GOVERNMENT OF THE DISTRICT OF COLUMBIA
COMMISSION ON HUMAN RIGHTS
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IN THE MATTER OF :
Roland D. Pool and Michael S. : Docket Nos.: 93-030-PA
Geller, : and 93-031-PA
Boy Scouts of America and :
National Capital Area Council :
Boy Scouts of America, :
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COMPLAINANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
David M. Gische
Julie P. Glass
ROSS, DIXON & MASBACK, L.L.P.
601 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Table of Contents
Table of Contents i
Table of Authorities viii
I. INTRODUCTION 1
II.THE BOY SCOUTS 2
A.Structure of the Boy Scouts Organization 2
B.The Scout Oath, Law, Motto, Slogan 8
III.ROLAND POOL 9
IV.MICHAEL GELLER 19
A. The Boy Scouts Have a Strict National Policy of Excluding Homosexuals Based Upon Status, Not Based Upon Conduct 23
1. The Boy Scouts exclude homosexuals from Scouting simply on the
basis that they are homosexual, irrespective of conduct or other
2. The policy of excluding homosexuals from Scouting is a national
policy of the BSA to which no exceptions are allowed 24
3. Neither in statements, nor in fact, do the Boy Scouts have any
similar policy with respect to sexual status or conduct by heterosexuals 25
4. The national policy alone was the only basis upon which the Boy
Scouts demanded that Roland Pool and Michael Geller sever their
ties with Scouting 29
B. The Boy Scouts' Policy of Excluding Homosexuals is Not Part of Its Program 9
1. The morality of homosexuality and the policy or
procedures for excluding homosexuals is not part of
the Boy Scouts program 30
2. The morality of homosexuality is not something discussed in the vast
literature the Boy Scouts have published for use in Scouting 32
3.Scouters are not even supposed to raise with youth in private the
morality of homosexuality 41
C.The Boy Scouts' Various Articulations of the Policy Are Found in
Confused and Contradictory Public Relations Statements That Are Not
Generally Shared With The Volunteers Implementing The Boy Scouts'
1.The Boy Scouts' use of public relations statements 49
2.The 1991 position statements 53
3.The 1992 statements on the San Jose Troop and the United Way. 57
4.The Issues and Crisis Communications Guide 58
5.Other position statements 61
6.Scouting Magazine 62
7.The 1993 and 1994 statements 63
8.The response to the Merino decision 65
D.Because the Boy Scouts' Program and Its Program Materials Do Not Suggest
That Homosexuality is Immoral, Many Experienced Volunteers Were Unaware of the Policy 68
1.Thornell Jones 69
2.Charles Wolfe 70
3.William Kirkner 71
4.Daniel Press 73
5.David Geller 73
6.David Rice 74
7.Michael Cahn 75
8.Michael Herde, Russell McLaren, Daniel Shaw and William Kealey 76
9.David Caffey and Gregory Hobbs 77
10.Virginia Boyce Lind 78
E.Even the Individuals the Boy Scouts Chose as Witnesses Are Unable to
Articulate a Policy That is Consistent or Even Coherent 81
1.The Boy Scouts' witnesses disagree over whether the words "known or
avowed" are in the policy 81
2.The Boy Scouts' witnesses disagree over what the words "known or
avowed" are supposed to mean 84
a. Every organizational representative designated by the Boy Scouts
changed his testimony on this issue after his deposition 84
b. The Boy Scouts' representatives do not agree on what the policy
is supposed to mean 87
c. None of the views expressed about what the policy is supposed to
mean jibes with either the public statements or the actual practice 89
(1) Several Boy Scouts' witnesses simultaneously maintain that the BSA
does not ask about a person's sexual orientation and that its application requests that information 9
(2) Some Boy Scouts' witnesses seem to maintain that Scouters can swear
to be honest so long as they act dishonestly 91
(3) Other Boy Scouts' witnesses offer no explanation for the words "known
or avowed 92
(4) No formulation of "known or avowed" squares with the Boy Scouts'
approach to investigating allegations of homosexuality -- which is itself a matter of confusion among the witnesses 93
(5) None of these theories is consistent with the fact that the Boy Scouts
also run programs in which youth have gay role models and mentors 96
F. The Boy Scouts' Various Articulations of the Policy of Exclusion Belie
Any Suggestion that this Policy is Fundamental To Scouting or that the
Policy Has Anything To Do with Advocacy or Conduct 97
VI. THE BOY SCOUTS ARE A PUBLIC ACCOMMODATION 99
A. The Boy Scouts are Enormous 99
B. The Boy Scouts are Almost Totally Non-Selective and Aggressively Recruit Membership 99
C. The Boy Scouts are one of the most public organizations in existence. 106
D. The Boy Scouts Aggressively Use Public Relations in an Effort To
Increase Public Visibility, Support and Membership in the Community 110
E. The Boy Scouts Actively Promote and Sponsor Boy Scout Events in
the District of Columbia 111
F. Membership in the Boy Scouts determines access to numerous other
places of accommodation 113
G. The Boy Scouts are a large financial organization 114
H. Scouting Experience Provides Benefits Both to Youth and Adults 115
VII.THE BOY SCOUTS' DEFENSES ARE PRETEXTS FOR DISCRIMINATION 118
A. The Scout Oath and the Scout Law 120
1. The words "morally straight" do not support the Boy Scouts
exclusion of homosexuals 120
2. The word "clean" does not support the Boy Scouts' exclusion of
3. The Scout Oath and Scout Law, in general, do not support the
Boy Scouts' exclusion of homosexuals 124
B. Scouting Since 1910 130
C. Traditional Family Values 133
D. The Boy Scouts' Reference to the Views of Some Religious Groups Does
Not Justify Their Policy of Excluding Homosexuals 135
1. The Boy Scouts have always been "absolutely non-sectarian" and
opposed to requiring Scouts to choose the moral views of one religion over another 135
2. The Boy Scouts' policy of excluding homosexuals, however, not only
picks and chooses among the diverse views of various religions, it fails to track the views of any religion 140
3. The use by some religions of the religious emblems program does not
support the Boy Scouts' policy 146
4. The existence of a religious relationships committee does not support
the Boy Scouts' policy 147
5. The Boy Scouts failed to prove that sponsors would pull out
Scouting if the BSA's national office stopped requiring the
exclusion of homosexuals from Scouting 148
E. "Known or Avowed" 152
F. Role Modeling 153
G. Standardization -- The Least Common Denominator 161
H. Expressive Message 162
I. Other Possible Justifications 163
VIII. CONCLUSION 165
CONCLUSIONS OF LAW 167
I. THE BOY SCOUTS' DISCRIMINATION AGAINST ROLAND POOL AND
MICHAEL GELLER VIOLATES THE DISTRICT OF COLUMBIA HUMAN
RIGHTS ACT 167
A. The District of Columbia Human Rights Act is Intended to be aggressively
Applied to Eradicate Discrimination in the District of Columbia 167
B. Roland Pool and Michael Geller Easily Meet their Burden of Proof in
Demonstrating that the Boy Scouts have Discriminated Against them in
Contravention of the Act 169
C. The Boy Scouts are a Place of Public Accommodation Subject to the
District of Columbia Human Rights Act 71
D. The Record Does Not Support the Boy Scouts' Claim That They Are a
"Distinctly Private" Organization 177
1. The "distinctly private" exemption is extremely narrow and does
apply to the Boy Scouts 177
2. The Boy Scouts' nonselectivity in admitting members demonstrates
that they are not "distinctly private 179
3. The Boy Scouts' intensive promotional efforts belie the
that they are a "distinctly private" organization 181
4. The purposes which brought the Boy Scouts together preclude
finding that the organization is "distinctly private 182
5. The Boy Scouts' connection with nonmembers and public facilities
weakens their argument that they are "distinctly private 183
II. THE DCHRA DOES NOT INFRINGE ON THE BOY SCOUTS' RIGHTS OF ASSOCIATION 185
A. The Exclusion of Homosexuals is a Discriminatory Practice That Cannot
be Protected on the Basis of Pretextual Claims to Freedom of "Intimate
B. An "Expressive Association" Defense is Unsupported by the Facts 187
1. Exclusion of homosexuals is a discriminatory policy of the Boy Scouts'
leadership and is not an expressive goal of the organization 191
2. Enforcement of the Act would not substantially burden the Boy Scouts'
expressive goals 196
3. The District of Columbia has a compelling interest in eradicating
discrimination that justifies enforcement of the DCHRA 199
4. The Supreme Court's Decision in Hurley lends further support to this
III. OTHER ARGUMENTS BY THE BOY SCOUTS ARE NOT LEGALLY-
COGNIZABLE DEFENSES 203
IV. ROLAND POOL AND MICHAEL GELLER ARE ENTITLED TO RELIEF 206
A. Injunctive Relief 206
B. Compensatory Damages 207
C. Attorneys' Fees & Costs 208
TABLE OF AUTHORITIES CASES
Board of Directors of Rotary International v.
Rotary Club of Duarte, 481 U.S. 537
Brounstein v. American Cat Fanciers
Association, 839 F. Supp. 1100 (D.N.J.
Brown v. Dade Christian Schools, Inc., 556
F.2d 310 (5th Cir. 1977), cert. denied,
434 U.S. 1063 (1978) 191,193
Curran v. Mount Diablo Council of the Boy
Scouts of America, 72 Cal. Rptr. 2d 410
(Cal. 1998) 47,49,74,175,176
Dale v. Boy Scouts of America, 706 A.2d 270
(N.J. Super. Ct. App. Div. 1998) 174,176,184,185,186,
Dale v. Boy Scouts of America, No.
MON-C-330-92 (N.J. Super. Ct. Ch.
Div.), rev'd, 708 A.2d 270 (N.J. Super.
Ct. App. Div. 1998) 68,128
Dean v. District of Columbia, 653 A.2d 307
(D.C. 1995) 174,205
Dickerson v. D.C. Department of Human
Services, No. 89-465-PA (N) 173
EEOC v. G-K-G, Inc., 39 F.3d 740 (7th Cir.
Gay Rights Coalition v. Georgetown
University, 536 A.2d 1 (D.C. 1987) 168,174,200
Gould v. Big Brothers of the Nat'l Capital
Greater Washington Business Center v.
District of Columbia Commission on
Human Rights, 454 A.2d 1333 (D.C. 1982) 169
Green v. Kinney Shoe Corp., 704 F. Supp. 259
(D.D.C. 1988) 177,206
Havens Realty Corp. v. Coleman, 455 U.S. 363
Hishon v. King & Spalding, 467 U.S. 69 (1984) 185
Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557
In the Matter of Michael Lewis, Esq. on
behalf of Gregory Smith v. Dr. Richard S.
Runckle, COHR Docket No. 92-154-PA
In the Matter of Richardson v. Chicago Area
Council of the Boy Scouts of America,
No. 92-E-80 (Chicago Comm'n on Human
Relations) 74, 75, 88,170,187,
Invisible Empire of the Knights of the Ku
Klux Klan v. Mayor of Thurmont, 700 F.
Supp. 281 (D. Md. 1988) 188
Irish-American Gay, Lesbian and Bisexual
Group v. City of Boston, 636 N.E.2d
1293 (1994), rev'd sub nom., Hurley v.
Irish-American Gay, Lesbian and
Bisexual Group, 515 U.S. 557 (1995) 201,202
Matthews v. Automated Business Systems &
Services, Inc., 558 A.2d 1175 (D.C.
McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973) 169,170
NAACP v. Alabama, 357 U.S. 449 (1958) 185
National Organization for Women, Essex Ch. v.
Little League Baseball, Inc., 318 A.2d
33 (N.J. Super. App. Div.), aff'd, 338
A.2d 198 (N.J. 1974) 179
New York State Club Association v. City of
New York, 505-N.E.2d 915 (N.Y. 1987),
ff'd, 487 U.S. 1 (1988) 178
New York State Club Association v. New York,
487 U.S. 1 (1988) 188,189,190,191,192,
Norwood v. Harrison, 413 U.S. 455 (1973) 185
Price Waterhouse v. Hopkins, 490 U.S. 228
Ouinnipiac Council BSA v. Commission on Human
Rights and-Opportunities, 528 A.2d 352
(Conn. 1987) 175
RAP, Inc. v. District of Columbia Commission
on Human Rights, 485 A.2d 173 (D.C.
Randle v. Lasalle Telecommunications, Inc.,
876 F.2d 563 (7th Cir. 1989) 169,170
Roberts-v. United States Jaycees, 468 U.S.
609 (1984) 178,179,183,185,186,
Rogers v. International Association of Lions
Club, 636 F. Supp. 1476 (E.D. Mich.
Runyon v. McCrary, 427 U.S. 160 (1975) 185
Schwartz v. The Cosmos Club 173,179
Seabourn v. Coronado Area Council, Boy Scouts,
of America, 891 P.2d 385 (Kan. 1995) 175
TWA v. Thurston, 469 U.S. 111 (1985) 170
Timus v. D.C. Department of Human Rights, 633
A.2d 751 (D.C. 1993) 174
U.S. Power Squadrons v. State Human Rights
Appeal Board, 452 N.E.2d 1199 (N.Y.
United States Jaycees v. Bloomfield, 434 A.2d
1379 (1981) 174
Welsh v. Boy Scouts of America, 993 F.2d 1267
(7th Cir. 1993), cert. denied, 510 U.S.
1012 (1993) 175,176
10 U.S.C. 2544 109
10 U.S.C. 4682 109
10 U.S.C. 7541 109
10 U.S.C. 9682 (statutes authorizing the
military to sell obsolete or excess
material to the Boy Scouts of America) 109
13 U.S.C. 641 109
36 U.S.C. 23 (1916) 2,106
Civil Rights Act of 1964, 42 U.S.C. 2000e,
et seq 169,175
D.C. Code 1-2501 (1987) (emphasis [in opinion]) 167,168,170,171,176,
D.C. Code 1-2512 (1987) 205
D.C. Code 1-2553(a)(1)(E) and (F) 208
Pub. L. 87-459 109
DCHRA 1-2502(24) 176
DCHP,A 1-2501 168,171,206,207
DCHRA 1-2503(a) 204
DCHRA 1-2519 168
DCHRA 1-2531 172
34 D.C.R. 6887 172
GOVERNMENT OF THE DISTRICT OF COLUMBIA
COMMISSION ON HUMAN RIGHTS
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
IN THE MATTER OF :
Roland D. Pool and Michael S. : Docket Nos.: 93-030-PA
Geller, : and 93-031-PA
Boy Scouts of America and :
National Capital Area Council :
Boy Scouts of America, :
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COMPLAINANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Complainants Roland D. Pool and Michael S. Geller, by their attorneys, Ross, Dixon & Masback, L.L.P., hereby propose the following Findings of Fact and Conclusions of Law in this matter.
FINDINGS OF FACT
1. This case is about discrimination and, unfortunately, prejudice. The National Office of the Boy Scouts of America ("BSA") discriminates against gays and lesbians by absolutely excluding them from membership or participation. The National Capital Area Council, Boy Scouts of America ("NCAC") (collectively with the BSA, the "Boy Scouts"), which the BSA charters, carries out that discrimination.
2. The Boy Scouts' discrimination is not based on conduct or expression. It is based upon status. This discrimination does not effectuate any protected expressive purposes of the BSA or the NCAC; rather, it exists in direct contradiction to their expressed purposes. And what purports to be a constitutional defense of this discrimination actually amounts to nothing more than a grab bag of excuses each one more clearly pretextual than the last.
3. The Boy Scouts' conduct is illegal. In this instance, it has hurt not only Complainants Roland Pool and Michael Geller -- two eminently qualified adult Eagle Scouts -- but the numerous scout leaders who were more than happy to make use of their skills and the scouts who could have benefited from them.
II. THE BOY SCOUTS
A. Structure of the Boy Scouts Organization.
4. Respondent BSA is a non-profit corporation. The BSA was originally incorporated in the District of Columbia in 1910. Now, however, it is a Texas corporation, with its national office in Irving, Texas. Jere B. Ratcliffe is the current Chief Scout Executive -- the BSA's Chief Executive Officer. Ex. C1129 at NCAC4925, 4930, 4933.
8. In 1916, the Boy Scouts obtained a charter by Act of Congress:
to promote, through organization and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which are now in common use by Boy Scouts.
36 U.S.C. § 23 (1916); Ex. C1300 § 3.
5. In the 1980s, the Boy Scouts issued a mission statement stating:
It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential.
The values we strive to instill are based on those in the Scout Oath and Law.
Ex. R1; Ex. C1600 at A2552.
6. The BSA is a nationwide organization that, since 1910, has had over 93,000,000 members. Ex. C1122 at NCAC4881. As of December 31, 1996, its membership was approximately 4,400,000 youth and 1,200,000 million adult members, including 3,540 professionals involved in Scouting nationwide. Ex. C1310 at 27.
7. There are a number of Scouting programs. Cub Scouts is for boys ages 7-10, including Tiger Cubs (the program for seven-year-olds) and Webelos (the transition program for 10-year-olds). Boy Scouts is for boys ages 11-18. Explorers is a coeducational program for young people ages 14-20. Ex. C1134 at NCAC4888. Through a subsidiary, the BSA runs Learning for Life -- a coeducational school-based program for youth from kindergarten through high school. Exs. 1000-1004. In February 1998, the BSA's National Executive Board voted, effective August 1, 1998, to separate Exploring into two different programs -- Venture Exploring and Career Exploring -- and to move the latter program to the Learning for Life subsidiary. Tr. 2466-67 (Leet); Ex. C1007.
8. The BSA maintains four regional offices and divides each region into smaller geographical "areas." C1300 at 112-13; Flythe Dep. at 10. The District of Columbia is located in Area VI of the BSA's Northeast Region, which has its regional headquarters in Dayton, New Jersey. Ex. C313 at A1172.
9. Within the areas of each of its geographic regions, the BSA charters councils. Ex. C1300 at NCAC114. As of December 31, 1996, there were 335 councils nationwide. Ex. C1310 at 27.
10. Respondent NCAC is a District of Columbia corporation, chartered by BSA for the purpose of carrying out the BSA's program in the District of Columbia and 16 surrounding counties in Virginia and Maryland. Ex. C313 at NCAC1172; Tr. 567-68 (Press). Ron L. Carroll is the current Scout Executive -- a professional who serves as the Chief Executive Officer -- of the National Capital Area Council. Tr. 1095 (Carroll).
11. The NCAC is divided into districts. The District of Columbia is covered by two such districts. The Benjamin Banneker District ("Banneker District") of the NCAC covers Northwest Washington and Northeast Washington to Maryland Avenue. Tr. 303 (Jones). The Horizon District covers the remaining portions of the city. Id. Each of these districts has a District Committee whose responsibility it is to provide activities for the chartered organizations. Tr. 305-06 (Jones).
12. Each district has at least one professional District Executive, a volunteer District Commissioner, who oversees Assistant District Commissioners and Unit Commissioners, and a Chairman, which is also a volunteer position. Ex. C909 at NCAC378. The Boy Scouts refer to the District Executive, the District Commissioner and the District Chairman as the "Key Three;" collectively, they are the persons in the district responsible for carrying out the BSA program and seeking to achieve its objectives. Tr. 301-05 (Jones).
13. The District Commissioner runs a "Commissioner staff," which typically includes Assistant District Commissioners, who report to the District Commissioner, and Unit Commissioners, who report to the Assistant District Commissioners. Ex. C906; Tr. 299-302 (Jones). Unit Commissioners assist adults in "units" -- Cub Scout packs, Boy Scout troops, or Explorer Posts, Bond Dep. at 47 -- by conveying to them the information they need to run the program and by performing quality control to make sure that the program is being run properly. Ex. C906; Tr. 299-302 (Jones). The Commissioner staff is both a channel of communication through which the BSA and its councils tell adult leaders at the troop level what they need to know to run the Scouting program and is also a source of expertise and guidance on how that program is to be run. Id.
14. The BSA is required by its charter to operate its program through cooperation with other organizations. Ex. C1300 § 3. Organizations such as public schools, government organizations, churches, synagogues, mosques, civic groups or groups of citizens obtain a charter from the Boy Scouts to sponsor an individual Scouting unit. Ex. C1153. Troops and packs also have a troop or pack committee made up of representatives from the sponsoring organization, parents, and others, who pick the troops' Scoutmaster and provide various types of support, including transportation, chaperons and resources to the troop. Tr. 281-82 (Jones).
15. These outside organizations also play a central role in the governance of the Boy Scouts. The "membership" of each local council does not consist of all the members of the Boy Scouts within the Council. Rather, it consists of "a chartered organization representative from each chartered organization and additional members at large from within the territorial boundaries of the local council totalling a minimum of 100 adults." Ex. C1300 at NCAC114 (Art. VI, § 7, cl. 1). These councils, in turn, choose approximately 2,000 adult representatives to the BSA's National Council, which, in turn, chooses all but a small number of the members of the BSA's National Executive Board. Id. at NCAC 108-109 (Arts. I-III); Tr. 2459-61, 2507-13 (Leet).
16. A Scoutmaster is the adult leader of a Scout troop. Assistant Scoutmasters are adults who work with the Scoutmaster. A Junior Assistant Scoutmaster is a senior youth scout in the troop. Ex. C701 at 21-22, 33-49. Boy Scout troops are typically divided into patrols, which are groups of 3-8 boys, led by a youth who acts as patrol leader. A senior patrol leader is an experienced older scout who is elected by all the scouts in the troop. Id.
17. As with all adult leaders, Scoutmasters, Assistant Scoutmasters and troop committee members are required to be members of the BSA. Once registered as members, however, they do not need to complete new applications to remain in their positions. Instead, their names can be submitted on an annual roster when the troop reregisters with the BSA. Hill Dep. at 164. Adult troop leaders are required to receive a "fast-start" training to familiarize them with the program and a more intensive training now called "Scoutmastership Fundamentals." Tr. 293 (Jones).
18. Individual scouts progress through ranks. The scout ranks are scout, tenderfoot, second class, first class, star, life and the highest rank, Eagle Scout. Tr. 55 (Geller). In order to progress, scouts must meet requirements specific to each rank and earn merit badges. Ex. C700 at 589.
19. Becoming an Eagle Scout is Scouting's highest honor. Ex. C1313 at NCAC2059; Bond Dep. at 82. Only about two percent of all Boy Scouts ever attain the rank of eagle. Bond Dep. at 121; Ex. C1122 at NCAC4881.
20. The Order of the Arrow is a national brotherhood of scout campers that recognizes those campers "who best exemplify the Scout Oath and Law in their daily lives and by such recognition cause other campers to conduct themselves in such manner as to warrant recognition." Ex. C115 at 14. Scouts can only become members of the Order of the Arrow by being chosen from the members of their troop. The Order of the Arrow (or "OA") has lodges at the council level and sections at the area level. Tr. 515-18 (Press). Youths can obtain leadership positions in their OA lodge by becoming vice lodge chiefs and lodge chiefs. They can also progress through three advancements - Ordeal, Brotherhood and Vigil Honor. Tr. 520-21 (Press).
21. "The Vigil Honor is the highest honor that the Order of the Arrow can present its members for service to the local lodge and council." Ex. C115 at 23; Bond Dep. at 122. It is for those deemed to have demonstrated the highest level of altruistic service to the Scouting program and to their community, Ex. C115 at 23, 71-72; Tr. 521 (Press), and available only to a limited number of Order of the Arrow members in each council. Ex. C115 at 70.
B. The Scout Oath, Law, Motto, Slogan.
22. The Scout Oath states:
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong, mentally awake, and morally straight.
Ex. C700 at 5, 550-551.
23. As set forth in the current Scout Handbook, the Scout Law states:
A Scout is TRUSTWORTHY. A Scout tells the truth. He keeps his promises. Honesty is a part of his code of conduct. People can always depend on him.
A Scout is LOYAL. A Scout is true to his family, friends, Scout leaders, school, nation, and world community.
A Scout is HELPFUL. A Scout is concerned about other people. He willingly volunteers to help others without expecting payment or reward.
