An overlooked event in Connecticut regarding the same old issue

[eisely]

Anybody hear about this one? The last few sentences are particularly intriguing. Story from the Hartford Courant.

____________________________

 

Boy Scouts Lose Case

State's Delisting Of Charity Because Of Its Gay Ban Upheld

 

July 11, 2003

By LIZ HALLORAN, Courant Staff Writer

 

WASHINGTON -- Connecticut can keep the Boy Scouts off its list of charities that receive donations collected from state workers, the 2nd Circuit Court of Appeals in New York said Thursday, because the group's ban on homosexuals violates the state's gay rights law.

 

The decision upholds a year-old District Court ruling and was hailed by state officials and gay rights activists as an unequivocal affirmation of Connecticut's anti-discrimination policies.

 

"We're obviously delighted with this decision," said Cynthia Watts Elder, director of the state's Commission on Human Rights and Opportunities and author of a 1999 memo that first suggested suspending state-collected donations to the Boy Scouts because of their practice of barring homosexuals from employment and membership.

 

"It's important to point out that this is not about the Boy Scouts," she said. "It's about the CHRO's anti-discrimination law."

 

Jennifer Levi, a lawyer with the Gay & Lesbian Advocates & Defenders, which joined the suit in support of the CHRO, said the decision is "about a fair playing field and allowing Connecticut to decide when it opens up the workplace for organizations to do fund-raising."

 

National and local Boy Scout officials expressed disappointment with the ruling and said no decision has been made about whether it will be appealed to the U.S. Supreme Court.

 

"It is still our position and we still maintain that our exclusion from these funds is unconstitutional," said James Florez, spokesman for the Boy Scouts of America. "We haven't yet had a chance to examine the opinion so it's a little premature to say whether we will pursue this."

 

The Boy Scouts filed their federal complaint three years ago in District Court after a committee that oversees the annual workplace charitable campaign in Connecticut state offices decided that the Boy Scouts would not be allowed to participate as they had in the past. During the campaign, workers are typically solicited for charitable causes, their pledges collected by the state through automatic payroll deduction and disbursed by an agency, usually the United Way.

 

In late 2000, the CHRO ruled that the scouts' policy of excluding gays violated Connecticut's anti-discrimination statutes, though a recent U.S. Supreme Court decision ruled that the scouts could not be prevented from excluding gay leaders.

 

This week's unanimous Circuit Court decision, written for the three-judge panel by Judge Guido Calabresi, former Yale Law School dean, rejected claims by the Boy Scouts of America and its Connecticut Rivers Council that their exclusion from the charitable campaign violated their First Amendment right to free expression.

 

"We also hold that there was no violation of Connecticut law," Calabresi wrote. "The committee's actions were a reasonable means of furthering Connecticut's legitimate interest in preventing conduct that discriminated on the basis of sexual orientation."

 

The state currently is holding in escrow about $65,000 in state employee donations to various Boy Scout councils while the issue is decided by the courts, said Deputy State Comptroller Mark Ojakian.

 

The private, nonprofit Connecticut Rivers Council of the Boy Scouts of America has about 37,500 participants in Hartford, Litchfield, Windham, New London and Middlesex counties, said Harry Pokorny, its executive director.

 

He said the council, which has an annual operating budget of about $4.5 million, typically received about $10,000 annually through the state employee charitable campaign and the loss of the funding "hasn't had a major impact."

 

"People are giving through other means," he said, adding that the organization still receives considerable funding - about 10 percent of its budget - from the United Way.

 

Susan Dunn of the United Way of the Capital Area said the Boy Scouts continue to be eligible for United Way funding because the local scout council signed a required pledge saying it does not discriminate based on a number of things, including race, color, religious and sexual orientation.

 

"We did question it when they signed it," Dunn said, "but they had a motion from one of their board meetings saying that they don't discriminate locally."

[NJCubScouter]

Hmmmm. While my opinions on the "same old issue" are well known (at least to those who have been in this forum more than about 4 or 5 months, before I suddenly disappeared), I do not see how this decision of the Second Circuit Court of Appeals is consistent with the U.S. Supreme Court decision in the Dale case. Based on this article, it seems to me that the arguments made by the State of Connecticut are essentially the same arguments made by the State of New Jersey, which were rejected by the U.S. Supreme Court. I will try to find a copy of the actual court decision online tomorrow and see if it changes my mind. In all likelihood the court discussed the Dale case and attempted to "distinguish" it, or explain why it does not apply to the facts of this case.

[NJCubScouter]

Well, I managed to find the opinion online, but the Second Circuit web site is not working properly, so the only thing I could download or print was an unformatted mess that I can neither read without getting a headache, or cut-and-paste from to this forum. I will have to try again later. From what I was able to read before needing to take some Tylenol, the court did indeed focus on whether the facts of the case fall within the boundaries of the government action prohibited by the Dale decision, and concluded that it does not. But I gave up reading before I got to how the court reached that conclusion.

 

It will be interesting to see whether the Supreme Court decides to review this decision. (Assuming that the BSA decides to file a petition with the Supreme Court.) The odds against any given decision of a court of appeals being selected for review by the Supreme Court are literally in the thousands to 1.

[littlebillie]

some employers "encourage" their employees to contribute to the United Way. There is no "formal" requirement, yet a lot of "actual" pressure, so to do.

 

IF the "state workers" in question are pressured in any way to participate in contributions, then this is a questionable decision at best.

