An overlooked event in Connecticut regarding the same old issue

[Merlyn_LeRoy]

I would summarize it as:

1) the state can have restrictions on who they allow into the program, if they have a good reason and apply it equally. The state has a good reason to promote nondiscrimination, and they require all applicants to meet them.

 

2) this does not infringe on the BSA's first amendment right of association, since this does not create a situation where the BSA would have to admit gays; if they had lost the Dale decision, they would have had to admit gays as a direct result.

 

[Padre]

As my father used to say "You can't have your cake and eat it too".

 

We want to determine our memebership, we need to live with our decisions. BSA leadership/membership needs to adust their thinking to current (legal, Political) times or learn to live with the consequences of their decisions. It is going to get worse if we stay this course, get ready.

 

On the other hand, I do not donate to the United Way, I give direct to the organizations that I am interested in supporting. Most parents I talk with do the same, easy work around.

[Twocubdad]

The state may have a good reason to promote nondiscrimination, but once you start down that slope, it may also find good reason to promote family values, marriage, and Christianity (insert "gay rights, homosexual marriage and secularism" if it makes you feel better).

 

The State of Connecticut passing value judgements on BSAs membership policy is no different than making a judgement that only Christians are allowed access to public facilities. If the state is going to make its facilities and resources available to private organizations, it should make them available regardless of how those organizations express their First Amendment rights. As long as the organizations aren't involved in illegal activities, the First Amendment should preclude the government from becoming involved in the organizations' internal beliefs. Personally, I don't fully agree with every point of the BSA membership policy, but I strongly believe that as a private organization we have the right to set that policy without government influence or interference.

 

You may try to make the case that BSA's membership policy is illegal in Connecticut because it violates the state's anti-discrimination laws. It doesn't. Dale extends BSA the First Amendment right to expressive association which trumps the state law. On the other hand, BSA may not discriminate in its employment practices for positions not linked to its core mission, such as a custodian who works alone after hours.

 

That, in my opinion, is where the State should have lost its case. It allows other organizations on the list to discriminate in their programs, as long as they don't discriminate in their employment practices. The Jewish organizations on the list may only serve Jewish clients as long as they allow non-Jews as employees. The State denied BSA access to the list because of its program. There was no evidence presented that BSA discriminates against non-core employees.

 

My reading of the case is that the BSA attorneys just blew it by not offering any evidence to support that point.(This message has been edited by Twocubdad)

[packsaddle]

Twocubdad, I didn't get the part where BSA's discrimination policy is illegal. I think it is legal in all states - that question was settled by the U.S. Supreme Court. Connecticut is not limiting BSA's ability to apply or enforce its policy. Connecticut simply declines to promote fundraising for BSA because BSA does discriminate. It's that simple, no judgement involved...outside that applied by BSA itself.

[Twocubdad]

I agree with the first part of what you wrote, BSA isn't engaged in illegal discrimination, because Dale give its ban on gays First Amendment protection.

 

But the State of Connecticut IS passing judgement on our membership policies. It is saying that banning gays is wrong and a violation of its anti-discrimination law and therefore BSA should be denied access to a state-run program. That would be like them saying you have the freedom of religion, but only Catholics may apply for a driver's license. Your are perfectly free to worship in any way you wish, just don't try to drive in our state.

 

The key difference is that this is the state doing this. State employees are running the program while on state time. If this were the United Way, the Pew Charitable Trust or any other private organization or individual, BSA wouldn't have a leg to stand on. And by the way, I agree with your earlier post that we should stand by out decisions and take the consequences without whinning. But because this is the government, they have no business meddling inside the veil of activities protected by the First Amendment.

[littlebillie]

"That would be like them saying you have the freedom of religion, but only Catholics may apply for a driver's license."

 

Actually, it seems more like saying that there's freedom of religion, just don't apply for a driver's license in a Catholic church...

 

It's really the result of a couple of different trends slamming together. First is, the evolving use of zero tolerance policies as a way to avoid numerous legal problems; second would be the increasingly complex civil relation among the individual, the state and the nation.

 

It'll be interesting to see what happens in the Episcopal arena...

 

http://abcnews.go.com/wire/US/ap20030718_1425.html

 

frankly, I think the headline rather overstates things, but it has some potential for watchability.

[packsaddle]

Twocubdad,

Connecticut is prohibited by law from promoting organizations that practice such discrimination, especially self-avowed discriminatory organizations such as BSA. I saw no judgement that BSA discrimination policy was bad or evil. Or did you read something I missed? Connecticut is simply prohibited from promoting an organization with such discrimination policy. There is no judgement necessary, they are just following the law. I suppose there may be a forum somewhere in which similar complaints against Connecticut are made by members of the KKK.

