
for 56 years as a Cub Scout, Boy Scout, Explorer, Assistant Scoutmaster, District
Executive in four different councils, Camp Staff member, Camp Director, Program
Director, merit badge counselor and Scoutmaster. Rice Testimony at 228-38. He,
like David Geller, is a recipient of the Silver Beaver award for service to
his council. Id. at 239. Living in California, he learned of the Boy
Scouts' policy of excluding homosexuals from newspaper reports of the Curran
case in the mid-1980s; but, apart from the article in Scouting, never
received anything from the Boy Scouts about the policy. Id. at 241-42,
256-57, 263. He found the policy totally contrary to the purposes of Scouting
and "morally reprehensible." Id. at 242-45.
211. Although the Boy Scouts did not act to exclude Mr. Rice either for holding
those views or for testifying about them in 1995, they did exclude him in 1998because
he worked with a boy in his troop to protest the BSA's policy. Tr. 2470, 2546-51
7. Michael Cahn
212. At the time of his testimony in the Richardson case, Dr. Michael
S. Cahn, a physician, had been active in Scouting for over 50 years. Cahn Testimony
at 70-71. As a youth, he was a Cub Scout, then an Eagle Scout in the Boy Scouts,
who received bronze, silver, gold and a second bronze palm (each signifying
the attainment of five merit badges beyond those required for Eagle Scout).
Id. at 71-72. As an adult, he has been an Assistant Scoutmaster, a Committee
Chairman, a Scoutmaster and the recipient of District Awards of Merit. Id.
at 73-74. His mother is a merit badge counselor; his brother and two sons are
Eagle Scouts with multiple palms and adult Scouters; his daughter and son-in-law
are registered Scouters. Id. at 74-75. He learned about the Boy Scouts'
policy of excluding homosexuals in the 1990s, when his son reported learning
that some schools wanted to drop Scouting because of its bias against homosexuals.
Id. at 78-79.
213. Upon learning that the Boy Scouts excluded homosexuals, Mr. Cahn and his
troop felt that this policy was so contrary to Scouting that his troop committee
in San Jose, California, with the support of his Lutheran Church sponsor, unanimously
passed the resolution referenced earlier stating that it supports the Scout
Oath and the Scout Law and does not believe that either speaks to sexual orientation.
Id. at 81-83; Ex. C506 at NCAC5459. The Boy Scouts initially threatened
to revoke the troop's charter, but never did. Id. at 85-86.
8. Michael Herde, Russell McLaren, Daniel Shaw and William Kealey.
214. Michael Herde, a lawyer, joined Scouting right after his eleventh birthday.
He attained the rank of Eagle Scout and was a member of the Order of the Arrow.
For several summers as a youth, Mr. Herde worked as a staff member at summer
camps in the Old Kentucky Home Council. In 1982, following his first year of
college, Mr. Herde was employed as a Ranger at Philmont Scout Ranch, where he
met Roland Pool, then his Training Ranger. Tr. 439 (Herde). Mr. Herde testified
that in all his years in Scouting, it was never his understanding that the Scout
Oath or Law prohibited the participation of homosexuals. Tr. 442. Moreover,
Mr. Herde recalls participating in no programs and receiving no Boy Scout publications
that even discussed the issue of sexual orientation, let alone clarified that
homosexuals were barred from Scouting. Tr. 442-443.
215. Daniel Shaw, a sixth-grade science teacher and adjunct faculty
member at the University of New Mexico, joined the Boy Scouts in 1971.
He attained the rank of Eagle Scout and became a Vigil Honor member of
the Order of the Arrow. In 1977, he served on the staff of the National
Jamboree. He also taught at the Boy Scouts' National Junior Leader Instructor
Camp in Mendham, New Jersey. During summers from 1979 through 1983, Mr.
Shaw worked at Philmont Scout Ranch, which is where he met Roland Pool.
Mr. Shaw's various positions at Philmont included Ranger, Training Ranger,
Coordinator of the Rayado Trek, Director of Cimarroncito Rock Climbing
Camp and Assistant Director of Conservation Programs. Mr. Shaw later co-authored
the Philmont Fieldguide, to which Roland Pool contributed a chapter
entitled "Land." Mr. Shaw is now active with his son's Cub Scout pack.
During all of his years in Scouting, Mr. Shaw has never participated in
any program or seen any Boy Scouts publications which address the issue
of sexual orientation; and he was unaware of the Boy Scouts' exclusion
of homosexuals until the early 1990s. Shaw Affidavit.
216. William Kealey, a lawyer, joined the Boy Scouts in 1974. He attained
the rank of Eagle Scout in 1977 and was a member of Order of the Arrow.
During his summers from 1980 through 1984, Mr. Kealey worked at Philmont
Scout Ranch with Roland Pool. At Philmont, Mr. Kealey worked in various
positions, including Ranger, Training Ranger, Associate Chief Ranger and
Director of Philmont's Conservation Program. Mr. Kealey never understood
the Scout Oath or Law to have any specific sexual component and was totally
unaware of the Boy Scouts exclusion of homosexuals until sometime after
1988. Kealey Affidavit.
217. Russell McLaren, like Roland Pool, was a member of Troop 85 in Mandeville,
Louisiana, and earned Eagle Scout rank and the Vigil Honor in the Order of the
Arrow. Also, during the summers of 1981 and 1982, Mr. McLaren worked as a Ranger
at Philmont Scout Ranch. During his years as a Scout and Scouter, Mr. McLaren
never participated in any Boy Scouts program that addressed sexual orientation
and never received any Boy Scouts publications which dealt with the issue. He
did not learn that the Boy Scouts exclude homosexuals until the early 1990s.
9. David Caffey and Gregory Hobbs.
218. David Caffey is a former Chief Ranger of Philmont Scout Ranch and author
of a book on Philmont. Ex. C1200. In a letter to Ben Love, dated September 20,
1991, Mr. Caffey states that "[t]his business of saying that being 'morally
straight' means a heterosexual orientation . . . is a bad idea, don't you think?"
The letter continued: [w]e used to say that Scouting was 'For all boys.' If
that's the case, it's going to include a lot of boys who simply grow up with
a sexual orientation that is different from the majority. Let's stay in the
business of building strength and character, and get out of the business of
judging people's sexuality. Ex. C1202. In a later letter to Jere Ratcliffe,
Mr. Caffey described the Boy Scouts' exclusion of homosexuals as a relatively
recent incarnation. This letter also clarifies that even for someone as high
up in the Boy Scout organization as Mr. Caffey, sexual orientation is not a
core value of Scouting; he states that he knows of gay former Scouts "who love
Scouting and who support its fundamental values." Ex. C1203.
219. Gregory Hobbs has been active in Scouting since 1956, and from 1990 through
1993 served as Chairman of the Frontier District, which encompasses the City
and County of Denver, Colorado, and is part of the Denver Area Council. Hobbs
Affidavit ¶ 1. In a letter to Ben Love, dated November 22, 1991, Mr. Hobbs
indicated that he was not at all clear on the Boy Scouts' policy regarding homosexuals.
However, he stated that "[i]f the National Council's current policy is to ban
persons . . . from Scouting based on sexual preference, the policy should be
reexamined and rescinded." Ex. C1200 at A72.
10. Virginia Boyce Lind
220. Virginia Boyce Lind is the daughter of the founder of the Boy Scouts of
America, William Dixon Boyce, and the mother of William Boyce Mueller, a gay
man. C1214B; C1214C. She too is totally unable to reconcile the principles of
the Scouting organization her father founded with the practice of an organization
that would exclude her son. Id.
* * * *
221. The testimony by these Scouts and Scouters is compelling. In particular,
the Scouters who testified before the Commission on behalf of the Complainants
(Mr. Pool and Mr. Geller, David Geller, Thornell Jones, Daniel Press, Charles
Wolfe, William Kirkner and Michael Herde) were exceptional in the depth
of their Boy Scouts experience. Their testimony about the lack of Boy Scouts'
teaching on homosexuality was credible in the manner and demeanor in which
it was delivered. It is also fully consistent with what the Boy Scouts
say in their massive literature about the principles for which Scouting
stands, and was subject to no serious challenge on cross-examination.
222. Indeed, Boy Scout witnesses corroborate these witnesses' testimony.
The newspaper is the way in which Mike Bond himself first learned about
the policy of excluding homosexuals. Bond Dep. at 41-42. He did not routinely
receive the Boy Scouts' position statements. Id. at 169-70. Even
the BSA's designated witness, Mr. Teare, a Scouter since 1974, Teare Dep.
at 3, is not sure whether he ever saw before 1991 any Boy Scout document
that specifically mentioned homosexuality. Id. at 123. And the BSA's
former President, Richard Leet, conceded that, historically, "there was
no formal policy" that homosexuals should be excluded from Scouting. Tr.
2553. He maintains (as the evidence shows, incorrectly) that it was just
223. The testimony on behalf of Mr. Pool and Mr. Geller concerning the
distinction between principles of Scouting and those that appear in the
position statements supporting the Boy Scouts' exclusion of homosexuals
is made all the more compelling because of positions the Boy Scouts have
taken in this litigation. In discovery, the Boy Scouts took the position
that the identity of any of its volunteers was privileged and could
not be revealed. See, e.g., Ex. C1501 at 9 (Int. No. 6). In their
mandatory disclosure and their responses to interrogatories, they identified
no volunteer as a percipient witness even though they knew about many of
the people involved with Roland Pool and Michael Geller. Exs. C1501, C1502.
Nor did the Boy Scouts even identify all the professionals who were
personally involved in the decision to exclude Roland Pool and Michael
Geller from Scouting.
224. Then, the Boy Scouts chose what witnesses, volunteer or professional,
they wished to use for testimony. The Scouters who testified on the Boy
Scouts' behalf, Mr. Horne, Mr. Clayton and Mr. Ingram, are individuals
that the Boy Scouts chose to tell their side of the story from the thousands
of Scouters active in the District of Columbia area and the millions active
across the country.
225. The Boy Scouts were unable to present any credible testimony that
excluding homosexuals is in any way basic to Scouting. The witnesses the
Boy Scouts called at trial did not even venture to suggest that excluding
homosexuals was a specific part of the Scout Oath or the Scout Law, or
essential to its program. All that the Boy Scouts could elicit is that
some witnesses personally would not choose an open homosexual as a leader
for their troop, Tr. 2121-22 (Ingram), or that they believed that others
would have difficulty with a homosexual scoutmaster, Tr. 1048-49 (Horne);
Tr. 1683-1685 (Crayton).
226. This testimony is not only speculative, it is of very little value.
The fact that some individuals might have difficulty dealing with a homosexual
is not surprising. Undoubtedly, there are troops that would have problems
dealing with a woman Scoutmaster, or one of a particular race or ethnic
group. Mr. Horne and Mr. Crayton, for example, both said that it was important
to their troops to have black male leadership. Tr. 1063-1064 (Horne); Tr.
227. Saying that some troops might have difficulties with individuals from
some protected groups is a far cry from showing that Scouting stands for the
principle that no member of the group should ever be an adult leader. It is
obvious that many people in Scouting, including the Baden-Powell Council, a
number of troops and the Banneker District Commissioner Staff would have had
no problem with a gay or lesbian adult leader. Tr. 1782-84, 1807 (Wogaman);
Tr. 2049-2051, 2062-2063 (Stanley); Hill Dep. at 94-95. Indeed, St. Timothy's
Episcopal Church, which sponsors Mr. Horne's troop, is not only part of a denomination
(Episcopalian) that welcomes open gays and lesbians as priests, the church itself
has specifically declared itself to be an "open and affirming" congregation
that encourages gays and lesbians to participate. Tr. 2297-98 (Hopkins).
E. Even the Individuals the Boy Scouts Chose as Witnesses Are Unable to
Articulate a Policy That is Consistent or Even Coherent.
1. The Boy Scouts' witnesses disagree over whether the words "known or avowed"
are in the policy.
228. The Boy Scouts' testimony revealed complete confusion about whether the
policy includes the words "known or avowed," and what those words mean. As noted
above, most of the Boy Scouts' position statements, which were crafted with
the specific purpose of telling Scout Executives how to articulate the policy
to the press, Teare Dep. at 130, including the Issues and Crisis Communications
Guide still in use and Chief Scout Executive Ratcliffe's speech, refer to a
policy of excluding "homosexuals," Exs. C503, C505, C508, C509, C510, C513 at
NCAC2784. See also C516 (referring Scout Executives to C508). Others
refer to "avowed" homosexuals, C512, C514, C515, C517, not "known or avowed"
229. In 1981, the Boy Scouts' own legal counsel described the policy
as being one of excluding homosexuals, Ex. R152, although it appears that
he added the words "known and avowed" by 1983. Ex. C502. In 1992, when
Mr. Carroll wrote Roland Pool specifically to articulate why it was that
Mr. Pool was excluded from Scouting, he wrote Mr. Pool that "the Boy Scouts
of America does not accept homosexuals as youth leaders," Ex. C311 (not
"known or avowed" homosexuals), and that this policy, "is well documented
and has received an enormous amount of publicity in the press recently."
Id. The BSA's then Director of External Communications, Mr. Teare,
similarly did not include "known or avowed" in a 1993 letter he wrote describing
the Boy Scouts' policy. Teare Dep. at 148-49.
230. It is scarcely surprising that Mr. Carroll and Mr. Teare so articulated
the Boy Scouts' policy; the BSA's national spokesperson did so as well.
As of 1992 and 1993, when he was deposed in a related action, Blake Lewis
was the national spokesperson for the BSA, authorized by the BSA National
Council to speak on its behalf with one voice in articulating the BSA's
policy. Teare Dep. at 56-57; Lewis Dep. at 18-20. According to Mr. Lewis,
"[t]he Boy Scouts of America does not allow for the registration nor leadership
of homosexuals," Lewis Dep. at 127. There is no "known or avowed" qualification.
See also Hill Dep. at 61.
231. At the hearing, Mr. Carroll testified that the policy was really
"known and avowed" homosexuals, even though the policy statements prior
to 1996 did not so state, because the Boy Scouts always really meant that
it referred to "known and avowed" homosexuals. Tr. 1199.
232. This testimony is not credible. The premise that the BSA always
meant to say "known or avowed," but just did not say it, would require
the insupportable finding that the BSA, including Mr. Carroll at a time
prior to this litigation, misstated its position, in statement after statement,
including videotaped media training, all of which was specifically designed
for the purpose of telling its professionals exactly the message the BSA
wished to have conveyed to the media on this issue. It would mean that
the Boy Scouts' designated national spokesperson, whose firm Edelman Worldwide
"knows our policies" and works with the Boy Scouts on how to articulate
them, Teare Dep. at 60-61, misspoke about this issue in a sworn deposition,
as did its Chief Scout Executive, Jere Ratcliffe in a nationally televised
speech to Boy Scout professionals.
233. The Boy Scouts' theory would also mean that others misunderstood the policy
as well. See also, Ex. R97 (Resolution No. 8) (resolution of the Southern
Baptist Convention referring to the Boy Scout policy as applying to "homosexuals"
without any qualification); Tr. 1392-93 (Turner). See also Teare Dep.
at 68-69 (at first saying that there was nothing in the Boy Scouts' Module 4
with which he disagreed, and then calling the lack of the words "known or avowed"
"a little misleading").
2. The Boy Scouts' witnesses disagree over what the words "known or avowed"
are supposed to mean.
a. Every organizational representative designated by the Boy Scouts changed
his testimony on this issue after his deposition.
234. Even today, with the benefit of pending litigation and years of preparation,
the central BSA witnesses are still unable to articulate a coherent or consistent
version of what "known or avowed" is supposed to mean. For example, Scott Teare
was one of two deposition witnesses specifically designated by the BSA to speak
on its behalf. He has been employed by the Boy Scouts for nearly 24 years, id.
at 3, and during the period from 1993 to 1997 he was the Director of the BSA's
External Communications Division -- the person responsible for, among other
things, working with the Boy Scouts' national spokesperson on how to articulate
Boy Scout policies. Id. at 7, 66. He is currently the administrative
assistant to the BSA's Chief Scout Executive Jere Ratcliffe. Id. at 115.
235. During his deposition, Mr. Teare, testified as follows:
Q: Does the Boy Scouts policy concerning accepting homosexuals as
members or leaders allow homosexuals to be members or leaders as long as
they are celibate?
A: No, they do not allow avowed or known homosexuals to be members or
Q: If an applicant says to someone at the Boy Scouts, I have never told
anyone this in my life but I want you to know because I want to be honest
with you, I'm a homosexual; I have never told anyone; I have no intention
of telling anyone whether I'm a homosexual or not -- can they be an adult
leader of the Boy Scouts?
A: Our policy clearly says, at that point they are a known homosexual,
and they cannot.
Teare Dep. at 76-77 (emphasis added).
236. Then, two weeks before the hearing, Mr. Teare signed an errata
sheet, in which he asked to:
change "Our policy clearly says, at that point they are a known homosexual,
and they cannot" to "Our policy clearly says, if at that point they are
a known or avowed homosexual, then they cannot."
237. Similarly, when Mr. Teare was asked at deposition:
Just so I'm clear, your understanding is that if someone privately
and for the only time in their life reveals their sexual orientation to
someone connected with the Scouts, they have to be severed from all ties
with Scouting, correct?
Dep. at 160, he said, "[t]hat is our Policy." Id.
238. Two months later, however, the Boy Scouts' counsel sent an errata
sheet to say that the words "[t]hat is our Policy," really should read
"I've never faced that situation. It depends on whether that constitutes
being known or avowed." Id. See also, e.g., errata
changes to page 82 (suggesting that a person who avows homosexuality may
still be a Scouter if he is not otherwise "known"); change to p. 161:18
(adding a qualification to an answer that Mr. Teare had previously sworn
involved "no ifs, ands, or buts.").
239. Marcus Mack was the BSA's other deposition designee. Mack Dep.
at 14-17. He is currently a BSA Area Director in Ontario, California. Id.
at 3-5. Although he has never worked either in this area of the country
or the Boy Scouts' national headquarters in Irving, Texas, id. at
7-14, 139, the Boy Scouts flew him over 2,500 miles to Washington, D.C.
to testify as its chosen designee to testify "to the extent that the National
Council of the Boy Scouts of America has information" about, among other
things, "the nature . . . of respondents' policy concerning the participation
of gays and lesbians in scouting." Id. at 14-17; Ex. C1503 at 2
(Dep. Ex. 25).
240. At his deposition, Mr. Mack swore as follows:
Q: If [a Rabbi] tells you I'm a homosexual, I'm also a virgin and
I never intend to have sex with any one; in the view of the Boy Scouts
of America he does not lead a morally straight life?
A: If he's a homosexual, he does not.
Q: Irrespective of any conduct he might or might not engage? . . .
A: He does not meet the membership requirements to join the Boy Scouts
Dep. at 54-55. In his errata sheet, Mr. Mack said that the last
word in his answer, "America," really should read "America based on what
he promotes" -- even though the question did not ask about the Rabbi promoting
241. Similarly, if there is anyone at the NCAC who should be expected
to have an understanding of the BSA's policy, it is Ron Carroll. Mr. Carroll
is not only the Scout Executive for the NCAC, he was named by the NCAC
as its representative for purposes of deposition. He has more than 20 years
of experience in Scouting, Carroll Dept. at 23-27, and was personally involved
in the events of this case; prior to the depositions in this case, he even
held a meeting in September or early October 1997 among all the professional
District-level employees in the NCAC to distribute one of the BSA's policy
statements and to make sure, in light of Mr. Pool's and Mr. Geller's cases,
that everyone had a clear understanding of the Boy Scouts' policy. Bond
Dep. at 163-67; Hill Dep. at 54-55.
242. Yet, nearly two months after his deposition, Mr. Carroll modified five
of his sworn answers to restate the Boy Scouts' policy as one involving "known
or avowed" homosexuals, where earlier he had referred generally to homosexuals.
Carroll Dep., Errata to pages 262, 265, 278, 289, 293.
b. The Boy Scouts' representatives do not agree on what the policy is supposed
243. Even overlooking the changes in testimony, the Boy Scouts' witnesses have
considerable difficulty articulating what is meant by "known or avowed." For
some witnesses, the words "known or avowed" have real operative significance.
For example, when asked whether the Boy Scouts have "a problem with someone
who is a closeted homosexual participating in Scouting," Mr. Teare testified
that: So long as in front of the kids, the youth, the young members, that they
are upholding the values and principles found in the Scout oath and law and
they have come up to that level, we want them to come up to be a volunteer.
But from the moment they say they are a homosexual, so now they are known or
avowed, they can no longer present those values to the children because of who
they are, who they said they are. Teare Dep. at 81-82. See also Tr. 1214-16
(Carroll); Hill Dep. at 14-15 ("if there was a confession of homosexuality,
that was the only time we had to be concerned [about accepting an application]";
if a professional thought someone was a homosexual but they didn't confess it,
that is not a matter of concern"); Tr. 2539-40 (Leet) (if someone only engages
in homosexual sex behind closed doors they can sincerely take the Scout Oath
and Law and be part of Scouting). Indeed, Mr. Carroll went so far as to say
that homosexuals are perfectly appropriate role models for Eagle Scouts interested
in career development. Tr. 1144-46.
244. John Thomas has over 50 years of experience on the Executive Board
of a Boy Scout Council, is on the Board of the Boy Scouts' Central Region,
was a member of the Boy Scouts' National Religious Relationships Committee,
Tr. 1266-68, and was called by the Boy Scouts to testify in In the Matter
of Richardson v. Chicago Area Council of the Boy Scouts of America,
No. 92-E-80 (Chicago Comm'n on Human Relations). Tr. 1325-26. The Boy Scouts
called him here in an effort to show that the Boy Scouts' policy concerning
homosexuals was consonant with the views of the United Methodist Church.
Mr. Thomas, however, was unsure whether the Boy Scouts' policy applied
to being a homosexual, practicing homosexuality or advocating homosexuality,
and was uncertain whether the Boy Scouts would exclude a celibate homosexual
or a homosexual who indicated that he had no intention of discussing his
sexual orientation. Tr. 1303-07.
245. Richard Leet, a member of the Boy Scouts' National Executive Board
since 1983, and the President of the BSA during 1990 and 1991, Tr. 2485,
said that the policy is that "those with a homosexual lifestyle -- it is
inappropriate for leadership under the moral values of the Boy Scouts of
America." Tr. 2469, 2534-36. What "lifestyle" means, however, is not entirely
clear. For example, Mr. Leet believes that a homosexual who keeps his sex
life private can sincerely take the Scout Oath and Scout Law and be part
of the Boy Scouts. Tr. 2539-40. And Mr. Leet is uncertain whether a celibate
gay priest has a "homosexual lifestyle." Tr. 2535.
246. The Denver Area Council issued a public statement indicating that
the Boy Scouts' policy did not apply to homosexuals in private relationships,
but only to people who "openly profess their sex life" to children. Hobbs
Aff. ¶ 2; Ex. C1200 at A77; id. at A72 (letter by Chairman
of Frontier District in Denver, Colorado expressing understanding of the
policy). The Boy Scouts, however, maintain that this statement was not
correct. Teare Dep. at 152-53.
247. Some of the other witnesses maintain that the only significance to the
words "known or avowed" is that the BSA intends to exclude anyone who is a homosexual
but simply cannot exclude people unless they know about them. See, e.g.,
Mack Dep. at 30-34; Tr. at 1393-94 (Turner); Bond Dep. at 134-35; Carroll Dep.
at 158-59. Scout Executive James Kay seems to testify both ways on this point.
See Kay Dep. at 99 (testifying that he is not aware of "any circumstances
under which a homosexual can be a member of Scouting"), with id.
at 127-28 (suggesting that "known or avowed" means that someone who hides his
homosexuality can be a member of the Boy Scouts).
c. None of the views expressed about what the policy is supposed to mean
jibes with either the public statements or the actual practice.
(1) Several Boy Scouts' witnesses simultaneously maintain that the BSA does
not ask about a person's sexual orientation and that its application requests
248. Mr. Teare and Mr. Carroll, two of the witnesses who, at least at one point,
maintain that the Boy Scouts do not care whether someone actually is homosexual,
but merely whether the person says they are homosexual, also testified that
homosexuals are supposed to identify themselves as homosexuals when they
apply for Scouting. The Boy Scouts' adult application in use since the late
1980s asks whether applicants use illegal drugs, have been convicted of a criminal
offense, have ever been charged with child neglect or abuse or have ever had
their drivers license revoked, Ex. C305, and then, in Question 6(e), asks: Other
than the above, is there any fact or circumstances involving you or your background
that would call into question your being entrusted with the supervision, guidance
and care of young people? (If yes, explain below) Id.
249. Although this question does not anywhere mention homosexuality,
the Boy Scouts' witnesses testified that the Boy Scouts expect that a homosexual
will, in response to Question 6(e), recognize that his/her sexual orientation
"call[s] into question [his/her] being entrusted with the supervision,
guidance and care of young people," and, when asked to "explain," will
identify him/herself as a homosexual. Teare Dep. at 74-76; Tr. 1204-10
(Carroll); Carroll Dep. at 144; Mack Dep. at 34-41; Bond Dep. at 105-06.
250. This testimony, on its face, is difficult to believe. There is
nothing in Question 6(e) that would seem to be asking about sexual orientation.
See Tr. 584 (Press). In January 1989, when the Boy Scouts revised
their application to include this language, the Boy Scouts never suggested
that this question was designed to elicit information on sexual orientation.
To the contrary, the revised application eliminated a question they
had previously asked about "marital status" and informed Scout Executives
that the entirety of Question 6 was "designed to be less intimidating to
the [applicant]." Ex. C607 at NCAC8128. In answering interrogatories, the
Boy Scouts denied that it is "their policy to ascertain sexual orientation
of Scouts or Scouters before allowing their admission or participation
in scouting." Ex. C1501 (Response to Interrog. No. 19). Former BSA President
Richard Leet concedes that, although Mr. Teare was in a position to understand
the application process, Mr. Leet is not sure whether he was correct. Tr.
251. More importantly, the testimony of the Boy Scouts' witnesses concerning
how Question 6(e) should be answered cannot be reconciled with their assertion
that the policy only applies to "known or avowed" homosexuals. If the Boy Scouts
themselves were happy to have homosexuals as Scouters "[s]o long as in front
of the kids," homosexuals are "upholding the values and principles found in
the Scout oath and law," Teare Dep. at 81-82, the Boy Scouts could not possibly
expect homosexuals to think that their sexual orientation "would call into question
your being entrusted with the supervision, guidance and care of young people";
and the Boy Scouts certainly would not desire that homosexuals identify themselves
as such in answer to Question 6(e). See Teare Dep. at 105-06.