A Scout is FRIENDLY. A Scout is a friend to all. He is a brother to other Scouts. He seeks to understand others. He respects those with ideas and customs that are different from his own.
A Scout is COURTEOUS. A Scout is polite to everyone regardless of age or position. He knows that good manners make it easier for people to get along together.
A Scout is KIND. A Scout understands there is strength in being gentle. He treats others as he wants to be treated. He does not harm or kill anything without reason.
A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop. He obeys the laws of his community and country. If he thinks these rules and laws are unfair, he tries to have them changed in an orderly manner rather than disobey them.
A Scout is CHEERFUL. A Scout looks for the bright side of life. He cheerfully does tasks that come his way. He tries to make others happy.
A Scout is THRIFTY. A Scout works to pay his way and to help others. He saves for the future. He protects and conserves natural resources. He carefully uses time and property.
A Scout is BRAVE. A Scout can face danger even if he is afraid. He has the courage to stand for what he thinks is right even if others laugh at him or threaten him.
A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He goes around those who believe in living by these same ideals. He helps keep his home and community clean.
A Scout is REVERENT. A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.
Ex. C 700 at 7-8, 553-561; Ex. R175 at 9-11 (transcript of Horne eagle ceremony).
24. The Scout Motto is "Be Prepared." Ex. C700 at 562.
25. The Scout Slogan is "Do a Good Turn Daily." Ex. C700 at 563.
III. ROLAND POOL
26. Roland Pool has been a resident of the District of Columbia since 1987. Tr. 705-06.
27. Mr. Pool attended college at Louisiana State University in Baton Rouge, Louisiana and graduated in 1985. Tr. 707. He attended Dartmouth College on a graduate fellowship to study volcanology. Tr. 708. After working for three years at the Smithsonian Institution as a computer specialist, he became a geologist at the Museum of Natural History at the Smithsonian Institution. Tr. 708-09. He planned and designed a volcano exhibit for the new Rock, Gem and Geology Hall, which opened in 1997, and collaborated on a one-book encyclopedia entitled, "Volcanoes of the World." Tr. 710.
28. In 1997, Mr. Pool entered the Wesley Theological Seminary in the District of Columbia. Tr. 711. He is currently studying pastoral skills and theology, with the goal of becoming a pastor in the Religious Society of Friends. Tr. 711.
29. Mr. Pool is exceptionally well-qualified to be a Unit Commissioner in the Banneker District of the NCAC. In addition to his educational background, his training as a volcanologist, and his current religious studies, Mr. Pool has had extensive experience with the Boy Scouts, both as a youth and an adult. Roland Pool began scouting as a cub scout and progressed through its levels of Bobcat, Wolf, Bear and Webelo. Tr. 716.
30. As a Boy Scout, Roland Pool rose through the levels from Scout, Tenderfoot, Second Class, First Class, Star and Life. In 1979, he became an Eagle Scout -- the first Eagle Scout in Troop 85 in Mandeville, Louisiana. Tr. 722; Exs. C102, C106, C108, C109.
31. Mr. Pool was elected into the Order of the Arrow by the other boys in his Troop. Tr. 740; Ex. 115. After completing the Ordeal, Mr. Pool advanced to the Brotherhood rank and received the Vigil Honor, the highest rank of the Order of the Arrow. Tr. 741. Mr. Pool was elected to the Vigil Honor rank by a committee appointed by the Order of the Arrow Lodge. Tr. 741; Exs. C101A, C101B, C101C, C105. He also served as Vice Lodge Chief and later as Lodge Chief of the Order of the Arrow. Tr. 748-49.
32. Mr. Pool also became an Explorer as well as a Boy Scout, serving as the Vice President of the Aquatics Explorer Post in Mandeville, Louisiana from 1976 through 1977. Tr. 745.
33. On turning 18, Mr. Pool re-registered with the Boy Scouts as an Assistant Scoutmaster with Troop 85. He actively participated as an Assistant Scoutmaster for two years. Tr. 746-47, Ex. C104. In 1977 and 1981, he was selected as an adult leader for the special troops assembled for the Boy Scouts' National Jamborees. Tr. 723-25.
34. Mr. Pool also was actively involved with the Philmont Scout Ranch. Philmont is "the premier high-adventure backpacking destination for Scouts in the United States," and competition for positions at Philmont is "extremely competitive." Tr. 439-440 (Herde). In addition to being a Scout participant at the Philmont Scout Ranch in 1978 and 1979, Mr. Pool was a staff employee at Philmont for five years from 1980 through 1984. Tr. 752-61. He was a Ranger for two summers in 1980 and 1981; a Training Ranger for two summers in 1982 and 1983; and the Assistant Director for Conservation in 1984. Tr. 754-56; Ex. C111. As the Assistant Director for Conservation, Mr. Pool had the responsibility to supervise a $70,000 grant from Tandy Corporation to develop an environmental program. Tr. 756-57. The program that Mr. Pool designed and implemented was used for three years by 17,000 scouts each year. Id. He also wrote the Land chapter of the Philmont Field Guide, published in 1985 by the Boy Scouts of America. Tr. 757-58, Ex. C120. At the end of his summer as Assistant Director of Conservation, Mr. Pool was recommended by his superiors to be Chief Ranger -- the supervisor of 150 Philmont rangers. Tr. 760-61; Ex. C111.
35. When Mr. Pool was a youth member of the Boy Scouts, his understanding was that the term "morally straight" had to do with a person's character, and had nothing to do with a person's sexual orientation. Tr. 763-65. Similarly, Mr. Pool understood that the phrase "clean" in the Scout Law had to do with being physically clean and clean in word and deed, and that there was no sexual component to the term "clean" in the Scout Law. Mr. Pool credibly testified that, during the period that he was a youth member of the Boy Scouts, "there was never a single discussion about sex, period." Tr. 765. Similarly, there was no discussion about homosexuality, and no one ever taught on the subject of the morality of homosexuality. Tr. 766.
36. Mr. Pool became aware that he was gay at the age of 13. At no time did his sexual orientation become a subject of discussion with others in the Boy Scouts, including his five summers at Philmont. Tr. 766-68. Mr. Pool testified that, if a Scout came to him at the time he was an Assistant Scoutmaster to discuss issues regarding sexual orientation, he would listen carefully and would help the Scout find a resource, a counselor, or someone from the religious community with whom he could consult. Tr. 768-79.
37. Between 1985 and 1992, Mr. Pool went to graduate school, began work, and was not an active Scouter. Nonetheless, he retained his interest in Scouting, collecting Boy Scout memorabilia that line the walls of his home, and attending the 1989 National Jamboree. Tr. 778, 942.
38. In February 1992, Mr. Pool read an article in The Blade, which had referenced an article in "The Washington Post" indicating that homosexuals were inappropriate for Scouting. Tr. 773. Prior to reading that article in February 1992, Mr. Pool had no knowledge of any Boy Scout policy excluding homosexuals. Tr. 773. From 1985 to 1992, several of Mr. Pool's friends involved in Scouting became aware of his sexual orientation. None of those individuals advised Mr. Pool that, because he was gay, he could no longer participate in Scouting. Tr. 774-75.
39. In March or April 1992, Mr. Pool ran into an acquaintance, Bart Church, and briefly discussed the Boy Scout's policy excluding homosexuals. When Mr. Pool told Mr. Church that he had been an Eagle Scout, Mr. Church referred him to the ACLU for legal advice. Tr. 775-76.
40. In June 1992 Mr. Pool called the NCAC about obtaining an Assistant Scoutmaster position. He was directed to Banneker District Executive Stuart M. ("Mike") Bond.
41. Mr. Bond suggested that Mr. Pool might be interested in the higher position of Unit Commissioner. Tr. 778 (Pool); Bond Dep. at 114-15.
42. Unit Commissioners do not generally work with youth. Although Unit Commissioners are supposed to attend troop meetings on occasion, it is up to the Scoutmaster if youth in a troop are even introduced to a Unit Commissioner. Tr. 310 (Jones); Ex. C909 at NCAC367. The contact with youth would be so limited that experienced commissioners and youth may well not even know each other by name. Tr. 529 (Press). And volunteer leaders at the district level, such as Unit Commissioners, would "almost never" be in direct supervision of youth. Kay Dep. at 80-81.
43. On Tuesday, June 23, 1992, Roland Pool attended the Banneker District Committee meeting at Mr. Bond's request. Tr. 778-779 (Pool); Tr. 371 (Jones). The meeting was held in the Banneker District at St. Paul's Episcopal Church in the District of Columbia. Tr. 352 (Jones); Tr. 779 (Pool); C1105. At the meeting, Mr. Bond introduced Mr. Pool as a new Unit Commissioner. Tr. 371 (Jones).
44. Mr. Pool's skills and experience were particularly well-suited to serving as a Unit Commissioner. To perform well, a Unit Commissioner needs to be personable and tactful; and the more he knows about the Scouting program the better. Tr. 310 (Jones); Ex. C906 at 7.
45. Roland Pool clearly had these qualities. He impressed the people with whom he would have worked -- Thornell Jones, Daniel Press and William Kirkner -- as being "an open person," who was "enthusiastic and also had a tremendous Scouting background," and was "a professional in life." Tr. 371-74 (Jones); Tr. 530 (Press); Tr. 1970-73 (Kirkner). His status as an Eagle Scout, a Vigil Honor member of the Order of the Arrow, his extensive experience at Philmont and his knowledge of conservation were particularly high credentials. Tr. 372-74 (Jones); Tr. 533-34 (Press); Tr. 1971-72 (Kirkner). Someone with his credentials would have been a significant addition to Scouting anywhere, and especially in the Banneker District. Tr. 606-07 (Press); Tr. 1971-73 (Kirkner). As one witness put it, Roland Pool was "a Godsend." Tr. 1973 (Kirkner).
46. At the District Committee meeting, various scouters spoke about the need of the Banneker District to attract new members. Ex. C1105. One also spoke about what the Boy Scouts refer to as the "three G's" -- the Boy Scouts' policies of excluding "gays, girls and the godless [i.e., atheists]." Tr. 779 (Pool).
47. At the District Committee meeting, Mr. Pool was invited to a Unit Commissioner training session that had been scheduled for that Saturday, July 27, 1992. Usually this training is conducted in the Banneker District; however, because of a conflict of schedule, it was conducted at the Council headquarters in Bethesda, Maryland. Tr. 377 (Jones); Tr. 782 (Pool).
48. At the training session, Mr. Pool was handed a notebook identifying him as "Unit Commissioner Roland Pool," Ex. C302; Tr. 405-406 (Jones); Tr. 787-88 (Pool), an organizational chart with his name included as Unit Commissioner, Ex. C300, and program materials concerning the Banneker District assembled by the District Commissioner, Thornell Jones. Ex. C313; Tr. 378-89 (Jones).
49. The training session taught about the job of Unit Commissioner and how to schedule matters and how to rate performance. Tr. 376 (Jones). It was not part of the training to discuss the Boy Scouts' policy concerning homosexuals. Tr. 376 (Jones); Tr. 785-89 (Pool); Bond Dep. at 124.
50. The subject of the Boy Scouts' exclusion of homosexuals, however, arose at lunch. Mr. Press and Mr. Kirkner, who were both lawyers, discussed the policy and expressed the view that the policy was wrong, illegal in the District of Columbia and contrary to the principles of Scouting. Tr. 380-82 (Jones); Tr. 576-77 (Press); Tr. 1973-81 (Kirkner). Mike Bond was present during that conversation. Bond Dep. at 124-25.
51. Roland Pool did not initiate this conversation or take any part in it. Tr. 787 (Pool). He never mentioned his sexual orientation at the meeting and no one was left with any knowledge about his sexual orientation. Tr. 407-08 (Jones); Tr. 787 (Pool).
52. At the end of the training session, Mr. Pool received a patch and certificate signed by Scout Executive Ron Carroll demonstrating Mr. Pool's successful completion of his training as a Unit Commissioner. Ex. C301; Bond Dep. at 117-19.
53. Mr. Bond first signed his approval on Mr. Pool's application and then scratched his signature out. Ex. C305; Tr. 590 (Press). See Bond Dep. at 151-52.*/
54. By letter dated July 3, 1992, Mr. Pool submitted to Mike Bond his application to become a Unit Commissioner in the Banneker district. Exs. C303, C304. In the cover letter, Mr. Pool advised Mr. Bond that he was gay. Ex. C303. In the attached application, Mr. Pool stated that he was a member of the Smithsonian Lesbian and Gay Issues Group, had previously been affiliated with the Sexual Minority Youth Assistant League ("SMYAL"), and had served as a peer counselor at Whitman-Walker Clinic. The Application Mr. Pool completed did not refer to sexual orientation. In a Section "6" entitled Additional Information, the application asked whether the applicant used drugs, was ever convicted of an offense, was charged with child neglect or abuse or had his driver's license suspended or revoked. Ex. C304. Question 6e asked whether there was "any fact or circumstance involving you or your background that would call into question your being entrusted with the supervision, guidance, and care of young people." Mr. Pool answered "no" to each of the subparts in question 6 of the Application, including Question 6e. Ex. C304, Tr. 791-95.
55. On July 14, 1992, 11 days later, Ron Carroll wrote to Roland Pool stating that, "[a]fter careful review, we have decided that your registration with the Boy Scouts of America must be denied. We are, therefore, compelled to request that you sever any relations that you may have with the Boy Scouts of America." Ex. C309. Mr. Carroll's letter did not state the reason why Mr. Pool's registration with the Boy Scouts of America must be denied.
56. Mr. Carroll's decision to send this letter in the mail, with no explanation, violated the Boy Scouts' own procedures. Under the Boy Scouts' procedures, the Scout Executive was supposed to hand deliver the letter and to provide an explanation for the decision. Ex. C603 at NCAC2581 (Item 6); Mack Dep. at 162-64.
57. On the same day of Mr. Carroll's letter, Steven Montgomery, Associate Scout Executive, sent information to Paul Ernst, Director, Registration Service of the Boy Scouts of America, for the purpose of adding Mr. Pool to the Ineligible Volunteer File maintained by the Boy Scouts of America in Irving, Texas. Ex. C307. The BSA developed this "Ineligible Volunteer File" "in the early days of Scouting to record and bar from membership those people seeking to register in Scouting who were known to be unfit for membership." Ex. 604 at NCAC4285. It includes people who have engaged in all manner of crimes and financial misdealing, theft, child abuse, as well as homosexuals. Ex. C1505 ¶ 4. Mr. Carroll's letter to Mr. Pool, however, did not inform him that the Ineligible Volunteer File existed or that he was being placed in it. Ex. C309.
58. On July 29, 1992, Mr. Pool wrote Mr. Carroll expressing his disappointment over the Boy Scouts' decision and requesting a reason why he had to sever his relations with the Boy Scouts. Tr. 798-99, Ex. C310. In response, Mr. Carroll wrote Mr. Pool on August 6, 1992:
I'm sorry, Roland . . .
. . . that it was necessary for you to write a letter to me requesting an explanation as to why your membership in Scouting has been rejected. It was my impression that you were made aware of the policy that the Boy Scouts of America does not accept homosexuals as youth leaders.
Ex. C311. Mr. Carroll concluded "I would share with you that this is a policy of our National organization which this council is bound to comply with and one that our council leadership supports." Id.
59. The Boy Scouts have not produced anyone on the Commissioner staff with whom Roland Pool would have worked who would have had the slightest problem working with a homosexual, in general, or Roland Pool in particular. Thornell Jones testified that he was "very upset" when he learned that Mr. Pool's application had been rejected, and that Mr. Pool's homosexuality would not have had anything to do with his performance as a Unit Commissioner. Tr. 408 (Jones). Daniel Press and William Kirkner both had similar reactions. Tr. 591-94 (Press); Tr. 1970-73 (Kirkner).
60. Indeed, after he learned of Roland Pool's rejection, Mr. Jones raised the issue of whether anyone would have a problem with a homosexual Unit Commissioner both at a meeting of his commissioner staff and at a round table attended by 20 to 40 Scoutmasters, Assistant Scoutmasters and other adult leaders in the Banneker District. Tr. 409-10 (Jones). Not one of them expressed any view that it was appropriate to exclude Roland Pool from Scouting. Id.; Tr. 593 (Press). Mr. Jones expressed no doubt that the Banneker District had been made worse by excluding Roland Pool from Scouting. Tr. 411-12 (Jones). Mr. Press put it "[w]e needed him. We needed people, and particularly we needed people like him to be able to . . . serve the Scouts that we were charged with serving." Tr. 594.
IV. MICHAEL GELLER
61. Michael Geller has been a resident of the District of Columbia since 1987. Tr. 28. He is currently employed at The World Bank. Tr. 40. After growing up in Owego, New York, he attended Cornell University in Ithaca, New York, graduating in 1984. Tr. 27-29. He has worked at The World Bank since late 1992 or early 1993. Tr. 38.
62. Mr. Geller comes from a family steeped in Scouting tradition. Two of his uncles were Eagle Scouts. His father is a Life Scout who in 1997 celebrated 55 years in Scouting. His father received the Silver Beaver Award from the Boy Scouts for his dedicated years of service. Michael Geller's brother, David, is also an Eagle Scout, as are his three cousins. Tr. 43.
63. Michael Geller was a member of Troop 37 in Owego, New York, sponsored by St. Paul's Episcopal Church. Tr. 46. His troop was located in the Baden-Powell Council, named after the founder of the scouting movement in England in 1907. Tr. 47. Mr. Geller became a Boy Scout on his eleventh birthday, the first day he was eligible. He became an Eagle Scout in 1979 after six years of scouting. Tr. 55-56, Ex. C202. Upon attaining the rank of Eagle, he received congratulatory letters from President Carter, Ex. C204, and Congressman Matthew McHugh. Ex. C205.
64. In 1977, Mr. Geller was elected to the Order of the Arrow, the National Brotherhood of Scout Honor Campers. Tr. 67, Ex. C209. The election signified that Mr. Geller was "one who lives according to the Scout Oath or promise and Law." Ex. C209a.
65. During the time that Mr. Geller was a youth member of the Boy Scouts, he understood the term "morally straight" in the Scout Oath to require that one conduct oneself in an upright manner. Tr. 74-75. During that time, he never had an occasion in which a Scoutmaster or other adult leader gave instructions or comments on sexual conduct, the morality of any particular sexual conduct, or sexual orientation. Tr. 76-77. Mr. Geller understood the term "clean" in the Scout Law to mean literally to keep oneself clean and to have a clean body and mind. Tr. 77-78. Other than certain health issues related to sexual conduct, there was never any discussion regarding sexual conduct or sexual orientation in the context of the term "clean" in the Scout Law. Tr. 77-78. No one ever told Mr. Geller, and he never formed the understanding, that homosexuality was inconsistent with the Scout Oath or the Scout Law. Tr. 79.
66. From 1980 through 1992, Michael Geller was continually registered as an adult leader of Troop 37 in the Baden-Powell Council. Tr. 93-98, Exs. C210, C211.
67. Mr. Geller became aware that he was gay in 1983. Tr. 94. Shortly thereafter, he told both his parents and his brother that he was gay. Tr. 95. At no time did his father tell him or believe that his sexual orientation would require him to withdraw his registration from the Boy Scouts. Tr. 96; Tr. 479 (D. Geller).
68. On February 25, 1992, Michael Geller read an article in The Washington Post that included a statement by Ron Carroll to the effect that he did not believe that homosexuals made good role models for youth as they progress into manhood and, therefore, the Boy Scouts did not accept homosexuals as adult leaders. Tr. 100-01, Ex. C400. Prior to that time, Mr. Geller was unaware of any Boy Scout policy excluding homosexuals. Tr. 102.
69. In response to this article, Mr. Geller wrote Ron Carroll on February 26, 1992 to express his disagreement with Mr. Carroll's view that homosexuals were inappropriate role models within the Boy Scouts. Tr. 100, Ex. C400.
70. On February 27, 1992, the very same day that Mr. Carroll received Mr. Geller's letter of February 26, 1992, Mr. Geller's membership in the Boy Scouts was deleted from the Boy Scouts' membership database. Ex. C401.
71. On March 2, 1992, Rudy Flythe wrote Mr. Geller that, "[a]fter careful review, we have decided that your registration with the Boy Scouts of America should be denied," and requested that Mr. Geller sever any relations that he may have with the Boy Scouts of America. Tr. 118-19, Ex. C402. Mr. Flythe did not give any reason for the Boy Scouts' decision to require Mr. Geller to sever all relations with them.
72. Mr. Flythe's decision to send this letter in the mail violated several Boy Scout procedures. First, as noted above, such letters are supposed to be hand-delivered and should contain an explanation. Ex. C603 at NCAC2581 (Item 6); Mack Dep. at 162-64.
73. More importantly, "[t]he Scout Executive or his delegate should be the only individuals engaged in implementing" the Boy Scout procedures for removing someone from membership. Ex. C603. It is the responsibility of the Scout Executive to make decisions on excluding people from Scouting. Id.; Fullman Dep. at 27; Carroll Dep. at 137. Even Mr. Flythe, himself, testified that his office had no involvement in the revocation of membership. Flythe Dep. at 37.
74. In fact, the Boy Scouts did contact the Scout Executive for Mr. Geller's council -- Del Newquist of the Baden-Powell Council. Tr. 482-485 (D. Geller). On May 5, 1992, the Baden-Powell Council, however, wrote a letter to the National Board of the BSA objecting to Mr. Geller's severance from the Boy Scouts and urging that the BSA allow local troops to decide whether they want homosexuals as adult leaders. Tr. 142, Ex. C1210. Although Mr. Newquist did not testify, it is a fair inference from the evidence in the record that Mr. Newquist declined to demand that Mr. Geller sever his ties with the Boy Scouts, thus necessitating that Mr. Flythe, as Director of the Northeast Region, write the letter instead of Mr. Newquist.
75. In response to Mr. Flythe's letter of March 2, 1992, Mr. Geller wrote several letters to the Boy Scouts requesting them to state the reason for their decision requiring him to sever all ties with the Boy Scouts. See, e.g., Exs. C403, C406. The Boy Scouts never advised Mr. Geller of the reasons for their decision. On April 6, 1992, while Mr. Geller's appeal of their decision was pending, the Boy Scouts placed Mr. Geller in the Ineligible Volunteer File as "an admitted gay leader." Ex. C407. On April 21, 1992, David K. Park, the Boy Scouts' National Legal Counsel, advised Mr. Geller that there would be a national review of the revocation of his registration, and that he would be advised accordingly. Ex. C408. On September 11, 1992, Ben Love, Chief Scout Executive, advised Mr. Geller that on September 9, 1992, a review committee of the Boy Scouts of America conducted a review of the denial of his registration and upheld the action of the Regional Review Committee in denying that registration. Ex. C409. Mr. Geller was not given the opportunity to appear before the committee in his own defense. Tr. 135-36.
V. THE BOY SCOUTS' POLICY OF EXCLUDING HOMOSEXUALS IS BASED ON STATUS AND IS NOT PART OF THE BOY SCOUTS PROGRAM.
76. Roland Pool and Michael Geller were told to sever their ties with Scouting because of a BSA national policy of excluding homosexuals. This policy is strict and status-based. It cannot be found in the Boy Scouts' program or in their message to Scouts, it is in public relations documents to be used to respond to press inquiries. And its specifics and justification lies in almost total incoherence.
A. The Boy Scouts Have a Strict National Policy of Excluding Homosexuals Based Upon Status, Not Based Upon Conduct.
1. The Boy Scouts exclude homosexuals from Scouting simply on the basis that they are homosexual, irrespective of conduct or other qualifications.
77. "The Boy Scouts of America Does Not Accept Homosexuals as Members or Leaders." Ex. C508 at 1023. This exclusion is purely based upon status. The Boy Scouts exclude anyone whom they learn is a homosexual, irrespective of whether the homosexual has ever engaged in sex or ever intends to do so. Tr. 1201-1202 (Carroll); Tr. 1900-1901 (Ellison); Teare Dep. at 76; Mack Dep. at 54-55; Hill Dep. at 18-19, 145-46; Fullman Dep. at 31-33. They exclude homosexuals irrespective of whether the homosexual ever intends to mention his/her sexual orientation to anyone else. Hill Dep. at 19. Indeed, once an individual is identified as a homosexual, there is no information that person could give the Boy Scouts that would allow his/her application to be accepted. Hill Dep. at 19; Kay Dep. at 99; Fullman Dep. at 31-31. "There should be no ifs, ands or buts." Teare Dep. at 161.
