Boy Scout Memo: National Board on the gay policy.

[Sentinel947]

http://goqnotes.com/20915/boy-scout-memo-legal-challenges-pressure-from-churches-cited-in-policy-change/

 

Pretty interesting read I think. I wish I could tag people like on facebook.

 

Yours in Scouting,

Sentinel947

[Merlyn_LeRoy]

This part is pretty strange:

 

“This right [to maintain anti-gay membership policies] was challenged in 2000 and the BSA prevailed in a narrow 5-4 U.S. Supreme Court decision,†the memo reads, citing the 2000 Supreme Court case, BSA v. Dale. “If a similar challenge were heard in today’s Court, it is nearly certain that the BSA would lose its right to uphold the current policy, and the decision would dictate a change at every level of the organization.â€

 

The above was one of the rationales to change to a local option, but it doesn't look like it was the opinion of a lawyer.

 

First, religious discrimination is much less likely to pass muster at the federal level, because that's subject to the first amendment and federal law, while it's mostly state statutes and some iffy constitutional arguments for sexual orientation discrimination, yet the BSA's chances at losing a religious discrimination challenge isn't even mentioned.

 

Second, the BSA has been forced to act much more like a real private organization post-Dale by losing charters to government entities, losing various grants, and other public largess.

[NJCubScouter]

“If a similar challenge were heard in today’s Court, it is nearly certain that the BSA would lose its right to uphold the current policy, and the decision would dictate a change at every level of the organization.â€

 

Just as a matter of counting votes, I am not sure how the writer of the memo reached this conclusion. In the Dale decision, the five-person majority was made up of Chief Justice Rehnquist and Justics O'Connor, Scalia, Kennedy and Thomas. The four-person minority was made up of Justices Stevens, Souter, Breyer and Ginsburg. Now Rehnquist, O'Connor, Stevens and Souter are gone, replaced by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan. My bet would be that Roberts and Alito would vote with the original majority and Sotomayor and Kagan would vote with the original minority, resulting in the same 5-4 vote. (This of course assumes that nobody changes sides, which does happen occasionally, but there is no particular reason to assume that anyone would in this case.)

 

Unless the memo-writer believes that Roberts would vote to overturn Dale. I know that the Chief Justice has surprised some people with some of his votes, particularly on the health care law, but I think he is still fundamentally a conservative and usually votes with the conservatives, though not always.

 

So I agree, this would be a curious motivation for changing the policy.

[packsaddle]

“If a similar challenge were heard in today’s Court, it is nearly certain that the BSA would lose its right to uphold the current policy, and the decision would dictate a change at every level of the organization.â€

 

Just as a matter of counting votes, I am not sure how the writer of the memo reached this conclusion. In the Dale decision, the five-person majority was made up of Chief Justice Rehnquist and Justics O'Connor, Scalia, Kennedy and Thomas. The four-person minority was made up of Justices Stevens, Souter, Breyer and Ginsburg. Now Rehnquist, O'Connor, Stevens and Souter are gone, replaced by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan. My bet would be that Roberts and Alito would vote with the original majority and Sotomayor and Kagan would vote with the original minority, resulting in the same 5-4 vote. (This of course assumes that nobody changes sides, which does happen occasionally, but there is no particular reason to assume that anyone would in this case.)

 

Unless the memo-writer believes that Roberts would vote to overturn Dale. I know that the Chief Justice has surprised some people with some of his votes, particularly on the health care law, but I think he is still fundamentally a conservative and usually votes with the conservatives, though not always.

 

So I agree, this would be a curious motivation for changing the policy.

Do you think it WOULD go back to the Supreme Court? Or are they required to hear new challenges?

[NJCubScouter]

“If a similar challenge were heard in today’s Court, it is nearly certain that the BSA would lose its right to uphold the current policy, and the decision would dictate a change at every level of the organization.â€

 

Just as a matter of counting votes, I am not sure how the writer of the memo reached this conclusion. In the Dale decision, the five-person majority was made up of Chief Justice Rehnquist and Justics O'Connor, Scalia, Kennedy and Thomas. The four-person minority was made up of Justices Stevens, Souter, Breyer and Ginsburg. Now Rehnquist, O'Connor, Stevens and Souter are gone, replaced by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan. My bet would be that Roberts and Alito would vote with the original majority and Sotomayor and Kagan would vote with the original minority, resulting in the same 5-4 vote. (This of course assumes that nobody changes sides, which does happen occasionally, but there is no particular reason to assume that anyone would in this case.)

 

Unless the memo-writer believes that Roberts would vote to overturn Dale. I know that the Chief Justice has surprised some people with some of his votes, particularly on the health care law, but I think he is still fundamentally a conservative and usually votes with the conservatives, though not always.

 

So I agree, this would be a curious motivation for changing the policy.

Packsaddle, in order for the issue to go back to the Supreme Court, someone would have to start a new lawsuit in a court where the state anti-discrimination statute (1) prohibits discrimination on the basis of sexual orientation and (2) is interpreted so as to define an organization such as the BSA as a "public accommodation." I believe there is only one state where #2 has already happened, and that is New Jersey, in the Dale case. I believe several other states (including California) had previously decided that the BSA is NOT a "public accommodation." In order to have standing to sue, the "someone" would probably have to be a person who has been specifically denied membership in the BSA because they are openly gay. (It is possible that someone who refrained from applying for membership because of the U.S. Supreme Court decision in the Dale case MIGHT have standing, but that would have to be decided by the courts.) Then, presuming the case were filed in a New Jersey state court, it would have to work its way up through all three levels of the state court system, and presumably the plaintiff would lose at every level, because the state courts would have to follow the U.S. Supreme Court decision on the federal First Amendment issue of "expressive association." Then the plaintiff would have to apply for review by the Supreme Court (technically called a writ of certiorari), which could decide to hear the case, or turn it down. And then, given the current membership of the Supreme Court, it would still be a 5-4 vote, and unless CJ Roberts voted with the "liberals", the decision would probably still be the same.