(2) Some Boy Scouts' witnesses seem to maintain that Scouters can swear
to be honest so long as they act dishonestly.
252. There is also no way of reconciling the testimony of the Boy Scouts witnesses
who assert that the words "known or avowed" have operative significance with
the explanation the Boy Scouts put forth for the policy. The Boy Scouts cannot
simultaneously tell the Commission and the public that "Scouting regards homosexual
conduct as immoral," DEx. 59, and then rely on testimony from their only National
Executive Board witness that a homosexual who keeps his/her sex life private
can "sincerely take the Scout Oath and Scout Law and be part of the Boy Scouts
so far as the Boy Scouts is concerned." Tr. 2539-40 (Leet). If the Boy Scouts
actually regarded homosexual conduct as immoral, a practicing homosexual could
not sincerely or acceptably swear to be morally straight. And if the Boy Scouts
really believe that practicing homosexuals can swear to be morally straight,
they are saying that the Scout Oath does not make homosexual conduct immoral.
253. In any event, it is wholly implausible for the Boy Scouts to assert that,
so far as Scouting is concerned, homosexuality is moral just so long as someone
is not honest about it. Although the Boy Scouts' program materials say nothing
about the morality of homosexuality, they say quite a bit about the importance
of honesty. For example, the Boy Scouts teach that "[h]onesty is a cornerstone
issue. It undergirds everything we do. Without it our society could not be what
it is. The freedom that we all cherish in our society is based on the capacity
of people to have honest relationships." Ex. C707 at NCAC3468 (italics in original).
Indeed, the definition the Boy Scout Handbook provides Scouts as guidance to
the meaning of morally straight says in part, "[y]our relationships with others
should be honest and open." Ex. C700 at 551.
(3) Other Boy Scouts' witnesses offer no explanation for the words "known
254. On the other hand, if the words "known or avowed" have no significance
save for the fact that the Boy Scouts need to know that someone is a homosexual
before excluding them, the Boy Scouts are left with no plausible explanation
for why the BSA has this unique limitation in its policy concerning homosexuals.
The Boy Scouts maintain that all atheists are inappropriate for Scouting --
not just "known or avowed" ones, Tr. 1393-94 (Turner); and presumably would
maintain that all murderers, arsonists and rapists are inappropriate for Scouting,
not just the ones they know about. If someone's sexual orientation really affected
their ability to function as a volunteer leader, the Boy Scouts would ask about
it directly (as they do about whether someone was convicted of a crime or had
their driver's license revoked, see Questions 6(a) through 6(d) of the Adult
Application, Ex. C607 at NCAC8127), or at least so inform applicants, as they
do about the need to recognize a duty to God. Id. at NCAC8126. And, of
course, the Boy Scouts would not have left their former President, Tr. 2539-40
(Leet), and one of their personally designated witnesses, Teare Dep. 81-82,
as well as a several other witnesses, with the impression that closeted homosexuals
are appropriate Scouters.
(4) No formulation of "known or avowed" squares with the Boy Scouts' approach
to investigating allegations of homosexuality -- which is itself a matter of
confusion among the witnesses.
255. According to Mike Bond, the Boy Scouts' professional who decided to exclude
Roland Pool from Scouting, the fact that Roland Pool said that he volunteered
at Whitman Walker Clinic "would have raised some questions in [his] eyes," because
Whitman Walker Clinic "is a clinic that treats patients with AIDS. And I know
that many of those patients are members of the gay community from what I have
been given to understand." Bond Dep. at 144.
256. Mr. Mack testified at his deposition that, whenever there is an
allegation of homosexuality, the Boy Scouts' policy is to conduct an extensive
"fact-finding," Mack Dep. at 197, described as follows:
Q: What fact-finding would be done?
A: If that person is in a troop, then there may be some questions to
the chartered organization representative or that particular minister.
Q: And what questions would be asked?
A: Well, you would ask about their lifestyles.
* * * *
Q: Well, suppose someone alleges that they're homosexual and you got
to talk with the representative from the sponsoring organization and the
representative of the sponsoring organization says I don't know, what then?
A: We would ask the charter organization rep. Somebody knows something
about them. We'll ask people who know within that group of the troop committee.
Q: So you'd ask all the people in the troop committee?
A: We'd ask until - we wouldn't necessarily ask everyone. No.
Q: You would ask people until you found somebody who knew this person's
sexual orientation and would tell you?
A: That would tell us about their lifestyle and that may be included
in that. Yes.
Q: Let me use the word lifestyle. What do you mean by the word lifestyle?
A: We would start off in that manner. I don't know that -- and then
we would -- we would ask the question if they know that this person is
a homosexual. Yes. We maybe wouldn't come out and say that first but we
would ask it. Yes. That's what we came for. I think that's the part where
we try to say with the u[t]most regard for the individual's rights. We
want to do it in a courteous way. We're not trying to beat anybody up.
Q: You would so that whether or not the person ever said to anyone that
he was a homosexual, correct, as long as there's an allegation that the
person was a homosexual?
Mack Dep. at 196-200. Afterwards, this answer was further confused, when
counsel served an errata sheet in which Mr. Mack changed the last
answer to "Yes, a substantive allegation that the person is known to be
a homosexual." Id. Errata. What "substantive allegation" this is
supposed to be is totally unclear. See also Mack Dep. at 230-31
(policy of investigations applies to youth); Teare Dep. at 79 (same).
257. Indeed, even Mr. Teare, who at one point testified that "homosexuality
is not an issue unless an individual makes it an issue," Teare Dep. at
69, a few moments later confirmed that, in the event there is an allegation
of homosexuality, the Boy Scouts inquire of the persons who approved the
application and of the person himself concerning his sexual orientation
and if an adult or youth refuses to answer a question about his/her sexual
orientation, he would "most likely be removed in a very confidential way."
Teare Dep. at 78-79. See also Tr. 1217-18 (Carroll).
258. If these individuals' testimony is correct, then the Boy Scouts'
concern lies not with "known or avowed" homosexuals, but with anyone they
think may be a homosexual.
259. Mr. Carroll, however, testified that the Boy Scouts are "not an
investigative organization," Tr. 1215, and would not investigate an applicant
unless "they did something." Tr. 1216, such as ". . . [writing] something
on their application that `I am gay' or `I am homosexual,' or [listing]
an organization [of which it] was known you couldn't belong . . . unless
you were gay." Tr. 1216. Mr. Fullman goes still further, and asserts that
the Boy Scouts would not even investigate if they suspected that someone
was gay. Fullman Dep. at 34-35.
260. Nor did the Boy Scouts' statements to the public jibe with their testimony
about those policies. Even as the Boy Scouts maintain that they expect people
completing adult applications to reveal their sexual orientation in response
to Question 6(e), they instruct their Scout Executives to tell the media that
the Boy Scouts do not inquire about a person's sexual orientation. Teare Dep.
at 136-37. Even as they investigate allegations of homosexuality, they inform
the public that they do not. Teare Dep. at 138-39. Either the Boy Scouts have
misrepresented their policy to the public, or have misrepresented their policy
to this Commission, or both.***/
(5) None of these theories is consistent with the fact that the Boy Scouts
also run programs in which youth have gay role models and mentors.
261. When the Boy Scouts discuss the Learning for Life program, they do handsprings
attempting to explain how it is that a program designed to teach "the Boy Scout
program of values and ethical decisionmaking," Mack Dep. at 57, could nonetheless
allow participation by gays and lesbians. See Mack Dep. at 57-77. Former
BSA President Richard Leet even initially represented that Learning for Life
participants "do not join" the Boy Scouts, Tr. at 2465-66, only to concede on
cross-examination that BSA Annual Reports identify Learning for Life participants
as part of the Boy Scouts' "Registered Youth" and "Registered Adult" membership,
Tr. at 2515-19, 2521-22 (Leet); see, e.g., Exs. C1305 at NCAC5539; C1306
at NCAC1899; C1307 at NCAC3427; C1308 at NCAC1949; C1309 at NCAC1989; C1310
at 27; Ex. C1134 at NCAC4889; and his own statement to Congress included Learning
for Life youths among those who "participated in Scouting activities," and thereby
"reaffirm[ed] the moral, spiritual, and social values upon which all Scouting
activity is based." Ex. C1112; Tr. 2518-19 (Leet).
262. The Boy Scouts replaced previous in-school Scouting programs with
Learning for Life, in part, because they were concerned that "traditional
Scouting values and methods were being compromised through non-traditional
delivery." Ex. C1100 at NCAC6148. One aspect of Learning for Life is to
have community role models and mentors come into schools to talk about
their values. Ex. C1100 at NCAC6091; Ex. C1007 at NCAC8114; Ex. C607 at
263. In February 1998, the Boy Scouts went still further to divide its
Exploring program between "Career" and "Varsity" programs and to have the
Career Program run through the Learning for Life Division, where neither
youth nor adults are required to be heterosexual. Tr. 2466-67, 2507, 2519-21
(Leet); C1007; Ex. C1304 at NCAC2418.
264. If the Boy Scouts truly believed that homosexuals were immoral, or bad
"role models" or contradicted the "traditional family values" for which the
Boy Scouts supposedly exist to serve, or that such contact with homosexuals
would lead youth to want to engage in homosexual behavior themselves, they would
not be running programs in which homosexuals were serving as mentors, role models
and post advisors. Tr. 2519-21 (Leet). In fact, the Boy Scouts concede that
they made the change, in part, in an effort to protect their traditional programs
from legal challenges. C1007, second page.
F. The Boy Scouts' Various Articulations of the Policy of Exclusion Belie
Any Suggestion that this Policy is Fundamental To Scouting or that the Policy
Has Anything To Do with Advocacy or Conduct.
265. For purposes of this litigation, the Boy Scouts have asked the Commission
to assume that the vast majority of the policy statements the Boy Scouts have
made concerning homosexuality are simply a mistake. The Boy Scouts urge that
witness after witness merely had strange slips of the tongue at their depositions
and really meant to testify as they did in errata sheets filed by their
counsel weeks or months later. They maintain that their national spokesperson
was incorrect about the scope of this policy, and that the specific Issues and
Crisis Communications Guide the Boy Scouts drafted for all of their professional
employees got it wrong.
266. The Boy Scouts have also asked the Commission to conclude that
this is a clear policy, somehow basic to Scouting.
267. The evidence of record, including the Boy Scouts' own statements
and the sworn testimony of their witnesses, make both these premises absolutely
incredible. It is abundantly clear that far from being a policy of Scouting,
the exclusion of homosexuals is a policy of the Boy Scouts' public relations
department and its attorneys, formulated solely for purposes of having
words to say to the press and arguments to make in court. The Boy Scouts
have presented no version of this policy that is internally consistent,
much less externally consistent with other statements, or reconciled with
any rationale the Boy Scouts have offered for its use.
268. In short, the evidence is overwhelming that the Boy Scouts' policy
of excluding homosexuals does not exist as a fundamental value that Scouting
seeks to convey, or as an expressive reason people come together to become
involved in Scouting. Rather, it exists only as an ad hoc
policy developed for public relations and litigation purposes and articulated
in ways that are incoherent and uncorrelated to objectives supposed to
be served by this policy. The Boy Scouts' attempts to characterize the
policy are, in the purest sense of the word, pretexts put forth in the
hope of justifying discrimination pure and simple.
VI. THE BOY SCOUTS ARE A PUBLIC ACCOMMODATION.
269. In their Answer to the Complaint in this action, the Boy Scouts conceded
that the NCAC and the BSA "are each institutions, clubs or places of accommodation."
Ex. C1500, Answer at 4, ¶ 2. However, the Boy Scouts maintain that they
"are in their nature distinctly private." The evidence, however, demonstrates
that respondents are places of public accommodation that are anything but "distinctly
A. The Boy Scouts are Enormous.
270. The Boy Scouts are, in their words, "the largest youth movement the world
has ever seen." Ex. C719 at 2780; Ex. C717 at Ex. 1513; C718 at 2206; Ex. C719
at 2730-81; Ex. C720 at 57. The BSA is the largest youth organization in America.
Ex. C1005 at 5623. In 1940, the Boy Scouts described the Boy Scout Handbook
as "the country's best seller, with the exception of the Bible," Ex. C717 at
1474; since 1911, the Boy Scouts have printed more than 33 million copies. Ex.
C700 at 583. Since 1911, Boy's Life has placed "more than 16 billion
magazines in circulation," Ex. C1122 at NCAC4882, with more than 2 million boys
receiving the periodical each month. Ex. C700 at 583.
B. The Boy Scouts are Almost Totally Non-Selective and Aggressively Recruit
271. The Boy Scouts believe that "Boy Scouting is for any boy who meets the
age requirements and is willing to subscribe to the religious principles." Ex.
C901 at 12. According to the Boy Scouts: Our federal charter sets forth our
obligation to serve boys. Neither the charter nor the bylaws of the Boy Scouts
of America permits the exclusion of any boy. The National Council and Executive
Board have always taken the position that Scouting should be made available
for all boys who meet entrance age requirements. Ex. C1155 at 2. See also,
e.g., Ex. 810 at 3 (BSA feels that its program offers "something special
for every boy and family"); Ex. C923 at 8489 (Cub Scouting "has something special
to offer every boy and family"); C727 at 6923 (Scoutmaster Handbook noting,
"Your troop, if it is like most, takes on whatever boys come to it, complete
with their strengths and weaknesses.").
272. It is a major priority of the Boy Scouts at all levels to encourage
and to expand membership of both youth and adults. Tr. 2490-91, 2522-23
(Leet). For example, the BSA's 1992 Annual Report announced the BSA's "commitment
to make Scouting more widely available than ever." Ex. C1306 at 1901. The
BSA added that "[d]emographic information and forecasts indicate the number
of youths who could benefit from Scouting is steadily increasing," and
that "Scouting must be shared with as many young people as possible." Id.;
Tr. 2523-25 (Leet); Tr. 367-68 (Jones). Positive public relations, urban
emphasis, development of endowments and "[t]raditional net unit growth"
are Chief Scout Executive Ratcliffe's "Four Critical Issues Facing the
Boy Scouts of America," Ex. C918 at A2115; Ex. C1307 at NCAC3428, 3438,
and a major focus of every BSA Annual Report. See, e.g., Ex. C1308
at NCAC1934-37 (section entitled "Making a Difference with More Traditional
Units"); Ex. C1309 at NCAC1970-73 (section entitled "Accomplishing Our
Mission with Traditional Unit Growth); Ex. C1310 at 8-11 (section entitled
"What Makes a Leader - Traditional Unit Growth); Tr. 1354-56, 1378-85 (Turner)
& Exs. R76, R84, R86 (testimony and exhibits concerning efforts to
encourage religious groups to sponsor more Scout troops); Mack Dep. at
134-45 (discussing how the Boy Scouts spread the word about Scouting through
flyers and public service announcements); Exs. C808, C809, C811; Tr. 2525-27
273. In particular, the Boy Scouts have emphasized "growth in urban
America, where, figures show, more than 70 percent in the projected increase
in available youth will occur." Ex. C1307 at NCAC3438. "Recruiting adults
is a vital task in serving inner-city . . . communities. District Scouters
must give a high priority to helping community and organization leaders
recruit unit adults." Ex. C1153 at 22.
274. The Boy Scouts believe that "[l]ocal councils have an opportunity
to help fulfill the Scouting mission that all boys and young adults have
the opportunity to be part of the Boy Scouts of America." Ex. C1153 at
25; Ex. C607 at NCAC8056 (Part of the "Mission of the Council" is "To Make
Scouting Available to All Youth"); Ex. C918 at A2115 ("A council is known
by the units it keeps."). The NCAC Annual Report for 1992-93, for example,
states that "[w]e must involve an increasing number of youth and adult
members," and reports on the "specific strategies" the Council had implemented
"to address our membership needs." Ex. C1312 at NCAC2057.
275. The BSA identifies increasing membership as the first function
of a District. Ex. C906 at NCAC152; Hill Dep. at 72-73. To be a "Quality
District," and to receive an award, a district has to increase the number
of members and the number of units. Tr. 368-69 (Jones). The District Executive
is a "marketing person" who is evaluated based upon his ability to increase
Scouting membership in the District. Tr. 369-70 (Jones). Professional training
materials describe the first "critical achievement" of a professional Scouter
to be "growth in quantity" -- even before "growth in quality." Ex. C917
at A1609. Increasing membership is a "key function" of Unit leaders, the
Commissioner Corps and the District Membership Committee, and they are
all evaluated on whether they succeed in increasing members. Tr. 565-66
276. In 1992, the NCAC's standing committee on long range planning targeted
membership as one of two principal areas of focus. Its findings included
a recommendation that the NCAC increase membership opportunities to all
elements of its potential youth market. The committee also recommended
implementing a strategy to increase membership by 3% every year. Ex. C1100
at NCAC5709. More recently the NCAC has stated, "obviously, it is always
our goal to provide the best possible program for as many young people
as we can reach. In order to do this, we must . . . comply with Federal,
State and local laws and policies. . ." Ex. 1100 at NCAC6312.
277. Likewise, in the Banneker District, the Boy Scouts say that "every
boy who wants to be a Scout should be." Tr. 318 (Jones); Bond Dep. at 85-86;
Ex. 1100 at NCAC5779. Its 1992 Mission Statement was "[t]o deliver the
total Boy Scout program to the boys, to their families and to the community."
Ex. C1106; Tr. 364-66 (Jones). One of the District's objectives was to
"market Scouting to the community," by increasing Scouting's visibility
in the community and inviting people from the community to activities so
that they could see the benefit of Scouting. Ex. C1106; Tr. at 366-67.
278. Other objectives of the Banneker District include "mak[ing] Scouting
available to every boy who wants it," and "increas[ing] Adult Partner involvement,"
Ex. C1106, both of which focused on growing the program and increasing
membership. Tr. 367, 370 (Jones); Ex. C1100 at NCAC5779.
279. In the Banneker District, the goal of increasing membership required
extremely active and intensive recruitment. Tr. 344 (Jones); Tr. 530-34
(Press). Almost every unit in the District lacked sufficient numbers of
adults. Tr. 370 (Jones). Some units were unable to renew their charters
because they did not have enough adult leaders. Tr. 532 (Press).
280. Indeed, with respect to Unit Commissioners -- the particular position
for which Roland Pool applied -- there was, at the time of his application,
a desperate need for adult leaders. Boy Scout procedures call for there
to be one Unit Commissioner to service every three units (cub scout packs,
boy scout troops or explorer posts) in the District, and to have one Assistant
District Commissioner for every five Unit Commissioners. Tr. 309-12 (Jones);
Ex. C909 at NCAC366; Mack Dep. at 122-23. Moreover, apart from rare or
emergency circumstances, Assistant District Commissioners are not supposed
to have direct contact with units; they are supposed to focus on overseeing
the Unit Commissioners. Tr. 312, 351 (Jones); Ex. C909 at NCAC366.
281. As of June 1992, the Banneker District had only one active Unit
Commissioner (Mr. Kirkner) and two active Assistant District Commissioners
(including Mr. Press), to service 72 units. Ex. C300; Ex. C1105; Tr. 348-57
(Jones). The District Commissioner needed about 30 more people on his staff
to function properly. Tr. 356-57 (Jones). Across the board, the District
level needed five times as many people as they had. Tr. 533 (Press). See
also Tr. 1927-29, 1971-73 (Kirkner).
282. The overwhelming number of packs and troops in the Banneker District
were too small and lacked a sufficient number of adults to function effectively.
Tr. 357-60 (Jones). The Boy Scouts paid someone to serve as Cubmaster for
nine packs. Tr. 360-61 (Jones). Another person, who was the charter representative
for two packs and a troop and the Cubmaster for one of the packs, had no
training and ran a unit in which boys had neither uniforms nor literature.
Tr. 361-63 (Jones).
283. Despite some improvements, the Banneker District's need for adult
leadership continued in the succeeding years. Hill Dep. at 35-42. Although
the Boy Scouts called as a witness the current Banneker District Vice-Chair
for Membership, James Ingram, Tr. 2079-80, they elicited no testimony from
him to contradict the evidence that the Boy Scouts in the District of Columbia
desperately need more adult leaders.
284. The evidence establishes that the Boy Scouts' approach to recruiting
membership is aggressive and non-selective. For example, as discussed below,
each year the Boy Scouts have an extensive membership development program
in the public schools called "Join Scouting Night." Exs. C801-803. The
goal of this program is to have programs run in as many schools as possible,
to sign up as many kids as possible and to sign up as many parents as possible
for Scouting. Hill Dep. at 84. Or, as the Boy Scouts' internal literature
for the program puts it, "Band every boy, tag every boy, stick every boy."
Ex. C803 at NCAC5024.
285. Similarly, the Boy Scouts inform potential adults for membership
that "[i]f you have an interest, we have a volunteer job for you." Ex.
C1101 at NCAC5082 (Left side). Literature provided to sponsors on how to
recruit Scoutmasters and Cubmasters presents elaborate instructions on
how persons who are presumed to be reluctant to join can be induced to
do so before they break off the conversation, (Selecting Quality Leaders).
Ex. C816; training materials explain how Scoutmasters are generally located
with the assistance of the council. Ex. C902 at B1110.
286. Because the Boy Scouts really want to encourage membership, they
engage in no routine screening of youth applicants, Tr. 321 (Jones), Kay
Dep. at 42-44; and almost no routine screening of adult applicants. Tr.
298 (Jones); Kay Dep. at 31-36; Flythe Dep. at 29.
287. None of the Boy Scouts' witnesses was able to recall more than
a handful of instances in which anyone had been denied youth or adult membership
in the Boy Scouts or had their membership revoked. See Teare Dep.
at 50-52; Bond Dep. 35-38; Hill Dep. at 163-67; Mack Dep. at 165-72; Kay
Dep. at 36-37, 48-49, 54-55; Fullman Dep. at 28-30; Flythe Dep. at 32,
288. It is not unusual for applicants to be trained, as Roland Pool
was, for a position before engaging in the formality of completing an application.
Bond Dep. at 130. Indeed, Mr. Bond signed his approval on the application
apparently without even reading it. Ex. C305; Tr. 590 (Press).
289. Out of over 93,000,000 people who have been members of the BSA
in its history, Ex. C1122 at NCAC4881, the Boy Scouts have located only
7,000 (.0075 percent) whom it has considered generally inappropriate for
Scouting for any reason -- including child molesting, arrest or conviction
for various crimes, other misconduct or being a homosexual. Ex. 1506 ¶
10; Ex. 1505 ¶¶ 3, 5.
290. This lack of rejections or exclusions is particularly significant
because it is the Boy Scouts' policy to maintain thorough records on the
people they consider to be inappropriate for Scouting. "BSA's purpose in
setting up the ineligible volunteer files is to collect information in
order to ensure that any individual who has either had some prior
connection to the Scouts but no longer meet[s] Scouting standards, or any
individual who was deemed at the time of their application not to meet
Scouting standards, will never be able to register in any Scouting group
anywhere in the country." Ex. 1506 ¶ 4 (emphasis added).
291. The Boy Scouts' procedures make it "imperative that a Scout executive
take the required action [of sending a report to the Ineligible Volunteer File]
upon learning of a questionable membership standards situation. Delay or inaction
is unacceptable." Ex. 604 at NCAC4286.
C. The Boy Scouts are one of the most public organizations in existence.
292. The BSA's 1996 Annual Report proudly proclaims that "more than ever,
Scouting is an integral part of the fabric of America." Ex. C1310 (inside cover).
As noted above, the BSA is chartered by an Act of Congress. 36 U.S.C. §
23 (1916); Ex. C1300 § 2. That Act requires the BSA to report to the Congress
each year on the status of the organization. Ex. C1300 at NCAC103 (§ 8).
In fact, the BSA personally delivers its annual "Report to the Nation" to the
President as well, Tr. 1186-1187 (Carroll); Ex. C1114 at NCAC5636; Ex. C1115
(at NCAC5639). Each President has "taken an active part in the work of the movement"
and has "served as Honorary President [of the BSA] during his term in office."
Ex. C1146 at NCAC4319; Tr. 2486-88 (Leet).
293. Both locally and nationally, the Boy Scouts make major efforts
to involve public officials and other prominent people with Scouting. In
1992, for example, Vice President and Mrs. Quayle served as the Honorary
Chairs of the NCAC's Embassy Gala, an annual fundraising event. Ex. C1100
at NCAC5728. That same year, the Chairman of the Banneker District was
former Police Chief and recent mayoral candidate Maurice Turner. Tr. 346-47
(Jones); Ex. C300. When the Boy Scouts showed a videotape of an eagle court
of honor, Councilmember, and current mayoral candidate, Kevin Chavous,
was in attendance. R173B at 5.
294. The Boy Scouts' National Presidents are commonly prominent people
in business and industry. Tr. 2494-95 (Leet). The Boy Scouts regularly
tout the large number of former Boy Scouts who have gone on to positions
of public prominence, for example, as members of Congress, sports or Hollywood
figures, astronauts, graduates of military academies or law enforcement,
Exs. C1122 at NCAC4881; C1145; C1146; C1147; C1148. The Boy Scouts also
make a point of giving awards to prominent people even if they are not
directly related to the Scouting movement. Ex. 1100 at NCAC5973, 6236,
NCAC6281; see also, Ex. C1150. The BSA's Young American Awards recognize
youth for exceptional achievements irrespective of whether they are members
of the Boy Scouts. Ex. C1304 at NCAC2417; Tr. 2504-05 (Leet). The Silver
Buffalo award has been awarded not only to accomplished adults in Scouting,
but to prominent non-Scouters such as Marian Anderson, William Webster
and John Wooden. Ex. C1304 at NCAC2417; Tr. 2505-06 (Leet).
295. The Boy Scouts associate themselves with prominent people in the
community and the nation because the Boy Scouts' program is very community-oriented
and depends on extensive resources from the community at large to operate.
Tr. 347 (Jones).
296. The Boy Scouts are required by their Congressional charter to operate
through other agencies or organizations. Ex. 1300 at NCAC102 (§ 3).