78. Although the Boy Scouts have sought to recast the policy as one limited to "known or avowed" homosexuals, even by the Boy Scouts' formulation, the knowledge or avowal has nothing to do with conduct. The Boy Scouts maintain that someone who is required to reveal his/her sexual orientation by being compelled in a legal proceeding to testify under oath is an "avowed homosexual" and will therefore be excluded from Scouting. Tr. 1197 (Carroll); Carroll Dep. at 161. As Marcus Mack, one of the witnesses named by the BSA to testify as its representative, stated, "[i]f a homosexual rabbi wants to join the Boy Scouts, he would not qualify as a member based [o]n that he does not live a morally straight life." Mack Dep. at 54.
2. The policy of excluding homosexuals from Scouting is a national policy of the BSA to which no exceptions are allowed.
79. No unit, sponsor, district, council, area or region is authorized to permit a homosexual to be a scout or scout leader. Tr. 1135-36 (Carroll); Mack Dep. at 237-38. In words provided to professional Scout Executives as guidance on how to articulate the "national position statement on homosexuality," "[t]he BSA's position is unyielding." Ex. C508 at 1023. "[E]xceptions to the national policies of the BSA [on this issue] are not granted." Ex. C512 at 1029. Indeed, former BSA President Richard Leet had initially sought to emphasize the extent of local control in the Boy Scouts generally, see Tr. 2463-65; but, when asked about a resolution of a troop that opposed the Boy Scouts' policy, he stated flatly, "[y]ou know, a Troop is not an organization that is part of a policymaking chain." Tr. 2548.
3. Neither in statements, nor in fact, do the Boy Scouts have any similar policy with respect to sexual status or conduct by heterosexuals.
80. The Boy Scouts have no general policy of excluding persons who engage in adultery or premarital sex and the Boy Scouts do not generally police the sexual conduct of heterosexuals. Teare Dep. at 82-84; Tr. 341 (Jones); Hill Dep. at 67-69; Carroll Dep. at 150-155. As James Kay, a scout executive who had over 27 years of experience as a professional in several councils in the Northeast Region, Kay Dep. at 4-6, testified at deposition:
Q: Does the Boy Scouts have a policy concerning any other sexual practices, other than homosexuality?
A: None that I'm aware of.
* * * *
Q: Are you aware of anyone having their membership revoked on the basis of failing to satisfy the standard of "clean" who was not a homosexual?
A: I'm not aware of that.
Q: Are you aware of anyone having their membership revoked under the standard of "morally straight" who wasn't a homosexual?
A: I'm not aware of that.
Kay Dep. at 121; accord Hill Dep. at 67.
81. There is no one who recalls any adult being denied membership in the NCAC on the grounds of adultery or premarital sex. Carroll Dep. at 172-73; Bond Dep. at 142. Heterosexuals have routinely been permitted to stay in Scouting even though they openly engage in sex outside of marriage, and without regard to whether they engage in sexual practices that might violate a sodomy statute. Tr. 342-43 (Jones); Tr. 588-90 (Press). The Boy Scouts have active outreach programs to encourage participation in Scouting by single parents, irrespective of the circumstances under which their children were born. Tr. 342 (Jones). The Boy Scouts do not kick out boys who have experience with sex; it is not part of the program. Tr. 400-01 (Jones).
82. The Boy Scouts do not have a general policy of excluding heterosexuals who believe that homosexuality is moral -- even if they publicly avow such a belief or, for example, march in a gay and lesbian parade. Tr. 1306-09 (Thomas); Teare Dep. at 85-86; Mack Dep. at 241-45; Kay Dep. at 126-27; Fullman Dep. at 36-37. See also Tr. 1718-20 (Wolfe); Cahn Testimony at 85-86, 88-89; Ex. C506 at NCAC5460 (discussing Boy Scouts' reaction to a troop that passed a resolution denying that homosexuality is immoral or relevant to Scouting); Rice Testimony at 248-52 and Exs. C1230-C1232. See also Tr. 2470 (Leet) (heterosexual adults only removed if they make the Boy Scouts' policy on homosexuality an issue with youth).
83. If a youth comes to a Scoutmaster and admits to doing wrong, like stealing, lying, cheating or vandalizing, the normal procedure is to counsel the youth privately and sympathetically. Ex. C727 at 6927-6932. If the youth admits to being a homosexual, the Boy Scouts' policy is to instantly terminate his association with Scouting. Teare Dep. at 88-89; Mack Dep. at 231-32.
84. As Mr. Bond, the District Executive who terminated Roland Pool's association with Scouting, testified:
Q: What other activities or avowed expressions would fall outside of traditional family values? Is it just homosexuality?
A: Murder, arson, rape. You know, criminal activity. Any type of conduct that would serve as a bad example to kids in a Scouting program.
Bond Dep. at 138.
85. The contrast between the Boy Scouts' treatment of homosexuals and heterosexuals is amply illustrated by the files maintained by the NCAC involving the possible removal of individuals from Scouting. Of the ninety-nine (99) files maintained by the NCAC and produced to complainants in discovery, seven (7) files involved individuals identified as or alleged to be homosexuals. (NCAC File Nos. 19, 25, 33, 58, 74, 77, and 89). All seven (7) of these individuals (including Mr. Pool and Mr. Geller) were told to sever all of their ties with the Boy Scouts. Id. The NCAC forwarded the files on all seven (7) of these individuals to Irving, Texas for inclusion in the Ineligible Volunteer File. Id. In most instances, the NCAC took action to sever these individuals from the Boy Scouts within one or two days of learning of their homosexuality. Id.
86. In contrast, none of the ninety-nine (99) individuals in the NCAC files were terminated from the Boy Scouts for adultery or pre-marital sex. For example, NCAC File No. 38 involves a letter dated March 8, 1993 to Steven Montgomery, alleging that an adult leader was openly engaged in an adulterous affair and had confessed to several other affairs with a number of women over the past several years. NCAC File No. 38. A number of Boy Scouts in his troop had seen him with other women. Id. The NCAC took no action in response to this letter until June 15, 1993, more than three months later, at which time Mr. Montgomery forwarded the letter to Carl Gell, the Head of the Membership Committee, for discussion. Id. The file reflects that, following a discussion between Mr. Montgomery and Mr. Gell, the NCAC decided that no action was required. Id. The person who had openly engaged in an adulterous affair did not receive any correspondence asking him to sever all ties with the Boy Scouts, and his file was not forwarded to Irving, Texas to be placed in the Ineligible Volunteer File. Id.
87. NCAC File No. 23 further demonstrates that the Boy Scouts treat heterosexual issues far differently than homosexuality. The individual involved in NCAC File No. 23, while working at a Boy Scout camp within the NCAC, allowed scouts to distribute pornographic magazines among themselves and encouraged various sexual pranks. Id. at NCAC9341, NCAC9360-63. The individual had his membership reinstated on appeal. Id. at NCAC9349. The file materials establish that, at various staff meetings, the camp supervisors affirmatively allowed staff people over age 18 to have pornographic magazines in their possession while at camp. Id. at NCAC9360.
88. Because the Boy Scouts refused to produce in discovery any materials from the Ineligible Volunteer File (other than those of complainants and the witnesses at the hearing, whose files were produced following a specific order of the Commission), the Boy Scouts were not allowed to produce any Ineligible Volunteer Files into evidence at the hearing. The Boy Scouts proffered two Ineligible Volunteer Files purportedly demonstrating instances of suspension for heterosexual sexual immorality. Exhibit R179 (not introduced into evidence). The Boy Scouts' proffer does not support any conclusion that the Boy Scouts require individuals who commit adultery or pre-marital sex to sever their ties with the Boy Scouts. One of the two proffered files involves an individual who had engaged in group sexual encounters and had published a group-sex magazine known as "The Swinging Star," in which his picture appeared. Id. The second file involved an attorney who was suspended from the practice of law for two years for violation of ethical standards by initiating or attempting to initiate sexual relationships with eight (8) female clients and by filing false instruments in a divorce case. Exhibit R179 at NCAC0012414 (not introduced into evidence). Thus, the Boy Scouts' proffer only highlights the contrast between the extraordinary conduct required before the Boy Scouts will exclude heterosexuals from Scouting and the automatic, status-based exclusion of homosexuals without regarding to conduct.
4. The national policy alone was the only basis upon which the Boy Scouts demanded that Roland Pool and Michael Geller sever their ties with Scouting.
89. The uncontradicted evidence of record is that Roland Pool and Michael Geller were eminently qualified to continue their involvement in Scouting, and that those who would have worked with them -- Michael Geller's troop and council and the Commissioner staff of the Banneker District for which Roland Pool was trained -- were more than happy to have these individuals participate in Scouting. Tr. 142 (Geller); Tr. 371-74, 408 (Jones); Tr. 533-34, 591-94 (Press); Tr. 1973 (Kirkner). The Boy Scouts have not provided any evidence to contradict the clear evidence that the only reason these individuals were excluded from Scouting was because they are homosexual.
B. The Boy Scouts' Policy of Excluding Homosexuals is Not Part of Its Program.
90. The Boy Scouts' policy of excluding homosexuals is as extraordinary in its implementation as it is extreme in its terms. Unlike scores of other policies implemented by the Boy Scouts on matters large and small, the exclusion of homosexuals from Scouting cannot be found, or even fairly inferred, from the thousands of pages of program materials, training materials, manuals, brochures, pamphlets, volunteer recruitment materials, or financial solicitation materials routinely given to Scouts, Scouters, prospective members or parents as an expression of the aims or methods of Scouting. To the contrary, these materials contradict the inference that such a policy would exist.
91. Instead, the policy can be found in public relations statements, distributed primarily to professionals for their use if called by the press. Because it is not part of the program to discuss homosexuality or the Boy Scouts' policy excluding homosexuals, and because these public relations statements were not distributed to volunteers, Scouters with scores of years of Scouting experience had no clue for years that the Boy Scouts excluded homosexuals and, to this day, only know of the policy through what they read in the press.
92. What they read, however, is hopelessly confused. The various policy statements the Boy Scouts have issued cannot be reconciled either with each other, or with the Boy Scouts' practices, or with their own professionals' understanding of the policy or practice. Indeed, even the Boy Scouts' chosen representatives do not articulate the policy either consistently or coherently.
1. The morality of homosexuality and the policy or procedures for excluding homosexuals is not part of the Boy Scouts program.
93. It is no part of the program of the Boy Scouts to discuss homosexuality or sexual practices or their morality. Teare Dep. at 86; Tr. 322-23, 390 (Jones); Tr. 1712, 1760-61 (Wolfe); Tr. 538-40 (Press); Hayes Dep. at 80; Kay Dep. at 125.
94. The Boy Scouts do not discuss their policy of excluding homosexuals when they recruit either youth or adults to become members, Hill Dep. at 85, 88, Tr. 322, 399-400 (Jones); Carroll Dep. at 87-88, 113-114; Mack Dep. at 145-47; Kay Dep. at 100, or generally when they speak to prospective sponsors. Mack Dep. at 51-52; Kay Dep. at 100. As stated by Azzie Mae Hill, a former District Executive Multiple Persons in the Banneker District, when asked whether parents of prospective scouts are told about the exclusion of homosexuals when they attend "Join Scouting Night" recruitment activities, "we don't ever bring that out." Hill Dep. at 85. Applicants are not told anything about this policy, unless they ask. Hill Dep. at 143-50.
95. The Boy Scouts do not discuss homosexuality or its morality at the Boards of Review -- the reviews for possible advancement in the ranks of Scouting, where Scout leaders meet with Scouts to discuss "very thoroughly" the Scout Oath, the Scout law, and the Scout's efforts to live up to these ideals. Tr. 1709-10 (Wolfe).
96. The Boy Scouts do not mention the policy of excluding homosexuals when they provide training for adult volunteers or youth. Tr. 322, 425-26, 431-33 (Jones); Tr. 539-540 (Press); Fullman Dep. at 20, 23; Rice Testimony at 240-42; Cahn Testimony at 79, and, if it does come up, it is in the context of telling Scout leaders not to mention homosexuality unless someone else brings it up. Hill Dep. at 27, 85-87, 140-41.
97. The policy of excluding homosexuals is not articulated at various Boy Scout events where Scouting values are discussed. Tr. 152-154 (Carroll); Carroll Dep. at 102-07, 113-114.
98. The Boy Scouts have monthly round tables at which adult scout leaders discuss matters of importance to their operation; but it is not a part of these meetings to discuss the role of homosexuals in Scouting. Hill Dep. at 137, 139.
99. The Boy Scouts' policy of excluding homosexuals is never mentioned as part of fundraising efforts. Tr. 1157-1158 (Carroll); Carroll Dep. at 102-107, 113-114. Tr. 1704 (Wolfe); Tr. 393-94 (Jones).
100. The Boy Scouts run a Learning for Life program in public schools, in which they bring "`Scouting values to an otherwise hard-to-reach population." Ex. C1312 at NCAC2060. See also, e.g., Mack Dep. at 57 ("[Learning for Life] is an educational program that was designed for school participants so that they might enjoy the benefits of the Boy Scout program of values and ethical decisionmaking"); id. at 76-78; Ex. C1134 at NCAC4889. For some five years they required adult leaders in that program to promise to uphold the Scout Oath and Scout Law without ever telling them, or the school districts, that they were making any statement about their sexual orientation or the morality of homosexuality. Tr. 1118-19 (Carroll).
2. The morality of homosexuality is not something discussed in the vast literature the Boy Scouts have published for use in Scouting.
101. The Boy Scouts' program is as careful and conscious about articulating the principles the Boy Scouts seek to instill as any organizational program imaginable. "Few organizations have such an abundant reservoir of manuals, guidebooks, pamphlets and training tools available for their leaders as does the Boy Scouts of America." Ex. C909 at NCAC360. The Boy Scouts routinely provide volunteer scout leaders with policies on matters such as "two-deep leadership," aquatic safety, use of alcohol and tobacco, first aid, accommodating religious practices, themes for scouts meetings, national and council initiatives, recruitment, fundraising, program activities, camping procedures and facilities, merit badge requirements, scouting awards, proper wearing of uniforms, ceremonies and scores of others, and have detailed the aims, principles and methods of Scouting in tens of thousands of pages of material. Tr. 534-71 (Press). See, e.g., Exs. C313; C900, and generally, Exs. C1400-1420 (fundraising materials).
102. The Scout Oath, the Scout Law, the Scout Motto and Scout Slogan do not mention homosexuality. Ex. C700 at 5-9; Hill Dep. at 27. Although the Boy Scouts provide extensive explanations of these principles of Scouting in the Scout Handbook, and inform Scouts that these explanations are to help them understand what they are promising to uphold, Ex. C700 at 550; Mack Dep. at 43-44, there is nothing in these explanations, Ex. C700 at 550-63, or anywhere in the entire Scout Handbook, id., or in previous versions of the Scout Handbook, Ex. C714 at 14-16; Ex. C716 at 7824-7826; Ex. C717 at 1560-1562; Ex. C718 at 2182, 2189, 2194-2195; Ex. C719 at 2802-2803, 2809-2810; Ex. C720 at 38-39, 43, 50-51; Ex. C212 at 38-51; Ex. C119 at 30-41, that mentions homosexuality or its morality. Indeed, the Scout Handbook has a section on sexual responsibility, Ex. C700 at 527-28, which does not address homosexuality. Tr. 1947-54 (Kirkner); Bond Dep. at 141-42.
103. When the Boy Scouts excluded women from leadership positions, they told Scoutmasters and troop committees about it in the training materials. Ex. C900 at A1066-67. When the Boy Scouts speak of the requirement that individuals swear to uphold a duty to God, they speak of it "proudly" and cite their bylaws and editions of the Boy Scout Handbook, old and new, to reflect that policy. Ex. C607 at NCAC8133.
104. Yet, the Boy Scouts cannot point to anything among these materials that discusses the general exclusion of homosexuals from Scouting, much less explains any reason why excluding homosexuals would be basic to Scouting. See Tr. 538-40 (Press). Unlike the exclusion of atheists, the exclusion of homosexuals is, to the Boy Scouts, an embarrassing negative that does not affirmatively promote Scouting. Teare Dep. at 81; Carroll Dep. at 88.
105. Indeed, despite being in litigation over the exclusion of homosexuals since 1981, the Boy Scouts' publications issued as part of their program both before 1981, and in the 17 years since, belie the notion that excluding homosexuals is an aim or method of Scouting. The Boy Scouts' program materials articulate, over and over again, principles of tolerance. In the Scout Oath, a Scout promises to do his best "[t]o do my duty to God." This duty, however, specifically means following one's own conscience on religion, and it is as important to respect the religious beliefs of others as to be true to one's own religion. As the Scout Handbook explains:
Your family and religious leaders teach you to know and love God and the ways in which God can be served. As a Scout, you do your duty to God by following the wisdom of those teaching in your daily life, and by respecting the rights of others to have their own religious beliefs. (Emphasis added).
Ex. C700 at 550; Tr. 1976-78 (Kirkner); Tr. 328 (Jones). See also, e.g., Ex. 112 at 67; Ex. 113 at 70, 72; Ex. 118 at 36, 51.
106. When the Scout Oath refers to doing a duty to "my country," it refers to obeying its laws. Scouts are advised to "[h]elp keep the United States strong by obeying its laws." C700 at 550. As far back as 1915, the Boy Scouts told youth that obeying laws meant standing for "equal opportunity and justice":
Good citizenship means to the Boy Scout not merely the doing of things which he ought to do when he becomes a man, such as voting, keeping the law, and paying his taxes, but the looking for opportunities to do good turns by safeguarding the interests of the community and by giving of himself in unselfish service to the town or city, and even nation of which he is a part. . . . [I]t means that he will stand for the equal opportunity and justice which the Declaration of Independence and the constitution guarantee. It means that in every duty of life he may be on the right side and loyal to the best interests of state and nation. By the "good turn" that he does daily as a Boy Scout, he is training himself for the unselfish service that our cities and land need so much.
Ex. C715 at 737 (Handbook for Boys, 2d ed.); Tr. 1978 (Kirkner). The Boy Scouts have repeated that message countless times since. See, e.g., Ex. C716 at 7814, 7818-20, 8071, 1974; Ex. C717 at 1480; Ex. C718 at 2189; Ex. 719 at 2736; Ex. 727 at 6905; Ex. C1136 at NCAC2930.
107. The Scout Oath says that a Scout is supposed "to help other people at all times." The Scout Handbook explains these words as follows:
There are many people who need you. Your young shoulders can help them carry their burdens. A cheerful smile and a helping hand will make life easier for many who need assistance. By helping whenever aid is needed and by doing a Good Turn daily, you prove yourself a Scout. You are doing your part to make this a better world.
Ex. C700 at 551; Ex. C722 at 7230. "Helping others" is the antithesis of putting people down. Tr. 335-36 (Jones).
108. The Scout Handbook informs Scouts in discussing the term "mentally awake" that "with an open attitude and the willingness to ask questions, you will get the most out of your life." Ex. C700 at 551.
109. The Scout Handbook defines the words "morally straight" in the Scout Oath as follows:
To be a person of strong character, guide your life with honesty, purity and justice. Respect and defend the rights of all people. Your relationships with others should be honest and open. Be clean in your speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help you become virtuous and self-reliant.
Ex. C700 at 551. See Tr. at 336-37 (Jones). See also, e.g., Ex. 118 at 37; Ex. C720 at 3610 ("your conscience speaks to you about your relationships to other people -- respecting their rights, treating them justly, giving them a fair chance.").
110. The first point of the Scout Law, that "A Scout is Trustworthy," makes honesty part of a Scouts' "code of conduct," and requires a Scout to be true to himself. Ex. C700 at 553-54; Tr. 324 (Jones).
111. The third point of the Scout Law, "A Scout is Helpful," includes being concerned about other people and doing a good turn. Ex. C700 at 554; Tr. 324-25 (Jones).
112. The Boy Scouts describe the fourth point of the Scout law, "A Scout is Friendly," as follows:
A Scout is Friendly -- A Scout is a friend to all. He is a brother to other Scouts and to all the people of the world. He seeks to understand others. He respects those with ideas and customs that are different from his own.
Friendship is like a mirror. When you have a smile on your face as you greet someone, you are more likely to receive a smile in return. If you are willing to be good friend, you will find that others enjoy being with you.
The moment you become a Scout, you join a brotherhood of friends that circles the world. Those in it are of different countries and colors and creeds, but they are all brother Scouts. They live up to Scout Oaths and Laws just as you do.
Making a friend is fairly easy if you are friendly yourself. Keeping a friend is more difficult. Every person is an individual with his or her own ideas and ways of doing things. To be a real friend you must accept other people as they are, show interest in them, and respect their differences.
Accept who you are too. You don't have to be just like everyone else. Real friends will respect the beliefs, interests, and skills that make you unique.
Ex. C700 at 555 (underlining added; italics in original); Tr. 325-28 (Jones); Tr. 1382-84 (Turner). See also, e.g., Ex. 113 at 9-11 (fairness and friendliness part of Cub Scout promise); Ex. 114 at 297 (same); C115 at 7 (spirit of Order of Arrow is one of "brotherhood"); Ex. C118 at 42; Ex. 718 at 2189; Ex. 719 at 2803; Ex. 720 at 43.
113. In describing the sixth point of the Scout Law, "A Scout is Kind," the Boy Scouts tell Scouts to "[t]ake time to listen to the thoughts of other people," to "[i]magine what it would be like if you were in someone else's place," to be "kind to people you don't know or don't understand, and to people with whom you disagree," and that "compassion for all people is a good antidote to the poisons of hatred and violence." Ex. C700 at 555-56; Tr. 328-29 (Jones). See Tr. 1978-81 (Kirkner).
114. In discussing the seventh point of the Scout Law, "A Scout is Obedient," the Boy Scouts say that a Scout "obeys the laws of his community" and city, Ex. C700 at 557 -- laws that in this city includes the District of Columbia Human Rights Act. The Boy Scouts also teach boys that "you must also trust your own beliefs and obey your conscience when you know you are right." Id.
115. The Boy Scouts' discussion of the tenth point of the Scout Law, "A Scout is Brave," tells Scouts "[y]ou are brave every time you do what is right in spite of what others might say." Ex. C700 at 561; Tr. 331-32 (Jones).
116. The eleventh point of the Scout Law is "A Scout is Clean." The Boy Scouts' discussion of this point explains:
Swear words, profanity and dirty stories are weapons that ridicule other people and hurt their feelings. The same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He avoids it in his own words and deeds. He defends those who are targets of insults.
Ex. C700 at 561 (emphasis added).
117. The final point of the Scout Law, "A Scout is Reverent," reiterates the basic philosophy of being true to one's own religion and respectful of others. Again, in the Boy Scouts' words:
The United States Constitution gives each of us complete freedom to believe and worship as we wish without fear of punishment. All your life you will encounter people who hold different religious beliefs or even none at all. It is your duty to respect and defend the rights of others whose beliefs may differ from yours.
C700 at 561.
118. The Scout Slogan, "Do a Good Turn Daily," Ex. C700 at 9, is "the essence of Scouting." Ex. C722 at 219 (Bates 7412); Tr. 315-16 (Jones); Ex. C709 at 8222; Ex. C714 at 10; Ex. C715 at 744; Ex. C716 at 7818-20; Ex. C717 at 1481; Ex. C726 at 6056. The BSA traces its origin to a "good turn" done by a Scout in England who assisted William Dixon Boyce through a fog and refused to accept any money for it. Ex. C700 at 579-80; Tr. 314-16.
119. The Boy Scout uniform is intended as a way of showing that scouts are "equals in the spirit of brotherhood." C700 at 566.
