Is Local Option An Illusion?

[Gone]

Yes if it's published in the official literature, as the chartering agreements require the troop be operated in accordance with the publsihed literature.

 

[verbatim]

Conduct the Scouting program consistent with BSA rules, regulations, and policies. They may be found on the My Scouting website and at the following location:

www.scouting.org/Membership/Charter_Orgs/resources.aspx

 

Hmmm. Does that remove the Supreme Court protection from Dale? Not an attorney so I don't know. @@Merlyn_LeRoy seems to suggest that there has to be some sort of more substantive change to remove the coverage from Dale; unless I mis-read the intent of his post.

[00Eagle]

Hmmm. Does that remove the Supreme Court protection from Dale? Not an attorney so I don't know. @@Merlyn_LeRoy seems to suggest that there has to be some sort of more substantive change to remove the coverage from Dale; unless I mis-read the intent of his post.

I doubt it.  However Dale only covers MEMBERSHIP, not employment.  That's probably one of the key factors forcing the recent change.  In future years some archivist will probably write the definitive book with all of the national board's and national executives' email traffic and we'll really know how it went down.

 

When Greater NY Councils hired a gay employee, they essentially called the BSA's bluff: a church can use the "ministerial exemption" in employment (e.g. to fire a gay youth pastor) but the BSA is not a church, and if it declared itself a religion it would have angered more sponsors and parents.  If GNYC fired Tessier at national's behest, either New York's EEOC or the federal EEOC would have crucified the council and national collectively.

[gumbymaster]

Hmmm. Does that remove the Supreme Court protection from Dale? Not an attorney so I don't know. @@Merlyn_LeRoy seems to suggest that there has to be some sort of more substantive change to remove the coverage from Dale; unless I mis-read the intent of his post.

Interestingly, it is Labor law that may provide the best answer here.  There are cases, I think against Macdonalds, that are trying to assert that the employees of a franchise (i.e. Bob's MacDonalds of St. Louis, Inc) really are employees of the Franchisee (i.e. MacDonalds corporate); and aside from all the labor related headaches that will create; that may essentially break a franchise system - there is no value in franchising (to reduce legal risks and administrative headaches), if the franchisee is held responsible for all the acts of the franchise holder.

 

I believe that as long as they are held to be separate, then the Churches' Boy Scouts units can be fully considered to be part of the Chruch ministry and held to the standards that govern the Church, not to standards imposed or selected by BSA corporate.

[Merlyn_LeRoy]

I don't see how the BSA's changes make it into something else instead of remaining a private organization.  Private organizations can exclude, include, or have some mixture of admitting gays or anyone else, and they can change these rules.  What kind of change makes it into a non-private organization?  What does it turn into, a public accommodation?  Something else?

[skeptic]

Do not see any differentiation in many comments between volunteers and paid employees in the contentions.  It seems to me that if you make a choice to volunteer, and you get turned down for whatever reason, you have much room to complain.  After all, there is no pay involved, and in this case, there are similar possible opportunities nearby, who very well may decide differently.  But, cannot see how there could be suit made under labor laws; there is no paid labor.  

[NJCubScouter]

Does that remove the Supreme Court protection from Dale?

As usual, not giving legal advice here. But here is my opinion:

 

The protection recognized in Dale remains in place, but the BSA is no longer making use of it. The Supreme Court decided that due to the BSA's (alleged) "teaching" that homosexuality is "wrong", the BSA is not required to "associate" with gay people, since the First Amendment "freedom of expressive association" trumps (oh, that name) New Jersey's public accommodations law. But now the BSA has decided to "associate" with gay people, even though it still has (at least for the moment) the constitutional right not to do so. So where does that leave religious organizations that are CO's? They could try to use the protection of "freedom of expressive association", but they don't need to. They already have the right to exclude people under their First Amendment "freedom of religion" - something the BSA itself could not use.

 

I am pretty sure that the BSA legal memo that was posted on their web site on the day of the first vote (mid-July) basically says (or is at least consistent with) what I have just said, but I read it only very quickly, on the day it appeared, so I could be mistaken.

[MattR]

I'm sure nobody has an answer to this one, but let's look for the murky grey areas that enable lawyers.

 

How solid is the CO/unit relation? Is a scout unit really part of the CO? Or is it really part of the BSA? I know that the contract says it's part of the CO but the BSA picks the program and defines it. There's a long history of the COs picking the people so it should be fine, but what about the case of my troop. I'm Jewish and the CO is Christian. Not only that but the church will likely leave things as they were but if it were my temple they'd change it. Can someone sue my CO and say they have a SM that shouldn't care so he/they/whatever can't claim religious protection?