Some of these agencies or organizations are governmental; some are private;
some are secular; some are religious. Ex. 1153. As of 1990, approximately
three times as many registered youth were in units sponsored by public
schools than in units sponsored by any other organization. Ex. C1304 at
NCAC2410; Tr. 2498-99; Tr. 513 (Press). Other sponsors include fire departments
and law enforcement groups as well as the military and an array of governmental
agencies. Ex. C1304 at NCAC2410; Ex. C1153; Ex. C917 at A1686. Here in
the District of Columbia, for example, sponsors include the U.S. Park Police,
M.P.D.C. 7th District Police, U.S. Customs Service, Banneker High School,
and Malcolm X Elementary School. Ex. R16.
297. Of necessity, due to its charter and mission, and by choice, the
Boy Scouts operate as one of the most public of organizations imaginable.
Scouts are required to do community service with those outside of Scouting.
Tr. 314-15 (Jones). For example, both nationally and locally, the Boy Scouts
run a massive national "Scouting for Food" program to provide food for
needy people. Tr. 620 (transcribing Ex. C522); Tr. 561 (Press); Ex. C313
at A1159; Ex. C1122 at NCAC4882 (reporting on delivery of over 562 million
cans of food since 1988); Bond Dep. at 61; Tr. 2503-04 (Leet). The Boy
Scouts have worked with the National Park Service to develop historic trails
in the District of Columbia. Tr. 2362-2365 (Wetzel). The Boy Scouts have
also participated in events like the National Tree Lighting Ceremony, Ex.
1100 at NCAC6159, the National Easter Egg Hunt at the White House, Ex.
1100 at NCAC6189, and presidential inaugural activities. Ex. 1100 at NCAC6347,
298. Since 1981, every Boy Scout national jamboree has taken place on a military
base -- Fort A.P. Hill in Virginia. Tr. 519 (Press). Congress has passed laws
authorizing the military to provide free transportation to the Boy Scouts for
attendance at jamborees and to loan equipment for use by the Boy Scouts free
of charge. Exs. C1167, C1168, C1169; Pub. L. 87-459; 10 U.S.C. § 2544;
10 U.S.C. § 7541. The Navy also has regulations on how it can assist the
Boy Scouts' program. Ex. C1170; OPNAV Instruction 5760.5b. See also, e.g.,
13 U.S.C. § 641; 10 U.S.C. § 4682; 10 U.S.C. § 9682 (statutes
authorizing the military to sell obsolete or excess material to the Boy Scouts
of America); N.J.S.A. 23:2-3 (New Jersey statute authorizing government agencies
to stock bodies of water with fish for use by Boy Scouts). The Boy Scouts do
not take the position that they are a "distinctly private" organization when
accepting the benefits of this public support. Tr. 2528-31 (Leet). 299. The
Boy Scouts operate their programs in public buildings such as the public schools
-- where some units meet, Tr. 1650 (Crayton)); Hill Dep. at 125, where the Boy
Scouts recruit for members, Tr. 319-20 (Jones), run the Learning for Life program,
Id., run activities, e.g. Ex. 1100 at NCAC5690, and conduct some
of their training, Hill Dep. at 124-25; public libraries (such as Martin Luther
King Library and Mount Vernon Square, Tr. 318 (Jones)), government office buildings
(such as the Rayburn Building, Ex. 1100 at NCAC6106), public spaces, such as
the mall and parks in and around the city , Tr. 316 (Jones) and Ex. 1100 at
NCAC5689 and NCAC5925, and public property (such as Bolling Air Force Base,
Tr. 568 (Press); C313 at 1160 and Fort McNair, Ex. C1100 NCAC6280. In October
1992, when complainants in this case came downstairs from filing their complaint
in the Department of Human Rights, they saw an extensive Boy Scouts' display,
including a mayoral proclamation, a list of Eagle Scouts, pictures and other
Boy Scouts materials on the wall of the Reeves Center. Ex. C1103; Tr. 64-66
D. The Boy Scouts Aggressively Use Public Relations in an Effort To Increase
Public Visibility, Support and Membership in the Community.
300. As illustrated by the series of public relations statements on the exclusion
of homosexuals, the Boy Scouts are intensely concerned about the public perception
of their organization. The BSA pays Edelman Worldwide $19,000 a month to promote
the image of Scouting, to answer media inquiries, and to run seminars and create
training materials on "how to tell the story of scouting." Teare Dep. at 168;
Lewis Dep. at 18, 26, 29, 106.
301. The Boy Scouts also run numerous programs to increase the visibility
of Scouting in, and interaction with, the community and to recruit members.
Tr. 317-18 (Jones). For example, every two years, the NCAC runs an Extravaganza
on the Mall in which Boy Scouts from all over the Council show off their
Scouting skills to the public, and create effective "public relations"
and "awareness" of Scouting. Hill Dep. at 100-01, 117-18; Carroll Dep.
at 107-108; Tr. 316-17 (Jones); Tr. 562-63 (Press); Ex. C313 at A1160;
Bond Dep. at 69-72. The NCAC distributes a brochure "Character Counts"
at metro stops in order to increase awareness of Scouting. Hill Dep. at
130-36 (referring to Ex. C1101).
302. In the Boy Scouts' view, "[a] news release that talks about the
fun, excitement, and challenge of being a Boy Scout directly promotes a
BSA `product' or `products.' For example, a `School Night for Scouting'
news release often promotes three Scouting `products' -- Cub Scouts, Boy
Scouts and Explorers." Ex. C518 at NCAC2812. "National Council packets
are mailed to local councils each week. `Scouting in the News,' mailed
monthly by the National Council, highlights important and interesting news
about Scouting." Id. "Camporees, courts of honor, fundraising luncheons,
and other council activities are all part of public relations" that "create
opportunities for publicity." Id.
303. Councils are expected to organize a public relations committee, "[i]deally"
with a public relations director who has a college degree in a communications-related
field, and one or more members with professional public relations experience,
to develop a communications plan. Ex. C518 at NCAC2813, NCAC2842. They are expected
to set goals such as "[i]ncreas[ing] recognition of BSA as a positive and effective
youth development organization," "[r]ais[ing] awareness of BSA's role in combatting
the problems of hunger, drug abuse, child abuse, youth unemployment, and illiteracy,"
"[e]ducating the community about the value and benefits of active membership
in BSA," "[a]ttracting new Scouting recruits/volunteers," and to measure achievement
by examining information such as the amount of favorable publicity the Boy Scouts
have received. Id. at NCAC2813. Councils are also advised "as much as
possible" to target their message to audiences such as Scout-age youth, adults,
parents, current and potential volunteers, current and potential chartered organizations
and community leaders and influential people. Id. at NCAC2814; Ex. C607
E. The Boy Scouts Actively Promote and Sponsor Boy Scout Events in the
District of Columbia.
304. In additional to the Extravaganza on the Mall, the Boy Scouts have numerous
other regular and periodic activities to recruit and to increase their visibility
in the District of Columbia. Join Scouting Night, for example, is a huge annual
event in which the Boy Scouts recruit for members in most of the public schools
in the District of Columbia. Tr. 319-20; Hill Dep. at 75-81; Bond Dep. at 59-61;
Carroll Dep. at 80-84. Exs. C801-803. The "only purpose" of Join Scouting Night
is to recruit new youth members to Scouting. Hill Dep. at 75. At the junior
high school level, the Boy Scouts recruit for potential Explorers with a "First
Nighter," which sometimes goes late into the night and takes place at schools,
churches or other locations in the District of Columbia. Hill Dep. at 76-77.
305. To run these recruitment programs, the Boy Scouts obtain approval
for use of the buildings and make arrangements with the District of Columbia
School Superintendent, who contacts principals of the D.C. schools. Hill
Dep. at 77-79. The Boy Scouts distribute flyers through public school teachers,
with the approval of principals and the School Superintendent. Hill Dep.
at 79-80. Usually, the Boy Scouts encourage youth to come to Join Scouting
Night by putting up signs around schools, speaking at parent-teacher association
meetings, and, if the principal allows it, coming into classes. Hill Dep.
at 80-81; Ex. C313 at A1188. More recently, the Boy Scouts have also done
fundraising solicitation as part of the school-based Join Scouting Night.
Hill Dep. at 81.
306. Units periodically use parades and special camporees for boys in
the community to bring attention to Scouting in the District of Columbia.
Hill Dep. at 96-100. See e.g., Ex. C1100 at NCAC5715, NCAC5932.
The Boy Scouts have an annual Eagle Career Day in which young men who reach
the rank of eagle receive the opportunity to meet people in career fields
in which they are interested. Tr. 1140-1141 (Carroll); Carroll Dep. at
75-79; Bond Dep. at 54-58; Ex. C1100 at NCAC5746, NCAC5983. The Boy Scouts
operate a field day on Third Street north of Missouri Avenue. Tr. 316 (Jones).
Every month, the District Committee meets, the commissioners for the District
meet, and round tables meet, all in the District of Columbia. Tr. 352-54
(Jones). The Boy Scouts run a day camp for Cub Scouts in the District of
Columbia. Ex. C313 at A1201; Bond Dep. at 61-63; Tr. 517 (Press). The Banneker
District also runs an annual Parent Expo at the District of Columbia Armory.
Ex. C1100 at NCAC6454.
307. The Boy Scouts run both awards and fundraising banquets for Scouts at
various places in the District of Columbia. Hill Dep. at 119-22, 128. These
have included a Sports Breakfast of Champions, Ex. C1100 at NCAC5729, an annual
Labor Lunch-o-ree, Ex. 1100 at NCAC6106, an annual Patriot Award Luncheon on
Capitol Hill, Ex. C1100 at NCAC6106, and an annual Black Tie Embassy Gala, Ex.
1100 at NCAC6353.
F. Membership in the Boy Scouts determines access to numerous other places
308. The Boy Scouts use a large collection of military bases, campgrounds,
state parks, national parks and other facilities in the greater Washington area
for Scout activities, including Fort Belvoir, the C&O Canal, Quantico Marine
Base, Fort Myer, Patuxent Naval Air Station, Patapsco Valley State Park and
other locations. Tr. 568-69 (Press); Hill Dep. at 102-07; Ex. C1100 at NCAC5726,
NCAC5733, NCAC6051, NCAC6161, NCAC6242. The NCAC runs Goshen, a large multi-camp
facility in Virginia, Ex. C313 at A1172-83; Bond Dep. at 65-68; Carroll Dep.
at 34, and the BSA runs numerous other camps in the greater Washington area.
Ex. C1312 at NCAC2061 988-98 (Horne); Bond Dep. at 90-91. For Boy Scout activities,
the ticket to use these facilities is membership in the BSA. Hill Dep. at 106.
309. The BSA also owns and operates National High-Adventure Bases, including
Philmont Scout Ranch in Cimarron, New Mexico, which is regarded as one of the
premier high-adventure camps in the United States. Tr. 372 (Jones); Tr. 439-40
(Herde); Ex. C700 at 574-77.
G. The Boy Scouts are a large financial organization.
310. As of December 31, 1996, the BSA had total assets of $440,887,000 and
net assets of $325,238,000. Ex. C1310 at 31. In 1996, the BSA received $114,352,000
in revenues, with only $75,303,000 in functional expenses. Id. at 32-33.
It is a fast-growing organization. As of December 31, 1992, its total assets
were $277,324,000 and its net assets (fund balances) were $160,664,000. Ex.
C1306 at NCAC1917. The NCAC's most recent annual reports do not report assets.
However, its total revenues for 1996 were $5,027,224, with expenses of $5,003,856.
311. The Boy Scouts aggressively pursue financial support from all avenues
of the public. The BSA has developed a wide range of donor programs, designed
to appeal to both individual donors and companies, including an "Gift Annuity
Program," a "Pooled Income Fund," and "The 1910 Society." See Exs.
C1400-1420. The NCAC has also developed a successful fundraising programs.
Its "Investment in Character Campaign" brought in $8.3 million and is considered
"the most successful fundraising event in Council history." Ex. C1100 at
NCAC6388. The NCAC has also developed relationships with the labor movement,
politicians, and business community aimed at facilitating contributions.
Carroll Dep. at 92-107. In addition, the NCAC obtains funding from organizations
like the United Way. Tr. 393-94 (Jones).
312. The Boy Scouts maintain extensive and sophisticated fundraising
operations designed to obtain contributions from the general public and
support from organizations. Teare Dep. at 20-23; Ex. C1100 at NCAC6106;
313. "A large part of the National Capital Area Council's operating
budget -- nearly 30% -- comes from Friends of Scouting" in the community.
Ex. C1108 at NCAC 5086. The Boy Scouts' fundraising efforts have included
a half marathon along the National Mall, Ex. C1108 at NCAC5087, C1100 at
NCAC6166, Hill Dep. at 151, scout skill extravaganzas at the National Zoo,
the National Mall and Bolling Air Force Base, Bond Dep. at 78-81, Carroll
Dep. at 106-108 and 118-119, and Ex. C1100 at NCAC5662, an annual golf
classic at Bretton Woods Golf Course, Ex. C1109, an annual luncheon for
local labor leaders, Ex. C1100 at NCAC5943 and Carroll Dep. at 106, an
annual Embassy Gala, Ex. C1100 at NCAC5943 and Carroll Dep. at 103-104,
and sales of popcorn and hams to the public, Ex. C1110; Tr. 2085-86 (Ingram);
Bond Dep. at 74-75; Hill Dep. at 137; Carroll Dep. at 92-94.
314. The Boy Scouts also operate or license stores to sell Scouting materials
both generally and in the District of Columbia. These stores sell materials
irrespective of whether people are members in the BSA. Indeed both Mr. Pool
and Joseph Ward, a paralegal for complainants' counsel, were able to buy materials
without question. Tr. 2375-78 (Ward); Exs. C1164, C1165, C1166.
H. Scouting Experience Provides Benefits Both to Youth and Adults.
315. Every witness who testified about a personal Scouting experience uniformly
credited that experience as very important in developing important and useful
skills for later life. See, e.g., Tr. 289-91, 413-14, 430 (Jones); 2489-90
(Leet); Tr. 441 (Herde); Tr. 1087-1088 (Horne); Tr. 466, 472-73 (D. Geller).
"[T]he Boy Scout program really is a leadership development program." Tr. 294
(Jones). Scouts are also taught leadership, camping skills and self-reliance.
Tr. 289-90 (Jones). See also, e.g., Ex. 716 at 7815 (Handbook for Boys,
3d ed., reporting that half of college men have been Scouts).
316. "Many American men (and of late, women, too) have found their life's
work through Scouting. A deliberate effort is made in Exploring nowadays
to expose young people to careers, but Boy Scouting's merit-badge offerings
have had the same effect ever since 1910. Many astronomers, foresters,
geologists, naturalists, scientists, photographers, and men in skilled
trades owe their initiation into their careers to a Boy Scout merit badge."
Ex. C1600 at A2556; Tr. 2489-90 (Leet).
317. The "vast majority" of Explorer posts are "career-oriented." Ex.
C1600 at A2532; Ex. C711 at NCAC2878; Ex. C1134 at NCAC4888; Tr. 2493-94
(Leet). During the 1970s, "scores of large corporations," including General
Motors, IBM, Western Electric, McDonnell Douglas, U.S. Steel, United Airlines
and Sears Roebuck, "as well as local companies," began to sponsor Explorer
posts. Ex. C1600 at A2533. "Thousands of career-interest posts were organized
in such diverse fields as accounting, engineering, computers, business,
science, auto mechanics, electronics, communications, banking, secretarial
work, photography, and journalism under sponsorship of business and industry.
Hospitals and medical societies backed posts for medical and health care
exploration. Hundreds of police agencies sponsored law enforcement posts.
The airline and aircraft industries and their unions started aviation-related
career posts." Id. "For most of the career posts, the sponsor provided
not only expert leadership but hands-on experience in its place of business."
Id. at A2534.
318. "Exploring's scope was further expanded during the late 1970s when
the program began penetrating the nation's high schools. The vehicle was
career-awareness Exploring, a series of career seminars and tours during
the school day." Ex. C1600 at A2534. In the District of Columbia, for example,
Explorer Post sponsors include the United States Park Police, Howard University
Medical Center, E.B. Dews & Associates, Piper & Marbury, and the
U.S. Custom Services. Ex. R16.
319. The Boy Scouts also tout the benefits that Scouting provides to
adult leaders. For example, as early as the Second Edition of the Scoutmaster
Handbook, the Boy Scouts explained under the heading "Why Scoutmasters
Need Scouting," the "[l]eadership of Scouts brings many `by-products' to
the Scoutmaster," including rediscovering the Scoutmaster's own youth,
healthy outdoor experience, learning outdoor crafts, clarifying ideas and
discovery of his own qualities of leadership. Ex. C722 at 5 (Bates 7201).
320. Numerous witnesses -- irrespective of whether they were called
by Mr. Pool and Mr. Geller or the Boy Scouts -- also agreed that Scouting
provided adults with extraordinary leadership training, contacts and skills
useful in business. Tr. 526-27 (Press); Tr. 1942-43 (Kirkner). For example,
wood badge training, which is the highest level of adult leadership training,
and is available only to registered members of the BSA, Tr. 294-96 (Jones),
teaches skills and specific methods of leadership, such as resource management,
getting and giving information, and organization. Tr. 294-95 (Jones); Tr.
1942-43, 2007 (Kirkner). Indeed, every witness with experience uniformly
regarded wood badge as outstanding management and leadership training of
great use both personally and professionally. Tr. 295 (Jones); Tr. 1381-82,
1424-25 (Turner); Tr. 1942-43 (Kirkner). The Boy Scouts also run a College
of Commissioners with training and degrees. Tr. 524-25 (Press).
321. It is not unusual for Scouts or Scouters to list their Scouting
achievements on their resumes. Tr. 63 (Geller), Tr. 526-27 (Press), Tr.
322. Through the Boy Scouts, adults can make contacts with leaders in the community
and business. Tr. 1942-43 (Kirkner); Tr. 1379-80 (Turner).
VII. THE BOY SCOUTS' DEFENSES ARE PRETEXTS FOR DISCRIMINATION.
323. In an attempt to defend their policy of excluding homosexuals, the Boy
Scouts have asserted an extensive array of purported justifications for the
policy. Taken as a whole, several facts undermine the Boy Scouts' attempt to
suggest that excluding homosexuals reflects some sort of core value of Scouting.
324. First, as noted above, there is a huge gap between the statements
the Boy Scouts make as part of the program of Scouting and the public relations
statements the Boy Scouts make when questioned about this policy. For example,
the evidence of record shows it was not until 1991 -- ten years into litigation
over the exclusion of homosexuals -- that the Boy Scouts ever suggested
that the policy of excluding homosexuals was based on the Scout Oath and
Scout Law that had existed since 1910, or that the exclusion was based
on a perception of proper role models, or that Scouting served some sort
of function of instilling or reflecting "traditional family values" apart
from, or as part of, the Scout Oath and Law. If, in fact, the Scout Oath
and Scout Law stood for heterosexuality, this point would be part of the
Boy Scout program and self-evident to every Scout and Scouter with any
experience. The fact that sexuality is concededly no part of the Scout
program makes the Boy Scouts' attempt to find a policy of excluding homosexuals
in these sources incredible.
325. The nature and depth of the opposition to the Boy Scouts' policy
also wholly undermines the conclusion that excluding homosexuals is in
any way basic to Scouting. Complainants did not merely produce a few witnesses
who were unaware of any aspect of Scouting that required the exclusion
of homosexuals, they produced a resolution by an entire council that was
morally troubled by the Boy Scouts' policy, Ex. C1204, a memorandum by
a second council articulating a policy much less restrictive than that
actually imposed by the National Office, Ex. C1200 at A77, Ex. C1210, C1214A;
a resolution by a Scout troop that opposed the policy, Ex. C506 at 5459,
the reaction of those who attended Roland Pool's training session and the
commissioner meetings and round table at which Thornell Jones asked for
views on this policy, Tr. 409-10 (Jones), and the testimony and statements
by witnesses with scores of years of experience in Scouting who understood
this policy to be contrary to Scouting. See paragraphs 196 to 219,
above, and Exs. C1202, C1203. That even one council would agree (unanimously,
no less), to oppose a national policy of the BSA is an extraordinary testament
to the fact that the policy involved is not basic to Scouting. Tr. 1730-31
326. In short, taken as a whole, the evidence is overwhelming that the
exclusion of homosexuals from Scouting is not basic to Scouting. To the
contrary, the argument that Scouting depends on this exclusion is contrived
for purposes of attempting to defend the policy in litigation.
327. Nor were any of the Boy Scouts' various purported justifications
taken individually supported by the evidence. In each case, the purported
justification is not only post hoc, it is inconsistent with
the principles the Boy Scouts have enunciated in their own documents.
A. The Scout Oath and the Scout Law.
328. The Boy Scouts' primary argument is to say that homosexuals are not permitted
in scouting because homosexuality violates the prescriptions in the Scout Oath
to be "morally straight" and in the "Scout Law" to be "clean." This argument
is a pretext that is wholly belied by the clear definitions the Boy Scouts have
provided of these terms in the extensive literature, the evidence of people's
experience in Scouting and the nature of the policy the Boy Scouts purport to
1. The words "morally straight" do not support the Boy Scouts' exclusion
329. As noted above, the current edition of the Boy Scout Handbook defines
the words "morally straight" as follows: To be a person of strong character,
guide your life with honesty, purity and justice. Respect and defend the rights
of all people. Your relationships with others should be honest and open. Be
clean in your speech and actions, and faithful in your religious beliefs. The
values you follow as a Scout will help you become virtuous and self-reliant.
Ex. C700 at 551.
330. There is nothing in this definition that suggests that "morally
straight" refers to sexual orientation or conduct, per se,
much less that there is some judgment being made that homosexuality is
wrong whereas heterosexuality is right.****/
331. To the contrary, the references to being of "strong character,"
the words "[r]espect and defend the rights of all people," and "[y]our
relationships with others should be honest and open," belie the reading
the Boy Scouts would attach to the words "morally straight." It would be
strange, to the point of bizarre, for the Boy Scouts to be teaching people
to "respect and defend the rights of all people," by discriminating against
them, or (as noted above, under the Boy Scouts' "known or avowed" formulation
of their policy) to be "honest and open" in relationships by lying about
one's sexual orientation.
332. The credible testimony of persons with hundreds of years of combined
Scout experience establishes that, in Scouting, "morally straight" means
what the Boy Scouts say it means in the Boy Scout Handbook and not what
they say it means in the various position statements on homosexuality.
For example, Thornell Jones testified that morally straight means that
"everybody should have some kind of ethic" upon which they operate -- not
necessarily the same ethic. Tr. 336-37. When asked whether "morally straight"
has anything to do with someone's sexual orientation or homosexual versus
heterosexual conduct, Charles Wolfe testified that, in Scouting, "morally
straight" is "never discussed in that way." Tr. 1710. See also, e.g.,
Tr. 1968 (Kirkner) ("my understanding of `morally straight' is that you're
forthright. . . . [T]he idea of being `morally straight' is in the idea
of being a straight-shooter, a plain dealer. . . ."); Cahn Testimony at
75 ("morally straight means that one obeys his personal code of ethics");
Rice Testimony at 239-40 (similar).
333. As noted above, the Boy Scouts themselves recognize that there
is no general or universal definition of morality that makes it obvious
that homosexuals stand on one side and heterosexuals on the other. Ex.
C727 at 6907-08. As Reverend Wogaman put it, morality is "behavior in accordance
with what is real and good, and there are differences in views about morality,
of course, because there are so many different views as to what is real
and good." Tr. 1841.
334. Even more convincing is the fact that although the Boy Scouts could,
in principle, have called any of millions of witnesses to support their
case, and there were certainly some witnesses who personally have strong
feelings about the morality of homosexuality, there was none who testified
that Scouts were ever taught that "morally straight" meant heterosexual.
Cf. Hill Dep. at 26-27 (noting that training she received as a professional
mostly involved "making sure we understood the Scout Oath and Law," but
"didn't say anything about homosexuality").
335. Thus, both the Boy Scout literature and the witnesses establish
that the most that can be said for the Boy Scouts' position that homosexual
conduct is not morally straight is that where you stand depends on where
you sit. The BSA "recognizes the church and home as the primary sources
of religious education." Tr. 1388-89 (Turner); Ex. R89; Ex. C1300 at NCAC116,
Art. IX, § 1. If you are taught by your parents or your religion that
being homosexual is not moral, you learn that from them.
336. But if a 12-year-old boy were to go to his parent or religious leader
and ask whether homosexual conduct is immoral, and the parent or religious leader
said "no," there is nothing in the vast body of Scouting literature -- literally
involving thousands of pages -- or practice that informs the boy that the Boy
Scouts disagree with this answer, much less that the boy should disobey the
dictates of his parents and religious leaders. Tr. 1335-39 (Thomas); see,
e.g., C700 at 527-28; Bond Dep. at 141-42. Except for public relations purposes
and attempts to defend their policy of exclusion in litigation, the Boy Scouts
do not articulate any message on the question of whether homosexuality is moral
2. The word "clean" does not support the Boy Scouts' exclusion of homosexuals.
337. The current Boy Scout Handbook defines the eleventh point of the Scout
Law -- "A Scout is Clean" -- as follows: A Scout keeps his body and mind fit
and clean. He chooses the company of those who live by these same ideals. He
helps keep his home and community clean.
You never need be ashamed of dirt that will wash off. If you play hard
and work hard you can't help getting dirty. But when the game is over or
the work is done, that kind of dirt disappears with soap and water.
There's another kind of dirt that won't come off by washing. It is the
kind that shows up in foul language and harmful thoughts.
Swear words, profanity and dirty stories are weapons that ridicule
other people and hurt their feelings. The same is true of racial slurs
and jokes making fun of ethnic groups or people with physical or mental
limitations. A Scout knows there is no kindness or honor in such mean-spirited
behavior. He avoids it in his own words and deeds. He defends those
who are targets of insults.
Ex. C700 at 561 (emphasis added).
