TAKING ACTION--AGAINST BOY SCOUT DISCRIMINATION.

I have just closed a long chapter in my struggle to end the discrimination practiced by the Boy Scouts of America (BSA). My crusade began in December 1992 when I first filed a complaint with the Pennsylvania Human Relations Commission (PHRC) against the Chester County Council of the BSA for rejecting the applications of my son Matthew and myself to, respectively, be a Boy Scout and a BSA adult volunteer. The reason cited for our rejection was that my son and I had declined to affirm the existence of God. In my complaint I claimed unlawful religious discrimination by an organization that was, in my view, a public accommodation. But, in the end, on June 28, 1999, the PHRC dismissed my complaint and declared the BSA a private organization not subject to Pennsylvania's anti-discrimination law.

Although the American Civil Liberties Union took up my cause shortly thereafter and I filed an appeal, it was on July 11, 2000, that, acting on the advice of my attorney Stephen P. McFate, I agreed to file a petition withdrawing that appeal. This was in response to the June 28, 2000, U.S. Supreme Court decision in Boy Scouts of America v. dames Dale, which made it clear that the BSA would prevail in any further proceedings.

The High Court's ruling in Dale dealt specifically with the question of whether or not the New Jersey Supreme Court was correct in its ruling that the BSA must comply with New Jersey's anti-discrimination law and accept Dale, an openly gay man, as an adult volunteer BSA leader. The New Jersey court had found the BSA to be a public accommodation, bringing the BSA's dismissal of Dale within the anti-discrimination law's scope. The U.S. Supreme Court, however, overturned the New Jersey ruling, viewing the BSA as exclusively private.

In its arguments throughout the long litigation, the BSA claimed that accepting gays would violate the organization's First Amendment rights of freedom of association and freedom of speech. In the five-to-four decision, Justices William Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony g. Kennedy, and Clarence Thomas supported this claim. Indeed, the decision went so far as to create a new term when Chief Justice Rehnquist, writing for the majority, labeled the BSA an expressive association.

Still, I feel compelled to ask: what are BSA leaders expressing? Clearly it is their judgment that gays are incapable of living up to the Scout oath of being "morally straight" and the Scout law of being "clean." BSA attorneys and officials call gay men "unfit role models." According to McFate, had the case before the U. S. Supreme Court been about atheism, the same reasoning would have applied. In fact, the legal invalidity of an atheist's claim of discrimination would have seemed even more clear to the Court, as regards to the BSA's "expressive purpose" argument: the Scout oath specifically requires a belief in "God."

Nonetheless, the real meaning of morally straight as cited in the Dale case is unclear because, at the time the oath was written, the word straight had no social connotation in reference to sexual preference. Furthermore, BSA literature contains no explicit language indicating an anti-gay stance. (Nor does the literature even state that an atheist should be expelled.) The only language--apart from the morally straight and clean references in the Scout oath and law--that clarifies the BSA's expressed purpose is found in various official statements issued by the BSA's national office within the past twenty-two years.

For example, in March 1978, the BSA expressed support for a Minnesota BSA Council's decision to exclude two gay boys. The memo--to all Scout executives--dictated that, if a member were alleged to be homosexual, he should be investigated in a "discreet and responsible fashion." Then, in 1981, a "reaffirmation" statement that "no boy can ever be the best kind of citizen without a belief in God" was distributed to all BSA councils. (A Scout executive later sent that statement to me when my son and I were denied participation in 1991.) These statements were subsequently submitted to the courts as evidence that the BSA has an expressed purpose that can be harmed if a gay or atheist is allowed to participate.

In addition to all this, past U.S. Supreme Court rulings reflect that a private group's right to freedom of association overrides a state's interest in preventing discrimination. In 1995, the Court held that the organizer of a private St. Patrick's Day parade could exclude gays. This exclusion was based on the parade organizer's desire not to be forced into expressing a message contrary to that of the parade. It was argued that, had gays participated, the parade message would have translated into "gay pride" rather than the simple celebration of St. Patrick's Day.