120. The Boy Scouts proudly quote Lord Baden-Powell in saying that, "[o]ur aim is to give equal chances to all and to give the most help to the least fortunate." Ex. C910 at NCAC486. They tell Scouts to understand and to explore the meaning of the words of Reverend Martin Luther King, Jr., when he said that "[i]njustice anywhere is a threat to justice everywhere," Ex. C700 at 465, of Abraham Lincoln when he said that "[a]s I would not be a slave, so I would not be a master," id., of Susan B. Anthony when she said, "[m]en, their rights and nothing more. Women, their rights and nothing less," id., and Henry David Thoreau when he said that "[i]f a man does not keep pace with his companions, perhaps it is because he hears a different drummer." Id. See also, e.g., Ex. C1136 at NCAC2930 ("The BSA endeavors to develop American citizens who . . . have a keen respect for the basic rights of all people. . . ."). See also Ex. C703 at 1 (Boy Scout Fieldbook citing Walt Whitman with approval).
121. The Explorer Code requires that each youth pledge that, "I will recognize the dignity and worth of all humanity and will use fair play and goodwill in my daily life." Ex. C919 at 9810. Explorer materials similarly advise adult leaders to treat "[e]ach young man and woman as an individual -- different, unique, special. Young people are not a class you can put quick labels on or classify into stereotypes." Id. at 9815.
122. "Ethics in Action" uses intensive exercises designed to teach cub scouts that it is wrong to discriminate against people, that people must be treated as individuals and that differences among people should be celebrated. Ex. C709, esp. 8216-20, 8242-44; Tr. 1955-65 (Kirkner). Among the definitions the Boy Scouts provide for use in that program are:
Prejudice. Judging people without really knowing anything about them just because they belong to a certain group.
Discrimination. Keeping someone from something they want to do or join because they belong to a certain group.
Stereotype. A way of thinking based on the belief that all members of a certain group are alike and will act the same way.
C709 at 8244 (Page 11-30); Tr. 1958-61 (Kirkner); Hill Dep. at 153-54.
123. The BSA touts Ethics in Action as having "brought Scouting's ideals to life in den and home settings," Ex. C1305 at NCAC5528, as "directly respond[ing]" to Boy Scouts' mission statement, Ex. C710 at A1548, and as "teaching today's young people how to apply the abstract ideas [of the Scout Oath and Scout Law] in everyday situations." Ex.C710 at A1549. The Boy Scouts include Ethics in Action as part of Cub Scout Leader Basic Training, Ex. C1306 at NCAC1903, and advise leaders that "Ethics in Action activities may be the most important thing you do for the boys in your pack." Ex. C313 at A1257.
124. Boy Scouting's version of Ethics in Action is called "Youth's Frontier." It, too, teaches principles of honesty, fairness and respect for others with messages like "[i]f you punish a child for being honest, the child learns quickly not to do that again," and "[t]o treat someone unfairly is to say, `You don't have the same rights as others.'" Ex. C707 at NCAC3468-69; Tr. 1964-65 (Kirkner). The Boy Scouts use Youth's Frontier as part of its Scoutmastership Fundamentals training, Ex. C900 at A993, and its wood badge training, Ex. C912 at NCAC3330, and instructs Scoutmasters to give new Tenderfoot Scouts a copy of "Youth's Frontier" and to look through these program materials with them. Ex. C701 at 103.
125. Explorer leaders are also taught to use "ethics in action" and to have youth "formulate their own value systems." Ex. C919 at 9817.
126. The Learning for Life program similarly teaches "moral and character development," Ex. C1002 at 15668, with lessons on "race, religion and culture," "respecting differences," and "respecting my peers." Id. at 15774-15781. "Through Learning for Life, [the Boy Scouts] plan to instill in youth the importance of respecting the rights of all people. . . ." Id. at 15669 (emphasis in original). For example, the Boy Scouts teach that, if students "are surrounded by people who are prejudiced against others or intolerant of persons with differences, students will tend to reflect those prejudices." Id. at 15774. Tr. 2536 (Leet).
3. Scouters are not even supposed to raise with youth in private the morality of homosexuality.
127. The Seventh Edition of the Scoutmaster Handbook in use between 1980 and 1989, immediately before the Boy Scouts began publishing the current version, recognizes that the question of what is "moral" is one that must be addressed to a boy, his parents and his religious leaders, not something that the Boy Scouts dictates
Moral Fitness. Morality is a somewhat more difficult area than [physical or mental fitness] because of the moral contradictions we all encounter. What you consider moral or immoral depends upon your upbringing and background.
Moral questions often fail to come out nice and neat. The town's chief industry employs hundreds but pollutes the air and the river. A young man who marches in a picket line is immoral to some. If you don't march, you are immoral to others.
Despite moral contradictions, we cannot let boys go unprepared to face the assorted moral crises that will confront them. They must go prepared -- but with what?
As evidence of a boy's ability to act correctly when faced with a moral decision you might look for:
Courage about what he believes, being called "chicken" doesn't divert him from doing what he believes is right -- or not doing what he believes is wrong.
Respecting the rights of others.
Compassion for other's feelings and needs.
Acting as if rights of others matter to him.
Accepting others as equal in worth and dignity.
Ex. C727 at 6907-08. See also, e.g., C919 at 9817, 9855-59, 9901 (Explorer Leader Handbook recognizing the need for explorers to "formulate their own value systems," and to have "constructive controversies" in order to appreciate the perspectives of others).**/
128. Consistent with this definition of "moral fitness," the Boy Scouts both historically and repeatedly have avoided dictating to Scouts what "moral" views Scouts should take on issues on which reasonable people differ -- and in particular on sexual morality. As the witnesses attested, even in conversations between a Scout and Scoutmaster, the Boy Scout approach to counseling is to "refrain absolutely from giving advice," and instead "to listen, and to support and encourage the boy being counseled to think out his needs and goals and solve his own problems." Ex. C727 at 6941; Ex. C912 at 3356-61. Tr. 338 (Jones); Tr. 768-769 (Pool); Tr. 1058-1060 (Horne).
129. The Boy Scouts tell Scoutmasters, "[y]ou do not undertake to instruct Scouts, in any formalized matter in the subject of sex and family life. The reasons are that it is not construed to be Scouting's responsibility, and you may not be qualified to do this." Ex. C727 at 6934. Because "Scouting believes that boys should learn of sex and family life from their parents, consistent with their spiritual beliefs," Ex. C900 at 994-95, Scoutmasters are to "respect the right of parents to teach their sons about life," and to "refer boys with sexual problems to persons qualified to handle them." Ex. C727 at 6934.
130. In the seventh edition of the Scoutmaster Handbook, the Boy Scouts made it clear that, even in the situation where a Scout of 15 or older is attempting to make sexual contact with other boys in the troop, the Scoutmaster is not supposed to tell the Scout that homosexuality is immoral, or to remove the Scout permanently from Scouting; rather, the Scoutmaster is supposed to "[a]ssist [the scout] in securing professional help." Id. at 6935.
131. The "sexual curiosity" discussion of the current eighth edition of the Scoutmaster Handbook dispenses with even this discussion in favor of a general instruction that Scoutmasters are to "[a]ccept all youth as they are. Your acceptance will reassure them that they are normal." Ex. C701 at 164.
132. These excerpts are fully consistent with dozens of references in the Boy Scout literature that reiterate the longstanding view of Scouting that Scouting should be open to all and that issues of personal, religious, and, in particular, sexual morality are matters to be addressed by parents and religious leaders and not dictated by the Boy Scouts. See, e.g., Ex. C714 at 9, 250; Ex. 715 at 737-38, 742-43, 1002-03; Ex. C716 at 530 (Third ed., 1927, referring to the "five basic moral laws of standards" as "The Law of Truth (no falseness)", "The Law of Honor (consciousness of living in truth)", "The Law of Justice (Fairness -- truth in action)", "The Law of Duty (The return ticket from privilege)" and "The Law of Love (Brotherhood, courtesy -- good will to all)."
133. Thus, Mr. Carroll testified that, even in a situation where a Scout privately reveals his homosexuality to a Scoutmaster, it is still not the place of the Scoutmaster to inform the Scout that homosexuality or its conduct is immoral. Tr. 1220-21 (Carroll). Whether in private or in public, a Scoutmaster is certainly not expected to discuss his/her own sexual orientation or conduct with a Scout. Tr. 1077-78 (Horne).
134. In short, an extensive study of thousands of pages of Boy Scout literature and the testimony about the implementation of the Scout program leads inexorably to the conclusion that views on the morality of homosexuality are not part of the message Scouting seeks to convey to Scouts. As James Kay, a Scout Executive with 27 years of professional experience, testified:
Q: How would a prospective Boy Scout learn of the policy? When I refer to "the policy" I'm referring to the policy of the Boy Scouts of America concerning homosexuals, as set forth in the "POSITION STATEMENT."
* * * *
A: If he became in violation -- If he became in violation -- If he were an avowed homosexual he would be informed of the policy.
Kay Dep. at 101.
C. The Boy Scouts' Various Articulations of the Policy Are Found in Confused and Contradictory Public Relations Statements That Are Not Generally Shared With The Volunteers Implementing The Boy Scouts' Program.
135. Although the Boy Scouts have sought to suggest that at least at some period of time, the members of the Executive Board knew of and supported the Boy Scouts' policy concerning the exclusion of homosexuals, and the Commission will assume that this is correct, the Boy Scouts concede that its Executive Board never adopted a resolution on the policy and that, if there is anything reflected concerning this policy in the minutes of the National Executive Board, it appears in a privileged discussion with attorneys. Ex. C1507 at 42-48; Tr. 2473-74, 2479-80. More importantly, the only written materials reflecting the policy are two 1978 memoranda and "Position Statements" generated for media relations purposes in the 1990s.
136. According to the Boy Scouts' interrogatory responses, the "earliest document of the Boy Scouts which mentions homosexuals specifically is a March 17, 1978 Memorandum." Ex. C1501 at 17 (Resp. to Int. 17). Actually, Ex. C500 is a memorandum dated February 13, 1978 from the BSA's Director of Public Relations to Scout Executives on the subject of "Homosexual Unit Members." A second memorandum is dated March 17, 1978. Ex. C501.
137. The February 13, 1978 and March 17, 1978 memoranda are the first documents that purport to set forth a Boy Scouts' policy concerning homosexuals, to set out procedures for implementing such a policy or to articulate the reasons for such a policy. Neither of these memoranda purported to reaffirm any historic policy. Both state that they were issued in response to inquiries asking that the BSA express "its official position to the field" on, among other things, the appointment of homosexual volunteer and professional leaders. Exs. C500, C501.
138. In these memoranda, the Boy Scouts answered "no" to the question of whether "an individual who openly declares himself to be a homosexual" can be a volunteer Scout leader, Ex. C501 at NCAC2521, and then adopted procedures that went beyond persons who had made open declarations. The Boy Scouts informed professionals that when situations arose involving homosexuals they should use procedures from "Maintaining Standards of Leadership," id. at NCAC2523 -- a document that explains how to investigate and to exclude persons from Scouting when they are alleged to be involved in crimes, child molestation or other offenses, see Exs. C600-01; C603-04; C1505 ¶ 5; C1506 ¶¶ 4, 6. The March 17, 1978 memorandum also explained that, "in the event that an individual involved in Scouting is alleged to be a homosexual":
The matter should be investigated in a discreet and responsible fashion, with the utmost regard for the concerned individual's civil rights.
Ex. C501 at NCAC2523 (emphasis added).
139. The only reasons these memoranda provided for investigating persons alleged to be homosexuals, or excluding them from Scouting, were that the BSA "is a private membership organization and leadership therein is a privilege and not a right"; that "[w]e do not believe that homosexuality and leadership in Scouting are appropriate;" and that "[w]e will continue to select only those who in our judgment meet our standards and qualifications for leadership." Ex. C501 at NCAC2521; see Ex. C500.
140. There is no suggestion in these documents -- or, as it turns out, in any Boy Scout document pre-dating 1991 -- that the reason homosexuals are inappropriate for Scouting is that homosexuality is contrary to the Scout Oath or the Scout Law, or that homosexuals cannot be appropriate role models, or that homosexuality contradicts some concept of "traditional family values" that is supposed to be part of Scouting, or even that the Boy Scouts would take the position that, in the event a law were found to apply to them, they have a constitutional right to discriminate where others do not. To the contrary, the March 17, 1978 memorandum states:
Q: Should a professional or non-professional individual who openly declares himself to be a homosexual be terminated?
A: Yes, in the absence of any law to the contrary. At the present time we are unaware of any statute or ordinance in the United States which prohibits discrimination against individual's employment upon the basis of homosexuality. In the event that such a law was applicable, it would be necessary for the Boy Scouts of America to obey it. . . .
Ex. C501 at C2522 (emphasis added).
141. What little there is on the Boy Scouts' policy between 1978 and 1991 reinforces the conclusion that the various rationales eventually proposed by the Boy Scouts in litigation in an attempt to justify this policy are post hoc. In 1981, as part of Curran v. Mount Diablo Council of Boy Scouts, litigation over the exclusion of a gay Scout leader in California, the BSA's legal counsel, David Park, sent a letter to individuals identified as being registered with the Boy Scouts as of 1916 in an effort to demonstrate that there had always been a BSA policy of excluding homosexuals. Ex. R152. As evidence that such a policy in fact existed, the letter and the affidavits he received are of no value. The letter sought to predetermine the conclusion by informing the affiants, "You may have read in the paper recently that the Boy Scouts of America has been sued by an individual in California to compel the organization to admit homosexuals. As you know, it has always been our policy to exclude homosexuals. You were a registered member of the Boy Scouts of America and undoubtedly are familiar with this policy." And the Boy Scouts have provided no evidence from which to conclude whether the Boy Scouts needed to send letters to tens, hundreds, thousands, or even tens or hundreds of thousands of people before obtaining the handful of form affidavits they filed.
142. The letter and affidavits are, however, instructive in what they do not say about the Boy Scouts' policy. The legal counsel of the Boy Scouts and the form affidavits declared that the policy applied to "homosexuals" -- not known homosexuals, not avowed homosexuals. They make no suggestion that the policy is based on the Scout Oath or Scout Law. They do not suggest that the policy reflects concerns about role models. They make no mention of traditional family values.
143. It is not until at least two years later, according to an unidentified single-page document, that the legal counsel expressed the opinion that "[a]vowed or known" homosexuals are to be excluded from Scouting. Ex. C502. And this statement still contains no rationale for the policy and reaffirms that, although the BSA "does not knowingly employ admitted homosexuals in its professional or clerical staffs," the organization "does comply with all applicable laws." Id.
144. As late as November 1989, the Boy Scouts were indicating, with respect to employees, that it was the policy of the councils to "offer equal employment opportunity . . . on the basis of qualifications and ability without regard to race, color, national origin, sex, age, religion, handicap . . . or any other criterion prohibited by applicable law." Ex. C2000 at A1556 (Emphasis added). The BSA did not even require professional employees to subscribe to the Scout Oath or Scout Law, only to "the Declaration of Religious Principle, a fundamental precept of Scouting." Id. And it cautioned that "[t]otal and continued adherence to this employment policy will guarantee compliance with the various laws against discrimination." Id.
145. In the meantime, the Boy Scouts avoided numerous opportunities to articulate a policy of excluding homosexuals to the Scouts or volunteer Scouters (i.e., adults) who were supposed to be implementing its program. For example, during the 1980s, as part of Scoutmastership Fundamentals, a required training course for adult troop leaders, the Boy Scouts informed leaders of numerous policies, including the Boy Scouts' policy (changed in 1988, see Ex. C607 at A8122) of excluding women from being Scoutmasters, Assistant Scoutmasters, Webelos Den Leaders, Assistant Webelos Den Leaders and certain other leadership positions. Ex. C900, esp. at A1066-67. However, the Boy Scouts sent nothing to its members about a policy of excluding homosexuals and, apparently, prepared no statements for the press about the policy either.
146. In the early 1990s, however, the Curran case went to trial, the policy of excluding homosexuals received large amounts of publicity, see Tr. 828-30 (Church), and the BSA's expressions of its views on homosexuality shifted from an approach of almost total silence to an extensive public relations campaign.
1. The Boy Scouts' use of public relations statements.
147. The Boy Scouts are an intensely public-relations (and especially media-relations) conscious organization. See Exs. C518, C519, C520, 522, 523; Ex. C607 at NCAC8118; Teare Dep. at 112-14; Lewis Dep. at 119-22 (discussing Ex. C518); id. at 161-62 (discussing Ex. C519); Carroll Dep. at 125. The Boy Scouts consider media relations to be "the art and science of systematically building and maintaining favorable contact with reporters and other members of the news media." Ex. C520 at NCAC5581; C518 at NCAC2812.
148. The BSA looks upon "promoting positive messages about Scouting" as one of the areas that is "critical to growth and a quality Scouting program." Ex. C1307 at NCAC3428, NCAC3438, 3441, and touts its success in obtaining "positive public relations" as a routine section of its annual reports. See, e.g., id.; Ex. C1308 at NCAC1943-45; Ex. C1309 at NCAC1983-85; Ex. C1310 at NCAC at 20-23. The Boy Scouts actively look for opportunities to "shap[e] the public's perception of the Boy Scouts of America," Ex. C520 at NCAC5578, and to "[p]osition the BSA as the credible, leading expert on the subject of youth development." Id. at NCAC5580 (emphasis in original).
149. As part of its public relations efforts, the BSA advises professional Scout Executives that "[e]very favorable news story about Scouting reinforces the BSA's image as a positive force in the lives of young people. So too, then does a negative story hinder the way Scouting is perceived by the public." Ex. C518 at NCAC2812.
150. Accordingly, the Boy Scouts aggressively train their professional staff so that they can "truly `win' in interview situations." Ex. C519 at NCAC2796; Teare Dep. at 58-59. The Boy Scouts advise designated council spokespersons that they have "a crucial role in shaping the image of Scouting; don't forget to BE PREPARED." C520 at NCAC5609; Tr. 672 (similar language transcribed from Ex. C522).
151. According to the BSA, "[l]ack of direction during an interview can spell disaster for the image of both Scouting and the local council. Thus, it is critical to be clear on what will be said before an interview occurs." Ex. C520 at NCAC5580. The Boy Scouts consider "[t]he most important lesson you can learn from this training is that interviewing is not a passive experience. YOU MUST SET AN AGENDA FOR THE INTERVIEW AND COMMUNICATE IT EFFECTIVELY TO THE REPORTER." Ex. C519 at 2796 (emphasis in original). Designated Boy Scouts spokespersons are supposed to "[c]ontrol the interview," id. at 2797; Ex. C520 at NCAC5586, and to use "bridging," defined as "making your point no matter what the question." Tr. 636 (transcribing Ex. C522). See also, e.g., Ex. C520 at 5586.
152. In order to be confident about the agenda that would be used at such interviews, the BSA developed a series of position statements about "issues" perceived to be national in importance. Ex. C520 at NCAC5586; Teare Dep. at 130-31; Mack Dep. at 191-94, 205-08, 224-25. According to the Boy Scouts, "[a]n issue is a significant focus of attention on a policy, value or standard of Scouting." Ex. C520 at NCAC5580 (emphasis in original). The Boy Scouts distinguished an "issue" from a "crisis," in that an issue "routinely emerges over a relatively long period of time, generally measured in weeks, months, or frequently, even years," whereas as a "crisis is an immediate and intense focus from the media, and ultimately the public, on a particular activity or event," that "develops unexpectedly over a relatively short period of time, generally measured in hours or days." Id. at NCAC5580-81 (emphasis in original).
153. By the early 1990s, homosexuality had become one of the "issues" perceived by the BSA as receiving a "significant focus of attention," Ex. C520 at NCAC5580; Teare Dep. at 66, and the potential that a Scout leader might "declare[s] his homosexuality to the media and proceed[s] to publicly condemn the BSA's position on the six o'clock news and the front page of the local newspaper," became the Boy Scouts' example of a "crisis." Id. at NCAC5581.
154. The Boy Scouts issued a series of position statements, Q&As and media training materials designed to inform designated spokespersons at the national and council level what to say about the Boy Scouts' policy on homosexuals in Scouting. Exs. C503-523; Teare Dep. at 130-31. These were updated or reissued when the Boy Scouts determined that its position was not well understood in the media. Lewis Dep. at 139-40.
155. These position statements on excluding homosexuals were not drafted by the program divisions of the BSA -- the Cub Scout Division, the Boy Scout Division or the Exploring Division, who draft the various manuals and guides for their respective programs, Teare Dep. at 23; they were drafted by a public relations firm hired by the Boy Scouts, Edelman Worldwide, with help from the Boy Scouts' office of External Communications -- the internal office that deals with how the Boy Scouts relate to the public. Lewis Dep. at 27, 34-35, 130, 141-42; Teare Dep. at 126, 135-36; Tr. 2543-44 (Leet). For years, the Boy Scouts have designated an Edelman employee as its "national spokesperson" and empowered that spokesperson to speak for its National Board. Teare Dep. at 56-57; Lewis Dep. at 18-20; Ex. C519 at NCAC2806; Tr. 622 (transcribing Ex. C522).
156. The BSA informed Scout Executives or their designated local spokespersons that they should:
Know the local and national position statements on the issue in question and build on these statements in every response. Form an interview agenda with talking points from these documents.
Ex. C520 at NCAC5586; id. at NCAC5591 (communicate facts "consistently, in accordance with local and national position statements.").
157. The BSA repeatedly instructed that copies of the various position statements were never to be given to reporters or to other media staff. Tr. 629-30 (transcribing Ex. C522); Ex. C520 at NCAC5587; Ex. 607 at NCAC8118. Council spokespersons were also told that "[i]f the interview centers around a National policy or issue, refer the reporter to BSA Public Relations. Speak on National issues only to the extent of your Council's involvement in that policy or issue." Tr. 634-35 (transcribing Ex. C522). And the BSA added:
If it's known or even suspected that the interview will deal with one or more national issues, consult BSA Public Relations for assistance before the interview.
C520 at NCAC5590.
2. The 1991 position statements.
158. On "2/15/91" and "6/6/91," the BSA's National Office and its public relations firm issued, in different typeface, otherwise identical documents entitled "POSITION STATEMENT HOMOSEXUALITY AND THE BSA." Exs. C503; Ex. C504. These statements read:
For more than 80 years, the Boy Scouts of America has brought the moral values of the Scout Oath and Scout law to American boys, helping them to achieve the objectives of Scouting.
The Boy Scouts of America also places strong emphasis on traditional family values as being necessary components of a strong, healthy society. The Scouting program is designed to be a shared, family experience.
We believe that homosexual conduct is inconsistent with the requirements in the Scout Oath that a Scout be morally straight and in the Scout law that Scout be clean in word and deed, and that homosexuals do not prove a desirable role model for Scouts.
Because of these beliefs, the Boy Scouts of America does not accept homosexuals as members or as leaders, whether in volunteer or professional capacities.
Our position on this issue is based solely upon our desire to provide the appropriate environment and role models which reflect Scouting's values and beliefs.
As a private membership organization, we believe our right to determine the qualifications of our members and leaders is protected by the Constitution of the United States.
Ex. C503; Ex. C505.
159. In a Questions and Answers document that is dated 2/15/91, the Boy Scouts reiterated the 1978 statement concerning their determination to investigate allegations of homosexuality "in a discreet and responsible fashion," Ex. C504 (Q&A 5). They also avoid any statement about the Boy Scouts' position on the morality of homosexuality:
Q: Are you implying by your policy that homosexuals do not have good moral or emotional character?
A: Our position is that they do not present a role model which we seek for our youth members.
Ex. C504 at NCAC2596.
160. The words, "the Boy Scouts of America does not accept homosexuals as members or as leaders, whether in volunteer or professional capacities," contain no qualification to the definition of whom the Boy Scouts are excluding. These 1991 position statements explain that the Boy Scouts are excluding all homosexuals, not merely those who are "known" or "avowed" or only those engaged in any conduct.