338. As with "morally straight," the Boy Scouts' own definition contradicts
the meaning the Boy Scouts would attach to the word "clean." To the extent
there is any sexual component to the idea that Scouts should not tell "dirty
stories," it is not only vastly removed from any notion of what sexual
orientation is proper, it is also specially directed to avoiding statements
"that ridicule other people and hurt their feelings." Id. Moreover,
in all the Boy Scout literature, there is not the slightest hint that "clean"
is intended to distinguish between homosexual and heterosexual orientation
339. As with "morally straight," the Boy Scouts presented no credible evidence
to justify the conclusion that the term "clean" either requires or connotes
a policy of excluding homosexuals. To the contrary, numerous experienced Scouters
testified wholly credibly that the Boy Scouts' reading of this term for purposes
of this litigation contradicted what the Boy Scouts had taught them in their
years as a Scout or Scouter. Tr. 389-390 (Jones); Tr. 576-77 (Press); Tr. 1710-12
(Wolfe); Tr. 1969 (Kirkner); Cahn Testimony at 75-76.
3. The Scout Oath and Scout Law, in general, do not support the Boy Scouts'
exclusion of homosexuals.
340. The Boy Scouts' position statements illustrate the difficulty the Boy
Scouts have attributing a position on homosexuality to anything in the Scout
Oath and Scout Law. In drafting position statements on its view of the duty
to God, the BSA "proudly" states that the duty to God can be found in the Scout
Oath and Law, and cites references to Scout Handbooks with language upon which
it relies. See, e.g., Ex. C607 at NCAC8133. This is because, as the Boy
Scouts point out, "[p]ledging a `duty to God' has always been a part
of the Boy Scout Oath." Ex. C520 at NCAC5601 (emphasis in original); Tr. 1236-1238
(Carroll). If there were any language in the Scout Oath, the Scout Law or Scout
Handbooks even vaguely similar by which the Boy Scouts could seek to justify
the policy of excluding homosexuals, they assuredly would have featured that
language in their many position statements and in this case. They have presented
none to this Commission.
341. Indeed, the Boy Scouts' policy does not fit with the nature of
the Scout Oath and the Scout Law. The Scout Oath and Law address conduct;
they set forth "ideals to live up to" in one's daily life. Ex. C700 at
550-53. The Boy Scouts' policy however, is not based on conduct, only presumed
predilection. The Boy Scouts do not just apply their policy to homosexuals
who engage in conduct -- they apply it to homosexuals who are celibate.
The Boy Scouts do not propose an explanation for how a celibate homosexual
is supposed to have acted in a way that is immoral or unclean or violative
of any provision of the Scout Oath or Law.
342. Moreover, in saying that the Scout Oath and Scout Law are "ideals,"
the Boy Scouts mean just that. The Scout Oath and Scout Law are goals,
not prescriptions. Ex. C719 at 84; Ex. C723 at 4489, 4495; Ex. C725 at
5538; Tr. 329-31 (Jones); Ex. C1136 at NCAC2931 ("The ideals of Boy Scouting
are spelled out in the Scout Oath, the Scout Law, the Scout motto and the
Scout slogan. The Boy Scout measures himself against these ideals and continually
tries to improve. The goals are high, and, as he reaches for them, he has
some control over what he becomes."). As one of the Boy Scouts' witnesses
pointed out, the application of these ideals requires judgment and depends
upon the circumstances. Tr. 984-985 (Horne). Indeed, many of the prescriptions
in the Scout Law, on their face, require judgment -- for example, a Scout
is instructed that "[w]ithout good reason, he does not harm or kill
any living thing." Ex. C700 at 555 (A Scout is Kind).
343. No Scout or Scouter is expected to be perfect, but rather is expected
to strive toward these goals. Tr. 329 (Jones). As the Boy Scouts have explained
As a Scoutmaster dealing with a group of other people's sons, you
probably expect to have some behavior problems along the way. And indeed
you will. Your troop, if it is like most, takes on whatever boys come to
it, complete with their strengths and weaknesses.
You may be tempted to get rid of any boy who fails to meet the behavior
standards. This is handy for the Scoutmaster, but quite opposite to the
goals of the movement. The purpose of the program, of course, is to help
boys and to prepare them for the life they have ahead. They must continue
in the troop if they are to benefit from Scouting. Only when every reasonable
effort has failed should a boy be dropped.
Ex. C727 at 6923. (Emphasis added).
344. The Scoutmaster Handbooks are replete with examples of how Scouts
might engage in numerous types of conduct that everyone, or virtually everyone,
would agree was immoral -- cheating, stealing and lying -- or using drugs
or alcohol or engaging in vandalism. C727 at 6927-6932. In all of these
instances, the approach of Scouting is not to expel the boy, but
to work with him. Id. Tr. 321, 335-337 (Jones); Tr. 1082 (Horne).
345. As discussed in greater detail elsewhere, the Boy Scouts similarly
do not hold adults to some standard of perfection. The Boy Scouts also
do not generally require adults to refrain in their private lives from
conduct that would be inappropriate for youth. Although Scouts have never
been supposed to smoke cigarettes or to drink alcohol, see, e.g.,
Ex. C700 at 551; Ex. C716 at 8060-61; Ex. C717 at 1940, at least until
the 1960s, the Boy Scouts merely "recommended" to Scoutmasters "that intoxicating
liquors" or tobacco "not be used in connection with Scout meetings," and
encouraged them to speak frankly and not to conceal from the Scouts their
own use of tobacco. See, e.g., Ex. C722 at 7736; Ex. C724 at 5337;
Ex. C725 at 5849. Although today, the Boy Scouts have stronger rules against
adult use of alcohol and tobacco in front of Scouts, they still do not
require that Scouters refrain from drinking or smoking in their own private
life and, in fact, hold adult Scouting events where alcohol is served.
Tr. 297 (Jones).
346. More importantly, as noted above, the Boy Scouts do not insist
on moral perfection from heterosexuals. For the Boy Scouts to reserve a
"moral perfection" standard for homosexuals is no reason for their policy,
it is just an excuse for it.
347. Finally, and most importantly, however, the words "morally straight"
and "clean" are not the only words in the Scout Oath and Scout Law. As
discussed above, the Boy Scouts' policy of discrimination contradicts numerous
points of the Oath and Law, including, at a minimum, the Scout's duty to
"my country" to follow the law, to "help other people at all times," and
the points of the Scout Law requiring a Scout to be "trustworthy," "helpful,"
"friendly," "kind," "obedient," "brave" and "reverent." See Tr.
348. Indeed, the exclusion of homosexuals not only contradicts these
points of the Scout Oath and Law in principle, it does so in practice.
A good example of this fact is what happened to William Kirkner. As noted
above, William Kirkner was an exceptionally experienced Scouter who achieved
the highest ranks in Cub Scouting, Boy Scouting, Exploring and the Order
of the Arrow, and the highest ratings for his skills as an instructor.
Tr. 1940-41 (Kirkner). As of the fall 1993, he had discussed with his superior
and mentor, Doug Fullman, the prospect the next summer of capitalizing
on his success as part of the Camp Commissions by heading the Program Director
Section of the National Camp School. Tr. 1940-42 (Kirkner).
349. This all changed, however, when Mr. Kirkner agreed to attest to
his experience with the Boy Scouts and with Roland Pool. In January 1993,
after going through an intense personal debate, and with the knowledge
and advice of a Boy Scout professional as well as some volunteers familiar
with the situation, Tr. 1981-89, Mr. Kirkner signed an affidavit that was
filed in connection with Dale v. Boy Scouts of America, No. MON-C-330-92
(N.J. Super. Ct. Ch. Div.), rev'd, 708 A.2d 270 (N.J. Super. Ct.
App. Div. 1998).
350. The next business day after that affidavit was filed, Mr. Kirkner
received a call from Scout Executive Ron Carroll. Mr. Carroll said that,
as a result of the affidavit, it was "unlikely" that Mr. Kirkner would
be allowed to participate as a staff member at the National Camp School
and that he should "tone down" his activities and training in the council.
351. Mr. Kirkner intended to remain with the Boy Scouts, to be a Commissioner
and to "keep [his] head low," and wrote Mr. Carroll a letter evidencing
that intent. Tr. 1993-96; Ex. C1208. But then he received a visit from
his supervisor and mentor at the National Camp School, Doug Fullman. Mr.
Fullman informed Mr. Kirkner that filing an affidavit was a "career-limiting
move" in the Boy Scouts, and that Mr. Kirkner needed to demonstrate that
this was "just a singular sort of thing" and not part of a "pattern" in
order to restore his value as a trainer and to get back to the things he
enjoyed doing. Tr. 1996-97. Mr. Fullman also indicated that people fight
lawsuits to win and that they would try to find out things about not only
Mr. Kirkner but people who worked for him at the National Camp School.
352. Although Mr. Fullman disagrees with some of the import of Mr. Kirkner's
testimony, he does not differ with Mr. Kirkner over these basic facts.
Fullman Dep. at 42-73. In particular, Mr. Fullman confirms that he felt
it was inappropriate for Mr. Kirkner to participate in litigation, at least
where he was not personally involved. Fullman Dep. at 71-73.
353. Mr. Kirkner still tried to remain in Scouting. But at a Commissioner
Training Course, when he was teaching "how the purpose of the Boy Scouts
of America was to teach kids to be strong, to be willing to stand up and
be brave, and stand up for what they thought was right, to be willing to
just be forthright and be a good moving force in the community," he realized
he could not continue to represent that the Boy Scouts stood for these
things. He took off his uniform and resigned. Tr. 1999-2002.
354. Nor is Mr. Kirkner the only example. As of 1998, David Rice had
nearly 60 years of Scouting experience. Rice Testimony at 228-38. The BSA
kicked him out because he worked with a boy in his troop who publicly opposed
the Boy Scouts policy excluding homosexuals. Tr. 2545-51 (Leet).
355. It is difficult to imagine any conduct more clearly antithetical
than what Scouting says it stands for than to have the Boy Scouts retaliate
against someone for giving honest testimony in litigation or teaching a
boy that standing up for what you believe in is a principle that only applies
when others agree with you. This conduct not only has a chilling effect
on the truth, it displays a fundamental disregard for the principles of
citizenship the Boy Scouts have espoused since their inception and breaks
a fundamental trust with the community that this organization has had since
its Congressional charter. There is no benign way to discriminate. No matter
how much good the Boy Scouts do in other contexts, or say in their literature,
they cannot change the fact that intolerance breeds intolerance.
B. Scouting Since 1910.
356. The Boy Scouts assert that homosexual conduct has, since 1910,
been inconsistent with the requirement in the Scout Oath to be "morally
straight" and in the Scout Law to be "clean." For many reasons, this assertion
is wholly incredible. To begin with, the very first memoranda enunciating
this policy, Exs. C500, C501, reveal that the policy was enunciated because
it was not obvious that the Boy Scouts had been following a policy
of excluding homosexuals. Moreover, as discussed above, Scouters with tens
of years or more of Scouting experience were wholly unaware that the Scout
Oath and Scout Law even spoke to sexuality, per se, as opposed
to other conduct, much less that it differentiated on the basis of sexual
orientation. Additionally, a careful review of the Boy Scout literature,
both current and historic, not only fails to reflect the idea that the
Scout Oath and the Scout Law speak to sexual orientation, it reveals dozens
of statements that contradict that inference.
357. In response to this evidence, the Boy Scouts attempt to argue that
the only reason the policy excluding homosexuals was not articulated before
1978 was that, up until that time, homosexuality was so self-evidently
immoral that it went without saying. Historically, this is not true. Even
the Boy Scouts' own expert asserted that the so-called "gay liberation"
movement began in the late 1960s. Tr. 1554-55 (Rekers). As noted below,
there is not and has not been consensus about the morality of homosexuality
amongst the religions much less the public and secular organizations that
sponsor Boy Scout units. As noted above, numerous experienced Scouters
never had that assumption about homosexuality. Nor does the Boy Scouts'
argument explain why it is that even since 1981, when the Boy Scouts
have been sued about this policy, their program materials still
do not reflect the notion that the morality of homosexuality is a part
358. In any event, the Boy Scouts' premise -- that the Scout Oath and
Scout Law have always meant the same thing for 88 years -- is clearly untrue.
Although today, no one would understand segregation or deprivation of uniforms
or facilities on the basis of race to be consistent with the Scout Oath
and the Scout Law, James E. West, the first Chief Scout Executive and the
person who coined the terms "morally straight" and "clean," expressly thought
otherwise, Ex. C1600 at A2386-87, A2391, as did numerous other Scouters
into at least the 1920s, 1930s and 1940s. Id. at A2430-31, 2432,
2473-76. Indeed, an early Scoutmaster Handbook commented on how some "street,
foreign born and Negro boys" "may be more shiftless than others," and added
that "[e]conomic and social conditions will naturally determine the place
of a negro boy in the Scout movement, and is best to leave this problem
to the local council and the Scoutmasters who are directly facing the situation."
Ex. C721 at 6547.
359. Today, the Boy Scouts proudly announce that "[l]eadership knows
no gender." Ex. C520 at NCAC5613. Up until 1936, however, women were not
even permitted to register as den mothers; that year, the first Den
Mother's Denbook advised the den mother to "keep somewhat in the background,"
making the "den chief" -- a Boy Scout assigned to the cub den -- "the important
figure in the meeting." Ex. C1600 at A2466. In 1987, Chief Scout Executive
Ben Love told Scouters that leadership positions in Webelos packs, Scout
troops and Varsity Scout troops needed to remain all male because "the
Boy Scouts of America has adhered to the principle that developing boys
of Webelos Scout, Boy Scout and Varsity Scout age need a close association
with adult males who can provide models of manhood." Ex. C900 at A1067.
Yet, a year later, Chief Scout Executive Love declared that "[i]t is time
to recognize that in a changing society the unique strength of our organization
lies in the dedicated efforts of both men and women." Ex. C607 at NCAC8122.
360. In discussing advancement requirements, an early Scoutmaster Handbook
warned that "it should be understood that no deviation or requirements
for these degrees as set forth in the Handbook will be permitted," and
that even if a boy were physically unfit, "it would be far better for a
boy to enlist the care of a competent physician to help him regain his
health" to meet a swimming requirement for his first class badge. Ex. C721
at 6465-66. In 1977, there was a "widely publicized case of a 23-year-old
cerebral palsy victim in Roosevelt, N.Y., who had been denied an Eagle
Scout badge after earning 24 merit badges because he was overage." Ex.
C1600 at A2535. The next year, the Boy Scouts eliminated all age restrictions
for severely handicapped persons. Id. at A2534-35. In 1981, the
Boy Scouts instituted a Handicapped Awareness merit badge. Id. at
A2535-36. By 1984, nearly half of all local councils had advisory committees
to promote Scouting among persons with disabling conditions. Id.
at A2551. And, at trial the Boy Scouts brought out in testimony the type
of accommodations made for handicapped youth. Tr. 1003-04 (Horne); Tr.
1101 (Carroll); Ex. C902 at B1052. The NCAC has even sponsored a Workshop
on Coping with Hyperactive Scouts. Ex. C1100 at NCAC5726.
361. The simple fact is that on all of these moral issues, the Boy Scouts
have changed, and changed dramatically.
C. Traditional Family Values.
362. As noted above, in 1991, the Boy Scouts began to suggest in position
statements that the Boy Scouts' policy of excluding homosexuals was based
on a desire to promote "traditional family values." Ex. C503. It is impossible
for the Commission to credit this argument because at no point in the Scouting
literature or the testimony was anyone able to define "traditional family
values." As noted above, the Boy Scouts' policy statements and question
and answer sheets are themselves inconsistent on whether "traditional family
values" is some concept that exists "in addition" to the Scout Oath and
Scout Law, see Ex. C503, or as part of the Scout Oath and Law. Ex.
C519 at NCAC2804.
363. Moreover, the phrase "traditional family values" cannot be located
in any Boy Scout document before 1991, when it is used solely as one of
the reasons for excluding homosexuals from Scouting in a position statement
for dealing with the media. Experienced Scouters do not recognize the phrase
to be part of Scouting. Tr. 387-388 (Jones); Tr. 1720-1721 (Wolfe). The
Boy Scouts' mission statement states that "[t]he values we strive to instill
are based on those found in the Scout Oath and Law," Ex. R1, and not some
other concept like "traditional family values."
364. What "traditional family values" is supposed to mean is circular.
According to the Boy Scouts' witnesses, The Scout Oath and the Scout Law
are supposed to mean "to live a pure, clean traditional life," Mack Dep.
at 146, and "traditional family values" are defined to mean "those values
that are inherent in the Scout Oath and Law." Ex. C519 at NCAC2804. What
values those are and what they have to say about sexual orientation is
unexplained in any testimony or Boy Scout document. Indeed, the Boy Scouts'
former President, Richard Leet, could not say whether the term "traditional
family values" even dates back to 1910. Tr. 2536-37.
365. If understood to mean that the Boy Scouts exist to reaffirm the
"traditional family structure," however, the phrase "traditional family
values" is clearly inaccurate. To the contrary, the Boy Scouts pride themselves
on reaching out to non-traditional families. Tr. 1720-23 (Wolfe); Tr. 2537-38
(Leet). The BSA makes this clear in its single-parent orientated, "Marketing
to Today's Families." Ex. C810.
366. In 1994, the Boy Scouts changed their requirements so that in order
to obtain the Eagle rank, all Scouts must obtain a Family Life merit badge.
Ex. C1100 at NCAC6052; Ex. C1308 at NCAC1926. This change was effected
because, with shifting family configurations and new issues facing families,
Scout-age boys were being required to take on new responsibilities at home.
Ex. C1100 at NCAC6089.
367. Similarly, when Cub Scouting seeks to help establish "strong family
relationships," "Cub Scouting defines the family as the person or group
with whom a boy lives. This is a broad definition that includes many types
of family structures. It includes single-parent families, dual working
families, families headed by stepparents and grandparents. We feel our
program has something special to offer every boy and his family." Ex. C923
at 8489; Ex. C727 at 6937. See also Ex. C510 (position statement
noting that "Parents, both mothers and fathers (or other legal guardians),
are engaged to take an active role in their children's Scouting experience")
368. Accordingly, the only conclusion to be reached from the evidence is that
"traditional family values" is not a part of Scouting, but rather a part of
public relations. In an effort to justify their policy, the Boy Scouts have
substituted a political buzzword associated with anti-homosexuality from the
principles it has, in fact, articulated in its literature. Indeed, the fact
that the Boy Scouts felt required to go outside of the Scout Oath and Scout
Law to import such a concept illustrates that these principles of Scouting do
not support its position.
D. The Boy Scouts' Reference to the Views of Some Religious Groups Does
Not Justify Their Policy of Excluding Homosexuals.
1. The Boy Scouts have always been "absolutely non-sectarian" and opposed
to requiring Scouts to choose the moral views of one religion over another.
369. The Boy Scouts' policy concerning a belief in God and the role of religions
is very clearly stated. Clause 1 of the Scouting Declaration of Religious Principles
(the "Religious Principles") contained in the BSA By-Laws states: The Boy Scouts
of America maintains that no member can grow into the best kind of citizen without
recognizing an obligation to God. In the first part of the Scout Oath or Promise
the member declares, "On my honor I will do my best to do my duty to God and
my country and to obey the Scout Law." The recognition of God as the ruling
and leading power in the universe and the grateful acknowledgement of His favors
and blessings are necessary to the best type of citizenship and are wholesome
precepts in the education of the growing members. No matter what the religious
faith of the members may be, this fundamental need of good citizenship should
be kept before them. The Boy Scouts of America, therefore, recognizes the religious
element in the training of the member but it is absolutely nonsectarian in
its attitude toward that religious training. Its policy is that the home
and the organization or group with which the member is connected shall give
definite attention to religious life. Ex. C1300 at NCAC116, Art. IX, §
1. (Emphasis added)
370. Clause 2 of the Religious Principles states:
The activities of the members of the Boy Scouts of America shall be
carried on under conditions which show respect to the convictions of
others in matters of custom and religion, as required by the twelfth
point of the Scout Law, reading, "Reverent. A Scout is always reverent
toward God. He is faithful in his religious duties. He respects the beliefs
Ex. C1300 at NCAC116, Art IX, § 1 (Emphasis added).
371. Clause 3 of the Religious Principles states:
In no case where a unit is connected with a church or other
distinctively religious organization shall members of other denominations
or faith be required, because of their membership in the unit, to take
part in or observe a religious ceremony distinctly unique to that organization
Ex. C1300 at NCAC116, Art IX, § 1 (Emphasis added).
372. In explaining the Religious Principles in its Advancement Guidelines,
the BSA states that it:
(1) Does not define what constitutes belief in God or the practice
(2) Does not require membership in a religious organization or association
for enrollment in the movement but does prefer, and strongly encourages,
membership and participation in the religious programs and activities of
a church, synagogue or other religious association.
(3) Respects the convictions of those who exercise their constitutional
freedom to practice religion as individuals without formal membership in
organized religious organizations. In a few cases, there are those who,
by conviction, do not feel it necessary to formally belong to an organized
form of religion and seek to practice religion in accordance with their
own personal convictions. Every effort should be made to counsel with the
boy and his parents to determine the true story of the religious convictions
and practices as related to advancement in Scouting. Religious organizations
have commended the Boy Scouts of America for encouraging youth to participate
in organized religious activities. However, these same organizations reject
any form of compulsion to enforce conformity to established religious practices.
(4) If a boy says he is a member of a religious body, the standards
by which he should be evaluated are those of that group. This is
why an advancement committee usually requests a reference from his religious
leader to indicate whether he has lived up to their expectations.
Ex. C731 at 2374.
373. The BSA's Advancement Guidelines also provide:
Throughout life, Scouts are associated with people of different faiths.
Scouts believe in religious freedom, respecting others whose religion may
differ from theirs. Scouting believes in the right of all to worship God
in their own way.
Ex. C731 at 2374.
374. The non-sectarian nature of Scouting is very basic to its operation
and purposes. Although the respondents focused attention in this case to
those sponsors that are religious organizations (and, in fact, produced
charts reflecting only religious sponsorship and not secular sponsorship),
this is half the story. Only 50.91% percent of youth belong to troops sponsored
by religious organizations. Ex. R180, Exhibit A. The remaining half of
the youth participate in a pack, troop or post sponsored by the government
(like a public school, fire department or military base) or a secular organization
(like a PTA or a labor union). Ex. C1304 at NCAC2410; Ex. C1153; Ex. C917
at A1686. As noted above, the only statistics the Boy Scouts provided on
youth membership for secular institutions indicate that, as of 1990, three
times as many youth were active in units sponsored by public schools than
any other category of sponsors. Ex. C1304 at NCAC2410; Tr. 2498-99 (Leet);
Tr. 513 (Press).
375. Moreover, the fact that a troop is sponsored by a religious organization
does not necessarily mean that the troop's program has any religious content.
"Most units are fully open to those of any belief," and only "a few chartered
organizations restrict their units' membership to a single denomination."
Ex. C313 at A1205; Tr. 1276, 1288-99 (Thomas); Ex. C700 at 561; Ex. 731
at 2374; Tr. 1712-18 (Wolfe); Tr. 2500-02 (Leet).
376. Part of the purpose of Scouting historically was to break down
barriers between various groups. "Scouting's aim is to . . . eradicate
the prevailing narrow self-interest personal, political, sectarian, and
national, and to substitute for it a broader spirit of self-sacrifice and
service in the cause of humanity; and thus to develop mutual goodwill and
cooperation. . . ." Ex. C727 at 7161. See also, e.g., Ex. C716 at
7814 ("Scouting knows no race or creed or class. Troops are found alike
in Catholic Parish, Jewish Synagogue and Protestant Church."); Tr. 325-27
377. Thus, as both the Boy Scouts' literature and the witnesses agreed,
the Boy Scouts, although requiring Scouts and Scout leaders to affirm a
belief in God, otherwise scrupulously avoid instructing Scouts or Scouters
on what their religious beliefs or practices should be. See, e.g.,
Tr. 1407-12 (Turner); Mack Dep. at 94-99, 110-11. The Boy Scouts are not
a religious organization. They are required by the BSA's bylaws to be "absolutely
non-sectarian," Ex. C1300 at NCAC116, Art. IX, § 1, and inform adults
of this on every application. Ex. C806 at 1019. See, e.g., Ex. C520
378. The Boy Scouts also avoid defining what constitutes a belief in
God, Ex. C731 at 2374, and have always left religious training up to parents
and religious leaders. See, e.g., C715 at 001002 (1st edition of
Handbook for Boys, originally published 1911) ("If he be a Catholic boy
scout, the Catholic Church of which he is a member is the best channel
for his training. If he be a Hebrew boy, then the Synagogue will train
him in the faith of his fathers. . ."); Mack Dep. at 116-17; Teare Dep.
379. As the Boy Scouts have explained since their first edition of the
Scoutmaster Handbook in 1913 and 1914, "[w]e can not conceive of a church,
Sunday School or religious society which can seriously object to the idea
of Scouting if a clear idea is presented of what Scouting gives to the
boy." Ex. 721 at 6525-26; Ex. 723 at 4934 ("The Boy Scout program conflicts
with no religious doctrine."). The Boy Scouts welcome not only Christians,
Jews and Moslems, but Buddhists, Ex. C1140; Mack Dep. at 101-02, and Hindus,
Tr. 1344-45 (Turner), whose conception of God is quite different than that
found in Western religions, and individuals who are not members of any
organized religion. Ex. C731 at 2374. As former Chief Scout Executive Ben
Love put it, "I don't care if he worships the Great Turtle, you have to
believe in something." Tr. 2004-05, 2030-31. (Kirkner).
380. Most importantly, it is absolutely contrary to the BSA's by-laws, literature
and principles for the Boy Scouts to pick and choose among the moral views of
different religions or among the faithful within particular religions. Hill
Dep. at 65; Tr. 327-28, 333-35 (Jones); Tr. 550-53 (Press). A Scout is told
repeatedly to follow his parents and his religious leaders in being faithful
to his own religion and that the failure to respect the religious beliefs of
others is as contrary to the principles of Scouting as faithlessness in one's
own religious beliefs. See, e.g., C700 at 550, 561; Cahn Testimony at
2. The Boy Scouts' policy of excluding homosexuals, however, not only picks
and chooses among the diverse views of various religions, it fails to track
the views of any religion.
381. In light of these clearly expressed positions in Scouting, the views of
various religions on the morality of homosexuality not only fail to support
the Boy Scouts' adoption of a general exclusion, it undermines the Boy Scouts'
premise that there is any rational basis for this policy. The evidence presented
concerning the positions taken by various religious groups on the morality of
homosexuality established that there is no agreement on this issue, either in
general or in particulars and that the various formulations of the Boy Scouts'
policy correspond to the position of no religious group.