 

That is a very long and uncertain road (and very expensive, probably for some organization) to an end that might very well being no different than the last time. Whoever said that it is "nearly certain" that the BSA would lose its right to uphold the current policy, I don't really know what they are talking about.

[click23]

I think it has to do more with the objectives of the president-elect of the BSA, than some potential court case.

 

[NJCubScouter]

Personally, I think this proposed change (which may or may not happen) has to do with a lot of different things, and none of us can really know how much influence of each one is actually contributing to the result. These things include, in no particular order: Opinions expressed by various councils in favor of a change; opinions expressed by BSA members and CO's in favor of a change; loss and potential additional loss of corporate funding; loss and potential additional loss of United Way and other charitable funding; whatever polls and surveys (scientific or otherwise) have been taken; declining membership and potential additional declining membership; the fundamental right-ness of making a change (sorry, I had to throw that one in there, since it's reason #1 for me); lobbying by various outside groups (though personally I don't think that is much of a factor, except as it leads to the next one); bad publicity; and probably a few others. And of course, many of these have cause-and-effect relationships with each other, in various directions. For example, bad publicity can lead to a decline in donations even beyond the opposition to the policy itself. Note that I did not list the opinions of the president-elect of the BSA, because I think that if that is a factor at all, it would be maybe a half-percent of the entire picture. If the BSA was otherwise dead-set on keeping the policy (and they may still be), and the "heir" to the presidency was speaking out against it, I think that they would just find a new president. (Which of course = more bad publicity.)

 

As for litigation, I guess I could see that as a very minor factor as well. If they have heard of groups planning to sue, they might have decided to change the policy before the suits are even filed so that it didn't look like the lawsuits led to the change. But as I said, I think the other factors are much more important.

 

Of course, we still don't know whether the policy is actually changing.

[Nike]

“If a similar challenge were heard in today’s Court, it is nearly certain that the BSA would lose its right to uphold the current policy, and the decision would dictate a change at every level of the organization.â€

 

Just as a matter of counting votes, I am not sure how the writer of the memo reached this conclusion. In the Dale decision, the five-person majority was made up of Chief Justice Rehnquist and Justics O'Connor, Scalia, Kennedy and Thomas. The four-person minority was made up of Justices Stevens, Souter, Breyer and Ginsburg. Now Rehnquist, O'Connor, Stevens and Souter are gone, replaced by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan. My bet would be that Roberts and Alito would vote with the original majority and Sotomayor and Kagan would vote with the original minority, resulting in the same 5-4 vote. (This of course assumes that nobody changes sides, which does happen occasionally, but there is no particular reason to assume that anyone would in this case.)

 

Unless the memo-writer believes that Roberts would vote to overturn Dale. I know that the Chief Justice has surprised some people with some of his votes, particularly on the health care law, but I think he is still fundamentally a conservative and usually votes with the conservatives, though not always.

 

So I agree, this would be a curious motivation for changing the policy.

Given Roberts' stand on Obamacare, he might be willing to declare BSA a public accommodation.

[SSScout]

Has no one noticed that the CO's have a paragraph in the CAgreement already that stipulates that the CO has the right (nay, the responsibility) to define the membership and leadership in the Scout units they sponsor? Hence we have Scout units that are all Catholic, all Jewish and all LDS. But then again, could the BSA declare that a Scout unit may NOT define their membership in such ways, in order to use the Scout program?

[moosetracker]

Which is why it was wrong for National to tell units they could NOT have homosexual members. It is equally wrong for them to tell them they all have to allow homosexuals to join.. I think someone said that National does say you can't discriminate on race. I am sure some do through loophole. If your CO discriminates on race, and you have a scout unit who only allow in members that are in thier main membership pool (say a private school.) then your scouting unit discriminates on race.

 

Most likely the BSA in the past did discriminate on race, then they went to local option, then went to a no discrimination rule.. But, this and the homosexual issue are the only times they have put any requirement on who a unit can or can not discriminate against.

[NJCubScouter]

Or maybe not. It may just be that in the health care case, he interprets the taxation clause of the constitution differently than the other justices. (At least, I think that was the issue. It was so convoluted and unrelated to any of my day-to-day practice of law, it's fading from my memory already.) I don't think it means he suddenly converted to liberalism.

 

(This was supposed to be a reply to Nike's comment about CJ Roberts. It doesn't seem to have ended up there.)

[Nike]

Or maybe not. It may just be that in the health care case, he interprets the taxation clause of the constitution differently than the other justices. (At least, I think that was the issue. It was so convoluted and unrelated to any of my day-to-day practice of law, it's fading from my memory already.) I don't think it means he suddenly converted to liberalism.

 

(This was supposed to be a reply to Nike's comment about CJ Roberts. It doesn't seem to have ended up there.)

Just noting the man could be full of surprises.

[click23]

NJ, while I agree that what all you mentioned has helped bring us here, I do not believe that this would be put to a vote right now unless it was the stated agenda of a few, high ranking members of the executive board.

[Hal_Crawford]

Chief Justice Roberts is the wild card. As Chief Justice he is concerned how history will view his court more than the current politics. I suspect that he does not want to go down in history as the Roger Taney of the 21st century.