161. These 1991 position statements also contain a wholly new series of purported reasons for the Boy Scouts' policy. These position statements represent the first time any Boy Scout document that either party has been able to locate, in any context, that (1) asserts that the exclusion of homosexuals is based upon the terms "morally straight" or "clean," or, for that matter, any provision of the Scout Oath or Law; (2) references, at all, a concept called "traditional family values," or suggests the Boy Scouts "also" seek to emphasize those values in addition to the Scout Oath and Scout Law; or (3) states that homosexuals were being excluded based upon a view that "homosexuals do not provide a desirable role model for Scouts" or would promote an "[in]appropriate environment" for Scouting.
162. Unlike the previous statements, these 1991 position statements also make clear that the BSA would not merely agree to follow laws against discrimination, but rather assert a constitutional right not to follow such laws.
163. The additions in these position statements are neither accidental nor trivial. As of 1991, the Boy Scouts had published ten editions of the Boy Scout Handbook and eight editions of the Scoutmaster Handbook. They had devoted thousands of pages to detailing the values and beliefs for which Scouting stood and, in particular, the meaning of the Scout Oath and the Scout Law. The Boy Scouts were sued over their policy of excluding homosexuals as early as 1981. It strains credulity to imagine that it was simply oversight that led the Boy Scouts never to mention any of these rationales in a policy document until 1991.
164. The "morally straight" rationale for excluding homosexuals does not appear to have been entirely thought out. By answering the question, "[a]re you implying by your policy that homosexuals do not have good moral or emotional character?" with the statement "Our position is that they do not present a role model which we seek for our youth members," Ex. C504 at NCAC2596, the BSA's Question and Answer document leaves it entirely unclear whether, as of 1991, they believed that homosexuals were immoral. If the Boy Scouts had actually believed for more than 80 years that a homosexual could not be "morally straight," they would certainly have had no problem saying so. The Boy Scouts expect Scouts to "speak the truth" and "to do what is right in spite of what others might say." Ex. C700 at 561.
165. As of 1991, the Boy Scouts clearly prevented homosexuals from serving as professional employees. See Ex. C501. They did not, however, require professional employees -- even those who had "direct involvement in its program" -- to subscribe to the Scout Oath or Law. Ex. C2000 at A1556. That requirement was added in a December 1, 1992 revision to its professional employment policy. Ex. C2000 at A1557. This revision also changed the Boy Scouts' previous statement that it would refrain from discriminating on any "criterion prohibited by applicable law." Ex. C2000 at A1156. Now, the Boy Scouts said they would only follow "non-discrimination laws to the extent that they may constitutionally be applied to it." Ex. C2000 at A1157.
166. The change in the Boy Scouts' position from following law to claiming a constitutional right not to do so was itself significant. As noted above, the Seventh Point of the Scout Law says that "a Scout is Obedient" and obeys laws, even if he thinks these are unfair. C700 at 557. In its first three decades or more, the Boy Scouts followed laws that required racial segregation, without invoking any argument that they were a "private membership organization" above the necessity of following such laws. Ex. C1600 at A2391, A2430-32, A2473-76.
3. The 1992 statements on the San Jose Troop and the United Way.
167. The BSA's national office next discussed its policy of excluding homosexuals in February 1992 in the context of responding to news reports. On February 4, 1992, the San Jose Mercury News published a report that a Scout troop there had issued a resolution stating that being homosexual was not contrary to the words "Morally Straight." C506 at NCAC5460. Later that month, a "Boy Scout Task Force" commissioned by the United Way in the San Francisco Bay Area issued a draft report recommending that the Boy Scouts cease disallowing homosexuals to be members or leaders, or to adopt a local policy that allowed homosexuals to participate in Scouting. Exs. C507 at NCAC5462; C519 at NCAC2804-05.
168. The BSA's National Office responded to these events. First, it issued a memorandum to Scout Executives attaching the San Jose Troop resolution and stating that troops are obligated to follow national BSA policies. Ex. C506. Then, it issued a memorandum to the National Executive Board, Ex. C507 at NCAC5461, a news release, id. at NCAC5462, and a "Media Training Guide," drafted by its public relations firm, Edelman Worldwide, Lewis Dep. at 161-62, that included a "Q&A for United Way of the Bay Area Task Force Issue." Ex. C519 at NCAC2804-09.
169. The response to the San Jose Troop Resolution did not discuss the Boy Scouts' policy itself. However, it did give the San Jose Troop the opportunity to "reaffirm their agreement to uphold national policy," Ex. C506 at NCAC5458. The Boy Scouts took the position that Scouts and Scouters could remain with the BSA even if they did not believe that "homosexuality" was contrary to the requirement to be "Morally Straight," at least so long as they did not actually choose a homosexual leader. Cahn Testimony at 88-89; Ex. C506 at NCAC5460.
170. The BSA's public relations firm reacted to the draft report of the United Way Task Force by characterizing the Task Force as a group commissioned "to examine ways of molding the Boy Scouts into conformation with the [United Way of the Bay Area's] `politically correct' values and standards." Ex. C519 at NCAC2804. The BSA stated that it "has always served to support the values of traditional American families," id.. Now, however, the BSA said that it "define[s] `traditional family values,'" not, as something in addition to the Scout Oath and the Scout Law, but rather as "those values that are inherent in the Scout Oath and Law." Id. (emphasis added).
4. The Issues and Crisis Communications Guide.
171. In March or April 1992, the BSA's public relations firm, Edelman Worldwide, produced a video with companion written modules called the "Issues and Crisis Communications Guide." Lewis Dep. at 30-31, 149-51, 159-60; Exs. C520, 522, 523. The BSA created this Guide and distributed it to councils to be used "if the local Scout executive had something come up and needed to have some verbiage or some help in explaining something to the media, or for him to share with local council volunteers when they needed some help in sharing or explaining something with media." Teare Dep. at 66; Lewis Dep. at 32.
172. Although issued in 1992, the Issues and Crisis Communications Guide is still in use. Id. The Guide begins with basic training material on how policies were to be characterized if the press ever inquired. Ex. C520 at NCAC5579-5599; C522. It also contains specific modules on various "issues," including "Module 4 Homosexuality." Ex. C520 at NCAC5605-5609; Ex. C508. The Guide discusses homosexuality, because the BSA's policy on homosexuals and other matters "were the issues of the time that were in the media, both in newspapers and in television." Teare Dep. at 66. The Guide "zeroed in" on what Boy Scouts professionals were supposed to tell the media about this and other policies. Teare Dep. at 64-65.
173. On the videotape, Module 4 begins by referencing the San Jose Mercury News story about the Boy Scout Troop resolution. Tr. 667 (Transcribing Ex. C522). The Guide advises that "gay rights organizations have attacked Scouting to further their own agenda. Scouting isn't changing. Scouting won't change." Ex. C508 at NCAC1023.
174. In bold block letters, the Guide informs Scout Executives that the "BSA's position regarding homosexuality is as follows":
THE BOY SCOUTS OF AMERICA HAS EMPHASIZED TRADITIONAL FAMILY VALUES SINCE INCEPTION OF THE MOVEMENT. WE BELIEVE HOMOSEXUALS DO NOT PROVIDE A ROLE MODEL FOR SCOUTS THAT IS CONSISTENT WITH THESE TRADITIONAL VALUES. ACCORDINGLY, THE BOY SCOUTS OF AMERICA DOES NOT ACCEPT HOMOSEXUALS AS MEMBERS OR LEADERS.
Ex. C508 at A1023.
175. The Guide also says that:
This issue isn't only a challenge to the values of Scouting. It is also about the rights of a private organization to set and maintain its own leadership qualifications. The BSA believes homosexuals are not appropriate role models for our youth membership. The BSA's position is unyielding. Nevertheless, gay activists haven't put the issue to rest. The local spokesperson has an opportunity to help reaffirm the BSA's stance on homosexuality.
176. The Guide then provides another set of questions and proposed answers. In explaining how to answer the question, "What Aspects of Scouting are Incompatible with Homosexuality," the Boy Scouts return to the view that "traditional family values" is really something in addition to the Scout Oath, not part of it:
Simply put, the Boy Scouts of America places a strong emphasis on traditional family values as being necessary components of a strong, healthy society. Further, the Scout Oath mandates that members and leaders be morally straight.
Ex. C508 at NCAC1024. The Boy Scouts do not attempt to defend the policy based upon the Scout Law or the word "clean" at all. Id.
177. Module 4 closes by directing council spokespersons that:
When explaining the BSA position regarding homosexuality, remember the following key points:
The BSA has emphasized traditional family values since inception of the movement.
We believe homosexuals do not provide a role model for Scouts that is consistent with these traditional values.
The Boy Scouts of America does not accept homosexuals as members or leaders.
The spokesperson has a crucial role in shaping the image of Scouting; don't forget to BE PREPARED. As always, please contact BSA Public Relations for assistance or additional counsel on this or any other media issue.
Ex. C508 at NCAC1026.
5. Other position statements.
178. On May 6, 1992, the Boy Scouts issued another POSITION STATEMENT HOMOSEXUALITY AND THE BSA. Ex. C509. This statement again states that the Boy Scouts "also places strong emphasis on traditional family values," in addition to bringing the "moral values of the Scout Oath and Scout Law to American boys." Id., (emphasis added). It also states:
We believe that homosexual conduct is inconsistent with the requirements in [sic] the Scout Oath and Scout Law. Because of these beliefs, the Boy Scouts of America does not accept homosexuals as members or as leaders, whether in volunteer or professional capacities.
Id. The paragraph is word-for-word identical to a paragraph in the two 1991 position statements, with two exceptions: The 1991 position statements state "the requirements in the Scout Oath that a Scout be morally straight and in the Scout law that a Scout be clean in word and deed." Ex. C503, C505. The May 1992 position statement simply deleted the references to "morally straight" and "clean" being the portions of the Scout Oath and Law that are supposed to apply to homosexuals.
179. Another, undated, position statement on HOMOSEXUALITY AND THE BSA " refers to "family values" and "role models" as the bases for the policy that the BSA "do[es] not accept homosexuals as members or leaders." Ex. C510. This version contains no reference to the Scout Oath or the Scout Law at all. Id.
6. Scouting Magazine.
180. In September 1992, after Michael Geller and Roland Pool had been told to sever their ties with Scouting, the BSA, for the first time in its history, issued a document directed to its general membership that mentioned a policy of excluding homosexuals. In Scouting Magazine -- the magazine for adult Scouters -- the Boy Scouts published an editorial entitled "Maintaining BSA Standards." Ex. C511 at NCAC5286.
181. This editorial, however, did not explain how the BSA's policy operated or whether it applied to "all" homosexuals, "known" homosexuals, "avowed" homosexuals or some combination of "known or avowed." Ex. C511 at NCAC5286. Although the editorial generally referenced the Scout Oath and Scout Law, it did not explain how the Oath or Law applied to homosexuality. It also asserted that "[f]or more than 82 years, the BSA has taken a strong stand for the teaching of traditional American family values," and that, "[t]he BSA is committed to maintaining its rights under the Constitution of the United States," without explaining how these applied to homosexuals. Id.
182. Instead of explaining what the policy was, the editorial attacked those who were challenging the BSA's exclusion of homosexuals. The editorial began by saying "[r]ecently, the Boy Scouts of America has been attacked by special interest groups who claim that we will not allow them to participate in the BSA because of their differences with our long-held standards." C511 AT NCAC5286. Referring to Timothy Curran as "an acknowledged homosexual," as opposed to an Eagle Scout, the editorial characterized those challenging its policies as "special interest groups" with a "sociopolitical agenda," who "claim they want involvement in Scouting" and "are intent on destroying the BSA this nation has come to expect and count upon." Id. The editorial made no reference to any of the messages, either historic or current, that the Boy Scouts had made to Scouts or Scouters about inclusiveness or tolerance within Scouting.
7. The 1993 and 1994 statements.
183. In January 1993, four months later, the Boy Scouts issued another "POSITION STATEMENT HOMOSEXUALITY AND THE BSA" that took a very different tack. This statement asserted as "Support Points" that:
The Boy Scouts of America does not ask prospective members about their sexual preference, nor do we check on the sexual orientation of boys who are already Scouts.
The reality is that Scouting serves children who have no knowledge of, or interest in, sexual preference. We allow youth to live as children and enjoy Scouting and its diversity without immersing them in the politics of the day.
Membership in Scouting is open to all youth who meet basic requirements for membership and who agree to live by the applicable oath and law.
Scouting involves poor, middle-class and rich youth, boys from the city, suburbs and the country; boys from all faiths, from Judaism, Christianity and Moslem.
Scouts come from all walks of life and experience diversity that they often cannot see elsewhere in their lives.
The position of the Boy Scouts of America has been conveyed to the American public frequently and consistently; exceptions to the national policies of the BSA are not granted, and any youth or adult presenting himself to any office of the Boy Scouts of America will be reinformed of our policy and position. However, a youth does not join the BSA through a council or office, but rather, through a local troop or pack.
The BSA respects the rights of persons and groups with values which differ from those of the BSA; however, the BSA expects that those who oppose Scouting's positions exercise the same respect for the rights of the BSA.
184. This January 1993 position statement appears to acknowledge that teaching about the morality of homosexuality is not part of the Boy Scouts' program. Although it references the "applicable oath and law," it does not even refer specifically to the Scout Oath and Law (as opposed to, for example, the Explorer Code) or assert that the Scout Oath and Law are what require the exclusion of homosexuals. Instead of the previous discussion of "traditional family values," it now discusses tolerance. Id.
185. Indeed, this January 1993 position statement suggests that, contrary to the purported moral conflict about which the Boy Scouts editorialized just a few months before, the Boy Scouts have no problem with homosexuals, only people who would admit to being homosexuals. In this statement, the BSA says that it excludes "avowed" homosexuals and suggests that it does so, not because it is basic or necessary to Scouting, but merely because people expect the BSA to do so:
The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization.
We do not believe that homosexuals provide a role model consistent with these expectations.
Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA.
Ex. C512 (emphasis). In November 1993 and June 1994, the public relations office issued two other similar statements. Exs. C514, C515.
186. Meanwhile, in February 1993, Jere B. Ratcliffe succeeded Ben H. Love as Chief Scout Executive, Ex. C1129 at NCAC4933, and on March 29, 1993, he broadcast a speech to Boy Scout professionals nationwide. Ex. C513; Teare Dep. at 141-143.
187. The speech, which was written by Scott Teare, then Director of BSA External Communications, noted that "ANOTHER SET OF ISSUES THAT WE FACE ARE THE CONSTITUTIONAL ISSUES WE DEAL WITH -- THOSE REFERRED TO IN THE FIELD AS THE `THREE G'S'. Ex. C513 at NCAC2784. Although citing the Scout Oath in the context of discussing the Boy Scouts' exclusion of atheists, id. at NCAC2784-85, in discussing homosexuals, this speech made no mention of the Scout Oath or Scout Law; rather, it repeated the message that the "BSA HAS ALWAYS REFLECTED THE EXPECTATIONS THAT SCOUTING FAMILIES HAVE HAD FOR THE ORGANIZATION AND WE DO NOT BELIEVE THAT HOMOSEXUALS" -- not "known or avowed" homosexuals -- "PROVIDE A ROLE MODEL CONSISTENT WITH THESE EXPECTATIONS." Id. at NCAC2784.
188. Chief Scout Executive Ratcliffe added "AS A MOVEMENT, WE NEED TO STOP DWELLING ON THE NEGATIVES OF THESE ISSUES. WE HAVE MADE OUR POSITION STATEMENTS KNOWN AND WE ARE ALL SINGING FROM THE SAME SONG SHEET." Ex. C513 at NCAC2785-86.
8. The response to the Merino decision.
189. On July 7, 1994, the Superior Court of San Diego decided a case -- the "Merino" case -- in favor of a gay police officer and post advisor whom the Boy Scouts had expelled from Scouting. Ex. C516. The Boy Scouts' "position statement regarding this decision" said:
Boy Scouts of America is disappointed that the Superior Court of San Diego has ruled against the BSA. Scouting has a right as a private organization to teach youth the traditional values it has taught since 1910.
Ex. C516. Scout Executives were also instructed to refer to the Boy Scouts' most recent position statement and also to Module 4 of the Issues and Crisis Communications Guide "for additional information and sample questions and answers regarding this issue." This meant that the Boy Scouts were again directing Scout Executives to the clear statement that the Boy Scouts of America exclude "homosexuals."
190. In February 1996, the Boy Scouts issued a Scout Executive Reference Manual with a number of policy statements in it on various issues. Ex. C607. This Manual contains a "POSITION STATEMENT" ON "HOMOSEXUALITY AND THE BSA." Id. at NCAC8132. This position statement is word for word identical, and in the same typeface, as the Boy Scouts' 6/6/91 statement, Ex. C505, with the exception that, where the 6/6/91 statement says "[b]ecause of these beliefs, the Boy Scouts of America does not accept homosexuals . . . ," the version that appears in the Scout Executive Reference Manual adds the words "known and avowed" before the word "homosexuals." Ex. C607 at NCAC8132.
191. Although the Boy Scouts assert that the statement in the Scout Executive Reference Manual is their "latest" and "current" position statement, this is not correct. It is clear that the statement uses points, format and typeface that the Boy Scouts were using in 1991, but ceased to use in 1992 and 1993. Cf. Ex. C505 (from 1991) with Exs. C509, C514, C515. Like the June 6, 1991 statement, to which it is almost identical, the position statement in the Manual begins with the phrase, "[f]or more than 80 years, the Boy Scouts of America has brought the moral values of the Scout Oath and Law to American boys," id. at NCAC8132, even though other statements by the Boy Scouts reflect the passage of time. See, e.g., Ex. 507 at NCAC5462 (1992 document using phrase beginning "[f]or more than 82 years"); Ex. 511 at NCAC5286 (same).
192. The logical conclusion is that this is a 1991 statement that happened to be included in the February 1996 Manual. The Scout Executive Reference Manual does not merely contain recent statements; it contains a series of statements dating back to the 1980s, most of which are dated, and all of which appear to be in strict chronological order. See Ex. C607 at NCAC8120-8196. The Homosexuality Statement appears immediately after various policy and position statements dated February 11, 1988, C607 at NCAC8122-23; January 4, 1989, id. at NCAC8124-29; and June 1989, id. at NCAC8131, and, with some other undated statements, precedes a memorandum dated October 21, 1991. Id. at NCAC8136.
193. But even assuming that the Scout Executive Manual position statement dates from February 1996, it would still not be the Boy Scouts' "last word" on this subject. On December 11, 1996, Chief Scout Executive Ratcliffe sent the National Executive Board and Advisory Council a memorandum stating that "[t]he policy of the Boy Scouts of America has not changed," and that "[a]ll councils are to continue to follow the position on homosexuality which is attached." Ex. C517 at NCAC4950. The statement the councils are instructed to follow is the 6/1/94 position statement, which refers to "avowed homosexuals," not "known or avowed" homosexuals. Id. at NCAC4951; Ex. C515.
194. On March 2, 1998, the New Jersey Superior Court, Appellate Division decided Dale v. Boy Scouts of America, finding that the Boy Scouts' policy of excluding homosexuals violated New Jersey law and was not constitutionally protected. The next day, the Boy Scouts' current national spokesperson, Gregg Shields of Edelman Worldwide, Teare Dep. at 52, was quoted as saying that the Boy Scouts "have long taught traditional family values and a homosexual" -- not a "known or avowed" homosexual -- "is simply not a role model for those values." Ex. C528 (emphasis added).
D. Because the Boy Scouts' Program and Its Program Materials Do Not Suggest That Homosexuality is Immoral, Many Experienced Volunteers Were Unaware of the Policy
195. In the Boy Scouts, volunteers are supposed to be the persons running the district, with professionals serving only as assistants. Carroll Dep. at 28-31; Hill Dep. at 46-47, 51; Bond Dep. at 23; Tr. 2467 (Leet). The Boy Scouts' policy of excluding homosexuals, however, is so foreign to its mission, aims, methods and program materials that numerous credible Boy Scout volunteers have been involved in Scouting for decades without knowing that there was any policy or general reason to exclude homosexuals. These witnesses credibly testified that, to this day, the only notice they have ever received of this policy is through articles they read in the newspaper. The Boy Scouts have issued public relations statements to people outside of Scouting attempting to defend a policy of excluding homosexuals, Lewis Dep. at 140, but have never issued anything to volunteers to tell them what policy they are supposed to implement.
1. Thornell Jones
196. For example, Thornell Jones is a member of the District Committee of the Banneker District and its Adult Leader Training Chairman. Tr. 283, 305-06 (Jones). Between 1992 and approximately 1995, Mr. Jones was the District Commissioner for the Banneker District. Tr. 283 (Jones). He has been a Scout himself and a troop committee chairman. Tr. 288-90. He took wood badge training -- the Boy Scouts' highest adult leadership program -- and then taught it four times. Tr. 293-96. As District Commissioner, Mr. Jones was a council-level officer; he was one of the "key three" in the Banneker District, responsible for making sure that the Boy Scout program within the District of Columbia meets its standards; and he supervised the Commissioner staff responsible for communicating those standards to adult leaders at the unit level. Tr. 301-05 (Jones). Any policy that the Boy Scouts wanted to convey as important to the implementation of the Scouting program would have to be conveyed through him. Id.
197. The first time Mr. Jones heard that the Boy Scouts had a policy of excluding homosexuals was in 1992, when two of the Commissioners on his staff, Mr. Kirkner and Mr. Press, told him that they were incensed about it. Tr. 380-81 (Jones). The BSA never shared with him any of the position statements, question and answer statements or other public relations documents in which it articulated its policy. Tr. 384-404, 423-25 (Jones).
198. Nor did the BSA share with Mr. Jones the substance of these position statements. No one told him that the Boy Scouts investigate allegations of homosexuality. Tr. 385-86 (Jones). He has never heard of the term "traditional family values" used in the context of Scouting. Tr. 387-88 (Jones). No one in or out of Scouting left him with the impression that homosexuals cannot be appropriate role models. Tr. 388-91 (Jones). Nothing in his Scouting experience led him to understand that homosexuality was supposed to be contrary to the words "morally straight" in the Scout Oath or "clean" in the Scout Law. Id. at 389-90. In all of his experience, it never crossed his mind that the Boy Scouts of America would exclude homosexuals, or that he was supposed to care about people's sexual orientation. Tr. 390-91, 399-400 (Jones).
2. Charles Wolfe
199. Charles Wolfe, who is currently the Director of External Affairs for Governor Lawton Chiles of Florida, Tr. 1689, served in an array of Boy Scouts' youth and adult leadership positions between 1970 and 1996. He is an Eagle Scout and was a leader of the Explorers at the post and council level. Tr. 1690-92. In 1981, he was elected National Explorer President of the Boy Scouts of America. Tr. 1692-94. In that capacity, he traveled some 75,000 miles representing the Boy Scouts across the country and, from 1981 to 1983, served as a voting member of the Executive Board of the BSA's National Council. Tr. 1694-95. He was a member of the BSA's National Exploring Committee and the BSA's National Relationships Committee. Tr. 1696-97. In 1985, when Mr. Wolfe was age 23, the Boy Scouts chose him to be a BSA youth representative in a 40-state tour made on behalf of the BSA in connection with its Diamond Jubilee. Tr. 1697-98, 1763. The BSA gave him responsibilities for fundraising and sent him to fundraising meetings with business leaders. Tr. 1699.
200. Mr. Wolfe thereafter remained with Scouting until 1996 and served as an Assistant Scoutmaster, a troop committee member, a Scouting coordinator for his church and a member of the Executive Board for his council. Tr. 1699-1703. He was active in Boards of Review that evaluated whether Scouts had met the requirements for advancement through the ranks of Scouting and discussed whether Scouts were living up to the ideals of the Scout Oath and Law. Tr. 1703, 1709. He is also a recipient of Exploring's National Leadership Award. Tr. 1703.