382. Indeed, the evidence shows that many of the religious denominations
that sponsor Boy Scout troops encourage the full participation of homosexuals
in their congregations. For instance, the Complainants called as a witness
Reverend A. Knighton Stanley, who for the last 30 years has served as Senior
Minister of People's Congregational United Church of Christ, located on
13th Street, N.W. Tr. 2038 (Stanley). Reverend Stanley's church has served
as a Boy Scout charter organization for at least 35 years and sponsors
one of the largest troops in the NCAC. Tr. 2043 (Stanley). He testified
that the United Church of Christ ("UCC") as a denomination supports the
full participation of gays and lesbians in church life, Tr. 2051 (Stanley),
and that consistent with this, his own congregation welcomes new members
without regard to their sexual orientation. Tr. 2049-50 (Stanley). Reverend
Stanley also noted that sexual orientation is not a factor in the UCC ordination
process, Tr. 2055-56 (Stanley), and that he knows of openly gay UCC ministers.
Tr. 2072 (Stanley). See also, Ex. C1700.
383. Complainants also called as a witness Reverend Michael W. Hopkins,
who is Vicar of St. George's Mission, Tr. 2286 (Hopkins), an Episcopal
Church within the Washington Diocese. Tr. 2289 (Hopkins). In addition to
his pastoral duties at St. George's, Reverend Hopkins serves as Moderator
of the Diocesan Council, which makes him the third or fourth ranking leader
within the Washington Diocese of the Episcopal Church. Tr. 2290-91 (Hopkins).
Reverend Hopkins testified that Episcopal Church Canon, which is binding
on all dioceses, Tr. 2292 (Hopkins), forbids discrimination against gays
and lesbians in both the ordination process and the participation of lay
people in the life of a congregation. Tr. 2297 (Hopkins); see also,
Ex. 1725. Reverend Hopkins testified that between one-half and two-thirds
of all Episcopalians, including those of the Washington Diocese, belong
to dioceses that ordain openly gay priests. Tr. 2296 (Hopkins). Reverend
Hopkins also testified that St. Timothy's Episcopal Church in Southeast
Washington, which sponsors Troop 1650, see e.g., Tr. 1090, has been
particularly supportive of gay and lesbian people and has self-identified
as a "welcoming congregation." Tr. 2297-98 (Hopkins).
384. The Quakers serve as the chartered organization for a number of
Scouting units nationwide. Ex. R180. Hayden Wetzel, a member and a leader
within the Friends Meeting of Washington, Tr. 2352 (Wetzel), testified
that "the gay presence in [our] Meeting is . . . known and easily accepted."
Tr. 2355 (Wetzel). By way of example, Mr. Wetzel noted that Roland Pool,
who is a member of the Meeting, has been active on numerous committees
integral to the life of the Meeting and assists with religious school activities.
Tr. 2357-58 (Wetzel). Mr. Wetzel, himself an Eagle Scout and longtime volunteer
with Troop 98 in Washington, D.C., Tr. 2347-2348 (Wetzel), introduced the
Religious Emblems program for Quakers to the District of Columbia. Tr.
385. Particularly striking, the evidence shows that still other religious
denominations that have historically had relationships with the Boy Scouts
have taken public stands against the Boy Scouts' policy of excluding homosexuals.
In this regard, Complainants called as a witness Rabbi Robert Saks, who
is rabbi of Congregation Bet Mishpachah, a non-denominational gay and lesbian
Jewish congregation which convenes at the District of Columbia Jewish Community
Center, located at 16th and Q. Streets in N.W. Tr. 2328 (Saks). Rabbi Saks,
who has practiced as a Reform rabbi since 1972, Tr. 2310 (Saks), testified
that the Reform Jewish Movement, which represents approximately forty percent
of affiliated Jews, Tr. 2326 (Saks), has a strong tradition "welcoming
lesbian and gay Jews into its congregations and encouraging their participation
in all aspects of synagogue and communal life." Ex. C1720 at A002185, including
the ordination process. Tr. 2312-14 (Saks); Exs. C1714 through C1718; C1720.
In addition to passing a number of resolutions calling for the end of discrimination
against gays, the Central Conference of American Rabbis, which is the umbrella
group for Reform rabbis, Tr. 2316-17 (Saks), passed a resolution calling
upon the Boy Scouts to open its membership to gay boys and men. Ex. C1715;
R180. In a similar vein, Complainants introduced evidence that the Unitarian
Universalist Association ("UUA") affirms the full participation of gays
in religious and secular life and, in view of the Boy Scouts' exclusion
of gays, has requested that the Boy Scouts remove from their literature
any reference to the UUA as a chartered organization. See e.g.,
Ex. C1733; R180.
386. The evidence demonstrates that numerous other religious denominations
that sponsor Boy Scout troops welcome gays and lesbians to join their congregations
and to participate in many aspects of religious life. For instance, Complainants
called as a witness Reverend J. Philip Wogaman, who since 1992 has been
the Senior Minister of Foundry United Methodist Church ("Foundry"), which
is located at 16th and P. Streets, N.W., Tr. 1774-75, and which includes
as members President Clinton and his family. Tr. 1778-81 (Wogaman). Reverend
Wogaman testified that Foundry, the sponsor of a Boy Scout troop, Tr. 1779
(Wogaman), has for years made a specific point of being open to persons
without regard to their sexual orientation. Tr. 1784-85 (Wogaman). Moreover,
in 1995, the official governing body of Foundry United Methodist Church
adopted a Statement of Reconciliation declaring itself to be a church that
welcomes everyone into its membership, including specifically gays and
lesbians. Ex. C1724; Tr. 1782-84 (Wogaman). As Reverend Wogaman explained,
there is nothing in the doctrine of the United Methodist Church that prevents
a church from having such policies. As Reverend Wogaman explained, the
current Church teaching is to "call on our churches to reach out in love
and compassion to all persons regardless of [sexual orientation]." Tr.
1800-01 (Wogaman); Ex. 1723. The only limitation on the participation of
gays in the life of the Methodist Church is with respect to the ordination
of ministers. Tr. 1817 (Wogaman). Even with respect to ordination, however,
the United Methodist Church position is that someone can be homosexual,
but not practicing, or even practicing, but not technically avowing their
practice of homosexuality, and be ordained as a minister. Tr. 1802-06 (Wogaman).
387. Similarly, Complainants introduced evidence that the Evangelical
Lutheran Church of America ("ELCA") welcomes all people as members, regardless
of sexual orientation, and actively supports "legislation, referendums,
and policies to protect the civil rights" of gays and lesbians. Ex. C1730.
The only restrictions on the participation of homosexuals in the ELCA relate
to ordination. According to Church doctrine, sexual contact is only appropriate
within a heterosexual marriage. Therefore, gays and lesbians are only eligible
for ordination if they commit to a life of celibacy. Ex. 1730.
388. Likewise, Rabbi Saks, who was ordained as a Conservative rabbi,
Tr. 2310, testified that the Conservative Jewish Movement, which represents
approximately forty percent of affiliated Jews, Tr. 2326 (Saks), welcomes
gays and lesbians to participate broadly in synagogue life, Ex. C1721,
restricting them only from serving as clergy. Tr. 2334 (Saks). As Rabbi
Saks explained, the Conservative Movement's position derives from a belief
that "homosexuality is against . . . Jewish law just as eating non-kosher
meat is against . . . Jewish law." Tr. 2333. However, as Rabbi Saks further
noted, the Conservative Movement distinguishes between its religious position
and its civil perspective, and has been unequivocal in its support for
nondiscrimination against gays and lesbians in civil law. Tr. 2321. See
also Exs. C1721 and C1722.
389. Although the Boy Scouts suggest that the position of the Mormon
Church on homosexuality supports the need for its own policy on gays, on
closer inspection the position of the Boy Scouts is far more restrictive
and absolute. In the Mormon Church, homosexual orientation by itself is
not a transgression. Tr. 1894-98 (Ellison); Ex. C1727 at A1778-79. The
Mormon Church acknowledges that it has homosexuals as members, and that
these are good people who are not engaging in transgression. Id.
Significantly, it is as much a transgression in the Mormon faith for a
heterosexual to engage in premarital sex as it is for a homosexual to engage
in sex. Tr. 1875-76, 1892-93 (Ellison); R81; C1727 at A1778-79. And, if
a homosexual engages in sexual conduct, he is subject to discipline, but
the type of discipline is not automatic and depends upon the circumstances.
Tr. 1898-99 (Ellison). The Mormon Church, unlike the Boy Scouts, teaches
its leaders to have compassion for homosexuals and to work with them. Tr.
1899-1901 (Ellison); Ex. R82.
390. The Boy Scouts' policy on gays is also more restrictive than that
of the Catholic Church. Unlike the Boy Scouts, which excludes all gays
on the basis of orientation alone, the Catholic Church distinguishes between
homosexual orientation and conduct. According to the Catholic Church, homosexual
orientation, in and of itself, is morally neutral. Tr. 1469 (Hummel). Therefore,
those of homosexual orientation are eligible for the priesthood, provided
they - like their heterosexual counterparts - remain celibate. Tr. 1470-71
391. By far, the strongest views on homosexuality presented into evidence were
those expressed in resolutions of the Southern Baptist Convention. The Southern
Baptist Convention has adopted some extraordinarily strong resolutions concerning
sexual practices generally and homosexuality in particular. The Southern Baptist
Convention believes that Scripture condemns not only homosexual practices, but
also premarital sex, adultery and pornography, among other things. Ex. R95;
see also Tr. 2122 (Ingram). The Boy Scouts, however, do not have general
policies of excluding people who engage in premarital sex or adultery.
3. The use by some religions of the religious emblems program does not support
the Boy Scouts' policy.
392. At the hearing, the Boy Scouts presented considerable evidence concerning
the Religious Emblems program. The Religious Emblems program provides Scouts
with an award for the successful completion of a program of religious endeavor
designed by the Scout's religion.
393. For numerous reasons, the existence of the Religious Emblems program
in no way supports the Boy Scouts' policy of excluding homosexuals. Although
boys are allowed to wear religious emblems on their Scout uniform, these
emblems are not Scouting awards. Ex. C701 at 227-28 (Boy Scouts); Ex. C923
at 8491 (Cub Scouts); Mack Dep. at 102. These awards are sponsored and
administered, not by the BSA, but by the various religious organizations
that sponsor Scout troops. Tr. 1389 (Turner). The publications that set
forth the religious study are designed, written and paid for privately
by the religions that use them. Tr. 1389-90 (Turner).
394. Religious emblems are in no way required. Although a religious
emblem can be used for advancement in Cub Scouts, it is not required; and
it is no part of advancement in the Boy Scouts to obtain a religious emblem.
Tr. 1389-91 (Turner); Ex. C701 at 227-28. In fact, only about 5 percent
of Boy Scouts obtain such emblems. Ex. C900 at A1038.
395. More importantly, the religious emblems program connotes nothing
in particular about the morality of homosexuality. For example, the Unitarian
Universalist Church, which holds strongly to the view that discrimination
against gays and lesbians is wrong, includes information about this view
as part of its Religious Emblems program, Religion in Life and Love and
Help. Ex. C1733; Tr. 2143-46 (Savin-Williams); Ex. R467. See also
Ex. C700 at 626 and Ex. R10 at NCAC8458 (describing the emblems available
respectively to Boy Scouts and Cub Scout/Webelos). Hayden Wetzel, the person
responsible for initiating the Quaker religious emblems program in the
District of Columbia, testified that discrimination against homosexuals
has no part in either his religion or his experience in Scouting. Tr. 2355,
2366-69 (Wetzel); Tr. 1430 (Turner).
396. Indeed, religious emblems are not unique to the Boy Scouts. These
emblems are also offered by various religions to Girl Scouts, Tr. 2351-52
(Wetzel); and the Girl Scouts of America do not exclude homosexuals as
members or adult leaders. Ex. C1801 at A1375.
4. The existence of a religious relationships committee does not
support the Boy Scouts' policy.
397. The National Council of the BSA maintains a "Relationships Committee"
that has representatives from various sponsors, both secular and religious,
and a "Religious Relationships Committee" with representatives from various
religious organizations. Tr. 1414-18 (Turner); Teare Dep. at 27-28, 31.
398. The Religious Relationships Committee is not in any way limited
to religions that have views opposed to homosexual conduct. It includes,
for example, the Episcopal Church, the United Church of Christ, and the
Quakers, without regard to the fact, as discussed elsewhere, that these
churches have very open policies toward homosexuals. Ex. C1508; Tr. 1413-14,
1418-19 (Turner). Reverend Turner testified that he did not know of a more
ecumenical group in the country than the Religious Relationships Committee.
Tr. 1360 (Turner); Tr. 1365-66 (Turner) (discussing how 100 chaplains of
numerous denominations participate in the Scout Chaplaincy at National
399. The fact that the Boy Scouts assemble a group of individuals from
various religions with wide-ranging views on homosexuality certainly does
not support the premise that excluding homosexuals is basic to Scouting.
Rather, it underscores the fact that Scouting does not exist to choose
from among the views of various religious groups on this issue.
5. The Boy Scouts failed to prove that sponsors would pull out
of Scouting if the BSA's national office stopped requiring the exclusion
of homosexuals from Scouting.
400. The Boy Scouts also attempted to suggest that some sponsors would
object to having homosexuals in Scouting and, therefore, pull out of Scouting,
if the policy of exclusion were changed. As discussed below, this argument
is not really a defense. The Boy Scouts are not entitled to perpetuate
discrimination based upon the premise that others who support them would
like them to do so.
401. In any event, much of this testimony did not even support the Boy
Scouts' conclusion. For example, during his direct testimony the Boy Scouts'
own witness, Father Hummel, testified that if the Boy Scouts policy of
excluding homosexuals were changed, he suspected that "so long as we were
able to maintain our right to choose our leaders as a Catholic institution,
that we could certainly make an accommodation in that regard." Tr. 1463
402. On cross-examination, Rev. Turner of the Southern Baptist Convention
acknowledged that, even with the strong views held by at least some Baptists
on homosexuality, there would be a clear distinction between, on the one
hand, requiring Baptist Scout troops to have homosexuals as leaders (which
is not at issue in this case) and, on the other, a decision that merely
prevented the BSA and councils from forcing a policy of discrimination
on troops, or at the district, council or national level. Tr. 1425-28 (Turner).
403. Similarly, Mr. Thomas testified that he "feel[s] sure" that "many"
local Methodist churches would cease to sponsor Scouting and there would
be "either a retraction or certainly a frowning" by the governing body
of the United Methodist Church if Scouting changed its position concerning
homosexuality among its leadership of the Boy Scouts' local Units."
Tr. 1278-79 (emphasis added). He never testified that there would be any
reaction if the Boy Scouts were simply made to accept the judgment of local
sponsors, troops and councils about the unit leaders they wanted, be they
heterosexual or homosexual.
404. Moreover, the testimony that was provided was uniformly speculative
and unconvincing. Various of the Boy Scouts' witnesses, including Mr. Thomas,
the Methodist Representative, and Mr. Crayton, who is active at an African
Methodist Episcopal Church, acknowledged that the Committees for Scouting
organized by members of their respective faiths actively promote organizations
such as the Girl Scouts, who do not have general policies of excluding
gays or lesbians. Tr. 1268-70, 1279-84 (Thomas); see also Tr. 1428-29
(Turner); Exs. C1801 at A1375; C1805.*****/
405. Mr. Thomas also conceded on cross-examination that the Methodist
Church's Book of Discipline, in fact, bars discrimination against persons
on the basis of sexual orientation, that Methodists do not prevent celibate
homosexuals from being ordained ministers, or practicing homosexuals from
lay leadership positions in the church, and that he could not say whether
there was a single Methodist Church in the District of Columbia that would
exclude persons from lay leadership positions on the basis of their sexual
orientation. Tr. 1309-1315, 1330-31 (Thomas). Particularly in light of
Reverend Wogaman's testimony, the Commission finds that Mr. Thomas' speculation
on how Methodist Churches might react to a change in policy lacks credibility.
406. The only witness the Boy Scouts had testify from any religion that
does not actively support the Girl Scouts was Elder Ellison of the Church
of the Latter Day Saints (the Mormons). For several additional reasons,
however, his speculation that the entire Mormon Church would abandon an
80-year commitment to Scouting if non-Mormon troops in the District
of Columbia were not prohibited from having or taking advantage of homosexuals
leaders, is inherently not credible. First, the Mormon Church has numerous
unique membership requirements on its Scouting program (such as prohibitions
on adult leaders drinking coffee or tea or on girls participating in Exploring)
without ever insisting that those restrictions be applied generally to
troops sponsored by other organizations. Tr. 1859-62, 1869-70, 1883-84,
1887-91 (Ellison); Ex. C1153 at 13-14.
407. Second, the Mormon Church's views on sexual conduct do not correspond
to the Boy Scouts' policies. The Mormon Church has not pulled out of Scouting
because Scout leaders engage in premarital sex or registered members are
single parents, even though these are equally considered to be "transgressions"
in the Church. Tr. 1876-77, 1892-93 (Ellison); R81; C1727 at A1178-79.
408. Finally, there is only one Mormon Church that sponsors units in
the District of Columbia. Ex. R16; Tr. 1879-80 (Ellison). A finding that
the Boy Scouts, like every other public accommodation in the District of
Columbia, is bound to follow the District of Columbia Human Rights Act,
is a finding that they are subject to law. There is no reason to believe
that this finding would lead the Mormon Church to abandon the seventh point
of the Scout Law, which requires that Scouts be obedient to laws, even
those with which they disagree. Indeed, those Mormons who live and work
in the District of Columbia are already subject to this law in myriad facets
of their daily lives -- including the day care centers and schools to which
their children attend, the governmental agencies with whom they do business,
the stores at which they shop and the restaurants at which they eat.
409. The evidence on the view of religious groups only serves to underscore
both the diversity in Scouting and the fact that the exclusion of homosexuals
is not basic to the program. The Boy Scouts are perfectly willing, for
example, both to maintain active relations with national churches that
encourage homosexuals to take an active part in the church and oppose discrimination
against homosexuals and to permit specific churches, such as Peoples United
Church of Christ, Foundry United Methodist Church, St. Timothy's Episcopal
church and others to sponsor Scout troops even though their position on
accepting homosexuals is quite clear.
410. So far as the Boy Scouts are concerned, the fact that certain churches,
or for that matter, secular organizations such as the American Federation
of Teachers or the National Educational Association, see, e.g.,
Ex. 1807, 1808, believe that excluding homosexuals is wrong does not mean
that these institutions are unwilling to uphold the Scout Oath and Scout
Law. Teare Dep. at 34-36; Mack Dep. at 55-57 (no general policy of excluding
E. "Known or Avowed".
411. As discussed above, there is no way of reconciling the various
formulations of the Boy Scouts' supposed application of its policy only
to "known or avowed" homosexuals. There is no way of reconciling this restriction
with the policy statements the Boy Scouts have issued for years on this
point, or to make sense of how it would apply in practice. The lack of
consistency on this point convinces the Commission that the purported focus
on "known or avowed" homosexuals, like the references to religion or the
Scout Oath and the Scout Law, is designed for the purpose of attempting
to make a purely status-based discrimination look as if it had some component
of conduct or speech.
412. Even if the assertion of a "known or avowed" policy were not pretextual,
however, it would still not change the fundamental nature of the policy.
Discrimination does not cease to be status based just because it is restricted
to people the violator knows or is told about. A policy of excluding "known
or avowed" Catholics or Italians from the Boy Scouts would not be one based
on conduct or speech. To assume that all homosexuals will act the same
way, speak the same way about an issue, or have the same (or any) need
to express themselves on any particular issue is a stereotype that the
Boy Scouts have been unable to support with either logic or evidence.
413. Moreover, "avowal" of beliefs that would, in some sense, contradict
Boy Scout policy is not a general reason for excluding adults from Scouting.
For example, although the Boy Scouts would find it inappropriate for someone
to use Scouting generally as a means of converting people to different
religions, they do not presume that people who "avow" a personal commitment
to convert people to Christianity will carry out this mission while wearing
a Scout uniform. Tr. 1409-13 (Turner). There is no basis for the Boy Scouts
to presume (irrebuttably) that anyone who simply self-identifies as a homosexual,
without avowing any mission, not only has such a mission, but will carry
it out while wearing a Scout uniform. Cf. Kay Dep. at 130 (Boy Scouts
encourage citizenship, but do not condone individuals representing a political
position by the Boy Scouts).
F. Role Modeling.
414. The Boy Scouts also assert, largely through the testimony of their
expert, Professor George Rekers, that homosexuals are excluded from Scouting
because they are inappropriate role models. Even if the Commission were
to credit as accurate 100 percent of Professor Rekers' testimony and to
disregard, in its entirety, the testimony of Professor Savin-Williams,
the expert called by Mr. Pool and Mr. Geller, the testimony would not justify
either the Boy Scouts' general policy or its application to Mr. Pool or
415. Although Dr. Rekers is concerned that permitting Scouts to have
close and frank access to persons they might learn are homosexuals would
lead some Scouts to engage in homosexual behavior, the BSA does not assert
this concern as a basis for its policy in any of its policy statements.
As noted above, the Boy Scouts run a Learning for Life Program in which
youth have access to role models and mentors who can be "known or
avowed" homosexuals; the Boy Scouts in fact decided this February to expand
this program by moving all of career-based exploring into Learning for
Life. Tr. 2466-67, 2507, 2519-20 (Leet); C1007. The Boy Scouts' national
witness, Richard Leet, conceded that the BSA is not concerned that access
to role models, mentors and Explorer post advisors who are gay will lead
youth to engage in homosexual behavior. Tr. 2521.
416. As the Boy Scouts' witness Mr. Horne testified, "my personal life
is my personal life." Tr. 1078 (Horne). Nor is there any particular reason
to think that sexuality would be discussed. The Boy Scouts have a strong
policy of "two-deep leadership," in which Scouts are never alone with Scout
leaders in a troop. Tr. 2093-94 (Ingram); Tr. 541-44 (Press). This lessens
the possibility that a Scout leader would ever be involved in the type
of personal discussion that would lead a Scout to have an understanding
of his adult leaders' sexual practices.
417. If the Boy Scouts' policy really is a "known or avowed" policy
-- and the Boy Scouts are perfectly happy to have homosexuals serve as
Scout leaders, so long as they do not say they are a homosexual -- their
policy is quite in contrast to Professor Rekers' views. If that policy
were applied, the Boy Scouts' policy would mean that any Scout leader,
anywhere, could potentially be a homosexual. The only certainty would be
that any adult leader who is a homosexual is not honest or forthright enough
to reveal it.
418. Moreover, if role modeling were the concern, the Boy Scouts would
be much more concerned about adults engaging in improper heterosexual behavior.
Professor Rekers maintains that only a very small fraction of people ever
consider themselves to be homosexual. Tr. 1608. Even he concedes that the
risk of exposure to role modeling is limited to the risk that there might
be homosexual experimentation -- not that someone becomes a homosexual
because he knows or admires someone who is a homosexual. Tr. 1612. Accordingly,
if sexual conduct were the concern, and role modeling were as strong as
Professor Rekers suggests, exposure to a Scout leader who engages in premarital
or extramarital heterosexual sex would be far more likely to lead Scouts
to "unwanted" conduct than exposure to someone whose sexual interests are
so different from their own.
419. In any event, even Professor Rekers concedes that role modeling
requires that the youth have extensive personal contact with and grow to
trust the adult. Neither Mr. Pool nor Mr. Geller were in positions where
they would have had the contact Professor Rekers describes as essential.
Michael Geller was serving in name on a troop committee. Roland Pool would
have been a Unit Commissioner, not a Scoutmaster. And under the Boy Scouts'
"two-deep" leadership policy, even Scoutmasters do not have private contact
with Scouts. Accordingly, even if credited, Professor Rekers' testimony
would not justify the discrimination in this case.
420. In fact, however, the Commission does not find Professor Rekers'
testimony on any of several points to be credible. To begin with, Professor
Rekers appears to be functioning upon a basic misconception about how the
Boy Scouts' program operates. Professor Rekers believes the Boy Scouts'
program would instruct a curious youth to "[a]sk [your] parent, ask your
religious leader, ask your Troop Leaders if you have any questions
about sexuality." (emphasis added). Tr. 1593. Although the Boy Scouts were
certainly in a position to inform him of the testimony of their own representatives
that it is no part of the Boy Scout program to teach about homosexuality,
Teare Dep. at 86; Hayes Dep. at 80, they apparently never did.
421. As discussed below, Professor Rekers' testimony rests also on premises
that are contrary to the conclusions reached by every established scientific
organization concerning the origins of homosexuality.
422. Professor Rekers' testimony -- essentially that every scientific
organization abandoned its commitment to science in favor of politics on
this issue -- is a testament to the strength of his own biases, not the
weaknesses of those he criticizes. Professor Rekers' writings make it clear
that his views on this matter are very strongly informed by his own religious
viewpoints concerning the morality of homosexuality. Although Professor
Rekers is, of course, entitled to his religious views, experts in his own
field have recognized that, in his case, he has substituted religion for
science. Ex. C1909; Tr. 2198-99.
423. The Commission finds much more credible the testimony of Complainants'
expert, Professor Ritch C. Savin-Williams. Professor Savin-Williams is
a Professor of Developmental Psychology at Cornell University in Ithaca,
New York. Tr. 2124; Ex. C1900. He has both a PhD in Psychology from the
University of Chicago and a Masters Degree in Religious Studies, is a widely-published
researcher in the field of adolescent development and, in particular, peer
relationships, how leadership groups form, self-esteem, and the development
of gay and lesbian youth; he has spent many years teaching youth as a camp
counselor and Sunday school teacher, and since 1993 has practiced as a
clinician treating patients. Tr. 2124-33, 2134-35; Ex. C1900.
424. Professor Savin-Williams has published some 69 books, book chapters
and articles. Ex. C1900. Even apart from the sheer number of publications,
his background is impressive because of the quality of the review his works
have undergone. His books and book chapters have been published by numerous
top-ranked and competitive academic publishers, such as Routlage Press,
Harcourt-Brace, Springer-Verlag, John Wiley & Sons and Oxford University
Press. Tr. 2150-51. Many of his articles have been published in the flagship
publications in this field -- peer reviewed journals such as the Journal
of Counseling and Clinical Psychology, Developmental Psychology, Child
Development, Family Relations, American Journal of Sociology, Journal of
Adolescent Research, with rejection rates of 80 to 90 percent. Tr. 2151-52.