 

By pressuring an employee into supporting a charity - the United Way, say - then arguably that employee has LESS to contribute to a cause of personal choice. This would be wrong - yet since most employers only encourage such support and do not make it out-and-out mandatory, there doesn't seem like there's much to be done from a legal perspective unless the employees want to join any future BSA activity and testify to the 'pressure' and reduction of discretionary funds.

 

 

[Fat Old Guy]

I haven't contributed to the United Way for many, many years. I give directly to the organizations that I want to support so that organization gets all of the money and the United Way doesn't get their cut. The designated United Way cheerleaders come and glower at me on a regular basis and talk about the need to support the company's United Way effort but I ignore them.

 

 

[Merlyn_LeRoy]

littlebillie writes:

IF the "state workers" in question are pressured in any way to participate in contributions, then this is a questionable decision at best.

 

I'd say it would be questionable if the court decided any other way than how they did; why should the state be required to raise funds for a private, discriminatory group? Remember, the BSA is demanding that they be included.

 

The state has set up nondiscrimination requirements to participate in its campaign, and these requirements are imposed on all groups wanting to join. These requirements do not infringe on the BSA's free association rights, because the BSA is not required to participate.

 

Sounds like the BSA just doesn't meet the joining requirements. Sounds familiar?

[Twocubdad]

The difference is that the State of Connecticut is not a private organization. They should be required to provide equal access to all organizations -- or none at all. If we were talking about a privately owned company or organization, then they could include whoever they like on their list. Frankly Merlyn, I'm surprised you're not on the other side of this issue.

 

Access to the state's list of charities is no different than a school district allowing private organizations use of public school facilities. If a school district allows private organizations to use its facilities, it must allow all private groups the same access. If the Fellowship of Christian Athletes meets at the school, the Fellowship of Wiccan Athletes gets the same access.

 

On another point, does it bother anyone else that the local BSA council was willing to sign the state's non-discrimination agreement in order to get the money?

 

[eisely]

I will be interested to hear more NJCubScouter after he has read the full opinion. I too am intrigued by the council appearing to exercise what I have referred to as "local option" on this issue. I suspect that we will be hearing more about this case.

[Twocubdad]

Interesting, Eisley, that you read it and were bothered that they were trying to create a local option. I read the same thing and was bothered that they were being dishonest about the policy.

 

Like the three blind men feeling different parts of an elephant....

 

Looking at the big picture, if BSA is going to make the stand they have (whether you agree with it or not) then we are going to have to accept that these are the kinds of scrapes we are going to have to deal with for a long time.

[evmori]

Haven't up realized yet merlyn has no side except his own!

[Glenn]

TwocubDad,

 

"Interesting, Eisley, that you read it and were bothered that they were trying to create a local option. I read the same thing and was bothered that they were being dishonest about the policy. "

 

Isn't this the same thing? I read it and thought that the local council was circumventing the national policy. This meant they were both trying to create a local policy and being dishonest about BSA's national policy.

 

[NJCubScouter]

I finally got to read this opinion. I would like to post a link to it, but as I said yesterday, there is something wrong on that web site. I could not read the readable version online, I had to save it to my computer and then read it. Maybe the error message was just due to something out of whack on my computer, I don't know.

 

The opinion itself is barely more illuminating, and I would say that the non-lawyers among us may not even want to bother trying to read it.

If you want to try, try this: Go to:

 

http://www.ca2.uscourts.gov

 

Click on "Decisions" at left, then choose "Last 7 days" (but do it soon! I think the opinion is dated 7/10). In the list of cases, look for the one with docket number 02-9000. On the right will be a thing that says Native PDF document or something like that. This is where I went wrong, because whenever I clicked on that, it gave me an error message. The answer is to RIGHT click on it, choose "Save Target" and then decide where on your hard drive you want it to go, then save it and read it from your own hard drive. More trouble than it's worth. I can't believe I even just typed all that. Call it a public service to my fellow Scouters.

 

Trying to describe the court's reasoning would be beyond the amount of time I have today. The shortest explanation would be that the court "distinguished" the Dale case on the basis that Connecticut was not trying to punish the BSA for its conduct, as New Jersey did by applying the Law Against Discrimination to prohibit the BSA's anti-gay policy.

 

That's not a really good explanation, and there is a lot more to it.

 

My bottom-line opinion is that if this case reached the Supreme Court, in all likelihood the same five justices who joined in the Dale majority opinion would probably strike down the Connecticut rule regarding its employee contribution program, as infringing on the BSA's right of expressive association. But I could be wrong.

[packsaddle]

BSA knew the score and we should live with the consequences without whining and wetting our beds. Merlyn is right, a state should not promote as charities, organizations that would place the state in violation of its anti-discrimination statutes. BSA is still completely accessible to the public as a charity - the public merely needs to support BSA directly rather than through United Way or similar vehicles. Connecticut has done nothing to alter that and state's rights advocates should be in agreement. Remember this is BSA's choice, indeed demand, to go it alone as an exclusive, private organization.

[acco40]

Got to agree with packsaddle (and the Circuit Court) on this one. I noticed that in the article, no real legal reason was given by the BSA (except the old standby that it was unconstitutional). I would be very interested to know why or on what grounds the BSA feels that the ruling is unconstitutional.

[Twocubdad]

I read the decision and, honestly, couldn't follow the logic. It seemed to me that all the reasoning was in support of the BSA position, but somehow they found for the state. I suppose the bottom line is that while the court sounded like they agreed with BSA's legal position, the BSA lawyers just didn't offer enough evidence to meet their burden of proof, so by default the defendants won.