201. Mr. Wolfe, however, did not find out from the Boy Scouts about the BSA's policy of excluding homosexuals. Tr. 1703-04. He learned about the policy from a newspaper article, and assumed that it could not be true because the Boy Scouts "don't say no to anybody." Tr. 1705-06. Despite his positions at the national and council levels, the Boy Scouts never showed him any of its position statements. Tr. 1706-08. He was never told that "morally straight" or "clean" was supposed to mean heterosexual, Tr. 1710-12, or that Scouting included some concept called "traditional family values." Tr. 1720-21. When he was on the National Executive Board, a major effort was made to expand Scouting to non-traditional families, such as those with single parents, latch-key kids and grandparents or non-relatives serving as the caregiver. Tr. 1720-23, 1764-67. Mr. Wolfe explained that even membership on council or national executive boards does not necessarily connote knowledge, much less agreement, on the Boy Scouts' policy of excluding homosexuals. Tr. 1725-30 (Wolfe).
3. William Kirkner
202. William Kirkner, a licensed attorney and a product manager for MCI in charge of the technical details of its dial-up Internet service, Tr. 1912-13, was first involved in Scouting at age 7. Tr. 1915 (Kirkner). He received his Arrow of Light in the Cub Scouts, became an Eagle Scout in the Boy Scouts, received the Explorer Achievement Award in the Explorers and became a Vigil Honor member of the Order of the Arrow. Tr. 1915-17, 1937-39. He was also a Section Chief of the Order of the Arrow for the section that included Washington, D.C., the NCAC and virtually all of Maryland; in that capacity, Mr. Kirkner organized its training conclave and reviewed and commented on the Boy Scout Handbook's section on sexual responsibility. Tr. 1918-19, 1947-54.
203. Between 1990 and March 1994, Mr. Kirkner was a Unit Commissioner and subsequently Assistant District Commissioner in the Banneker District. Tr. 1919-21. He received the Arrowhead Honor, a training service award for Commissioners. Tr. 1939-40.
204. Between 1989 and 1993, Mr. Kirkner held leadership positions on the staff of Camp Spencer, including Camp Commissioner, Assistant Instructor, Program Director and Section Director. Tr. 1921-22, 1925-26. Camp Spencer is a National Camp School; it is operated by the Boy Scout's Regional Office as a week-long training for the adults who will be running Boy Scout summer camps. Tr. 1923-25. As Camp Commissioner, in particular, he was responsible for training adults about how to communicate the Boy Scouts' program and its mission. Tr. 1929-37; Fullman Dep. at 21-23, 62.
205. The first time Mr. Kirkner heard about the Boy Scouts' policy of excluding homosexuals was in approximately 1991 or 1992, while he was giving an enthusiastic talk at a Boy Scouts dinner about the Boy Scouts' Ethics in Action program. Tr. 1954-55. Someone in the audience at Mr. Kirkner's talk asked how the principles of tolerance taught to Cub Scouts in the Ethics in Action program squared with the Boy Scouts' exclusion of gay Eagle Scout, Timothy Curran, from Scouting. Tr. 1965-66. Mr. Kirkner responded that the questioner had to be wrong about the Boy Scouts' position, for the position did not match what he had been reading in the Ethics in Action program; he then received a tug on his sleeve from a professional Scouter who told him that "[y]ou don't want to get too deep into this." Tr. 1966-67.
4. Daniel Press
206. Daniel Press, a lawyer, was an active Scout, Order of the Arrow leader and Scouter for 18 or 19 years, and also a Unit Commissioner and Assistant District Commissioner in the Banneker District. Tr. 512-22 (Press). Over the course of his Boy Scouts experience, Mr. Press attended hundreds of training sessions and he himself conducted 50 or maybe 100 such sessions. Tr. 523-24, 599-604 (Press).
207. Mr. Press also heard about the Boy Scouts' policy of excluding homosexuals "through the grapevine." Tr. 574-75 (Press). No one sent him any position statements on the subject and it was not in any of the tens of thousands of pages of Scouting materials with which he was familiar. Tr. 537-40 (Press).
5. David Geller
208. David Geller, Michael Geller's father, has maintained continuous registration with Boy Scout Troop 37 in Owego, New York for over 56 years. Tr. 472 (D. Geller). During this time he has been a Scout, Scoutmaster, troop committee chairman of Troop 37. He has also served as a merit badge counselor for Troop 37 and member of the Executive Board of the Baden-Powell Council, positions which he continues to hold to this day. Tr. 466-469. Based on his many years of committed service to Scouting, the Baden-Powell Council honored Mr. Geller with the Silver Beaver award which, in Mr. Geller's words, "is presented to somebody that has been outstanding in many ways in Scouting." Tr. 471.
209. Over his many years of service, Mr. Geller has never understood the Scout Oath or Law to have a sexual component or, for that matter, has never understood the Boy Scout program to involve in any way the morality of homosexuality. Tr. 473-476.
Mr. Geller did not know of the Boy Scouts' national policy of excluding homosexuals until following his son Michael Geller's expulsion from Scouting. Tr. 481. In fact, he observed that he "couldn't believe that the Boy Scouts would throw him out" on account of his sexual orientation.
6. David Rice
210. At the time of his testimony in In the Matter of Richardson v. Chicago Area Council of the Boy Scouts of America, No. 92-E-80 (Chicago Comm'n on Human Relations) ("Richardson"), David A. Rice had been active in Scouting for 56 years as a Cub Scout, Boy Scout, Explorer, Assistant Scoutmaster, District Executive in four different councils, Camp Staff member, Camp Director, Program Director, merit badge counselor and Scoutmaster. Rice Testimony at 228-38. He, like David Geller, is a recipient of the Silver Beaver award for service to his council. Id. at 239. Living in California, he learned of the Boy Scouts' policy of excluding homosexuals from newspaper reports of the Curran case in the mid-1980s; but, apart from the article in Scouting, never received anything from the Boy Scouts about the policy. Id. at 241-42, 256-57, 263. He found the policy totally contrary to the purposes of Scouting and "morally reprehensible." Id. at 242-45.
211. Although the Boy Scouts did not act to exclude Mr. Rice either for holding those views or for testifying about them in 1995, they did exclude him in 1998because he worked with a boy in his troop to protest the BSA's policy. Tr. 2470, 2546-51 (Leet).
7. Michael Cahn
212. At the time of his testimony in the Richardson case, Dr. Michael S. Cahn, a physician, had been active in Scouting for over 50 years. Cahn Testimony at 70-71. As a youth, he was a Cub Scout, then an Eagle Scout in the Boy Scouts, who received bronze, silver, gold and a second bronze palm (each signifying the attainment of five merit badges beyond those required for Eagle Scout). Id. at 71-72. As an adult, he has been an Assistant Scoutmaster, a Committee Chairman, a Scoutmaster and the recipient of District Awards of Merit. Id. at 73-74. His mother is a merit badge counselor; his brother and two sons are Eagle Scouts with multiple palms and adult Scouters; his daughter and son-in-law are registered Scouters. Id. at 74-75. He learned about the Boy Scouts' policy of excluding homosexuals in the 1990s, when his son reported learning that some schools wanted to drop Scouting because of its bias against homosexuals. Id. at 78-79.
213. Upon learning that the Boy Scouts excluded homosexuals, Mr. Cahn and his troop felt that this policy was so contrary to Scouting that his troop committee in San Jose, California, with the support of his Lutheran Church sponsor, unanimously passed the resolution referenced earlier stating that it supports the Scout Oath and the Scout Law and does not believe that either speaks to sexual orientation. Id. at 81-83; Ex. C506 at NCAC5459. The Boy Scouts initially threatened to revoke the troop's charter, but never did. Id. at 85-86.
8. Michael Herde, Russell McLaren, Daniel Shaw and William Kealey.
214. Michael Herde, a lawyer, joined Scouting right after his eleventh birthday. He attained the rank of Eagle Scout and was a member of the Order of the Arrow. For several summers as a youth, Mr. Herde worked as a staff member at summer camps in the Old Kentucky Home Council. In 1982, following his first year of college, Mr. Herde was employed as a Ranger at Philmont Scout Ranch, where he met Roland Pool, then his Training Ranger. Tr. 439 (Herde). Mr. Herde testified that in all his years in Scouting, it was never his understanding that the Scout Oath or Law prohibited the participation of homosexuals. Tr. 442. Moreover, Mr. Herde recalls participating in no programs and receiving no Boy Scout publications that even discussed the issue of sexual orientation, let alone clarified that homosexuals were barred from Scouting. Tr. 442-443.
215. Daniel Shaw, a sixth-grade science teacher and adjunct faculty member at the University of New Mexico, joined the Boy Scouts in 1971. He attained the rank of Eagle Scout and became a Vigil Honor member of the Order of the Arrow. In 1977, he served on the staff of the National Jamboree. He also taught at the Boy Scouts' National Junior Leader Instructor Camp in Mendham, New Jersey. During summers from 1979 through 1983, Mr. Shaw worked at Philmont Scout Ranch, which is where he met Roland Pool. Mr. Shaw's various positions at Philmont included Ranger, Training Ranger, Coordinator of the Rayado Trek, Director of Cimarroncito Rock Climbing Camp and Assistant Director of Conservation Programs. Mr. Shaw later co-authored the Philmont Fieldguide, to which Roland Pool contributed a chapter entitled "Land." Mr. Shaw is now active with his son's Cub Scout pack. During all of his years in Scouting, Mr. Shaw has never participated in any program or seen any Boy Scouts publications which address the issue of sexual orientation; and he was unaware of the Boy Scouts' exclusion of homosexuals until the early 1990s. Shaw Affidavit.
216. William Kealey, a lawyer, joined the Boy Scouts in 1974. He attained the rank of Eagle Scout in 1977 and was a member of Order of the Arrow. During his summers from 1980 through 1984, Mr. Kealey worked at Philmont Scout Ranch with Roland Pool. At Philmont, Mr. Kealey worked in various positions, including Ranger, Training Ranger, Associate Chief Ranger and Director of Philmont's Conservation Program. Mr. Kealey never understood the Scout Oath or Law to have any specific sexual component and was totally unaware of the Boy Scouts exclusion of homosexuals until sometime after 1988. Kealey Affidavit.
217. Russell McLaren, like Roland Pool, was a member of Troop 85 in Mandeville, Louisiana, and earned Eagle Scout rank and the Vigil Honor in the Order of the Arrow. Also, during the summers of 1981 and 1982, Mr. McLaren worked as a Ranger at Philmont Scout Ranch. During his years as a Scout and Scouter, Mr. McLaren never participated in any Boy Scouts program that addressed sexual orientation and never received any Boy Scouts publications which dealt with the issue. He did not learn that the Boy Scouts exclude homosexuals until the early 1990s. McLaren Affidavit.
9. David Caffey and Gregory Hobbs.
218. David Caffey is a former Chief Ranger of Philmont Scout Ranch and author of a book on Philmont. Ex. C1200. In a letter to Ben Love, dated September 20, 1991, Mr. Caffey states that "[t]his business of saying that being 'morally straight' means a heterosexual orientation . . . is a bad idea, don't you think?" The letter continued:
[w]e used to say that Scouting was 'For all boys.' If that's the case, it's going to include a lot of boys who simply grow up with a sexual orientation that is different from the majority. Let's stay in the business of building strength and character, and get out of the business of judging people's sexuality.
Ex. C1202. In a later letter to Jere Ratcliffe, Mr. Caffey described the Boy Scouts' exclusion of homosexuals as a relatively recent incarnation. This letter also clarifies that even for someone as high up in the Boy Scout organization as Mr. Caffey, sexual orientation is not a core value of Scouting; he states that he knows of gay former Scouts "who love Scouting and who support its fundamental values." Ex. C1203.
219. Gregory Hobbs has been active in Scouting since 1956, and from 1990 through 1993 served as Chairman of the Frontier District, which encompasses the City and County of Denver, Colorado, and is part of the Denver Area Council. Hobbs Affidavit ¶ 1. In a letter to Ben Love, dated November 22, 1991, Mr. Hobbs indicated that he was not at all clear on the Boy Scouts' policy regarding homosexuals. However, he stated that "[i]f the National Council's current policy is to ban persons . . . from Scouting based on sexual preference, the policy should be reexamined and rescinded." Ex. C1200 at A72.
10. Virginia Boyce Lind
220. Virginia Boyce Lind is the daughter of the founder of the Boy Scouts of America, William Dixon Boyce, and the mother of William Boyce Mueller, a gay man. C1214B; C1214C. She too is totally unable to reconcile the principles of the Scouting organization her father founded with the practice of an organization that would exclude her son. Id.
* * * *
221. The testimony by these Scouts and Scouters is compelling. In particular, the Scouters who testified before the Commission on behalf of the Complainants (Mr. Pool and Mr. Geller, David Geller, Thornell Jones, Daniel Press, Charles Wolfe, William Kirkner and Michael Herde) were exceptional in the depth of their Boy Scouts experience. Their testimony about the lack of Boy Scouts' teaching on homosexuality was credible in the manner and demeanor in which it was delivered. It is also fully consistent with what the Boy Scouts say in their massive literature about the principles for which Scouting stands, and was subject to no serious challenge on cross-examination.
222. Indeed, Boy Scout witnesses corroborate these witnesses' testimony. The newspaper is the way in which Mike Bond himself first learned about the policy of excluding homosexuals. Bond Dep. at 41-42. He did not routinely receive the Boy Scouts' position statements. Id. at 169-70. Even the BSA's designated witness, Mr. Teare, a Scouter since 1974, Teare Dep. at 3, is not sure whether he ever saw before 1991 any Boy Scout document that specifically mentioned homosexuality. Id. at 123. And the BSA's former President, Richard Leet, conceded that, historically, "there was no formal policy" that homosexuals should be excluded from Scouting. Tr. 2553. He maintains (as the evidence shows, incorrectly) that it was just "understood." Id.
223. The testimony on behalf of Mr. Pool and Mr. Geller concerning the distinction between principles of Scouting and those that appear in the position statements supporting the Boy Scouts' exclusion of homosexuals is made all the more compelling because of positions the Boy Scouts have taken in this litigation. In discovery, the Boy Scouts took the position that the identity of any of its volunteers was privileged and could not be revealed. See, e.g., Ex. C1501 at 9 (Int. No. 6). In their mandatory disclosure and their responses to interrogatories, they identified no volunteer as a percipient witness even though they knew about many of the people involved with Roland Pool and Michael Geller. Exs. C1501, C1502. Nor did the Boy Scouts even identify all the professionals who were personally involved in the decision to exclude Roland Pool and Michael Geller from Scouting.
224. Then, the Boy Scouts chose what witnesses, volunteer or professional, they wished to use for testimony. The Scouters who testified on the Boy Scouts' behalf, Mr. Horne, Mr. Clayton and Mr. Ingram, are individuals that the Boy Scouts chose to tell their side of the story from the thousands of Scouters active in the District of Columbia area and the millions active across the country.
225. The Boy Scouts were unable to present any credible testimony that excluding homosexuals is in any way basic to Scouting. The witnesses the Boy Scouts called at trial did not even venture to suggest that excluding homosexuals was a specific part of the Scout Oath or the Scout Law, or essential to its program. All that the Boy Scouts could elicit is that some witnesses personally would not choose an open homosexual as a leader for their troop, Tr. 2121-22 (Ingram), or that they believed that others would have difficulty with a homosexual scoutmaster, Tr. 1048-49 (Horne); Tr. 1683-1685 (Crayton).
226. This testimony is not only speculative, it is of very little value. The fact that some individuals might have difficulty dealing with a homosexual is not surprising. Undoubtedly, there are troops that would have problems dealing with a woman Scoutmaster, or one of a particular race or ethnic group. Mr. Horne and Mr. Crayton, for example, both said that it was important to their troops to have black male leadership. Tr. 1063-1064 (Horne); Tr. 1646-47 (Crayton).
227. Saying that some troops might have difficulties with individuals from some protected groups is a far cry from showing that Scouting stands for the principle that no member of the group should ever be an adult leader. It is obvious that many people in Scouting, including the Baden-Powell Council, a number of troops and the Banneker District Commissioner Staff would have had no problem with a gay or lesbian adult leader. Tr. 1782-84, 1807 (Wogaman); Tr. 2049-2051, 2062-2063 (Stanley); Hill Dep. at 94-95. Indeed, St. Timothy's Episcopal Church, which sponsors Mr. Horne's troop, is not only part of a denomination (Episcopalian) that welcomes open gays and lesbians as priests, the church itself has specifically declared itself to be an "open and affirming" congregation that encourages gays and lesbians to participate. Tr. 2297-98 (Hopkins).
E. Even the Individuals the Boy Scouts Chose as Witnesses Are Unable to Articulate a Policy That is Consistent or Even Coherent.
1. The Boy Scouts' witnesses disagree over whether the words "known or avowed" are in the policy.
228. The Boy Scouts' testimony revealed complete confusion about whether the policy includes the words "known or avowed," and what those words mean. As noted above, most of the Boy Scouts' position statements, which were crafted with the specific purpose of telling Scout Executives how to articulate the policy to the press, Teare Dep. at 130, including the Issues and Crisis Communications Guide still in use and Chief Scout Executive Ratcliffe's speech, refer to a policy of excluding "homosexuals," Exs. C503, C505, C508, C509, C510, C513 at NCAC2784. See also C516 (referring Scout Executives to C508). Others refer to "avowed" homosexuals, C512, C514, C515, C517, not "known or avowed" homosexuals.
229. In 1981, the Boy Scouts' own legal counsel described the policy as being one of excluding homosexuals, Ex. R152, although it appears that he added the words "known and avowed" by 1983. Ex. C502. In 1992, when Mr. Carroll wrote Roland Pool specifically to articulate why it was that Mr. Pool was excluded from Scouting, he wrote Mr. Pool that "the Boy Scouts of America does not accept homosexuals as youth leaders," Ex. C311 (not "known or avowed" homosexuals), and that this policy, "is well documented and has received an enormous amount of publicity in the press recently." Id. The BSA's then Director of External Communications, Mr. Teare, similarly did not include "known or avowed" in a 1993 letter he wrote describing the Boy Scouts' policy. Teare Dep. at 148-49.
230. It is scarcely surprising that Mr. Carroll and Mr. Teare so articulated the Boy Scouts' policy; the BSA's national spokesperson did so as well. As of 1992 and 1993, when he was deposed in a related action, Blake Lewis was the national spokesperson for the BSA, authorized by the BSA National Council to speak on its behalf with one voice in articulating the BSA's policy. Teare Dep. at 56-57; Lewis Dep. at 18-20. According to Mr. Lewis, "[t]he Boy Scouts of America does not allow for the registration nor leadership of homosexuals," Lewis Dep. at 127. There is no "known or avowed" qualification. See also Hill Dep. at 61.
231. At the hearing, Mr. Carroll testified that the policy was really "known and avowed" homosexuals, even though the policy statements prior to 1996 did not so state, because the Boy Scouts always really meant that it referred to "known and avowed" homosexuals. Tr. 1199.
232. This testimony is not credible. The premise that the BSA always meant to say "known or avowed," but just did not say it, would require the insupportable finding that the BSA, including Mr. Carroll at a time prior to this litigation, misstated its position, in statement after statement, including videotaped media training, all of which was specifically designed for the purpose of telling its professionals exactly the message the BSA wished to have conveyed to the media on this issue. It would mean that the Boy Scouts' designated national spokesperson, whose firm Edelman Worldwide "knows our policies" and works with the Boy Scouts on how to articulate them, Teare Dep. at 60-61, misspoke about this issue in a sworn deposition, as did its Chief Scout Executive, Jere Ratcliffe in a nationally televised speech to Boy Scout professionals.
233. The Boy Scouts' theory would also mean that others misunderstood the policy as well. See also, Ex. R97 (Resolution No. 8) (resolution of the Southern Baptist Convention referring to the Boy Scout policy as applying to "homosexuals" without any qualification); Tr. 1392-93 (Turner). See also Teare Dep. at 68-69 (at first saying that there was nothing in the Boy Scouts' Module 4 with which he disagreed, and then calling the lack of the words "known or avowed" "a little misleading").
2. The Boy Scouts' witnesses disagree over what the words "known or avowed" are supposed to mean.
a. Every organizational representative designated by the Boy Scouts changed his testimony on this issue after his deposition.
234. Even today, with the benefit of pending litigation and years of preparation, the central BSA witnesses are still unable to articulate a coherent or consistent version of what "known or avowed" is supposed to mean. For example, Scott Teare was one of two deposition witnesses specifically designated by the BSA to speak on its behalf. He has been employed by the Boy Scouts for nearly 24 years, id. at 3, and during the period from 1993 to 1997 he was the Director of the BSA's External Communications Division -- the person responsible for, among other things, working with the Boy Scouts' national spokesperson on how to articulate Boy Scout policies. Id. at 7, 66. He is currently the administrative assistant to the BSA's Chief Scout Executive Jere Ratcliffe. Id. at 115.
235. During his deposition, Mr. Teare, testified as follows:
Q: Does the Boy Scouts policy concerning accepting homosexuals as members or leaders allow homosexuals to be members or leaders as long as they are celibate?
A: No, they do not allow avowed or known homosexuals to be members or leaders.
Q: If an applicant says to someone at the Boy Scouts, I have never told anyone this in my life but I want you to know because I want to be honest with you, I'm a homosexual; I have never told anyone; I have no intention of telling anyone whether I'm a homosexual or not -- can they be an adult leader of the Boy Scouts?
A: Our policy clearly says, at that point they are a known homosexual, and they cannot.
Teare Dep. at 76-77 (emphasis added).
236. Then, two weeks before the hearing, Mr. Teare signed an errata sheet, in which he asked to:
change "Our policy clearly says, at that point they are a known homosexual, and they cannot" to "Our policy clearly says, if at that point they are a known or avowed homosexual, then they cannot."
237. Similarly, when Mr. Teare was asked at deposition:
Just so I'm clear, your understanding is that if someone privately and for the only time in their life reveals their sexual orientation to someone connected with the Scouts, they have to be severed from all ties with Scouting, correct?
Dep. at 160, he said, "[t]hat is our Policy." Id.
238. Two months later, however, the Boy Scouts' counsel sent an errata sheet to say that the words "[t]hat is our Policy," really should read "I've never faced that situation. It depends on whether that constitutes being known or avowed." Id. See also, e.g., errata changes to page 82 (suggesting that a person who avows homosexuality may still be a Scouter if he is not otherwise "known"); change to p. 161:18 (adding a qualification to an answer that Mr. Teare had previously sworn involved "no ifs, ands, or buts.").
239. Marcus Mack was the BSA's other deposition designee. Mack Dep. at 14-17. He is currently a BSA Area Director in Ontario, California. Id. at 3-5. Although he has never worked either in this area of the country or the Boy Scouts' national headquarters in Irving, Texas, id. at 7-14, 139, the Boy Scouts flew him over 2,500 miles to Washington, D.C. to testify as its chosen designee to testify "to the extent that the National Council of the Boy Scouts of America has information" about, among other things, "the nature . . . of respondents' policy concerning the participation of gays and lesbians in scouting." Id. at 14-17; Ex. C1503 at 2 (Dep. Ex. 25).
240. At his deposition, Mr. Mack swore as follows:
Q: If [a Rabbi] tells you I'm a homosexual, I'm also a virgin and I never intend to have sex with any one; in the view of the Boy Scouts of America he does not lead a morally straight life?
A: If he's a homosexual, he does not.
Q: Irrespective of any conduct he might or might not engage? . . .
A: He does not meet the membership requirements to join the Boy Scouts of America.
Dep. at 54-55. In his errata sheet, Mr. Mack said that the last word in his answer, "America," really should read "America based on what he promotes" -- even though the question did not ask about the Rabbi promoting anything.
241. Similarly, if there is anyone at the NCAC who should be expected to have an understanding of the BSA's policy, it is Ron Carroll. Mr. Carroll is not only the Scout Executive for the NCAC, he was named by the NCAC as its representative for purposes of deposition. He has more than 20 years of experience in Scouting, Carroll Dept. at 23-27, and was personally involved in the events of this case; prior to the depositions in this case, he even held a meeting in September or early October 1997 among all the professional District-level employees in the NCAC to distribute one of the BSA's policy statements and to make sure, in light of Mr. Pool's and Mr. Geller's cases, that everyone had a clear understanding of the Boy Scouts' policy. Bond Dep. at 163-67; Hill Dep. at 54-55.