He is also on the editorial board of several peer-reviewed journals in
the field. Tr. 2147-48.
425. During cross-examination, Profession Savin-Williams demonstrated
a detailed knowledge of the scientific studies, particularly in the field
of the causes of homosexuality. Tr. 2242-79.
426. Professor Savin-Williams currently teaches courses in Sexual Minorities
and Human Development, which includes the etiology of homosexuality, through
the life course, and Adolescence and Youth. Tr. 2134. He is a member of
the American Psychological Association and has presented his research to
both the Association and the American Psychological Society, as well as
various governmental agencies and the United Nations Convention on Rights
of the Child. Tr. 2136-37, 2139, 2153-54.
427. As Professor Savin-Williams explains, "sexual orientation" is an
enduring, stable sense that one is attracted to members of one gender over
another or both genders or no gender. The consensus in psychology is that
sexual orientation is either formed at the time of birth or in the first
three to five years of life. Tr. 2159, 2162-63; Ex. C1905.
428. The reason for this conclusion is not that any one study is conclusive,
or has methodological perfection, but that (1) there is a good deal of
scientific data pointing to observable differences between heterosexuals
and homosexuals at birth, Tr. 2162-66, 2169-71; (2) every systematic study
attempting to test out hypotheses for causes of sexual orientation at some
later point in life has been so unsuccessful in coming up with any evidence
to support that conclusion that it is currently viewed as a "dead-end"
in science, Tr. 2171-72; (3) the only serious arguments being presented
for post-birth causes of homosexuality are psychoanalytic theories of development
that would take place very early in life, Tr. 2172-73; and (4) there is
a considerable body of research in which individuals can trace awareness
of same sex attractions to very early ages and in which scientists have
drawn connections between gender non-conformity very early in life and
homosexuality. Tr. 2174-79.
429. Thus, for example, parents can recognize as early as six months
sex-atypical behavior that, even Professor Rekers concedes, has a very
strong relationship to sexual orientation. Tr. 2177-79 (Savin-Williams);
Tr. 1578 (Rekers). If that is true, it undermines the conclusion that sexual
orientation is formed in teenage years.
430. By contrast, there is no body of psychological opinion to support
any of the theories Professor Rekers put forth for the causes of homosexuality
-- whether child abuse, prostitution, or role modeling. Tr. 2177.
431. Professor Savin-Williams' opinions on these matters are not just
his own. In 1973, the American Psychiatric Association determined that
it was wrong to declare homosexuality to be a mental disorder (i.e.,
a deviation from some accepted norm of heterosexuality); in 1974 the American
Psychological Association endorsed this decision and neither has changed
its view on this matter since. Tr. 2181-82, 2188-89 (Savin-Williams); Ex.
C1903; see also C1904 (American Psychoanalytic Association statement).
They made the change because blind studies demonstrated that purportedly-expert
psychiatrists could not identify who was or was not homosexual based upon
the results of psychiatric testing, and there was therefore no basis for
associating homosexuality, per se, with pathology. Tr. 2184-88.
432. The American Psychological Association is the premier organization
in psychology for those who are psychologists, both clinicians and researchers.
Tr. 2136. It currently has approximately 150,000 members. Id. The
American Psychiatric Association, founded in 1844, is the nation's leading
organization of physicians specializing in psychiatry, with approximately
40,000 members as of the mid-1990s. Ex. 1905 at A1928. These organizations,
along with the National Association of Social Workers, itself an organization
of more than 160,000 members, id., have all gone on record as supporting
the conclusion that sexual orientation is likely to have been determined
by the time boys and girls reach adolescence, and that "there is no reliable
evidence that `sexual orientation is amenable to redirection or significant
influence from psychological intervention.'" Id. at A1934. These
views reflect the consensus of science. Tr. 2193-97.
433. Nor do Professor Rekers' views reflect the consensus view of science
with respect to the effect of modeling. As any parent who has seen a 4-year-old
become a 14-year-old can attest, adolescence is not the time of life when
the behavior of youth is most susceptible to influence from adults. Tr.
2200-02 (Savin-Williams). Although modeling was once an active field in
the psychological literature, it is now not a major field of research because
the effect of third-party role models was much weaker than biology, parents
or peers. Id.
434. What studies have shown is that, to the extent modeling has an
impact, the modeling has to be very intensive. The adult must be perceived
to be very rewarding and of high prestige; the modeling is most successful
in getting children to conform to prevailing cultural norms (as opposed
to producing deviation from those norms), and there needs to be reinforcement
and repetition and practice of the behavior that is being conveyed. Tr.
435. In the actual context of the Boy Scouts, where sex is not generally
a matter of discussion, where some adults have little or no contact with
the youth at all, and even those with the most contact never meet with
youth alone and keep their private lives to themselves, the likelihood
that discovering that an adult leader is a homosexual will lead youth to
decide to engage in homosexual behavior is extraordinarily remote. Tr.
436. In short, even taken for its full value, the Boy Scouts' role modeling
theory is no basis for discrimination, and there is no particular reason
to give any significant weight to this theory.
G. Standardization -- The Least Common Denominator.
437. As an additional argument, the Boy Scouts appear to suggest that
even if some, many or even most units in the District of Columbia would
be perfectly happy with a homosexual leader, a need for standardization
necessitates that no unit be permitted to have such a leader. This argument
is also clearly pretextual.
438. To begin with, although the Boy Scouts certainly standardize things
like training and program materials -- materials that make no mention of
homosexuality or its morality -- they do not generally standardize all
significant requirements for adult leadership or religious content of programs.
As Reverend Turner pointed out, one of the ways in which the Boy Scouts
encourage development of the program is by informing various organizations
-- both religious and secular -- that they can adapt the Scouting program
to be "uniquely Baptist, Presbyterian, Methodist, Catholic, etcetera, as
long as the stated principles of Scouting are not violated." Tr. 1384-85
(Turner); Kay Dep. at 30, 45.
439. For example, the Mormon Church's approach to Scouting is quite
different from that of other religions. Other sponsors do not use Scouting
as a part of a uniquely Mormon program of religious instruction into the
Aaronic Priesthood, Tr. 1883-84 (Ellison). See Tr. 1276, 1288-99
(Thomas); Ex. C700 at 561; Ex. 731 at 2374. Although some troops with religious
sponsors have religious aspects to the program, others, even among those
with religious sponsors, much less sponsors like public schools or police
departments or labor unions, do not. Tr. 1712-18 (Wolfe).
440. Conversely, the Boy Scouts have not taken the position that the
fact that one or another unit or sponsor might not feel comfortable with
certain leaders requires a general rule that no units should be permitted
to have those leaders. For example, two of the Boy Scouts' witnesses, Mr.
Horne and Mr. Crayton, testified that in their troop it was very important
for the adult leaders to be black males. Tr. 1647 (Crayton); Tr. 1063 (Horne).
The Boy Scouts, however, certainly do not require all leaders to be black
or male. That decision in virtually any other context would be left up
to the unit.
441. Indeed, one of many incongruities in the Boy Scouts' policy of
excluding homosexuals is that the policy is dictated from above. In most
contexts, the Boy Scouts stress how the unit is "owned" and "administered"
by the sponsor, and emphasize how sponsors can adapt the Scouting program
for their own use. See, e.g., Tr. 1384-85 (Turner); Ex. C1160 ("Scouting
is not something that a religious group `sponsors' for the Boy Scouts of
America. Scouting is a resource, a way to help with youth outreach. A religious
organization provides the Scouting program according to its own principles.
. . ."). See also Hill Dep. at 31-33 (ordinarily once a Scoutmaster
approves an application the boy is in the Boy Scouts). In order to enforce
their policy against homosexuals, however, the Boy Scouts have decided
to overrule the judgment of sponsors and units; indeed, the BSA's position
statements and media guides on this issue teach Scout Executives to tell
the public that it is the Boy Scouts that "select" people who "in our judgment
meet the BSA standards and qualifications for membership." Ex. C508 at
NCAC1024; Tr. 1724-25 (Wolfe).
H. Expressive Message.
442. Although the Boy Scouts have attempted to liken this case to a
situation in which the NAACP were being forced to admit a Klansman, the
facts of this case bear no similarity whatsoever to that situation. Although
it may well be part of the expressive purpose of the NAACP to express views
on the immorality of prejudice, it is no part of the expressive purpose
of the Boy Scouts to express views on the morality of homosexuality.
443. The Boy Scouts do not even maintain that people join their organization
for the purpose of expressing a message about homosexuality. Ex. C1507
at 64-65. Indeed, in their own "known or avowed" formulation, the Boy Scouts
have no desire to make any statement concerning homosexuality; they simply
desire not to have the issue come up at all. The credible testimony demonstrates
that the purported "message" of excluding homosexuals is one the Boy Scouts
444. Moreover, there is no evidence that allowing Roland Pool or Michael
Geller or other homosexuals in Scouting would conflict with an expressive
purpose. Neither of these individuals has expressed any desire to express
anything about the morality of homosexuality within the context of Scouting.
And the notion that every single homosexual has an agenda in which their
purpose is to express a view about sexual orientation is unsupported by
any evidence or logic.
I. Other Possible Justifications.
445. During the course of this litigation, the Boy Scouts have either
conceded or abandoned other possible justifications for this Policy. The
Boy Scouts do not maintain that the policy of excluding homosexuals exists
to serve or does serve any end of avoiding child sexual abuse. The Boy
Scouts recognize that the two issues are "not related," Ex. C520 at NCAC5589,
NCAC5594; Teare Dep. at 146, 154, and, in fact, have trained Scouters to
avoid the mistake of acting on the "myth" that "children are at greater
risk of sexual victimization from `gay' (homosexual) adults than from `straight'
(heterosexual) adults." Ex. C602 at 12.
446. Although they initially asserted in their answer the defense that
they are a "religious organization," the Boy Scouts did not attempt to
raise this issue in their prehearing statement and abandoned it at trial.
In any event, the Boy Scouts concede that "Scouting is not a religion."
Ex. C607 at NCAC8133; Teare Dep. at 156. In seeking tax status, or operating
under a federal charter or running programs in public schools or taking
advantage of public facilities such as military bases made available to
them, the Boy Scouts treat themselves as a charitable organization, not
as a religious organization subject to strictures of separation of church
and state. See, e.g., Exs. C1104, C1114-1120.
447. The Boy Scouts also attempted to link Roland Pool to Queer Nation,
a now-defunct organization that, at one point, protested the Boy Scouts'
policies of excluding homosexuals. Tr. 824 (Church). Even if there were
some connection between Mr. Pool or Mr. Geller and Queer Nation, the Boy
Scouts' evidence would not have been especially relevant. The Boy Scouts
do not exclude from Scouting only those homosexuals who are members of
Queer Nation and they certainly had no information at the time they excluded
Mr. Pool or Mr. Geller that they were part of Queer Nation.
448. In any event, there is no merit whatsoever to the Boy Scouts' attempts
to connect Mr. Pool or Mr. Geller to Queer Nation. Neither Roland Pool
nor Michael Geller has ever been a member of Queer Nation, attended any
Queer Nation meeting, contributed money to Queer Nation, participated in
any Queer Nation event, reviewed or approved of any Queer Nation literature
or tactics or (apart from agreeing that it was wrong for the Boy Scouts
to exclude homosexuals) shared its perspectives. Tr. 777 (Pool); Tr. 105-107
(Geller); Tr. 824-32 (Church).
449. Nor does the evidence support the Boy Scouts' attempt to brand
Mr. Pool as a "tester." As noted above, the evidence established that Mr.
Pool was an extraordinarily dedicated Scout and Scouter. Years before Mr.
Pool had any idea the Boy Scouts had any policy of excluding homosexuals
from Scouting, he began and continued collecting Boy Scout memorabilia
and using them to cover a wall of his home. Tr. 778 (Pool). Even while
he was out of Scouting, he went to the National Jamboree. Tr. 942 (Pool).
And even after he was excluded from the Boy Scouts based purely on his
sexual orientation, he has continued to purchase Scout literature and equipment.
Tr. 937 (Pool). It is no surprise that he uniformly impressed the Scouters
with whom he would have worked. His lifelong interest in Scouting was manifest
in his testimony.
450. Taken together, the Boy Scouts' policy of excluding homosexuals
adds up to one thing -- it is not the Scout Oath or the Scout Law, it is
not role models, traditional family values, history, the consensus of religions,
some need for standardization or any other of the purported rationales
that animate this policy; it is prejudice. In an effort to support this
policy of exclusion, the Boy Scouts have engaged in conduct clearly contrary
to the principles they have espoused since 1910. They have attacked experienced
Scouters with stereotypes and intimidation, fueled prejudices within their
own organization and turned dedicated people like Roland Pool and Michael
Geller into pawns in a public relations battle.
451. The evidence shows that the Boy Scouts' defense of its policy of
discrimination against homosexuals is an attempt to rewrite history in
an effort, after the fact, to justify a policy that has no basis in the
expressive message of this organization. In this proceeding, the Boy Scouts
have failed absolutely to demonstrate that Scouting is benefited in any
way by preventing the local units and district officials who would be more
than happy to use the exceptional skills and experience of these individuals
from making use of them.
452. Nor is the policy something simply benign. During the hearing,
the Commission heard compelling testimony from the people affected by this
policy. Although the policy has hurt Roland Pool and Michael Geller, it
has not just hurt them.
453. The policy hurt William Kirkner, a remarkable Scout and Scouter,
who even at the hearing could not contain his enthusiasm for the good parts
of the Boy Scouts' program, and learned of this policy of intolerance at
the exact moment when he was speaking about the Boy Scouts' powerful statements
against discrimination. For standing up for what he believed in, and being,
as every citizen should, a witness to what he saw, he was stripped of Scouting
responsibilities and ultimately led to resign.
454. The policy hurt Thornell Jones, who lost the services of both Roland
Pool and William Kirkner at a time when he desperately needed them to promote
the Boy Scout program in the District of Columbia. Tr. 1999-2002.
455. The policy hurt David Geller, who must reconcile the fact that
the organization in which he has invested 55 years has turned on his son.
It has also hurt Virginia Boyce Lind, who must reconcile the fact that
the organization her father founded did not let her son participate.
456. Most of all, however, the policy has hurt the Scouts themselves,
who lose the services and skills of talented and dedicated people like
Roland Pool and Michael Geller, and must reconcile themselves to being
part of an organization that earnestly preaches tolerance while practicing
457. In sum, each of the Boy Scouts' justifications for its discrimination
against gays can be shown to be the empty excuse it is. Mr. Geller and
Mr. Pool have been victims of the Boy Scouts' illegal discrimination and
are entitled to redress.
CONCLUSIONS OF LAW
I. THE BOY SCOUTS' DISCRIMINATION AGAINST ROLAND POOL AND MICHAEL GELLER
VIOLATES THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT
A. The District of Columbia Human Rights Act is Intended to be Aggressively
Applied to Eradicate Discrimination in the District of Columbia
1. The Boy Scouts discriminated against Roland Pool and Michael Geller on the
basis of their sexual orientation. In doing so, the Boy Scouts have violated
Mr. Pool's and Mr. Geller's rights under the District of Columbia Human Rights
Act, § 1-2501, et seq., ("DCHRA" or "Act").
2. The DCHRA was enacted to:
secure an end in the District of Columbia to discrimination for any
reason other than that of individual merit, including but not limited to,
discrimination by reason of race, color, religion, national origin, sex,
age, marital status, personal appearance, sexual orientation, family responsibilities,
matriculation, political affiliation, physical handicap, source of income
and place of residence or business.
DCHRA, § 1-2501. In enacting the DCHRA, the City Council intended
that it be construed broadly and enforced aggressively, because the eradication
of discrimination in the District is a goal of the "highest priority."
District of Columbia City Council, Committee Report of Bill 2-179, "The
Human Rights Act," at 1, 3 (July 5, 1977).
3. To achieve this goal, the Act proscribes discrimination based on
several suspect classifications -- including sexual orientation -- in a
variety of contexts, including a proscription against discrimination by
places of public accommodations. See DCHRA, § 1-2519. The DCHRA,
§ 1-2519 provides in part:
(a) General. It shall be an unlawful discriminatory practice
to do any of the following acts, wholly or partially for a discriminatory
reason based on the . . . sexual orientation . . . of any individual.
(1) To deny, directly or indirectly, any person the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and accommodations
of any place of public accommodations;
(2) To print, circulate, post, or mail, or otherwise, cause, directly or indirectly,
to be published a statement, advertisement, or sign which indicates that the
full and equal enjoyment of the goods, services, facilities, privileges, advantages,
and accommodations of a place of public accommodation will be unlawfully refused,
withheld from or denied an individual; or that an individual's patronage of,
or presence at, a place of public accommodation is objectionable, unwelcome,
unacceptable or undesirable. 4. The District of Columbia Court of Appeals has
noted that the City Council viewed the end of discrimination based on sexual
orientation as not merely a "compelling governmental interest," but an "interest
of the highest order." Gay Rights Coalition v. Georgetown Univ., 536
A.2d 1, 32 (D.C. 1987). Indeed, "[i]n the Council's view, all forms of discrimination
based on anything other than individual merit are equally injurious, to the
immediate victims and to society as a whole." Id.
B. Roland Pool and Michael Geller Easily Meet their Burden of Proof in Demonstrating
that the Boy Scouts have Discriminated Against them in Contravention
of the Act
5. "In analyzing discrimination cases brought under the District of Columbia
Human Rights Act, the Commission on Human Rights and the District of Columbia
Court of Appeals follow the legal framework set out by the United States Supreme
Court in reviewing cases under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq." In the Matter of Michael Lewis,
Esq. on behalf of Gregory Smith v. Dr. Richard S. Runkle, COHR Docket No.
92-154-PA(N) (Decided July 1, 1993), at 14 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)); RAP, Inc. v. District of Columbia
Commission on Human Rights, 485 A.2d 173, 176 (D.C. 1984); Greater Washington
Business Center v. District of Columbia Commission on Human Rights, 454
A.2d 1333, 1338 (D.C. 1982).
6. The Supreme Court's legal framework contemplates two "`different
evidentiary paths' available to a plaintiff seeking to prove the ultimate
issue of defendant's discriminatory intent." Randle v. Lasalle Telecommunications,
Inc., 876 F.2d 563, 569 (7th Cir. 1989) (quoting Terbovitz v. Fiscal
Court of Adair County, 825 F.2d 111, 115 (6th Cir. 1985), and Blalock
v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir. 1987), and citing
Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). A complainant
may attempt to prove that he was discriminated against through direct evidence
or through indirect evidence of discriminatory animus. The latter approach
has come to be known as the McDonnell Douglas "shifting burden"
analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
The "shifting burden" approach provides a formula which is meant to assist
the finder of fact in arriving at a conclusion as to whether a particular
action was motivated or influenced by a discriminatory factor. Id.
7. Where there is direct evidence of the discrimination, however, there
is no need to employ a shifting burden analysis. Price Waterhouse v.
Hopkins, 490 U.S. 228, 247 (1989). Indeed, as it is well recognized:
[W]here a plaintiff is able to prove through direct evidence that
the employment decision at issue was based upon an impermissible factor,
he or she has carried the initial burden of proof. At that point, the analysis
and burdens associated with the `pretext' inquiry outlined in McDonnell
Douglas . . . are irrelevant because plaintiff has directly proved
that the impermissible factors have come into play.
Randle, 876 F.2d at 568-69. See also, e.g., TWA v. Thurston,
469 U.S. 111, 121 (1985) ("the McDonnell Douglas test is inapplicable
where the plaintiff presents direct evidence of discrimination . . . the
shifting burdens of proof set forth in McDonnell Douglas are designed
to assure that `the plaintiff [has] his day in court despite the unavailability
of direct evidence'") (citations omitted); EEOC v. G-K-G, Inc.,
39 F.3d 740, 747 (7th Cir. 1994) (direct discrimination theory "d[oes]
not rely on McDonnell Douglas formula"); In the Matter of Richardson
v. Chicago Area Council Boy Scouts of America, No. 92-E-80 (Chicago
Comm'n on Human Rel'ns, Feb. 21, 1996) ("Richardson"), at 31-33.
8. As the Chicago Commission on Human Relations noted with respect to the Boy
Scouts' arguments in Richardson, "the instant case does not deal with
`presumptions' or inferences.' The Respondent's discriminatory motives are as
plain as day and are not denied." Richardson, at 33. The DCHRA bars discrimination
irrespective of what perception about homosexuals it is that leads the Boy Scouts
to discriminate and whether the perceptions the Boy Scouts claim to rely upon
turn out to be the real ones that motivated their undeniably discriminatory
conduct. As discussed above, Findings of Fact ¶¶ 76-399, and below,
Conclusions of Law ¶¶ 8-97, the various excuses offered by the Boy
Scouts for their policy are, in fact, pretextual. Where, as here, the discrimination
is undenied and clear, however, complainants do not have the burden of proving
that such excuses are pretextual in any event. EEOC v. G-K-G, Inc., 39
F.3d at 747.
C. The Boy Scouts are a Place of Public Accommodation Subject to the District
of Columbia Human Rights Act
9. The DCHRA makes it unlawful to discriminate against individuals on the basis
of sexual orientation by depriving them "full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of any place
of public accommodation." DCHRA, § 1-2519(a) (emphasis added). As found
in the Findings of Fact ¶¶ 4-75; 269-322, Roland Pool and Michael
Geller have undoubtedly been denied the "full and equal enjoyment of goods,
services, facilities, privileges, advantages, and accommodations." They have
been severed from an organization that is a major part of their lives, have
lost the opportunity to participate in its activities, to benefit from the training,
awards and connections it provides, and to enjoy the access it affords to camping
and other facilities.
10. DCHRA, § 1-2502(24) defines "place of public accommodation"
by illustration with an expansive list of examples:
`Place of public accommodation' means all places included in the meaning
of such terms as inns, taverns, road houses, hotels, motels, whether conducted
for the entertainment of transient guests or for the accommodation of those
seeking health, recreation or rest; restaurants or eating houses, or any
place where food is sold for consumption on the premises; buffets, saloons,
barrooms, or any store, park or enclosure where spirituous or malt liquors
are sold; ice cream parlors, confectioneries, soda fountains and all stores
where ice cream, ice and fruit preparation or their derivatives, or where
beverages of any kind are retailed for consumption on the premises; wholesale
and retail stores, and establishments dealing with goods or services of
any kind, including, but not limited to, the credit facilities thereof;
banks, savings and loan associations, establishments of mortgage bankers
and brokers, all other financial institutions, and credit information bureaus;
insurance companies and establishments of insurance policy brokers; dispensaries,
clinics, hospitals, bath-houses, swimming pools, laundries and all other
cleaning establishments; barber shops, beauty parlors, theaters, motion
picture houses, airdromes, roof gardens, music halls, race courses, skating
rinks, amusement and recreation parks, trailer camps, resort camps, fairs,
bowling alleys, golf courses, gymnasiums, shooting galleries, billiards
and pool parlors; garages, all public conveyances operated on land or water
or in the air, as well as the stations and terminals thereof; travel or
tour advisory services, agencies or bureaus; public halls and public elevators
of buildings and structures, occupied by 2 or more tenants, or by the owner
and 1 or more tenants. Such term shall not include any institution, club,
or place of accommodation which is in its nature distinctly private except,
that any such institution, club or place of accommodation shall be subject
to the provisions of § 1-2531. A place of accommodation, institution,
or club shall not be considered in its nature distinctly private if the
place of accommodation, institution or club:
(A) Has 350 or more members;
(B) Serves meals on a regular basis; and
(C) Regularly receives payment for dues, fees, use of space, facilities,
services, meals, or beverages directly or indirectly from or on behalf
of non-members for the furtherance of trade or business.
11. The last sentence of this definition was added by amendment, which
was enacted as Section 2 of the D.C. Law 7-50, 34 D.C.R. 6887, and became
effective December 10, 1987. The amendment, referred to as the "Cosmos
Club Amendment," evinces the intention of the City Council that the Act
be applied broadly to membership organizations.
12. In their Answer, the Boy Scouts concede that the NCAC and the BSA
"are each institutions, clubs or places of accommodation." Ex. C-1500,
Answer at 4, ¶ 2. See Memorandum of District of Columbia Corporation
Counsel, Charles Ruff, February 5, 1996 (hereafter "Ruff Memorandum") noting
that the Boy Scouts' admission to being a "place of public accommodation"
should be weighed as evidence. However, even had they not made this concession,
it would be clear that the Boy Scouts are a "place of public accommodation."
13. Section 1-2502(24) is intended to apply to "establishments dealing
with goods or services of any kind." Consistent with these words, membership
organizations that are much smaller and more private than the Boy Scout,
have been recognized as public accommodations under the Act. For instance,
in Gould v. Big Brothers of the Nat'l Capital Area, DN 89-026-P(CN),
the Office of Human Rights found that Big Brothers could not discriminate
against gays because, as a volunteer non-profit organization, Big Brothers
was subject to the jurisdiction of the Human Rights Act. The Office found
that Big Brothers a:
place , of public accommodation and not exempt from coverage of
the Human Rights Act -- and for good reason. By broadly prohibiting discrimination
in the District of Columbia, the Council through the Human Rights Act provided
protections for citizens from a number of serious social and personal harms.
Statement of Loretta S. Caldwell, Acting Director, District of Columbia
Office of Human Rights, Aug. 4, 1989 ("Statement of Loretta S. Caldwell").
See also Schwartz v. The Cosmos Club, DN 86-PA-428.
14. Similarly, in Dickerson v. D.C. Department of Human Services,
No. 89-465-PA(N) (Comm'n on Human Rights, May 23, 1991), the Commission
found the Department of Human Services to be "a place of public accommodation
under the Act."
Section 1-2502(24) of the Act states that a place of public accommodation
is an `establishment dealing with goods and services of any kind.' The
respondent is an agency of the District of Columbia Government, providing
various services to District residents including income maintenance in
the form of general public assistance, medicaid and food stamps.
15. The decision by the District of Columbia Court of Appeals in United
States Jaycees v. Bloomfield, 434 A.2d 1379 (1981), which arguably
applied a more restrictive definition to the term "place of public accommodation"
for purposes of a preliminary injunction motion, predated the so-called
"Cosmos Club Amendment." It also predated the decision in Cosmos Club
and Big Brothers, which are now the controlling administrative decisions.