 

Here is the solution I see: The state (any state) should not engage in such charitable activities for ANY organization. If state employees want to give to charity they should just do it...OFF the clock. The same goes for the feds (known as Combined Federal Campaign). Let all charities fend for themselves. The 'natural selection' process will be interesting. If the values of BSA have the merit that we all believe, then we will prosper in the marketplace. This solves the entire issue in my mind. A 'sauce for the goose' approach, maybe, but outside of having to contend with another wave of telemarketers (for charity this time) I see no downside.

[Twocubdad]

I'll admit that simply eliminating the program and getting the state out of the business of raising money for private charities has some appeal. It would certainly solve this issue. But it throws the baby out with the bath water. I see nothing wrong with the State of Connecticut, as an employer, offering its employees the convenience of making contributions by payroll deduction. That's not the problem.

 

On the other end of the spectrum, another solution would be to open the program to any legal non-profit organization. That way the decision of who gets the money is left up to the individuals making the contributions, not some state agency. If you want to give to Arian Nations and I want to give to the Nation of Islam, what business is it of the State of Connecticut?

 

>> I saw no judgement that BSA discrimination policy was bad or evil. Or did you read something I missed?

[NJCubScouter]

Twocubdad says:

 

I'm bothered by the fact that they are disallowing our participation in a state program based on a policy which should be a private matter among the members of our organization.

 

But, doesn't it stop being a "private matter" at the point where an organization asks for the state's assistance in raising funds? After thinking about it for a few days, I agree with the Second Circuit Court's distinction between the situation in the Dale case and the Connecticut situation. Both Connecticut and New Jersey have decided that as a matter of public policies, discrimination against gays is wrong. However, New Jersey implemented that policy in a statute that tried to prohibit the BSA from enforcing its membership policies, and the U.S. Supreme Court said no, that is an interference with the rights of the BSA and its members to associate around an expressed belief. Connecticut, on the other hand, said that only organizations that comply with our public policy against discrimination will receive this particular BENEFIT, that is, participation in a program that makes it easier to raise funds from public employees. And the Second Circuit said, in effect, that when you ask the government for a benefit, the government has the right to impose certain reasonable restrictions on those who qualify for the benefit. Connecticut did not try to send anyone to jail or fine anyone, for banning gays. Instead, acting in the capacity of an employer, they said that if you don't comply with our public policy, we won't help you. What's wrong with that?

[Twocubdad]

>>But, doesn't it stop being a "private matter" at the point where an organization asks for the state's assistance in raising funds?

[littlebillie]

"But the state has no more right to pry into an how an organization exercises its First Amendment right to association than it would to require a religious test before issuing a drivers' license."

should probably read "... the state has no more right to pry into an how a PRIVATE organization exercises its First Amendment". I think this reflects the legalities more accurately.

 

 

AS LONG AS THE STATE does not apply any pressure to participate in the annual United Way campaign, officially or UNofficially (the de facto pressure can be huge when departments are quota'd at 90% participation, say) AND/OR informs the employees how to connect with the United Way outside of of the business arena, and allows directed payroll deduction thereby, regardless of the target charity, then the state's actions are fairly defensible - they canNOT give the slightest appearance of endorsing any kind of discrimination.

 

A glance at the supported agencies (see

http://www.uwcact.org/communityimpact/agencies.htm)does seem to be fairly uncontroversial, though I notice YMCA and YWCA, but no corresponding Y_HAs, which do operate in Connecticut, but that's probably just nit-picking.

 

Still, it does seem to be a first step, over-all, in the same direction as asking California judges to separate themselves from the BSA or else recuse themselves from certain cases.

 

 

 

 

[NJCubScouter]

Littlebillie says:

 

Still, it does seem to be a first step, over-all, in the same direction as asking California judges to separate themselves from the BSA or else recuse themselves from certain cases.

 

Did California actually do that? The last discussion I recall, they were considering it. Of course, I missed a couple of months worth of posts here in the late spring, so I could have missed that.

 

[Twocubdad]

Littlebillie, I agree with your friendly amendment.

 

NJ, I don't remember that the resolution to that ever made it to the board, but I remember hearing on the news that the CA court said it considers BSA membership (and membership in any similar organization) a material fact which the judges need to disclose to the participants in a case. They stopped short of saying BSA membership is cause for recusal in a case.

 

I'm not sure that's different from what the rules have been all along.