 

This could be my exit strategy

[WAKWIB]

Concerning Dale, BSA lawyers recently said this:

If the BSA were required to litigate today its defense in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), it would almost certainly lose. Dale was a narrow 5–4 decision that balanced the government’s interest in protecting against discrimination based on sexual orientation and the BSA’s right protected by the First Amendment to select its own leaders.

http://scoutingnewsroom.org/wp-content/uploads/2015/07/Religious-Organization-Protections-Memo-062915.pdf   (page 1)

 

Concerning public accommodation law, from the same BSA legal source cited above:     (Page 4)
Would-be adult leaders in the BSA who have challenged its leadership standards have used state or local place of public accommodation statutes as a legal basis to seek a position in Scouting. Place of public accommodation laws vary from jurisdiction to jurisdiction. There is no national determination of whether the BSA is a place of public accommodation. Some jurisdictions have concluded that the BSA is a place of public accommodation. Other jurisdictions have concluded that the BSA is not a place of public accommodation. 

[WAKWIB]

In reality, both BSA legal counsel, and TLUSA's counsel fundamentally agree on the same thing: There will be challenges ahead. Groups such as Scouts For Equality have unequivocally stated that they intend to provide those challenges. 

BSA counsel puts a more favorable spin on the situation, but I'm sure they understand that they could be very busy dealing with 100 brush-fires in the years ahead.

[Gone]

In reality, both BSA legal counsel, and TLUSA's counsel fundamentally agree on the same thing: There will be challenges ahead. Groups such as Scouts For Equality have unequivocally stated that they intend to provide those challenges. 

BSA counsel puts a more favorable spin on the situation, but I'm sure they understand that they could be very busy dealing with 100 brush-fires in the years ahead.

Oh yay! More bashing from an unpleaseable liberal group. That's helpful.

[Merlyn_LeRoy]

Concerning Dale, BSA lawyers recently said this:

If the BSA were required to litigate today its defense in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), it would almost certainly lose. Dale was a narrow 5–4 decision that balanced the government’s interest in protecting against discrimination based on sexual orientation and the BSA’s right protected by the First Amendment to select its own leaders.

http://scoutingnewsroom.org/wp-content/uploads/2015/07/Religious-Organization-Protections-Memo-062915.pdf   (page 1)

 

Concerning public accommodation law, from the same BSA legal source cited above:     (Page 4)

Would-be adult leaders in the BSA who have challenged its leadership standards have used state or local place of public accommodation statutes as a legal basis to seek a position in Scouting. Place of public accommodation laws vary from jurisdiction to jurisdiction. There is no national determination of whether the BSA is a place of public accommodation. Some jurisdictions have concluded that the BSA is a place of public accommodation. Other jurisdictions have concluded that the BSA is not a place of public accommodation. 

 

I'd say those are out-and-out lies by the BSA's lawyers, so the BSA could look like it was "forced".

 

"Dale was a narrow 5–4 decision that balanced the government’s interest in protecting against discrimination based on sexual orientation and the BSA’s right protected by the First Amendment to select its own leaders."

 

No, the Dale decision said the BSA was a private organization, so it could discriminate in any way it liked.

 

 

"There is no national determination of whether the BSA is a place of public accommodation."

 

The supreme court ruled the BSA was a private organization.  That means it isn't a public accommodation.

Edited July 31, 2015 by Merlyn_LeRoy

[Daped01]

it is if your chartered by a non faith based organization.  I found this out the hard way the past few days.

[Gone]

it is if your chartered by a non faith based organization.  I found this out the hard way the past few days.

Do tell...

[qwazse]

I'm sure nobody has an answer to this one, but let's look for the murky grey areas that enable lawyers.

 

How solid is the CO/unit relation? Is a scout unit really part of the CO? Or is it really part of the BSA? I know that the contract says it's part of the CO but the BSA picks the program and defines it. There's a long history of the COs picking the people so it should be fine, but what about the case of my troop. I'm Jewish and the CO is Christian. Not only that but the church will likely leave things as they were but if it were my temple they'd change it. Can someone sue my CO and say they have a SM that shouldn't care so he/they/whatever can't claim religious protection?

 

This could be my exit strategy

Yah, and I have an Anglican friend who was the theologian in residence (or some such title) at a local synagogue. We're Americans, we like to mix things up ... a lot.

 

I think outside forces would not touch your situation. They may asail the BSA for granting a charter to any organization who excludes adults of a particular class from leading their "ministry, but not who includes adults of a particular class.

 

Also, I don't expect an effective assault to come through the courts, but rather through economic pressures of a plutocracy who favors a permissive sexual ethic.

[Gone]

Also, I don't expect an effective assault to come through the courts, but rather through economic pressures of a plutocracy who favors a permissive sexual ethic.

 

Since BSA is easing membership restrictions can we PLEASE lobby for them to ease up on beer at summer camp? Nothing's better than a nice micro-brew after a 10 mile hike in the Rockies. And I am pretty sure we could get a MUCH larger number of BSA members to support THAT policy change. 

Edited July 31, 2015 by Bad Wolf