In its 1976 Runyon v. McCrary decision, the U. S. Supreme Court held that private schools have a First Amendment right to support and teach racial segregation if they want to, no matter how noxious that idea may be. But the Court also ruled that the school couldn't actually practice segregation. In sum, the nod was given to preaching but not to practicing. The same case allowed the private school to exclude people if it disagreed with their ideology or political views.

On the other hand, in Roberts v. United States Jaycees, the Court held that accepting women and minorities wouldn't significantly burden the Jaycees. This decision allowed for a more open membership policy. Unfortunately, according to the current justices, the Dale case wasn't comparable because Dale's presence as an assistant scoutmaster would significantly burden the expression of the BSA's viewpoints (however noxious those viewpoints may be).

Rehnquist wrote, "The First Amendment protects expression, be it of the popular variety or not.... And the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view." It was from this standpoint that the BSA had argued that its freedom of speech or expression is more important than its role as a civil organization serving the public at large, and that freedom of association is more important than compliance with state antidiscrimination laws.

However, by getting itself declared private, the BSA has defeated its rationale for receiving public support and government gratuities. With this Supreme Court ruling, no longer will it be legitimate for the BSA to receive money from United Way (UW) unallocated funds, go into public schools to recruit, or be given military and other government gratuities. The BSA will have to rely exclusively on private donations. This will work against the troops and the boys.

Efforts are already underway to deny the BSA UW funding through unallocated monies collected from the public at large. There would be no controversy if the BSA were simply listed as a donor choice option, but most UW offices also support the BSA through an allocations committee. Out of 1,400 UW offices, only seven have ceased funding the BSA. Public awareness of the BSA's now clearly private and discriminatory status may change all that--especially if you become involved by contacting your local UW office to request an official position statement regarding the funding of BSA programs.

In response to this new standing granted the BSA, just weeks after the U. S. Supreme Court decision in Dale was announced, Representative Lynn Woolsey (Democrat--California) introduced legislation to revoke the BSA's eighty-four-year-old federal charter. A charter from Congress is an honorary recognition given to patriotic, charitable, and educational organizations. The BSA charter is open ended; it doesn't require periodic congressional votes for reauthorization. Nonetheless, a clause in the charter provides Congress with the right to repeal or amend it at any time.

Woolsey pointed out that, notwithstanding BSA claims to be open to all boys, BSA officials had defended the organization's right to exclude homosexuals all the way to the U. S. Supreme Court. She commented, "We're not saying [the BSA is] bad. We're saying intolerance is bad, and I don't see any reason why the federal government should be supporting it."

Woolsey and ten of her colleagues also sent a letter to President Clinton urging him to resign as the honorary head of the BSA. Clinton aides say that the president does not agree with the BAS practice of excluding what the group calls "avowed homosexuals." Clinton, however, hasn't indicated that he is considering abandoning the honorary BSA position, which has been granted to every president since William Howard Taft.

Make no mistake: the BSA will continue to try and have it both ways. The organization will bellow that it is a "private" organization when it comes to membership; however, when it comes to public money and special treatment, it will whisper that it is "public." It won't willingly forego the public school recruitment drives, use of school buildings without charge, the parent-teacher organization charters, and so on. It won't decline government gratuities, such as use of public land, giveaways of surplus government supplies like ammunition and camping gear, and any other federal bequests. And it won't give up its 1916 congressional charter without a fight.

The BSA can also be expected to continue enjoying corporate sponsorship and making appeals for contributions through publicity and advertisements whenever and however it can. It most certainly won't take action to abrogate charters with governmental agencies, even though those agencies must abide by state and federal anti-discrimination laws.

As a result, the ones capable keeping the BSA honest in its claim to be a private organization are We the People. Ordinary citizens like you and me need to take note of any public benefits--particularly those paid for by taxpayer dollars--that are being used in support of this private, discriminatory club. And we need to challenge such benefits.

For starters, you can contact public schools in your area and inquire whether or not the BSA has use of public school facilities without charge or is allowed to recruit members from among captive school audiences. If you find that local Scouting groups are receiving such special treatment, send your objections in writing to the appropriate school superintendents. Of particular concern is whether or not the BSA entangles staff or teachers, on school time, in its various efforts.

