Update On Adult Leadership Standards

[NJCubScouter]

On the distinction between religious and non-religious CO's: It seems clear that the BSA is making that distinction for purely legal reasons. As indicated in the memo I mentioned near the beginning of this thread, the BSA's counsel has advised that a religious organization/CO would stand a good chance of not only winning a lawsuit, but winning at a very early stage in the case. Since this opinion is based on the religious organization's rights under the First Amendment religion clauses, this does not work for a non-religious CO. This is confirmed, more or less, in the FAQ that is linked above, although I noticed something odd when I read that. For a few of the questions, on this very subject, the answer is evasive or incomplete. I thought the whole idea of a FAQ is that the answerer writes the questions and then answers them. You don't often see a FAQ where the person apparently wrote a question and then evades the question, or ignores parts of it.

 

The bottom line here is that if people within the BSA want to make this thing work, it can be made to work. There will probably have to be some realignment of CO's. Maybe some units will have to switch to religious CO's. Or if there is a Friends of Troop 123 and all of the members of the group share the same religious convictions, maybe they start the Community Congregation of Anytown, and do it in a way that does not interfere with their regular places of worship. I am not suggesting anything untrustworthy here; if the membership policy is religiously based, a religious organization can be created to carry it out. So I think it can work, if people want to make it work.

[David CO]

Stosh, I don't think religious CO's are being even the slightest bit hypocritical. It is not so much a matter of freedom of association as it is a question of ownership. Freedom of association doesn't give individuals the right to pick and choose the membership of units they do not own.

[packsaddle]

 For a few of the questions, on this very subject, the answer is evasive or incomplete. I thought the whole idea of a FAQ is that the answerer writes the questions and then answers them. You don't often see a FAQ where the person apparently wrote a question and then evades the question, or ignores parts of it.

 

Thanks, I missed that part. I can use this as an example of how NOT to create answers to questions.

[NJCubScouter]

I did a search on the words, "freedom to associate" and "freedom of association" and couldn't find those in the Bill of Rights. Am I missing something?

Also, "Right to privacy". Must be in there somewhere.

None of those phrases are in the Bill of Rights (or the 14th Amendment, which matters when state law is involved.) The U.S. Supreme Court has nevertheless found that the Constitution protects those rights. For the right to "expressive association" (the right at issue in the BSA v. Dale case), I believe the Courts rely on a combination of the "speech" clause and the "peaceable assembly" clause, both of which are in the First Amendment. For the right to privacy, different justices have found it in different places, and it has been a long time since I have read those cases, but I know there has been reliance on the Ninth Amendment ("rights not enumerated"), Fifth and 14th Amendments (due process), and I think they also look at the Fourth Amendment even though it is not directly relevant. Some justices have referred to the "penumbras and emanations" from various clauses in the Constitution to find rights that are not specifically stated. The "right to marry" (Loving v. Virginia and the new case) is one of those rights as well.

 

This article does a pretty good job of explaining what I am talking about, especially on the right to privacy: https://en.wikipedia.org/wiki/Griswold_v._Connecticut. If you really want to immerse yourself in this, there is a link in the article to the Griswold case itself including the concurring and dissenting options. It's not "light reading."

Edited July 17, 2015 by NJCubScouter

[Rick_in_CA]

No, Rick, I think Scouter99's main point was that homosexuality itself is evil.

Actually I disagree. See:

 

No, I'm upset because they're going to be having sex with the Scouts.

[David CO]

Hmm. Maybe your right.

[packsaddle]

So without an activist court we'd be without those rights, right?

[NJCubScouter]

So without an activist court we'd be without those rights, right?

I have two answers to that:

 

One: "Activist court" is a political term, not a legal term.

 

Two: In my opinion almost every Justice on the Supreme Court, going back many years, could be said to be an "activist" in one way or another. They are just "activist" on different issues and in different directions. "Activist" is used as an epithet for decisions the speaker does not like. (See Answer One.)

 

Take your pick, or make up your own. We could even change the question: "Without justices willing to find rights in the Constitution that are not specifically stated, we'd be without those rights. Right?"

 

Right.

 

But the Bill of Rights itself creates part of the issue about what other rights are protected in addition to those specifically stated. The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It should not be a surprise to learn that the meaning of that amendment has been controversial over the years.