242. Yet, nearly two months after his deposition, Mr. Carroll modified five of his sworn answers to restate the Boy Scouts' policy as one involving "known or avowed" homosexuals, where earlier he had referred generally to homosexuals. Carroll Dep., Errata to pages 262, 265, 278, 289, 293.
b. The Boy Scouts' representatives do not agree on what the policy is supposed to mean.
243. Even overlooking the changes in testimony, the Boy Scouts' witnesses have considerable difficulty articulating what is meant by "known or avowed." For some witnesses, the words "known or avowed" have real operative significance. For example, when asked whether the Boy Scouts have "a problem with someone who is a closeted homosexual participating in Scouting," Mr. Teare testified that:
So long as in front of the kids, the youth, the young members, that they are upholding the values and principles found in the Scout oath and law and they have come up to that level, we want them to come up to be a volunteer. But from the moment they say they are a homosexual, so now they are known or avowed, they can no longer present those values to the children because of who they are, who they said they are.
Teare Dep. at 81-82. See also Tr. 1214-16 (Carroll); Hill Dep. at 14-15 ("if there was a confession of homosexuality, that was the only time we had to be concerned [about accepting an application]"; if a professional thought someone was a homosexual but they didn't confess it, that is not a matter of concern"); Tr. 2539-40 (Leet) (if someone only engages in homosexual sex behind closed doors they can sincerely take the Scout Oath and Law and be part of Scouting). Indeed, Mr. Carroll went so far as to say that homosexuals are perfectly appropriate role models for Eagle Scouts interested in career development. Tr. 1144-46.
244. John Thomas has over 50 years of experience on the Executive Board of a Boy Scout Council, is on the Board of the Boy Scouts' Central Region, was a member of the Boy Scouts' National Religious Relationships Committee, Tr. 1266-68, and was called by the Boy Scouts to testify in In the Matter of Richardson v. Chicago Area Council of the Boy Scouts of America, No. 92-E-80 (Chicago Comm'n on Human Relations). Tr. 1325-26. The Boy Scouts called him here in an effort to show that the Boy Scouts' policy concerning homosexuals was consonant with the views of the United Methodist Church. Mr. Thomas, however, was unsure whether the Boy Scouts' policy applied to being a homosexual, practicing homosexuality or advocating homosexuality, and was uncertain whether the Boy Scouts would exclude a celibate homosexual or a homosexual who indicated that he had no intention of discussing his sexual orientation. Tr. 1303-07.
245. Richard Leet, a member of the Boy Scouts' National Executive Board since 1983, and the President of the BSA during 1990 and 1991, Tr. 2485, said that the policy is that "those with a homosexual lifestyle -- it is inappropriate for leadership under the moral values of the Boy Scouts of America." Tr. 2469, 2534-36. What "lifestyle" means, however, is not entirely clear. For example, Mr. Leet believes that a homosexual who keeps his sex life private can sincerely take the Scout Oath and Scout Law and be part of the Boy Scouts. Tr. 2539-40. And Mr. Leet is uncertain whether a celibate gay priest has a "homosexual lifestyle." Tr. 2535.
246. The Denver Area Council issued a public statement indicating that the Boy Scouts' policy did not apply to homosexuals in private relationships, but only to people who "openly profess their sex life" to children. Hobbs Aff. ¶ 2; Ex. C1200 at A77; id. at A72 (letter by Chairman of Frontier District in Denver, Colorado expressing understanding of the policy). The Boy Scouts, however, maintain that this statement was not correct. Teare Dep. at 152-53.
247. Some of the other witnesses maintain that the only significance to the words "known or avowed" is that the BSA intends to exclude anyone who is a homosexual but simply cannot exclude people unless they know about them. See, e.g., Mack Dep. at 30-34; Tr. at 1393-94 (Turner); Bond Dep. at 134-35; Carroll Dep. at 158-59. Scout Executive James Kay seems to testify both ways on this point. See Kay Dep. at 99 (testifying that he is not aware of "any circumstances under which a homosexual can be a member of Scouting"), with id. at 127-28 (suggesting that "known or avowed" means that someone who hides his homosexuality can be a member of the Boy Scouts).
c. None of the views expressed about what the policy is supposed to mean jibes with either the public statements or the actual practice.
(1) Several Boy Scouts' witnesses simultaneously maintain that the BSA does not ask about a person's sexual orientation and that its application requests that information.
248. Mr. Teare and Mr. Carroll, two of the witnesses who, at least at one point, maintain that the Boy Scouts do not care whether someone actually is homosexual, but merely whether the person says they are homosexual, also testified that homosexuals are supposed to identify themselves as homosexuals when they apply for Scouting. The Boy Scouts' adult application in use since the late 1980s asks whether applicants use illegal drugs, have been convicted of a criminal offense, have ever been charged with child neglect or abuse or have ever had their drivers license revoked, Ex. C305, and then, in Question 6(e), asks:
Other than the above, is there any fact or circumstances involving you or your background that would call into question your being entrusted with the supervision, guidance and care of young people? (If yes, explain below)
249. Although this question does not anywhere mention homosexuality, the Boy Scouts' witnesses testified that the Boy Scouts expect that a homosexual will, in response to Question 6(e), recognize that his/her sexual orientation "call[s] into question [his/her] being entrusted with the supervision, guidance and care of young people," and, when asked to "explain," will identify him/herself as a homosexual. Teare Dep. at 74-76; Tr. 1204-10 (Carroll); Carroll Dep. at 144; Mack Dep. at 34-41; Bond Dep. at 105-06.
250. This testimony, on its face, is difficult to believe. There is nothing in Question 6(e) that would seem to be asking about sexual orientation. See Tr. 584 (Press). In January 1989, when the Boy Scouts revised their application to include this language, the Boy Scouts never suggested that this question was designed to elicit information on sexual orientation. To the contrary, the revised application eliminated a question they had previously asked about "marital status" and informed Scout Executives that the entirety of Question 6 was "designed to be less intimidating to the [applicant]." Ex. C607 at NCAC8128. In answering interrogatories, the Boy Scouts denied that it is "their policy to ascertain sexual orientation of Scouts or Scouters before allowing their admission or participation in scouting." Ex. C1501 (Response to Interrog. No. 19). Former BSA President Richard Leet concedes that, although Mr. Teare was in a position to understand the application process, Mr. Leet is not sure whether he was correct. Tr. 2540-45.
251. More importantly, the testimony of the Boy Scouts' witnesses concerning how Question 6(e) should be answered cannot be reconciled with their assertion that the policy only applies to "known or avowed" homosexuals. If the Boy Scouts themselves were happy to have homosexuals as Scouters "[s]o long as in front of the kids," homosexuals are "upholding the values and principles found in the Scout oath and law," Teare Dep. at 81-82, the Boy Scouts could not possibly expect homosexuals to think that their sexual orientation "would call into question your being entrusted with the supervision, guidance and care of young people"; and the Boy Scouts certainly would not desire that homosexuals identify themselves as such in answer to Question 6(e). See Teare Dep. at 105-06.
(2) Some Boy Scouts' witnesses seem to maintain that Scouters can swear to be honest so long as they act dishonestly.
252. There is also no way of reconciling the testimony of the Boy Scouts witnesses who assert that the words "known or avowed" have operative significance with the explanation the Boy Scouts put forth for the policy. The Boy Scouts cannot simultaneously tell the Commission and the public that "Scouting regards homosexual conduct as immoral," DEx. 59, and then rely on testimony from their only National Executive Board witness that a homosexual who keeps his/her sex life private can "sincerely take the Scout Oath and Scout Law and be part of the Boy Scouts so far as the Boy Scouts is concerned." Tr. 2539-40 (Leet). If the Boy Scouts actually regarded homosexual conduct as immoral, a practicing homosexual could not sincerely or acceptably swear to be morally straight. And if the Boy Scouts really believe that practicing homosexuals can swear to be morally straight, they are saying that the Scout Oath does not make homosexual conduct immoral.
253. In any event, it is wholly implausible for the Boy Scouts to assert that, so far as Scouting is concerned, homosexuality is moral just so long as someone is not honest about it. Although the Boy Scouts' program materials say nothing about the morality of homosexuality, they say quite a bit about the importance of honesty. For example, the Boy Scouts teach that "[h]onesty is a cornerstone issue. It undergirds everything we do. Without it our society could not be what it is. The freedom that we all cherish in our society is based on the capacity of people to have honest relationships." Ex. C707 at NCAC3468 (italics in original). Indeed, the definition the Boy Scout Handbook provides Scouts as guidance to the meaning of morally straight says in part, "[y]our relationships with others should be honest and open." Ex. C700 at 551.
(3) Other Boy Scouts' witnesses offer no explanation for the words "known or avowed".
254. On the other hand, if the words "known or avowed" have no significance save for the fact that the Boy Scouts need to know that someone is a homosexual before excluding them, the Boy Scouts are left with no plausible explanation for why the BSA has this unique limitation in its policy concerning homosexuals. The Boy Scouts maintain that all atheists are inappropriate for Scouting -- not just "known or avowed" ones, Tr. 1393-94 (Turner); and presumably would maintain that all murderers, arsonists and rapists are inappropriate for Scouting, not just the ones they know about. If someone's sexual orientation really affected their ability to function as a volunteer leader, the Boy Scouts would ask about it directly (as they do about whether someone was convicted of a crime or had their driver's license revoked, see Questions 6(a) through 6(d) of the Adult Application, Ex. C607 at NCAC8127), or at least so inform applicants, as they do about the need to recognize a duty to God. Id. at NCAC8126. And, of course, the Boy Scouts would not have left their former President, Tr. 2539-40 (Leet), and one of their personally designated witnesses, Teare Dep. 81-82, as well as a several other witnesses, with the impression that closeted homosexuals are appropriate Scouters.
(4) No formulation of "known or avowed" squares with the Boy Scouts' approach to investigating allegations of homosexuality -- which is itself a matter of confusion among the witnesses.
255. According to Mike Bond, the Boy Scouts' professional who decided to exclude Roland Pool from Scouting, the fact that Roland Pool said that he volunteered at Whitman Walker Clinic "would have raised some questions in [his] eyes," because Whitman Walker Clinic "is a clinic that treats patients with AIDS. And I know that many of those patients are members of the gay community from what I have been given to understand." Bond Dep. at 144.
256. Mr. Mack testified at his deposition that, whenever there is an allegation of homosexuality, the Boy Scouts' policy is to conduct an extensive "fact-finding," Mack Dep. at 197, described as follows:
Q: What fact-finding would be done?
A: If that person is in a troop, then there may be some questions to the chartered organization representative or that particular minister.
Q: And what questions would be asked?
A: Well, you would ask about their lifestyles.
* * * *
Q: Well, suppose someone alleges that they're homosexual and you got to talk with the representative from the sponsoring organization and the representative of the sponsoring organization says I don't know, what then?
A: We would ask the charter organization rep. Somebody knows something about them. We'll ask people who know within that group of the troop committee.
Q: So you'd ask all the people in the troop committee?
A: We'd ask until - we wouldn't necessarily ask everyone. No.
Q: You would ask people until you found somebody who knew this person's sexual orientation and would tell you?
A: That would tell us about their lifestyle and that may be included in that. Yes.
Q: Let me use the word lifestyle. What do you mean by the word lifestyle?
A: We would start off in that manner. I don't know that -- and then we would -- we would ask the question if they know that this person is a homosexual. Yes. We maybe wouldn't come out and say that first but we would ask it. Yes. That's what we came for. I think that's the part where we try to say with the u[t]most regard for the individual's rights. We want to do it in a courteous way. We're not trying to beat anybody up.
Q: You would so that whether or not the person ever said to anyone that he was a homosexual, correct, as long as there's an allegation that the person was a homosexual?
Mack Dep. at 196-200. Afterwards, this answer was further confused, when counsel served an errata sheet in which Mr. Mack changed the last answer to "Yes, a substantive allegation that the person is known to be a homosexual." Id. Errata. What "substantive allegation" this is supposed to be is totally unclear. See also Mack Dep. at 230-31 (policy of investigations applies to youth); Teare Dep. at 79 (same).
257. Indeed, even Mr. Teare, who at one point testified that "homosexuality is not an issue unless an individual makes it an issue," Teare Dep. at 69, a few moments later confirmed that, in the event there is an allegation of homosexuality, the Boy Scouts inquire of the persons who approved the application and of the person himself concerning his sexual orientation and if an adult or youth refuses to answer a question about his/her sexual orientation, he would "most likely be removed in a very confidential way." Teare Dep. at 78-79. See also Tr. 1217-18 (Carroll).
258. If these individuals' testimony is correct, then the Boy Scouts' concern lies not with "known or avowed" homosexuals, but with anyone they think may be a homosexual.
259. Mr. Carroll, however, testified that the Boy Scouts are "not an investigative organization," Tr. 1215, and would not investigate an applicant unless "they did something." Tr. 1216, such as ". . . [writing] something on their application that `I am gay' or `I am homosexual,' or [listing] an organization [of which it] was known you couldn't belong . . . unless you were gay." Tr. 1216. Mr. Fullman goes still further, and asserts that the Boy Scouts would not even investigate if they suspected that someone was gay. Fullman Dep. at 34-35.
260. Nor did the Boy Scouts' statements to the public jibe with their testimony about those policies. Even as the Boy Scouts maintain that they expect people completing adult applications to reveal their sexual orientation in response to Question 6(e), they instruct their Scout Executives to tell the media that the Boy Scouts do not inquire about a person's sexual orientation. Teare Dep. at 136-37. Even as they investigate allegations of homosexuality, they inform the public that they do not. Teare Dep. at 138-39. Either the Boy Scouts have misrepresented their policy to the public, or have misrepresented their policy to this Commission, or both.***/
(5) None of these theories is consistent with the fact that the Boy Scouts also run programs in which youth have gay role models and mentors.
261. When the Boy Scouts discuss the Learning for Life program, they do handsprings attempting to explain how it is that a program designed to teach "the Boy Scout program of values and ethical decisionmaking," Mack Dep. at 57, could nonetheless allow participation by gays and lesbians. See Mack Dep. at 57-77. Former BSA President Richard Leet even initially represented that Learning for Life participants "do not join" the Boy Scouts, Tr. at 2465-66, only to concede on cross-examination that BSA Annual Reports identify Learning for Life participants as part of the Boy Scouts' "Registered Youth" and "Registered Adult" membership, Tr. at 2515-19, 2521-22 (Leet); see, e.g., Exs. C1305 at NCAC5539; C1306 at NCAC1899; C1307 at NCAC3427; C1308 at NCAC1949; C1309 at NCAC1989; C1310 at 27; Ex. C1134 at NCAC4889; and his own statement to Congress included Learning for Life youths among those who "participated in Scouting activities," and thereby "reaffirm[ed] the moral, spiritual, and social values upon which all Scouting activity is based." Ex. C1112; Tr. 2518-19 (Leet).
262. The Boy Scouts replaced previous in-school Scouting programs with Learning for Life, in part, because they were concerned that "traditional Scouting values and methods were being compromised through non-traditional delivery." Ex. C1100 at NCAC6148. One aspect of Learning for Life is to have community role models and mentors come into schools to talk about their values. Ex. C1100 at NCAC6091; Ex. C1007 at NCAC8114; Ex. C607 at NCAC8114.
263. In February 1998, the Boy Scouts went still further to divide its Exploring program between "Career" and "Varsity" programs and to have the Career Program run through the Learning for Life Division, where neither youth nor adults are required to be heterosexual. Tr. 2466-67, 2507, 2519-21 (Leet); C1007; Ex. C1304 at NCAC2418.
264. If the Boy Scouts truly believed that homosexuals were immoral, or bad "role models" or contradicted the "traditional family values" for which the Boy Scouts supposedly exist to serve, or that such contact with homosexuals would lead youth to want to engage in homosexual behavior themselves, they would not be running programs in which homosexuals were serving as mentors, role models and post advisors. Tr. 2519-21 (Leet). In fact, the Boy Scouts concede that they made the change, in part, in an effort to protect their traditional programs from legal challenges. C1007, second page.
F. The Boy Scouts' Various Articulations of the Policy of Exclusion Belie Any Suggestion that this Policy is Fundamental To Scouting or that the Policy Has Anything To Do with Advocacy or Conduct.
265. For purposes of this litigation, the Boy Scouts have asked the Commission to assume that the vast majority of the policy statements the Boy Scouts have made concerning homosexuality are simply a mistake. The Boy Scouts urge that witness after witness merely had strange slips of the tongue at their depositions and really meant to testify as they did in errata sheets filed by their counsel weeks or months later. They maintain that their national spokesperson was incorrect about the scope of this policy, and that the specific Issues and Crisis Communications Guide the Boy Scouts drafted for all of their professional employees got it wrong.
266. The Boy Scouts have also asked the Commission to conclude that this is a clear policy, somehow basic to Scouting.
267. The evidence of record, including the Boy Scouts' own statements and the sworn testimony of their witnesses, make both these premises absolutely incredible. It is abundantly clear that far from being a policy of Scouting, the exclusion of homosexuals is a policy of the Boy Scouts' public relations department and its attorneys, formulated solely for purposes of having words to say to the press and arguments to make in court. The Boy Scouts have presented no version of this policy that is internally consistent, much less externally consistent with other statements, or reconciled with any rationale the Boy Scouts have offered for its use.
268. In short, the evidence is overwhelming that the Boy Scouts' policy of excluding homosexuals does not exist as a fundamental value that Scouting seeks to convey, or as an expressive reason people come together to become involved in Scouting. Rather, it exists only as an ad hoc policy developed for public relations and litigation purposes and articulated in ways that are incoherent and uncorrelated to objectives supposed to be served by this policy. The Boy Scouts' attempts to characterize the policy are, in the purest sense of the word, pretexts put forth in the hope of justifying discrimination pure and simple.
VI. THE BOY SCOUTS ARE A PUBLIC ACCOMMODATION.
269. In their Answer to the Complaint in this action, the Boy Scouts conceded that the NCAC and the BSA "are each institutions, clubs or places of accommodation." Ex. C1500, Answer at 4, ¶ 2. However, the Boy Scouts maintain that they "are in their nature distinctly private." The evidence, however, demonstrates that respondents are places of public accommodation that are anything but "distinctly private."
A. The Boy Scouts are Enormous.
270. The Boy Scouts are, in their words, "the largest youth movement the world has ever seen." Ex. C719 at 2780; Ex. C717 at Ex. 1513; C718 at 2206; Ex. C719 at 2730-81; Ex. C720 at 57. The BSA is the largest youth organization in America. Ex. C1005 at 5623. In 1940, the Boy Scouts described the Boy Scout Handbook as "the country's best seller, with the exception of the Bible," Ex. C717 at 1474; since 1911, the Boy Scouts have printed more than 33 million copies. Ex. C700 at 583. Since 1911, Boy's Life has placed "more than 16 billion magazines in circulation," Ex. C1122 at NCAC4882, with more than 2 million boys receiving the periodical each month. Ex. C700 at 583.
B. The Boy Scouts are Almost Totally Non-Selective and Aggressively Recruit Membership.
271. The Boy Scouts believe that "Boy Scouting is for any boy who meets the age requirements and is willing to subscribe to the religious principles." Ex. C901 at 12. According to the Boy Scouts:
Our federal charter sets forth our obligation to serve boys. Neither the charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy. The National Council and Executive Board have always taken the position that Scouting should be made available for all boys who meet entrance age requirements.
Ex. C1155 at 2. See also, e.g., Ex. 810 at 3 (BSA feels that its program offers "something special for every boy and family"); Ex. C923 at 8489 (Cub Scouting "has something special to offer every boy and family"); C727 at 6923 (Scoutmaster Handbook noting, "Your troop, if it is like most, takes on whatever boys come to it, complete with their strengths and weaknesses.").
272. It is a major priority of the Boy Scouts at all levels to encourage and to expand membership of both youth and adults. Tr. 2490-91, 2522-23 (Leet). For example, the BSA's 1992 Annual Report announced the BSA's "commitment to make Scouting more widely available than ever." Ex. C1306 at 1901. The BSA added that "[d]emographic information and forecasts indicate the number of youths who could benefit from Scouting is steadily increasing," and that "Scouting must be shared with as many young people as possible." Id.; Tr. 2523-25 (Leet); Tr. 367-68 (Jones). Positive public relations, urban emphasis, development of endowments and "[t]raditional net unit growth" are Chief Scout Executive Ratcliffe's "Four Critical Issues Facing the Boy Scouts of America," Ex. C918 at A2115; Ex. C1307 at NCAC3428, 3438, and a major focus of every BSA Annual Report. See, e.g., Ex. C1308 at NCAC1934-37 (section entitled "Making a Difference with More Traditional Units"); Ex. C1309 at NCAC1970-73 (section entitled "Accomplishing Our Mission with Traditional Unit Growth); Ex. C1310 at 8-11 (section entitled "What Makes a Leader - Traditional Unit Growth); Tr. 1354-56, 1378-85 (Turner) & Exs. R76, R84, R86 (testimony and exhibits concerning efforts to encourage religious groups to sponsor more Scout troops); Mack Dep. at 134-45 (discussing how the Boy Scouts spread the word about Scouting through flyers and public service announcements); Exs. C808, C809, C811; Tr. 2525-27 (Leet).
273. In particular, the Boy Scouts have emphasized "growth in urban America, where, figures show, more than 70 percent in the projected increase in available youth will occur." Ex. C1307 at NCAC3438. "Recruiting adults is a vital task in serving inner-city . . . communities. District Scouters must give a high priority to helping community and organization leaders recruit unit adults." Ex. C1153 at 22.
274. The Boy Scouts believe that "[l]ocal councils have an opportunity to help fulfill the Scouting mission that all boys and young adults have the opportunity to be part of the Boy Scouts of America." Ex. C1153 at 25; Ex. C607 at NCAC8056 (Part of the "Mission of the Council" is "To Make Scouting Available to All Youth"); Ex. C918 at A2115 ("A council is known by the units it keeps."). The NCAC Annual Report for 1992-93, for example, states that "[w]e must involve an increasing number of youth and adult members," and reports on the "specific strategies" the Council had implemented "to address our membership needs." Ex. C1312 at NCAC2057.
275. The BSA identifies increasing membership as the first function of a District. Ex. C906 at NCAC152; Hill Dep. at 72-73. To be a "Quality District," and to receive an award, a district has to increase the number of members and the number of units. Tr. 368-69 (Jones). The District Executive is a "marketing person" who is evaluated based upon his ability to increase Scouting membership in the District. Tr. 369-70 (Jones). Professional training materials describe the first "critical achievement" of a professional Scouter to be "growth in quantity" -- even before "growth in quality." Ex. C917 at A1609. Increasing membership is a "key function" of Unit leaders, the Commissioner Corps and the District Membership Committee, and they are all evaluated on whether they succeed in increasing members. Tr. 565-66 (Press).
276. In 1992, the NCAC's standing committee on long range planning targeted membership as one of two principal areas of focus. Its findings included a recommendation that the NCAC increase membership opportunities to all elements of its potential youth market. The committee also recommended implementing a strategy to increase membership by 3% every year. Ex. C1100 at NCAC5709. More recently the NCAC has stated, "obviously, it is always our goal to provide the best possible program for as many young people as we can reach. In order to do this, we must . . . comply with Federal, State and local laws and policies. . ." Ex. 1100 at NCAC6312.
277. Likewise, in the Banneker District, the Boy Scouts say that "every boy who wants to be a Scout should be." Tr. 318 (Jones); Bond Dep. at 85-86; Ex. 1100 at NCAC5779. Its 1992 Mission Statement was "[t]o deliver the total Boy Scout program to the boys, to their families and to the community." Ex. C1106; Tr. 364-66 (Jones). One of the District's objectives was to "market Scouting to the community," by increasing Scouting's visibility in the community and inviting people from the community to activities so that they could see the benefit of Scouting. Ex. C1106; Tr. at 366-67.
278. Other objectives of the Banneker District include "mak[ing] Scouting available to every boy who wants it," and "increas[ing] Adult Partner involvement," Ex. C1106, both of which focused on growing the program and increasing membership. Tr. 367, 370 (Jones); Ex. C1100 at NCAC5779.