See Jaycees, 434 A.2d at 1382 n.6. (noting that a court would
defer to the reasonable decision of the administrative agency charged with
enforcing discrimination law); Timus v. D.C. Dept. of Human Rights,
633 A.2d 751 (D.C. 1993) (administrative decisions entitled to deference).
Given this, the applicable law is that enunciated in Cosmos Club
and Big Brothers. See also Ruff Memorandum (the existing
record and legal standards will likely support a finding that the Boy Scouts
is a place of public accommodation). See also Dean v.
District of Columbia, 653 A.2d 307, 319 (D.C. 1995) (based upon amicus
brief by members of the Commission, court assumed, without formally deciding,
that the Marriage License Bureau is a place of public accommodation); Gay
Rights Coalition v. Georgetown Univ., supra (intent of DCHRA
necessitates broad interpretation). See also, e.g., U.S. Power
Squadrons v. State Human Rights Appeal Bd., 452 N.E.2d 1199, 1203-04
(N.Y. 1983) (finding that identical language in New York's public conveyance
law applied to a boating safety organization with 70,000 members nationwide);
Dale v. Boy Scouts of America, 706 A.2d 270, 277-83 (N.J. Super.
Ct. App. Div. 1998) (Boy Scouts are public accommodation within the meaning
of similar language in New Jersey law); Quinnipiac Council BSA v. Commission
on Human Rights and Opportunities, 528 A.2d 352, 387 (Conn. 1987) (Boy
Scouts are a public accommodation under Connecticut law).
16. There are cases that have found that the Boy Scouts do not fall
within the applicable definition of other statutes. In Curran v. Mount
Diablo Council of the Boy Scouts of America, 72 Cal. Rptr. 2d 410 (Cal.
1998), the court concluded, based upon an extensive analysis of its own
prior statutory interpretation and legislative history, that the Boy Scouts
were not within the ambit of a statute that protected against discrimination
in "business establishments of every kind whatsoever." 72 Cal. Rptr. 2d
at 420-31. See also Seabourn v. Coronado Area Council, Boy Scouts
of America, 891 P.2d 385, 392 (Kan. 1995) (statute that applies to
"places of business which are held open to the general public and where
members of the general public are invited to come for business purposes"
does not apply to the Boy Scouts). In Welsh v. Boy Scouts of America,
993 F.2d 1267 (7th Cir. 1993), cert. denied, 510 U.S. 1012 (1993),
the court concluded that the Boy Scouts were not included in a specific
list of "entities" identified in Title II of the Civil Rights Act of 1964,
42 U.S.C. § 2000a(b), "none of [which] remotely resembl[ing] a membership
organization." 993 F.2d at 1269. Specifically, the court found that the
Boy Scouts were not a "place of exhibition or entertainment" within the
meaning of that statute. Id.
17. In each of these instances, the respective courts reached their
determinations on different factual records. They also based their ruling
on statutory language that differs materially from the language at issue
in this case. Based on the record here, the Commission would find that
the Boy Scouts operate as a business establishment and as a place of exhibition
or entertainment in the District of Columbia. Indeed, the question of whether
the Boy Scouts are a "business establishment" was a matter of intense differences
of opinion among the lower courts of California before Curran was
decided, see Dale, 706 A.2d at 278-79 & n.2 (summarizing
the decisions), and the Welsh majority's interpretation of the language
of Title II was criticized in a persuasive dissent. 993 F.2d at 1278-84
(Cummings, J., dissenting). However, the Commission need not reach those
issues, because the DCHRA does not speak in terms of business establishments
or merely in terms of physical "places" at all. The DCHRA includes services
by public accommodations that are not necessarily limited to physical places,
such as "travel or tour advisory services," "credit facilities," "banks,
savings and loan associations, establishments of mortgage bankers and brokers,
all other financial institutions, and credit information bureaus," and
specifically references "institutions" and "clubs" as being within its
ambit. These differences in language cannot simply be assumed to be meaningless.
See Dale, 706 A.2d at 278-79 (distinguishing the New Jersey
statute from the statutes at issue in Curran, Seabourn and
18. In any event, even a reading that ignored language in the DCHRA -- one
that limited the Act to its specific examples and overlooked both the words
"goods or services of any kind," § 1-2502(24), and the references to "institutions"
and "clubs" -- would still include the Boy Scouts. As discussed in the Findings
of Fact ¶¶ 269-322, the Boy Scouts are not merely an organization
that accommodates the public, they also hold the keys to a vast array of physical
facilities in and out of the District of Columbia, including, of course, "resort
camps" with "swimming pools." § 1-2502(24). And, irrespective of whether
the facility is a day camp the Boy Scouts operate, or a school, or public building,
or banquet hall, or meeting facility or Bolling AFB they are using in the District
of Columbia, or a camping facility like Goshen or Philmont outside of the District
of Columbia, the Boy Scouts would be liable under the Act for denying access
to these facilities. See, e.g., Matthews v. Automated Business Systems
& Services, Inc., 558 A.2d 1175, 1180 (D.C. 1989) (DCHRA prevents discrimination
in the District of Columbia with respect to opportunities outside of the District);
Green v. Kinney Shoe Corp., 704 F. Supp. 259 (D.D.C. 1988) (decision
to discriminate in the District violates DCHRA even if the decision is made
D. The Record Does Not Support the Boy Scouts' Claim That They Are a "Distinctly
19. Although admitting that they are a "place of public accommodation," the
Boy Scouts nonetheless maintain that they "are in their nature distinctly private."
The evidence however, demonstrates that the Boy Scouts are about the least "distinctly
private" organization that can be imagined.
1. The "distinctly private" exemption is extremely narrow and does not
apply to the Boy Scouts
20. The exception under the Act for "distinctly private" organizations is exceedingly
narrow. As the Office of Human Rights recognized in Cosmos Club:
It must be remembered that the Act does not refer simply to private clubs or
establishments closed to the public but uses more restrictive language excluding
from the statute's provisions only clubs which are `distinctly private.'
Thus, the qualifier `distinctly' is significant. It evinces an intent
and desire on the part of the Council of the District of Columbia that
the exemption ... not be applied to just any association calling itself
private, but carefully applied only to those associations which are distinctly
private. The Office, therefore, construes the exemption narrowly to promote
the clear intent of the Council of the District of Columbia.
Schwartz v. Cosmos Club, at 12 (emphasis in original). Based on
this, the Office of Human Rights rejected the contention of the Cosmos
Club -- a club much smaller than the Boy Scouts -- that it was a "distinctly
private" club within the meaning of the Act. Id.
21. Courts construing statutes similar to the DCHRA have likewise concluded
that membership organizations much smaller than the Boy Scouts are public
accommodations and are not "distinctly private." For instance, in Power
Squadrons, the New York Court of Appeals interpreted an essentially
identical statute that may well have been the statute upon which the District
of Columbia based its wording, and found that United States Power Squadrons
("Power Squadrons"), a nonprofit membership organization that promoted
safety and skill in boating, was a "public accommodation, and was not "distinctly
private" under the New York Human Rights Law. Power Squadrons, 452
N.E.2d at 1203-05. See also Brounstein v. American Cat Fanciers
Ass'n, 839 F. Supp. 1100, 1107 & n.7 (D.N.J. 1993); New York
State Club Ass'n v. City of New York, 505 N.E.2d 915, 919 (N.Y. 1987)
("the State Legislature's very use of the adverb `distinctly' in its own
statutory exemption for private clubs indicates a concerted attempt to
narrow its application"), aff'd, 487 U.S. 1 (1988).
22. The United States Supreme Court has also noted the application of
state civil rights statutes to membership organizations such as the Boy
Scouts. See Board of Directors of Rotary Int'l v. Rotary Club
of Duarte, 481 U.S. 537 (1987); Roberts v. United States Jaycees,
468 U.S. 609 (1984). "This expansive definition [of public accommodation]
reflects a recognition of the changing nature of the American economy and
of the importance, both to the individual and to society, of removing barriers
to economic advancement and political and social integration that have
historically plagued certain disadvantaged groups . . . ." Id. at
626 (citations omitted).
23. In assessing whether the Boy Scouts are "distinctly private," the Commission
must consider the factors that it and the courts have identified as determinative
in assessing whether an entity is "distinctly private": (1) the genuine selectivity
of the group in its admission of its members; (2) whether the organization advertises
for members; (3) the purpose of the club's existence; (4) the history of the
organization; (5) the commercial nature of the organization; (6) the use of
organization facilities by nonmembers; and (7) the use of public facilities
by the organization. See Schwartz v. The Cosmos Club, DN 86-PA-428;
Power Squadrons, 452 N.E.2d at 1204-05; Roberts, 468 U.S. 609
(1984). Each of these factors militates against a finding that the Boy Scouts
are "distinctly private."
2. The Boy Scouts' nonselectivity in admitting members demonstrates that
they are not "distinctly private"
24. The most important factor in assessing whether an organization is "distinctly
private," as recognized by the United States Supreme Court in Roberts,
468 U.S. at 621-22, and by the Office of Human Rights in Cosmos Club
at 17, is its selectivity in admitting members. Selectivity is evaluated in
light of an organization's size, whether it imposes any upper limit on its total
number of members, criteria for membership, and how the membership is selected.
See e.g., Cosmos Club at 13-14. See also, Power Squadrons,
452 N.E.2d at 1204 ("The essence of a private club is selectivity in membership
. . . . Organizations which routinely accept applicants and place no subjective
limits on the number of persons eligible for membership are not private clubs.");
National Organization for Women, Essex Ch. v. Little League Baseball, Inc.,
318 A.2d 33, 37 (N.J. Super. App. Div.) (finding that the hallmark of a public
accommodation is the invitation to the public to join), aff'd, 338 A.2d
198 (N.J. 1974); Rogers v. International Ass'n of Lions Club, 636 F.
Supp. 1476 (E.D. Mich. 1986). Complainants have clearly demonstrated the Boy
Scouts' nonselectivity in admitting members.
25. To be protected, an organization must have a "plan and purpose of
exclusiveness." Ruff Memorandum, at 17 (citing Sullivan v. Little
Hunting Park, 396 U.S. 229, 236 (1969). For this reason, "large clubs
do not lend themselves to, and cannot foster the kind and nature of intimate
and personal relationships between members worthy of legal protections
restricting governmental interference." Cosmos Club, at 13. Not
only are the Boy Scouts large, they proudly acknowledge that they are "the
largest youth movement the world has ever seen." See e.g., Ex. C719
at 52. Since its founding in 1910, the Boy Scouts have had over 93 million
members. Ex. C1122 at NCAC4881. The Boy Scouts' size alone "belies [their]
contention . . . that the formal selection criteria operate to exclude
numerous applicants." Ruff Memorandum, at 18.
26. Rather than operating with a plan of exclusivity, the record demonstrates
that the Boy Scouts operate with an ethos of inclusiveness. Findings of
Fact ¶¶ 76-457. They believe that "Scouting must be shared with
as many young people as possible," and increasing the number and diversity
of the members of Scouting is a primary objective of the organization.
The Boy Scouts' emphasis on inclusiveness, and lack of any upper limits
on membership, stands in stark contrast to their claim that they are "distinctly
27. The Boy Scouts also lack any subjective membership criteria that would
demonstrate selectivity in membership decisions. As noted in Cosmos Club:
the distinctly private club envisions personal and close relationships and interaction
between its members; or the sharing of philosophies, views, or convictions among
its members...The selection criteria are almost always subjective, as opposed
to objective. . . . They generally screen very carefully, and make inquiries
calculated to determine if the prospective member will "fit in" from both an
intimate and personal standpoint, as well as from the standpoint of philosophies,
views, and convictions. Cosmos Club, at 17. As the record makes plain,
Findings of Fact ¶¶ 4-457, the Boy Scouts are open to all age-eligible
boys who swear allegiance to the Scout Oath and Law. No subjective criteria
are used nor is any investigation into the background of an applicant undertaken.
If a potential member meets these objective criteria, he will generally be admitted,
regardless of his other "philosophies, views, and convictions." Cosmos Club,
at 18. This lack of attention to potential members' personal attributes "detracts
markedly from [the Boy Scouts'] contention that it is a distinctly private club."
Cosmos Club, 18-19. See also, Power Squadron, 452 N.E.2d
at 1205 ("A purely private club does more to make certain that desirables are
admitted than simply exclude persons believed to be undesirable . . . ."); Rogers
v. International Ass'n of Lions Clubs, 636 F. Supp. 1476, 1481 (E.D. Mich.
1986) (a club is not private simply because it may potentially exclude some
3. The Boy Scouts' intensive promotional efforts belie the contention that
they are a "distinctly private" organization
28. Another consideration in the determination of whether an organization
is "distinctly private" is the extent to which the organization in question
promotes itself to the general public for purposes of increasing membership.
See e.g., Power Squadrons, 452 N.E.2d at 1204. Again in this regard,
the evidence is uncontrovertible and stands in stark contrast to any claim by
Respondents that they are "distinctly private."
29. As demonstrated in the Findings of Fact, ¶¶ 269-322, the
BSA and its councils engage in extensive and systematic public relations
campaigns to bring the Scouting message to as wide an audience as possible.
The BSA, an intensely media-conscious organization, not only retains a
public relations firm to promote the image of Scouting, but staffs an External
Communications office at its national headquarters to deal with the Boy
Scouts' public relations. The NCAC also promotes itself extensively --
sponsoring high-profile events like the biennial Extravaganza on the Mall
and intensive recruitment programs in area schools -- so as to increase
the awareness of Scouting in the community and boost membership.
30. Indeed, the Boy Scouts cast as wide a net as possible in which to gather
new members and public support, a characteristic not readily found in clubs
that are "distinctly private." See Ruff Memorandum at 18 (noting
that the Boy Scouts' extensive use of media for recruitment purposes militates
against a finding that they are "distinctly private").
4. The purposes which brought the Boy Scouts together preclude a finding
that the organization is "distinctly private"
31. Another factor to be considered in determining whether an organization
is "distinctly private" is whether the purpose of the organization is to promote
the personal relationship of its members, as opposed to providing general information,
instruction or promoting civic causes. See Cosmos Club, at 15.
An organization with a general and broad purpose that requires no exclusivity
to achieve its ends tends to demonstrate that the organization is not "distinctly
private." See e.g., Rogers, 636 F. Supp. at 1480 (community service
organization did not have the exclusivity of purpose to warrant a finding that
it was "distinctly private").
32. In considering this criterion, in Cosmos Club, the Office of Human
Rights observed that the Cosmos Club's purpose -- "the advancement of its members
in science, literature, and art, (and) their mutual improvement in social intercourse
. . ." -- was "broad, somewhat universal, and gives no indication of exclusivity."
Cosmos Club, at 15. Based on this finding, the Office determined that
the admission of women would not adversely affect the organization's purposes.
Id. The purpose of Scouting, like that of the Cosmos Club, lacks any
indication of exclusivity. The purpose of Scouting, as set forth in the BSA's
charter, is to promote "the ability of boys to do things for themselves and
others, to train them in Scoutcraft, and to teach them patriotism, courage,
self-reliance, and kindred virtues," Ex. C1300 at NCAC102; Ex. C1302 at NCAC2238.
As one witness testified, Scouting is about "knots and hiking safety and feeding
the poor . . ." Tr. 2366 (Wetzel). The Boy Scouts' general purpose, then, militates
against a finding that the organization is "distinctly private."
5. The Boy Scouts' connection with nonmembers and public facilities weakens
their argument that they are "distinctly private"
33. Another indication that an organization is not "distinctly private" is
its relationship with the public and its use of public facilities. See e.g.,
Roberts, 468 U.S. 609, 622 (1984); Power Squadrons, 452 N.E.2d
at 1205; Rogers, 636 F. Supp. at 1480. As the record demonstrates, the
Boy Scouts have virtually unparalleled contacts with the general public and
with government and government facilities that are not "wholly consonant with
their claim to be distinctly private." Power Squadron, 452 N.E.2d at
34. Indeed, "we cannot ignore the BSA's historic partnership with various
public entities and public service organizations." Dale, 706 A.2d
at 282. The Boy Scouts, which was issued a Congressional Charter in 1916,
have relationships with over 75 community organizations including public
schools, churches, labor unions, law enforcement agencies, fire departments,
and other community service organizations. The United States Army, Navy,
Air Force and National Guard have long provided the Boy Scouts with services
and facilities; in fact, Congress has even passed legislation to ensure
that the Boy Scouts receive certain assistance from the military.
35. As the record shows, the Boy Scouts hold meetings and activities
in places that are open to the public such as parks and public schools;
indeed, public schools comprise the single largest sponsor of units. The
BSA's "Learning for Life" program has also been introduced into many public
school classrooms throughout the country.
36. There is ample evidence that the Boy Scouts likewise go to great
efforts to involve public officials and other prominent members of the
community in their activities. Complainants have also shown that the Boy
Scouts provide non-members with access to organization facilities and derive
substantial revenues for their use. See Cosmos Club, at 20
(use of an organization's services and facilities by nonmembers weighs
against finding that an organization is "distinctly private").
37. The Boy Scouts' relationships with the public, their use of public
facilities, and the advantages they receives from government all "underscore
the BSA's fundamental public character." Dale, 706 A.2d at 283.
II. THE DCHRA DOES NOT INFRINGE ON THE BOY SCOUTS' RIGHTS OF ASSOCIATION
38. The Boy Scouts assert an affirmative defense that it violates their
members' constitutional rights of free association for the District of
Columbia to prohibit their discrimination against homosexuals. This defense
is wholly unsupported by the record and has no merit.
39. The extent to which parties may use a purported constitutional right
of association to justify discrimination is limited:
[T]he Constitution... places no value on discrimination, and while
[i]nvidious private discrimination may be characterized as a form of exercising
freedom of association protected by the First Amendment . . . it has never
been accorded affirmative constitutional protections.
Runyon v. McCrary, 427 U.S. 160, 176 (1975). Accord Hishon
v. King & Spalding, 467 U.S. 69, 78 (1984); Norwood v. Harrison,
413 U.S. 455, 470 (1973).
40. "The federal constitution does not expressly recognize the right
to freedom of association." Dale, 706 A.2d at 285. Rather, this
right is "inferred from other rights and protections guaranteed by the
constitution," specifically the First Amendment freedoms of speech and
peaceable assembly. Id.; NAACP v. Alabama, 357 U.S. 449,
41. In Roberts and its progeny, the Supreme Court considered how this
inferred right of association applied to public accommodations statutes. There,
the court noted that the First Amendment protects freedom of association "in
two distinct senses: freedom of intimate association, and freedom of expressive
association." Dale, 706 A.2d at 285 (citing Roberts, 468 U.S.
A. The Exclusion of Homosexuals is a Discriminatory Practice That Cannot
be Protected on the Basis of Pretextual Claims to Freedom of "Intimate Association"
42. The Boy Scouts have not contended that their exclusion of homosexuals is
entitled to protection under the First Amendment right of intimate association,
and there is no justification for such a finding. "Freedom of intimate association
shields against unjust governmental intrusion into individual's choice to maintain
intimate or private associations with others." Dale, 706 A.2d at 285-286
(citing Roberts, 468 U.S. at 618-19). Family relationships best exemplify
the type of intimate associations deserving such protection. Roberts,
468 U.S. at 619. This protection applies only to groups of "relative smallness"
with a "high degree of selectivity in decisions to begin and maintain affiliation"
and seclusion from others. Id. at 620.
43. The Supreme Court has held that the protection of intimate relationships
does not apply to large organizations like the Jaycees and the Rotary Club.
Roberts, 468 U.S. at 620; Rotary Club, 481 U.S. at 545-46.
So too, the "[Boy Scouts] lack the distinctive qualities that might afford
constitutional protections [for intimate associations]." Dale, 706
A.2d at 286. Indeed, contrary to a situation where a small group is deciding
with whom to associate, this is a situation where a national organization
is dictating national policy to those at the council and troop level. As
established in the Findings of Fact, even where councils and troops disagree
with the national policy of excluding homosexuals, even where they might
want to be open to homosexuals, they are proscribed from doing so by the
national organization. As BSA former President Richard Leet declared, "[y]ou
know, a Troop is not an organization that is part of a policymaking chain."
The Boy Scouts Office in Irving, Texas cannot direct over five million members
on a nationwide basis not to associate with people whom they otherwise would
welcome into their troops and then assert that these members' rights of intimate
association would be violated by lifting the restriction.
B. An "Expressive Association" Defense is Unsupported by the Facts.
44. "Freedom of expressive association is a correlative right to an individual's
freedom to speak." Dale, 706 A.2d at 286 (citing Roberts, 468
U.S. at 622). It protects association where, and to the extent that, the association
is "in pursuit of" one of the "wide variety of political, social, economic,
educational, religious and cultural ends" that "brought them together." Roberts,
468 U.S. at 622, 623.
45. The right of expressive association is, by its nature, limited.
Respondents are not permitted to escape anti-discrimination laws merely
by having their leadership announce a wish (even an earnest one) to discriminate.
"By adopting this reasoning we would expand the definition of speech well
beyond the communication of ideas, allowing litigants to eviscerate civil
rights statutes, as well as other government regulations, by claiming that
a [membership] decision equates to speech." Richardson, at 73; Dale,
706 A.2d at 287.
46. Moreover, the fact that an association can have expressive purposes
does not mean either that everything done by those who have associated
is expressive, or that any particular expression reflects the purpose that
brought them together. "Generally speaking, `[o]vertly political organizations
[or organizations formed to advance gender or race based interests] are
the ones most likely to demonstrate successfully a genuine relationship
between their discriminatory practices and their objectives.'" Dale,
706 A.2d at 286 (citation omitted). The Ku Klux Klan fits that description
perfectly. See Invisible Empire of the Knights of the Ku Klux
Klan v. Mayor of Thurmont, 700 F. Supp. 281, 288-89 (D. Md. 1988) ("If
ever there were a case where the membership and the message were coextensive,
it is here. . . ."). The Boy Scouts do not.
47. In a trilogy of cases, Roberts, 468 U.S. 609 (1984); Rotary
Club, 481 U.S. 537 (1987); and New York State Club Ass'n v. New
York, 487 U.S. 1 (1988), the Supreme Court described the method courts
are to use to differentiate between the circumstances in which laws against
discrimination impinge on the genuine expressive purposes of organizations
from those in which they do not.
48. In Roberts, the Supreme Court upheld the application of Minnesota's
Human Rights Act, which prohibits discrimination in places of public accommodation,
to compel the Jaycees to admit women. The Court found that, although the
Jaycees engaged in a "not insubstantial" amount of expressive activities,
they failed to demonstrate that the anti-discrimination statute at issue
"impose[d] any serious burdens on the male members' freedom of association."
Roberts, 468 U.S. at 626. The Court also declared that the State's
goal of "eliminating and assuring its citizens equal access to publicly
available goods and services . . . plainly serves compelling state interests
of the highest order," id. at 624, and further pronounced that any
infringement by Minnesota of the Jaycees' freedom of expressive association
was no greater than necessary to accomplish the State's legitimate purpose.
Id. at 628-29.
49. The Supreme Court reaffirmed this position in Rotary Club,
in which the Court upheld the application of an anti-discrimination law
to the Rotary Club. Using the test formulated in Roberts, the Court
determined that "admitting women to Rotary Clubs will [not] affect in any
significant way the existing members' ability to carry out their various
purposes." Rotary Club, 481 U.S. at 548. The Court further held
that even if the anti-discrimination statute infringed "on Rotary members'
right of expressive association, that infringement is justified because
it serves the State's compelling interest in eliminating discrimination
against women." Id. at 549.
50. In New York State Club, the Court upheld a New York City
anti-discrimination law designed to end discriminatory membership practices
in certain private clubs with 400 or more members. The Court held that
the right of expressive association is not restricted by an anti-discrimination
statute unless application of the law requires membership organizations
"to abandon or alter" activities that are protected by the First Amendment,
or otherwise affects "`in any significant way' the ability of individuals
to form associations that will advocate public or private viewpoints."
New York State Club, 487 U.S. at 13 (citing Rotary Club,
481 U.S. at 548). By broadening the reach of Roberts and Rotary
Club to include clubs that are smaller, more selective, and more business-oriented
than the Jaycees and the Rotary Club, the Supreme Court further limited
the ability of private membership organizations to assert their associational
rights as a defense for unlawful discrimination.
51. Through these cases, the Supreme Court articulated a three-step
analysis to determine whether a claimed right of expressive association
can be used to avoid the need to comply with a public accommodations law.
Under this line of cases, the first step of the analysis is to identify
the "specific expressive purposes" for which an organization is established.
Roberts, 468 U.S. at 626-27; Rotary Club, 481 U.S. at 548
(examination of association's "positions" on issues and "basic goals");
and New York State Club, 487 U.S. at 14.
52. Second, a court must identify whether enforcement of a given anti-discrimination
statute "will affect in any significant way the existing members' ability
to carry out their various purposes." Rotary Club, 481 U.S. at 548.
See also Roberts, 468 U.S. at 627 (issue is whether application
of anti-discrimination statute "imposes any serious burdens" on freedom
of expressive association); New York State Club, 487 U.S. at 13
(organization must show that "it will not be able to advocate its desired
viewpoints nearly as effectively if it cannot confine its membership" to
individuals sharing the same trait).
53. Finally, even if the anti-discrimination law infringes on an organization's
right of expressive association, the government's action may still be appropriate.
According to the Court:
Infringement on that right [of expressive association] may be justified
by regulations adopted to serve compelling state interests, unrelated to
the suppression of ideas, that cannot be achieved through means significantly
less restrictive of associational freedoms.
Roberts, 468 U.S. at 623.
54. The Boy Scouts' claim of infringement of expressive association survives
none of these three steps.
1. Exclusion of homosexuals is a discriminatory policy of the Boy Scouts'
leadership and is not an expressive goal of the organization
55. In examining the Boy Scouts' expressive goals, several principles bear
special mention. The Supreme Court has required that the claim of an expressive
interest in discriminating be real. "[T]he organization or club asserting the
freedom has a substantial burden of demonstrating a strong relationship between
its expressive activities and its discriminatory practice. Any lesser showing
invites scuttling of the state's anti-discrimination laws based on pretextual
expressive claims." Dale, 706 A.2d at 287 (citing Sally Frank, The Key
to Unlocking the Clubhouse Door: The Application of Anti-Discrimination Law
to Quasi-Public Clubs, 2 Mich. J. Gender & Law, 27, 63 (1994)).