Edited July 17, 2015 by NJCubScouter

[walk in the woods]

I would not personally recommend to a non-religious CO that they sidestep the rules on membership. Of course it can be done, but it doesn't feel to me like the Scouting way of doing things.

 

A neighboring Troop created a new name, avoid-a-sphere, to sidestep a ban on dodge ball. Sure, the ban on dodge ball, like the bans on water guns and water balloons, is silly. But what kind of example are we setting for the kids if we sidestep the rules we disagree with, especially if we make a joke of it.

 

A couple of years ago, on this forum, we had a lengthy discussion about ethics which raised the question of when it is ethical to break the rules. While we don't need to repeat that thread, I do find it interesting that it keeps reappearing on other topics.

Sorry, when the councils started ignoring the rules they didn't like all the rules went out the door.

[David CO]

The First Amendment right to freedom of assembly pretty much covers it. You can assemble with whomever you please with or without any formal organization.

 

Since freedom of assembly is an enumerated right, no judicial activism is necessary.

Edited July 17, 2015 by David CO

[walk in the woods]

I have two answers to that:

 

One: "Activist court" is a political term, not a legal term.

 

Two: In my opinion almost every Justice on the Supreme Court, going back many years, could be said to be an "activist" in one way or another. They are just "activist" on different issues and in different directions. "Activist" is used as an epithet for decisions the speaker does not like. (See Answer One.)

 

Take your pick, or make up your own.

It is a rather curious thing when court watchers can predict the votes of 8 or the 9 Justices before the case is actually heard (and at least one Justice telegraphed her vote well in advance).  Makes one wonder about the character of all of them.   Maybe Kennedy is the only honest broker on the entire bench.!

[Stosh]

The First Amendment right to freedom of assembly pretty much covers it. You can assemble with whomever you please with or without any formal organization.

 

Since freedom of assembly is an enumerated right, no judicial activism is necessary.

@@David CO  Thanks David, I used the word associate rather than assembly so my comments didn't count....

[walk in the woods]

OK, now I'm confused (thanks walk in the woods for finding that pdf). After reading the actual resolution, I'm not seeing the religious vs non-religious difference. The specific section is (bold emphases is mine):

This is appearing to give local control to all COs, not just religious ones? Reading the rest of the resolution, the only place that appears to specifically identify religious COs is the indemnify clause:

The rest of the resolution doesn't. So I'm not sure what the "No" in faq question 12 is actually referring too?

 

Even the media statement later in the pdf implies this:

It doesn't say "religious chartered organizations".

You could be right.  But, it also says the BSA will only indemnify "bona fide religious chartered organizations." 

 

Then there's this piece from the "Why This is Right for Scouting" section:

 

"This change also respects the right of religious chartered organizations to choose adult volunteer leaders whose beliefs are consistent with their own. It is important to note that the 2013 youth membership policy is not affected by this resolution and remains unchanged." 

 

And FAQ question 10:

 

10. If passed, does my religious organization have to allow gay leaders?

As has always been the case, religious institutions select their leaders. Religious organizations may do so according to their faith-based beliefs, regardless of this policy change.

 

Maybe 12 should have been 11 and they would make more sense together? 

 

I'm not a professional wordsmith but apparently neither are the people who wrote this PDF.

[Scouter99]

If my memory serves me, I have only ever removed one photo. It was the same one that NJ removed within the last 24 hours... but was re-posted by the same forum member in a later response. READ my note.

You're incorrect, I censored the photo before re-posting it.

 

Neither of you has attempted to explain why Scouts should participate in activities like those photos, but those photos shouldn't be in view of Scouts.  If you find the behavior of these people in their cultural showcase to be wholly inappropriate, why do you want them to register in your unit so badly?

Edited July 17, 2015 by Scouter99

[NJCubScouter]

It is a rather curious thing when court watchers can predict the votes of 8 or the 9 Justices before the case is actually heard (and at least one Justice telegraphed her vote well in advance).  Makes one wonder about the character of all of them.   Maybe Kennedy is the only honest broker on the entire bench.!

They can surprise you sometimes. There have been some strange combinations of justices, particularly on the kinds of cases that don't necessarily make the news. Breyer can be unpredictable, although probably less so now than earlier in his time on the Court. Roberts surprised some people with his votes on the health care statute. But in general, many votes are predictable because different justices' philosophies on various issues are known from past cases.