A notable grassroots organization involved in this effort to both end BSA discrimination and keep the BSA consistent regarding its private organization status is Scouting for All. SFA was founded in 1997 by Eagle Scout Steven Cozzo. Now fifteen years old, Cozzo lives in Petaluma, California, where he and his father Scott are attempting to convince the BSA to change its biased membership policy, despite the favorable ruling from the U. S. Supreme Court. Even though the BSA has the legal right of association, SFA members and many other Scouts still want the BSA to change its membership policy. They consider this simply the moral and ethical thing to do. The ban, after all, is rooted in a pair of old myths: that gay men are more likely than straight men to prey upon young boys, and that atheists are unpatriotic, immoral, and generally unworthy citizens.

In this connection, after the Supreme Court decision was announced, SFA called for a National Day of Protest. Concerned citizens were asked to rally in front of local BSA headquarters on Monday, August 21, 2000. Eagle Scouts were asked to return their Eagle badges to the national BSA office as a symbol of the shame many Scouts feel regarding the BSA's exclusionary policies.

My own organization, the Anti-Discrimination Support Network (ADSN), has joined forces with SFA in this effort. The ADSN, however, utilizes an additional strategy: it promotes a letter-writing campaign to BSA advisory board members--the most renowned member of which is filmmaker Steven Spielberg. Spielberg is an Eagle Scout, and BSA literature and advertisements tout his affiliation. The BSA has also received significant financial contributions from him. More importantly, Spielberg has been very public over the years in his denunciation of bigotry. So now that the BSA has established its right to discriminate, people like Spielberg ought to be outraged. Indeed, their reputation of commitment to nondiscriminatory values might be compromised should they continue to champion a discriminatory BSA.

For over seven years I have tried to convince influential BSA affiliates to walk away from BSA prejudice. I have reached out to U.S. Presidents Jimmy Carter, Gerald Ford, and Bill Clinton. I have contacted Spielberg and many famous business-people. I have asked them to show their disapproval of BSA discriminatory policies by publicly threatening to disaffiliate themselves or cease financially supporting the BSA if policies don't change. So far, none of these people has agreed to do so.

Of course, I wasn't surprised when ex-presidents ignored my letters and phone calls. I also didn't find it surprising to receive the cold shoulder from big business. It has been a shock, however, that Spielberg--a man I respect for his antidiscrimination movie messages and his reputation for tolerance-continues to financially support the BSA, to maintain his position on the BSA advisory council, and to allow the BSA to use his name in its literature.

Spielberg could become a leader against BSA discrimination if he would speak out and act now. Many other BSA supporters, board members, and affiliates would be thus inspired to pressure the BSA into doing what is morally right: show respect, acceptance, and tolerance for gays and nontheists. So I am asking you to write directly to Spielberg. Express your disappointment that he continues to affiliate with a bigoted, private group. His BSA affiliation is comparable to maintaining a membership in a private country club that excludes black or Jewish members. Since Spielberg wouldn't do the latter, it is inconsistent for him to do the former. Send your polite yet strong letter to: Steven Spielberg, c/o Dreamworks, 100 Universal Plaza, Bungalow 477, Universal City, CA 91608. The ADSN would appreciate receiving a copy of your correspondence; send it to Freethought Society of Greater Philadelphia, P.O. Box 242, Pocopson, PA 19366.

In the end, I don't really want to see the Boy Scout program become just another private, discriminatory club. It is the BSA leadership that has chosen that route, not me--and the Supreme Court has supported it doing so. What I really want to see is BSA leadership abandon discrimination in favor of openness. It's become clear, however, that it won't without pressure--from within and without. The BSA won't change unless its discriminatory policies begin to hurt the organization--unless it feels the pinch of lost revenues and benefits.

That's why We the People must pinch. If we pinch hard enough, we will succeed. Remember Bob Jones University? It was denied government funding because of its policy against interracial dating. When the pinch got hard enough and it needed the money, it changed its policy. If Bob Jones University can change, the BSA can change. All it takes is you to make it happen.

Margaret Downey is president of the Anti-Discrimination Support Network and a member of the board of directors of the American Humanist Association. Her e-mail address is [e-mail].