56. Also the Supreme Court has held that a constitutional claim to a
right of "expressive association" applies to "only those views that brought
[the members] together." Roberts, 468 U.S. at 623. See also
Rotary Club, 481 U.S. 537; New York State Club, 487 U.S.
1. The First Amendment right of expressive association does not protect
an association's discriminatory conduct in accordance with views that some
members coincidentally share. See Brown v. Dade Christian Schools,
Inc., 556 F.2d 310, 312 (5th Cir. 1977), cert. denied, 434 U.S.
1063 (1978). Instead, the Commission must look for evidence demonstrating
whether the interest at issue -- in this case, condemnation of homosexuality
-- is a goal or philosophy of Scouting and whether it is expressed as one
of Scouting's goals. See Roberts, 468 U.S. at 612, 614, 626;
Rotary Club, 481 U.S. at 548-49; New York State Club, 487
U.S. at 1; Dale, 706 A.2d at 287-91.
57. The record in this matter, which is extensive, demonstrates that
this is not a situation where a group's "specific expressive purpose" is
in conflict with the requirements of an anti-discrimination law." See
New York State Club, 487 U.S. at 13. The record includes thousands
of pages of Scouting manuals, recruiting materials, and correspondence.
It also includes the testimony of numerous witnesses -- on behalf of Complainants
and Respondents -- who have devoted many years, if not lifetimes, to Scouting.
As this extensive record reveals, members of Scouting do not associate
for purposes of advocating a moral position on homosexuality. Condemnation
of homosexuality is not an expressive goal of the organization. In fact,
the issue of homosexuality is not addressed as part of the Scouting program
58. As noted in the Findings of Fact, ¶¶ 195-268, not a single
witness testified that as part of his Scouting experience, he was taught
that homosexuality was wrong or immoral. In contrast, numerous witnesses
-- including those appearing on behalf of Respondents -- testified that
the issue of sexual orientation was never mentioned throughout their Scouting
experience -- not in weekly Scout meetings, Jamborees, Camporees or other
59. The evidence also demonstrated that potential members are never
informed that condemnation of homosexuality is a fundamental goal or value
of the organization. The Boy Scouts' recruitment literature makes no mention
of sexual orientation. Scouting's membership applications are similarly
silent, even as they identify other values that are important to Scouting,
such as a belief in and recognition of a duty to God. The Boy Scouts also
refrain from bringing out their policy of excluding gays at recruitment
functions, such as the NCAC's "Join Scouting Night." It defies logic to
think that opposition to homosexuality can be an expressive goal of the
Boy Scouts when recruits are not even told about this policy.
60. Also significant is the fact that nowhere in Scouting's vast library
of generally distributed publications is the condemnation of homosexuality
identified as an expressed goal of the Boy Scouts or a value to be instilled
in youth. In its more than 80-year history, the Boy Scouts have gone through
ten different versions of the Boy Scout Handbook. Nowhere in any
of these editions is there any mention of the morality of homosexuality.
The Boy Scouts' Charters, Mission Statements, By-Laws and Annual Reports
are also silent on the issue of homosexuality. What these documents make
clear is that a particular moral position on homosexuality is not what
"brought [the original members] together," Roberts, 468 U.S. at
623; Dale, 706 A.2d at 288. Rather, the Boy Scouts were formed for
the "train[ing] [of youth] in Scoutcraft, and to teach them patriotism,
courage, self-reliance and kindred virtues," see e.g., Ex. C1300
at NCAC102; Ex. C1302 at NCAC2238. Cf. Brown, 556 F.2d at
312 ("the absence of references to school segregation in written literature
stating the church's beliefs, distributed to members of the church and
the public by leaders of the church and administrators of the school, is
strong evidence that school segregation is not the exercise of [the church's]
61. The few Boy Scouts' documents that do mention sex and sexuality
advise leaders that they are not to "instruct Scouts in any formalized
matter in the subject of sex and family life. The reasons are that it is
not construed to be Scouting's responsibility . . ." Ex. C727 at NCAC6934.
These documents also advise Scout leaders that when issues of sex and sexuality
do arise, the leaders must direct Scouts to consult with their family,
religious leaders, doctors or other professionals.
62. Prior to 1991, the Boy Scouts' expression of opposition to homosexuality
came in the form of two internal memoranda, dated February 13, 1978 and
March 17, 1978 respectively, which were distributed exclusively to BSA
Scout Executives. Since 1991, the Boy Scouts have produced several position
statements purporting to clarify the Boy Scouts' position on homosexuality.
As demonstrated in the Findings of Fact, ¶¶ 76-268; 323-457,
these documents fail to articulate clearly the nature of the Boy Scouts'
position on homosexuals, much less demonstrate that members of Scouting
have come together for over eight decades for the express purpose of expressing
that view. Even without the benefit of all the conflicting testimony about
what these statements mean, the Dale court concluded that, "[w]e
cannot accept the proposition that this `Position Statement,' issued for
the first time seventy-six years after Congress granted the BSA its Charter,
represents a collective `expression' of ideals and beliefs that brought
the Boy Scouts together." Dale, 706 A.2d at 290; see also
id. (noting that, given the timing of these statements, it is "not
unrealistic to view these `Position Statements' as a litigation stance
taken by the BSA rather than an expression of a fundamental belief concerning
its purposes"). We agree.
63. The Boy Scouts unsuccessfully argue that the Scout Oath and Law
have always stood for traditional values of heterosexuality. In making
this argument the Boy Scouts rely on the use of the term "morally straight"
in the Scout Oath and the term "clean" in the Scout Law. However, the record
demonstrates that within Scouting, there is no universally understood definition
of "morally straight" and "clean." Numerous witnesses, with years of Scouting
experience, testified that they never understood the terms "morally straight"
and "clean" to refer to heterosexuality. To the extent that other witnesses
think otherwise, it is clear that they come to this understanding not through
Scouting, but through personal experiences, values and religious training.
Indeed, The Boy Scout Handbook, where the definitions of these terms
are set out at length, does not even hint that the terms refer to sexual
orientation. See Dale, 706 A.2d at 290.
64. The testimony from various religious leaders revealed a lack of
consensus among religious organizations on the morality of homosexuality.
Many of the Boy Scouts' sponsoring organizations -- both religious and
secular -- have policies totally at odds with the Boy Scouts' exclusion
of homosexuals. Respondents' acceptance of sponsors with positions totally
opposed to that of the Boy Scouts belies their contention that the policy
is justified by the purported right of Scouting's members to associate
with only those who share their views on homosexuality. See Dale,
706 A.2d at 291 (it is "clear" the BSA's exclusion of homosexuals "is employed
without regard for the diverse ideological differences among the religious
groups and institutions and other groups who support the BSA's ideals and
65. Moreover, the Boy Scouts have vacillated on the content of their
purportedly deeply-held expressive purposes -- announcing one day that
they think all homosexual conduct is immoral, see Findings of Fact
¶¶ 76-457; on another that it is only "known or avowed" homosexuals
who are really of any concern, see Findings of Fact ¶¶
76-457; on a third day that this can all be found in an oath and law that,
on its face, preaches nothing of the sort, see Findings of Fact
¶¶ 76-457; on a fourth that it is really based in some notion
of "traditional family values," which is found in no written material whatsoever,
see Findings of Fact ¶¶ 76-457; and, on a fifth that it
is really based in role models, who although perfectly acceptable for some
programs teaching organizational values, represent some incredible danger
for others. See Findings of Fact ¶¶ 76-457. Such pronouncements,
unrooted in organizational literature, or solicitation or instruction,
are statements of convenience designed to create arguments for lawsuits,
not expressive purposes for which people can be said to have joined the
66. The Commission finds itself fully in accord with the conclusions reached
by the Chicago Commission on Human Relations in Richardson that there
is "no evidence that opposition to homosexuality was an expressive goal, significant
or otherwise, of Scouting." Richardson, at 59. Respondents' claim that
opposition to homosexuality is a shared goal of the members of Scouting is totally
unsupported by the record in this case. Indeed, it is nothing more than a pretextual
claim asserted as a defense to invidious discrimination.
2. Enforcement of the Act would not substantially burden the Boy Scouts'
67. Even if the Boy Scouts could demonstrate that Scouting is an association
whose members have joined together for the purpose of expressing moral opposition
to homosexuality, there is no evidence that Roland Pool's and Michael Geller's
membership in Scouting would impose "serious burdens," Roberts, 468 U.S.
627, and "affect in [a] significant way," Rotary Club, 481 U.S. at 548,
the ability of other members to express those views. Like the Jaycees, the Rotary
Club, and the New York State Club Association, the Boy Scouts cannot meet this
68. The DCHRA, like the statute in Roberts, "imposes no restrictions
on the organization's ability to exclude individuals with ideologies or
philosophies different from those of its existing members." Roberts,
468 U.S. at 627. Rather, the DCHRA "prevents an association from using
race, sex, [sexual orientation] and other specified characteristics as
short-hand measures in place of what the [state] considers to be more legitimate
criteria for determining membership." New York State Club, 487 U.S.
69. The Supreme Court's reference to "short-hand measures" is extremely
significant. Even if one were to accept, notwithstanding the overwhelming
contrary evidence, that the Boy Scouts' members joined together for the
purpose of expressing the view that homosexual conduct is wrong, the Boy
Scouts would still have to demonstrate -- through real evidence, not
the "short-hand measures" of stereotypes -- that compliance with the DCHRA
imposed "serious burdens" on their ability to express that message. See
Dale, 706 A.2d at 289.
70. Here, however, stereotypes is all that the Boy Scouts do present.
The Boy Scouts' basic premise is that, if one is a homosexual (or at least
owns up to being a homosexual), that makes someone an advocate. The only
way the Boy Scouts can support their status-based ban is to presume, irrebuttably,
that everyone who shares a particular sexual orientation -- whether the
former head of Queer Nation or a Catholic priest -- (1) has an agenda of
promoting homosexuality as some kind of appropriate "lifestyle," and (2)
will use his or her position in the Boy Scouts to promote that agenda.
71. As discussed in the Findings of Fact, ¶¶ 76-268, it is
clear that the Boy Scouts do not actually believe this argument. They,
themselves, are not concerned about this supposed agenda in the Learning
for Life program or career-exploring or mentoring. The Boy Scouts also
readily retain heterosexuals and sponsors who admit to having alternative
agendas, including acceptance of gays, or promotion of particular religions
or political viewpoints, without any presumption that they will use their
position in the Boy Scouts as a bully pulpit for an alternate agenda.
72. But even if the Boy Scouts did believe the argument that all homosexuals
are uncontrollable advocates, they still would not have the right to insist
that the Commission agree with it. Someone who believes that all members
of a minority group are dishonest has no right to use that stereotypical
belief as the justification for discrimination:
Roberts cautions that, in examining an association's freedom
of expressive association claim, `legal decision making that relies uncritically
on such [unproven] assumptions' must be condemned. . . . Such assumptions,
predicated on stereotypical generalizations, rather than fact, cannot be
employed as `shorthand measures' in place of legitimate factors justifying
First Amendment protection."
Dale, 706 A.2d at 289 (quoting Roberts, 468 U.S. at 628 and
New York State Club, 487 U.S. at 13).
73. Accordingly, in this case, the Boy Scouts' contention that requiring
them to follow the DCHRA would impose a "serious burden" on their expressive
association is unproven in all senses of the term. Not only have the Boy
Scouts failed to show that they have the relevant expressive association,
or that, even assuming that association existed, they have any justification
for the status-based exclusion of homosexuality, they have failed to show
that any such justification has a basis in fact. There is no evidence upon
which to conclude that all homosexuals are advocates or that all homosexuals
lack an ability to determine when it is appropriate to advocate those views
that they hold.
74. Thus, as both the Dale court, 706 A.2d at 288-89, and the Richardson
tribunal, Richardson, at 59-60, concluded, we find that Respondents presented
no evidence that requiring them to comply with the DCHRA would impose a "serious
burden" on or affect in a "significant way" the ability of the members of Scouting
to conduct their activities. There is no evidence that, if the Boy Scouts were
required to admit homosexuals, they would have to alter or modify their activities
3. The District of Columbia has a compelling interest in eradicating discrimination
that justifies enforcement of the DCHRA
75. Even had there been evidence that the condemnation of homosexuality is
an expressive purpose of the Boy Scouts, and that requiring them to admit homosexuals
as members would impede their ability to carry out those purposes, the District
of Columbia would be justified in enforcing the DCHRA because the Act serves
"compelling state interests, unrelated to the suppression of ideas, that cannot
be achieved through means significantly less restrictive of associational freedoms."
Roberts, 468 U.S. at 623. See also Rotary Club, 481 U.S.
76. As the Supreme Court held in Roberts, public accommodation
laws protect individuals from "a number of serious social and personal
harms," Roberts, 468 U.S. at 625, and reflect the state's "strong
historical commitment to eliminating discrimination and assuring its citizens
equal access to publicly available goods and services. That goal, which
is unrelated to the suppression of expression, plainly serves a compelling
state interest of the highest order." Id. at 624. And it is clearly
established that the DCHRA serves the same compelling interests as those
underlying the statute in Roberts.
77. As noted earlier, in enacting the DCHRA, the City Council viewed
the end of discrimination on the basis of sexual orientation as an "interest
of the highest order." Gay Rights Coalition v. Georgetown Univ.,
536 A.2d at 38. There can thus be no doubt that the eradication of discrimination
based on sexual orientation is a compelling government interest.
78. Furthermore, like the laws at issue in Roberts and Rotary
Club, the DCHRA is aimed at invidious discrimination rather than viewpoints,
and is thus unrelated to the suppression of ideas. See Roberts,
468 U.S. at 629; Rotary Club, 481 U.S. at 549. The DCHRA is not
intended to limit protected speech, and imposes no restraints on the freedom
of Scouts or Scouters to express their views. Id.
79. Finally, the DCHRA is narrowly tailored to end discrimination in
public accommodations and there is no alternative for accomplishing that
goal that is less restrictive of associational freedom. Like the discrimination
statute at issue in Roberts, the DCHRA "'responds precisely to the
substantive problem which legitimately concerns' the State and abridges
no more speech or associational freedom than is necessary to accomplish
that purpose." Roberts, 468 U.S. at 629 (citations omitted).
80. Moreover, the Complainants here are seeking narrow relief. They
are not seeking to have the Commission decide for any troop, any pack or
any post, who they should choose as an adult leader or to suggest any criteria
they should be prohibited from using. The effect of the order sought here
will be to prevent the BSA and the NCAC -- organizations who have failed
utterly to demonstrate that they have come together for the purpose of
expressing a view concerning homosexuality -- from themselves discriminating
or requiring units to do so.
81. In sum, the DCHRA is a narrowly drawn anti-discrimination statute that
serves a compelling state interest of the "highest order" unrelated to the suppression
of ideas, and this case involves a narrowly-drawn remedy. The First Amendment's
protection of expressive association does not shield the Boy Scouts' discrimination
from the application of the Act.
4. The Supreme Court's Decision in Hurley lends further support
to this conclusion
82. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557 (1995), a group of gay men, lesbians, and bisexuals ("GLIB") challenged
the denial of their application to march as an official unit in Boston's St.
Patrick's Day Parade. The parade organizers contended that the forced inclusion
of this group's message within their parade would infringe upon their right
to free speech.
83. The trial court in Hurley used an "expressive association"
analysis in connection with the case. On appeal, however, the defendant-organizers
argued that "their right to freedom of speech. . ., not their right of
expressive association, was the operative right in this case." Irish-American
Gay, Lesbian and Bisexual Group v. City of Boston, 636 N.E.2d 1293,
1298-99 (1994), rev'd sub nom., Hurley v. Irish-American Gay,
Lesbian and Bisexual Group, 515 U.S. 557 (1995). In making this argument,
the parade organizers emphasized the unique nature of parades, asserting
that "a parade is a `pristine form of speech.'" Id. at 1299. The
appellate court affirmed the ruling of the trial court that the parade
lacked any specific expressive purpose entitling it to protection under
the First Amendment. Id. at 1297.
84. In reversing the opinions below, the Supreme Court focused on the
special characteristics of parades and did not even address the "expressive
association" issue. Id. at 568-80. The Supreme Court noted that
"we use the word `parade' to indicate marchers who are making some sort
of collective point. . . . Parades are thus a form of expression, not just
motion." Id. at 568. The Court went on to find that inclusion of
GLIB's marching unit would have impermissibly compelled the parade organizers
"to modify the content of their expression. . . ." Id. at 578. The
Court based this conclusion on its finding that the gay, lesbian and bisexual
group's purpose was "to express pride in their Irish heritage as openly
gay, lesbian, and bisexual individuals . . . " Id. at 561. Based
on its finding that both the parade and the group's participation in the
parade as a marching unit were expressive acts, the Court concluded that
the forced inclusion of the group would have had the effect of declaring
the organizer's speech to be a public accommodation, and would require
the organizers to alter the expressive content of their parade. Id.
85. Hurley, however, is distinguishable from this case both legally
and factually. The parade in Hurley figured significantly in the
Court's decision, which as stated above turned on free speech rather than
associational grounds. The Hurley court found that a parade is inherently
expressive and as speech, is entitled to First Amendment protection. In
contrast to a parade, Scouting is not a form of speech, and the activities
of the Boy Scouts are not inherently expressive such as those of the parade
marchers in Hurley.
86. Moreover, the facts of Hurley are just the opposite of the facts
in this case. In Hurley, as specifically noted by the Court, the parade
organizers did not seek to exclude gay, lesbian, or bisexual individuals
from marching in the parade. The intention of the parade organizers was to exclude
the message GLIB proposed to advocate in marching as a distinct unit. In contrast,
the Boy Scouts exclude homosexuals based on status alone, while they include
heterosexuals -- even if they are proponents of gay rights who express these
views within the organization. Richardson, at 57-77; Dale, 706
A.2d at 291-93.
III. OTHER ARGUMENTS BY THE BOY SCOUTS ARE NOT LEGALLY-COGNIZABLE DEFENSES.
87. Along with their other contentions, the Boy Scouts have urged several points
that do not amount to legally-cognizable defenses. First, in some of the Boy
Scouts' arguments, they appear to suggest that their discrimination stems not
from their own desires, but rather from the expectations of sponsors. They urge,
for example, that one or another church would abandon Scouting entirely if the
Boy Scouts adopted the same policy the Girl Scouts have with respect to homosexuals.
88. Second, the Boy Scouts have attacked the Complainants, particularly
Roland Pool, arguing that, notwithstanding their many years of commitment
to Scouting and obvious knowledge and dedication to it, they are really
89. Third, the Boy Scouts have suggested that the Commission lacks "jurisdiction"
over this case because these cases do not involve sufficient acts in the
District of Columbia. In Michael Geller's case, this takes the form of
argument that, although he was a District of Columbia citizen and resident
when the BSA implemented its national policy telling him to sever all his
ties with Scouting, his particular troop registration at the time was in
Owego, New York. In Roland Pool's case, the Boy Scouts' argument takes
the form of asserting that, because the Boy Scouts rejected his application
almost immediately after his training for a Unit Commissioner position
in the Banneker District, he therefore did not spend much of his Scouting
experience in the District of Columbia.
90. As discussed in the Findings of Fact, in each of these instances,
the Boy Scouts failed to support these arguments with facts. As noted in
the Findings of Fact ¶¶ 2-457, the Commission rejects the Boy
Scouts' speculation that sponsors will abandon Scouting if they are given
the option to permit homosexuals to participate. In the Findings of Fact
¶¶ 2-457, the Commission rejects the Boy Scouts' assertions that
Mr. Pool and Mr. Geller are "testers." In the Findings of Fact ¶¶
2-457, the Commission notes the basic fact that the discrimination against
both of these men occurred in the District of Columbia and that both of
them were prevented from participating in Scouting here. Indeed, the assertion
that Mr. Pool somehow lacks a claim because the Boy Scouts expelled him
before he could do substantial work in the District of Columbia is, at
best, a Catch 22.
91. Even if these allegations had been proven, however, they would still
lack legal merit. Even if the Commission were to assume that sponsors would
leave Scouting if Scouting did not discriminate against homosexuals, the
DCHRA does not permit Respondents to justify an exception to its requirements
"by the facts of increased cost to business, business efficiency, the comparative
characteristics of 1 group as opposed to another, the stereotyped characterization
of 1 group as opposed to another, and the preferences of co-workers, employers,
customers or any other person." § 1-2503(a). This sensible rule prevents
the defense that "I don't really want to discriminate; it is just my customers,
or sponsors or workers who could not accept it."
92. Similarly, even if it had been proved that Roland Pool and Michael
Geller were "testers," testers can challenge discrimination as well. "Standing
under civil rights statutes has always been broadly construed in order
to effectuate the goals of those statutes. Complainants have been allowed
to act not only on their own behalf, but also as private attorneys general
to vindicate important societal policies embodied in the civil rights laws."
Richardson, at 36 (citing Trafficante v. Metropolitan Life Insurance
Co., 409 U.S. 205, 211 (1972); Village of Bellwood v. Dwivedi,
895 F.2d 1521, 1526 (7th Cir. 1990)); Havens Realty Corp. v. Coleman,
455 U.S. 363, 373 (1982). Indeed, the Boy Scouts never asked Roland Pool
and Michael Geller whether they were members of Queer Nation, or any organization,
before they demanded that they sever all their ties with Scouting; and
the Boy Scouts do not pretend that a homosexual who stays clear of these
organizations will be welcomed into their fold.
93. Finally, the Boy Scouts are simply incorrect that the DCHRA permits discrimination
in the District of Columbia, so long as some of the discriminatory events occurred
outside the District of Columbia. As the District of Columbia Court of Appeals
explained in Matthews v. Automated Business Systems & Services, Inc.
("ABSS"): The purpose of the Human Rights Act is `to secure an end in
the District of Columbia to discrimination for any reason other than that
of individual merit. . . .' D.C. Code § 1-2501 (1987) (emphasis [in opinion]).
Discriminatory practices in employment are expressly made unlawful by D.C. Code
§ 1-2512 (1987). If the events alleged in Matthews' complaint occurred
in the District of Columbia, they are subject to scrutiny under section 1-2512,
regardless of whether her `actual place of employment' was in Maryland, the
District, or both. 558 A.2d at 1180 (second emphasis added). See also
Green v. Kinney Shoe Corporation, 704 F. Supp. at 260 (rejecting the
proposition that the DCHRA could fairly be read to permit discrimination "regarding
jobs located in the District of Columbia simply if the application and the decision
to discriminate were made outside the District," and concluding that the "broad
language of the Act . . . was intended to cover all discrimination concerning
jobs located in the District of Columbia, even if the application and decision
to discriminate were made outside the District").
IV. ROLAND POOL AND MICHAEL GELLER ARE ENTITLED TO RELIEF
94. The facts of this case have clearly demonstrated that the Boy Scouts
are a place of public accommodation subject to the DCHRA, and that they violated
the Act by discriminating against Roland Pool and Michael Geller because they
are homosexuals. Accordingly, the Commission finds that the Complainants are
entitled to the following relief.
A. Injunctive Relief
95. DCHRA, § 1-2553(a)(1)(C) establishes that upon a finding that
Respondent has engaged in an unlawful discriminatory practice, the Commission
shall order Respondent to cease and desist from such unlawful discriminatory
practices, and to "[extend] . . . full, equal and unsegregated accommodations,
advantages, facilities and privileges to all persons." Having found that
Respondents unlawfully discriminated against Mr. Pool and Mr. Geller on
the basis of their sexual orientation, the Commission so orders the Respondents.
In particular, the BSA, whether acting by itself, or through its councils
and other subdivisions, and the NCAC, whether acting by itself, or through
its subdivisions, shall:
a. Reinstate Mr. Pool and Mr. Geller to membership in the BSA, together
with all the rights, privileges and advantages accorded to that membership;
b. Act without regard to Mr. Pool's and Mr. Geller's sexual orientation,
upon an application they may make for any position within the BSA or the
c. With respect to residents of, or Scouting activities in, the District
of Columbia, cease and desist from investigating, inquiring into, harassing
or excluding any individual from Scouting based upon his or her sexual
orientation, or requiring or encouraging any unit or sponsor to do so;
d. Take no action in retaliation against Mr. Pool, Mr. Geller or any
witnesses or affiants participating in this proceeding.
This ruling shall mean that Respondents shall not discriminate on the
basis of sexual orientation in the District of Columbia or encourage units
or sponsors to do so. As units and sponsors are not parties to these proceedings,
their decisionmaking authority -- to the extent it is currently within
their purview -- has not been made the subject of this order.
B. Compensatory Damages
96. Having determined that Respondents unlawfully barred Complainants
from Scouting, the Commission also finds credible Complainants' testimony
regarding the emotional strain and disappointment they experienced as a
result of Respondents' actions.
In accordance with DCHRA, § 1-2553(a)(D), the Commission awards
Mr. Pool compensatory damages in the amount of ________, and Mr. Geller
compensatory damages in the amount of __________.
C. Attorneys' Fees & Costs
97. Pursuant to D.C. Code § 1-2553(a)(1)(E) and (F), the
Commission hereby orders Respondents to pay Complainants' reasonable attorneys'
fees and costs. Complainants shall, within ___ days of notice of
this Order, file a fee and cost petition with the Commission.
ROSS, DIXON & MASBACK, L.L.P.
David M. Gische
Julie P. Glass
601 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2688
AMERICAN CIVIL LIBERTIES UNION
OF THE NATIONAL CAPITAL AREA
1400 - 20TH St. N.W.
Washington, D.C. 20036
Dated: May 1, 1998
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that, on ________________,
1998, copies of Complainants' Findings of Fact and Conclusions of Law were
served by hand-delivery to:
Mr. Gerald Draper, Director
District of Columbia Department of Human Rights
and Minority Business Development
441 4th Street, N.W.
Washington, D.C. 20001
and by hand-delivery and/or overnight mail to:
George A. Davidson, Esquire
Carla A. Kerr, Esquire
Hughes Hubbard & Reed
One Battery Park Plaza
New York, New York 10004
Dennis S. Klein, Esquire
William A. Barrett, Esquire
Hughes Hubbard & Reed, LLP
1300 I Street
Washington, D.C. 20005-3306
David M. Gische