279. In the Banneker District, the goal of increasing membership required extremely active and intensive recruitment. Tr. 344 (Jones); Tr. 530-34 (Press). Almost every unit in the District lacked sufficient numbers of adults. Tr. 370 (Jones). Some units were unable to renew their charters because they did not have enough adult leaders. Tr. 532 (Press).
280. Indeed, with respect to Unit Commissioners -- the particular position for which Roland Pool applied -- there was, at the time of his application, a desperate need for adult leaders. Boy Scout procedures call for there to be one Unit Commissioner to service every three units (cub scout packs, boy scout troops or explorer posts) in the District, and to have one Assistant District Commissioner for every five Unit Commissioners. Tr. 309-12 (Jones); Ex. C909 at NCAC366; Mack Dep. at 122-23. Moreover, apart from rare or emergency circumstances, Assistant District Commissioners are not supposed to have direct contact with units; they are supposed to focus on overseeing the Unit Commissioners. Tr. 312, 351 (Jones); Ex. C909 at NCAC366.
281. As of June 1992, the Banneker District had only one active Unit Commissioner (Mr. Kirkner) and two active Assistant District Commissioners (including Mr. Press), to service 72 units. Ex. C300; Ex. C1105; Tr. 348-57 (Jones). The District Commissioner needed about 30 more people on his staff to function properly. Tr. 356-57 (Jones). Across the board, the District level needed five times as many people as they had. Tr. 533 (Press). See also Tr. 1927-29, 1971-73 (Kirkner).
282. The overwhelming number of packs and troops in the Banneker District were too small and lacked a sufficient number of adults to function effectively. Tr. 357-60 (Jones). The Boy Scouts paid someone to serve as Cubmaster for nine packs. Tr. 360-61 (Jones). Another person, who was the charter representative for two packs and a troop and the Cubmaster for one of the packs, had no training and ran a unit in which boys had neither uniforms nor literature. Tr. 361-63 (Jones).
283. Despite some improvements, the Banneker District's need for adult leadership continued in the succeeding years. Hill Dep. at 35-42. Although the Boy Scouts called as a witness the current Banneker District Vice-Chair for Membership, James Ingram, Tr. 2079-80, they elicited no testimony from him to contradict the evidence that the Boy Scouts in the District of Columbia desperately need more adult leaders.
284. The evidence establishes that the Boy Scouts' approach to recruiting membership is aggressive and non-selective. For example, as discussed below, each year the Boy Scouts have an extensive membership development program in the public schools called "Join Scouting Night." Exs. C801-803. The goal of this program is to have programs run in as many schools as possible, to sign up as many kids as possible and to sign up as many parents as possible for Scouting. Hill Dep. at 84. Or, as the Boy Scouts' internal literature for the program puts it, "Band every boy, tag every boy, stick every boy." Ex. C803 at NCAC5024.
285. Similarly, the Boy Scouts inform potential adults for membership that "[i]f you have an interest, we have a volunteer job for you." Ex. C1101 at NCAC5082 (Left side). Literature provided to sponsors on how to recruit Scoutmasters and Cubmasters presents elaborate instructions on how persons who are presumed to be reluctant to join can be induced to do so before they break off the conversation, (Selecting Quality Leaders). Ex. C816; training materials explain how Scoutmasters are generally located with the assistance of the council. Ex. C902 at B1110.
286. Because the Boy Scouts really want to encourage membership, they engage in no routine screening of youth applicants, Tr. 321 (Jones), Kay Dep. at 42-44; and almost no routine screening of adult applicants. Tr. 298 (Jones); Kay Dep. at 31-36; Flythe Dep. at 29.
287. None of the Boy Scouts' witnesses was able to recall more than a handful of instances in which anyone had been denied youth or adult membership in the Boy Scouts or had their membership revoked. See Teare Dep. at 50-52; Bond Dep. 35-38; Hill Dep. at 163-67; Mack Dep. at 165-72; Kay Dep. at 36-37, 48-49, 54-55; Fullman Dep. at 28-30; Flythe Dep. at 32, 34-35.
288. It is not unusual for applicants to be trained, as Roland Pool was, for a position before engaging in the formality of completing an application. Bond Dep. at 130. Indeed, Mr. Bond signed his approval on the application apparently without even reading it. Ex. C305; Tr. 590 (Press).
289. Out of over 93,000,000 people who have been members of the BSA in its history, Ex. C1122 at NCAC4881, the Boy Scouts have located only 7,000 (.0075 percent) whom it has considered generally inappropriate for Scouting for any reason -- including child molesting, arrest or conviction for various crimes, other misconduct or being a homosexual. Ex. 1506 ¶ 10; Ex. 1505 ¶¶ 3, 5.
290. This lack of rejections or exclusions is particularly significant because it is the Boy Scouts' policy to maintain thorough records on the people they consider to be inappropriate for Scouting. "BSA's purpose in setting up the ineligible volunteer files is to collect information in order to ensure that any individual who has either had some prior connection to the Scouts but no longer meet[s] Scouting standards, or any individual who was deemed at the time of their application not to meet Scouting standards, will never be able to register in any Scouting group anywhere in the country." Ex. 1506 ¶ 4 (emphasis added).
291. The Boy Scouts' procedures make it "imperative that a Scout executive take the required action [of sending a report to the Ineligible Volunteer File] upon learning of a questionable membership standards situation. Delay or inaction is unacceptable." Ex. 604 at NCAC4286.
C. The Boy Scouts are one of the most public organizations in existence.
292. The BSA's 1996 Annual Report proudly proclaims that "more than ever, Scouting is an integral part of the fabric of America." Ex. C1310 (inside cover). As noted above, the BSA is chartered by an Act of Congress. 36 U.S.C. § 23 (1916); Ex. C1300 § 2. That Act requires the BSA to report to the Congress each year on the status of the organization. Ex. C1300 at NCAC103 (§ 8). In fact, the BSA personally delivers its annual "Report to the Nation" to the President as well, Tr. 1186-1187 (Carroll); Ex. C1114 at NCAC5636; Ex. C1115 (at NCAC5639). Each President has "taken an active part in the work of the movement" and has "served as Honorary President [of the BSA] during his term in office." Ex. C1146 at NCAC4319; Tr. 2486-88 (Leet).
293. Both locally and nationally, the Boy Scouts make major efforts to involve public officials and other prominent people with Scouting. In 1992, for example, Vice President and Mrs. Quayle served as the Honorary Chairs of the NCAC's Embassy Gala, an annual fundraising event. Ex. C1100 at NCAC5728. That same year, the Chairman of the Banneker District was former Police Chief and recent mayoral candidate Maurice Turner. Tr. 346-47 (Jones); Ex. C300. When the Boy Scouts showed a videotape of an eagle court of honor, Councilmember, and current mayoral candidate, Kevin Chavous, was in attendance. R173B at 5.
294. The Boy Scouts' National Presidents are commonly prominent people in business and industry. Tr. 2494-95 (Leet). The Boy Scouts regularly tout the large number of former Boy Scouts who have gone on to positions of public prominence, for example, as members of Congress, sports or Hollywood figures, astronauts, graduates of military academies or law enforcement, Exs. C1122 at NCAC4881; C1145; C1146; C1147; C1148. The Boy Scouts also make a point of giving awards to prominent people even if they are not directly related to the Scouting movement. Ex. 1100 at NCAC5973, 6236, NCAC6281; see also, Ex. C1150. The BSA's Young American Awards recognize youth for exceptional achievements irrespective of whether they are members of the Boy Scouts. Ex. C1304 at NCAC2417; Tr. 2504-05 (Leet). The Silver Buffalo award has been awarded not only to accomplished adults in Scouting, but to prominent non-Scouters such as Marian Anderson, William Webster and John Wooden. Ex. C1304 at NCAC2417; Tr. 2505-06 (Leet).
295. The Boy Scouts associate themselves with prominent people in the community and the nation because the Boy Scouts' program is very community-oriented and depends on extensive resources from the community at large to operate. Tr. 347 (Jones).
296. The Boy Scouts are required by their Congressional charter to operate through other agencies or organizations. Ex. 1300 at NCAC102 (§ 3). Some of these agencies or organizations are governmental; some are private; some are secular; some are religious. Ex. 1153. As of 1990, approximately three times as many registered youth were in units sponsored by public schools than in units sponsored by any other organization. Ex. C1304 at NCAC2410; Tr. 2498-99; Tr. 513 (Press). Other sponsors include fire departments and law enforcement groups as well as the military and an array of governmental agencies. Ex. C1304 at NCAC2410; Ex. C1153; Ex. C917 at A1686. Here in the District of Columbia, for example, sponsors include the U.S. Park Police, M.P.D.C. 7th District Police, U.S. Customs Service, Banneker High School, and Malcolm X Elementary School. Ex. R16.
297. Of necessity, due to its charter and mission, and by choice, the Boy Scouts operate as one of the most public of organizations imaginable. Scouts are required to do community service with those outside of Scouting. Tr. 314-15 (Jones). For example, both nationally and locally, the Boy Scouts run a massive national "Scouting for Food" program to provide food for needy people. Tr. 620 (transcribing Ex. C522); Tr. 561 (Press); Ex. C313 at A1159; Ex. C1122 at NCAC4882 (reporting on delivery of over 562 million cans of food since 1988); Bond Dep. at 61; Tr. 2503-04 (Leet). The Boy Scouts have worked with the National Park Service to develop historic trails in the District of Columbia. Tr. 2362-2365 (Wetzel). The Boy Scouts have also participated in events like the National Tree Lighting Ceremony, Ex. 1100 at NCAC6159, the National Easter Egg Hunt at the White House, Ex. 1100 at NCAC6189, and presidential inaugural activities. Ex. 1100 at NCAC6347, NCAC6400.
298. Since 1981, every Boy Scout national jamboree has taken place on a military base -- Fort A.P. Hill in Virginia. Tr. 519 (Press). Congress has passed laws authorizing the military to provide free transportation to the Boy Scouts for attendance at jamborees and to loan equipment for use by the Boy Scouts free of charge. Exs. C1167, C1168, C1169; Pub. L. 87-459; 10 U.S.C. § 2544; 10 U.S.C. § 7541. The Navy also has regulations on how it can assist the Boy Scouts' program. Ex. C1170; OPNAV Instruction 5760.5b. See also, e.g., 13 U.S.C. § 641; 10 U.S.C. § 4682; 10 U.S.C. § 9682 (statutes authorizing the military to sell obsolete or excess material to the Boy Scouts of America); N.J.S.A. 23:2-3 (New Jersey statute authorizing government agencies to stock bodies of water with fish for use by Boy Scouts). The Boy Scouts do not take the position that they are a "distinctly private" organization when accepting the benefits of this public support. Tr. 2528-31 (Leet). 299. The Boy Scouts operate their programs in public buildings such as the public schools -- where some units meet, Tr. 1650 (Crayton)); Hill Dep. at 125, where the Boy Scouts recruit for members, Tr. 319-20 (Jones), run the Learning for Life program, Id., run activities, e.g. Ex. 1100 at NCAC5690, and conduct some of their training, Hill Dep. at 124-25; public libraries (such as Martin Luther King Library and Mount Vernon Square, Tr. 318 (Jones)), government office buildings (such as the Rayburn Building, Ex. 1100 at NCAC6106), public spaces, such as the mall and parks in and around the city , Tr. 316 (Jones) and Ex. 1100 at NCAC5689 and NCAC5925, and public property (such as Bolling Air Force Base, Tr. 568 (Press); C313 at 1160 and Fort McNair, Ex. C1100 NCAC6280. In October 1992, when complainants in this case came downstairs from filing their complaint in the Department of Human Rights, they saw an extensive Boy Scouts' display, including a mayoral proclamation, a list of Eagle Scouts, pictures and other Boy Scouts materials on the wall of the Reeves Center. Ex. C1103; Tr. 64-66 (Geller).
D. The Boy Scouts Aggressively Use Public Relations in an Effort To Increase Public Visibility, Support and Membership in the Community.
300. As illustrated by the series of public relations statements on the exclusion of homosexuals, the Boy Scouts are intensely concerned about the public perception of their organization. The BSA pays Edelman Worldwide $19,000 a month to promote the image of Scouting, to answer media inquiries, and to run seminars and create training materials on "how to tell the story of scouting." Teare Dep. at 168; Lewis Dep. at 18, 26, 29, 106.
301. The Boy Scouts also run numerous programs to increase the visibility of Scouting in, and interaction with, the community and to recruit members. Tr. 317-18 (Jones). For example, every two years, the NCAC runs an Extravaganza on the Mall in which Boy Scouts from all over the Council show off their Scouting skills to the public, and create effective "public relations" and "awareness" of Scouting. Hill Dep. at 100-01, 117-18; Carroll Dep. at 107-108; Tr. 316-17 (Jones); Tr. 562-63 (Press); Ex. C313 at A1160; Bond Dep. at 69-72. The NCAC distributes a brochure "Character Counts" at metro stops in order to increase awareness of Scouting. Hill Dep. at 130-36 (referring to Ex. C1101).
302. In the Boy Scouts' view, "[a] news release that talks about the fun, excitement, and challenge of being a Boy Scout directly promotes a BSA `product' or `products.' For example, a `School Night for Scouting' news release often promotes three Scouting `products' -- Cub Scouts, Boy Scouts and Explorers." Ex. C518 at NCAC2812. "National Council packets are mailed to local councils each week. `Scouting in the News,' mailed monthly by the National Council, highlights important and interesting news about Scouting." Id. "Camporees, courts of honor, fundraising luncheons, and other council activities are all part of public relations" that "create opportunities for publicity." Id.
303. Councils are expected to organize a public relations committee, "[i]deally" with a public relations director who has a college degree in a communications-related field, and one or more members with professional public relations experience, to develop a communications plan. Ex. C518 at NCAC2813, NCAC2842. They are expected to set goals such as "[i]ncreas[ing] recognition of BSA as a positive and effective youth development organization," "[r]ais[ing] awareness of BSA's role in combatting the problems of hunger, drug abuse, child abuse, youth unemployment, and illiteracy," "[e]ducating the community about the value and benefits of active membership in BSA," "[a]ttracting new Scouting recruits/volunteers," and to measure achievement by examining information such as the amount of favorable publicity the Boy Scouts have received. Id. at NCAC2813. Councils are also advised "as much as possible" to target their message to audiences such as Scout-age youth, adults, parents, current and potential volunteers, current and potential chartered organizations and community leaders and influential people. Id. at NCAC2814; Ex. C607 at NCAC8118.
E. The Boy Scouts Actively Promote and Sponsor Boy Scout Events in the District of Columbia.
304. In additional to the Extravaganza on the Mall, the Boy Scouts have numerous other regular and periodic activities to recruit and to increase their visibility in the District of Columbia. Join Scouting Night, for example, is a huge annual event in which the Boy Scouts recruit for members in most of the public schools in the District of Columbia. Tr. 319-20; Hill Dep. at 75-81; Bond Dep. at 59-61; Carroll Dep. at 80-84. Exs. C801-803. The "only purpose" of Join Scouting Night is to recruit new youth members to Scouting. Hill Dep. at 75. At the junior high school level, the Boy Scouts recruit for potential Explorers with a "First Nighter," which sometimes goes late into the night and takes place at schools, churches or other locations in the District of Columbia. Hill Dep. at 76-77.
305. To run these recruitment programs, the Boy Scouts obtain approval for use of the buildings and make arrangements with the District of Columbia School Superintendent, who contacts principals of the D.C. schools. Hill Dep. at 77-79. The Boy Scouts distribute flyers through public school teachers, with the approval of principals and the School Superintendent. Hill Dep. at 79-80. Usually, the Boy Scouts encourage youth to come to Join Scouting Night by putting up signs around schools, speaking at parent-teacher association meetings, and, if the principal allows it, coming into classes. Hill Dep. at 80-81; Ex. C313 at A1188. More recently, the Boy Scouts have also done fundraising solicitation as part of the school-based Join Scouting Night. Hill Dep. at 81.
306. Units periodically use parades and special camporees for boys in the community to bring attention to Scouting in the District of Columbia. Hill Dep. at 96-100. See e.g., Ex. C1100 at NCAC5715, NCAC5932. The Boy Scouts have an annual Eagle Career Day in which young men who reach the rank of eagle receive the opportunity to meet people in career fields in which they are interested. Tr. 1140-1141 (Carroll); Carroll Dep. at 75-79; Bond Dep. at 54-58; Ex. C1100 at NCAC5746, NCAC5983. The Boy Scouts operate a field day on Third Street north of Missouri Avenue. Tr. 316 (Jones). Every month, the District Committee meets, the commissioners for the District meet, and round tables meet, all in the District of Columbia. Tr. 352-54 (Jones). The Boy Scouts run a day camp for Cub Scouts in the District of Columbia. Ex. C313 at A1201; Bond Dep. at 61-63; Tr. 517 (Press). The Banneker District also runs an annual Parent Expo at the District of Columbia Armory. Ex. C1100 at NCAC6454.
307. The Boy Scouts run both awards and fundraising banquets for Scouts at various places in the District of Columbia. Hill Dep. at 119-22, 128. These have included a Sports Breakfast of Champions, Ex. C1100 at NCAC5729, an annual Labor Lunch-o-ree, Ex. 1100 at NCAC6106, an annual Patriot Award Luncheon on Capitol Hill, Ex. C1100 at NCAC6106, and an annual Black Tie Embassy Gala, Ex. 1100 at NCAC6353.
F. Membership in the Boy Scouts determines access to numerous other places of accommodation.
308. The Boy Scouts use a large collection of military bases, campgrounds, state parks, national parks and other facilities in the greater Washington area for Scout activities, including Fort Belvoir, the C&O Canal, Quantico Marine Base, Fort Myer, Patuxent Naval Air Station, Patapsco Valley State Park and other locations. Tr. 568-69 (Press); Hill Dep. at 102-07; Ex. C1100 at NCAC5726, NCAC5733, NCAC6051, NCAC6161, NCAC6242. The NCAC runs Goshen, a large multi-camp facility in Virginia, Ex. C313 at A1172-83; Bond Dep. at 65-68; Carroll Dep. at 34, and the BSA runs numerous other camps in the greater Washington area. Ex. C1312 at NCAC2061 988-98 (Horne); Bond Dep. at 90-91. For Boy Scout activities, the ticket to use these facilities is membership in the BSA. Hill Dep. at 106.
309. The BSA also owns and operates National High-Adventure Bases, including Philmont Scout Ranch in Cimarron, New Mexico, which is regarded as one of the premier high-adventure camps in the United States. Tr. 372 (Jones); Tr. 439-40 (Herde); Ex. C700 at 574-77.
G. The Boy Scouts are a large financial organization.
310. As of December 31, 1996, the BSA had total assets of $440,887,000 and net assets of $325,238,000. Ex. C1310 at 31. In 1996, the BSA received $114,352,000 in revenues, with only $75,303,000 in functional expenses. Id. at 32-33. It is a fast-growing organization. As of December 31, 1992, its total assets were $277,324,000 and its net assets (fund balances) were $160,664,000. Ex. C1306 at NCAC1917. The NCAC's most recent annual reports do not report assets. However, its total revenues for 1996 were $5,027,224, with expenses of $5,003,856.
311. The Boy Scouts aggressively pursue financial support from all avenues of the public. The BSA has developed a wide range of donor programs, designed to appeal to both individual donors and companies, including an "Gift Annuity Program," a "Pooled Income Fund," and "The 1910 Society." See Exs. C1400-1420. The NCAC has also developed a successful fundraising programs. Its "Investment in Character Campaign" brought in $8.3 million and is considered "the most successful fundraising event in Council history." Ex. C1100 at NCAC6388. The NCAC has also developed relationships with the labor movement, politicians, and business community aimed at facilitating contributions. Carroll Dep. at 92-107. In addition, the NCAC obtains funding from organizations like the United Way. Tr. 393-94 (Jones).
312. The Boy Scouts maintain extensive and sophisticated fundraising operations designed to obtain contributions from the general public and support from organizations. Teare Dep. at 20-23; Ex. C1100 at NCAC6106; Exs. C1400-1420.
313. "A large part of the National Capital Area Council's operating budget -- nearly 30% -- comes from Friends of Scouting" in the community. Ex. C1108 at NCAC 5086. The Boy Scouts' fundraising efforts have included a half marathon along the National Mall, Ex. C1108 at NCAC5087, C1100 at NCAC6166, Hill Dep. at 151, scout skill extravaganzas at the National Zoo, the National Mall and Bolling Air Force Base, Bond Dep. at 78-81, Carroll Dep. at 106-108 and 118-119, and Ex. C1100 at NCAC5662, an annual golf classic at Bretton Woods Golf Course, Ex. C1109, an annual luncheon for local labor leaders, Ex. C1100 at NCAC5943 and Carroll Dep. at 106, an annual Embassy Gala, Ex. C1100 at NCAC5943 and Carroll Dep. at 103-104, and sales of popcorn and hams to the public, Ex. C1110; Tr. 2085-86 (Ingram); Bond Dep. at 74-75; Hill Dep. at 137; Carroll Dep. at 92-94.
314. The Boy Scouts also operate or license stores to sell Scouting materials both generally and in the District of Columbia. These stores sell materials irrespective of whether people are members in the BSA. Indeed both Mr. Pool and Joseph Ward, a paralegal for complainants' counsel, were able to buy materials without question. Tr. 2375-78 (Ward); Exs. C1164, C1165, C1166.
H. Scouting Experience Provides Benefits Both to Youth and Adults.
315. Every witness who testified about a personal Scouting experience uniformly credited that experience as very important in developing important and useful skills for later life. See, e.g., Tr. 289-91, 413-14, 430 (Jones); 2489-90 (Leet); Tr. 441 (Herde); Tr. 1087-1088 (Horne); Tr. 466, 472-73 (D. Geller). "[T]he Boy Scout program really is a leadership development program." Tr. 294 (Jones). Scouts are also taught leadership, camping skills and self-reliance. Tr. 289-90 (Jones). See also, e.g., Ex. 716 at 7815 (Handbook for Boys, 3d ed., reporting that half of college men have been Scouts).
316. "Many American men (and of late, women, too) have found their life's work through Scouting. A deliberate effort is made in Exploring nowadays to expose young people to careers, but Boy Scouting's merit-badge offerings have had the same effect ever since 1910. Many astronomers, foresters, geologists, naturalists, scientists, photographers, and men in skilled trades owe their initiation into their careers to a Boy Scout merit badge." Ex. C1600 at A2556; Tr. 2489-90 (Leet).
317. The "vast majority" of Explorer posts are "career-oriented." Ex. C1600 at A2532; Ex. C711 at NCAC2878; Ex. C1134 at NCAC4888; Tr. 2493-94 (Leet). During the 1970s, "scores of large corporations," including General Motors, IBM, Western Electric, McDonnell Douglas, U.S. Steel, United Airlines and Sears Roebuck, "as well as local companies," began to sponsor Explorer posts. Ex. C1600 at A2533. "Thousands of career-interest posts were organized in such diverse fields as accounting, engineering, computers, business, science, auto mechanics, electronics, communications, banking, secretarial work, photography, and journalism under sponsorship of business and industry. Hospitals and medical societies backed posts for medical and health care exploration. Hundreds of police agencies sponsored law enforcement posts. The airline and aircraft industries and their unions started aviation-related career posts." Id. "For most of the career posts, the sponsor provided not only expert leadership but hands-on experience in its place of business." Id. at A2534.
318. "Exploring's scope was further expanded during the late 1970s when the program began penetrating the nation's high schools. The vehicle was career-awareness Exploring, a series of career seminars and tours during the school day." Ex. C1600 at A2534. In the District of Columbia, for example, Explorer Post sponsors include the United States Park Police, Howard University Medical Center, E.B. Dews & Associates, Piper & Marbury, and the U.S. Custom Services. Ex. R16.
319. The Boy Scouts also tout the benefits that Scouting provides to adult leaders. For example, as early as the Second Edition of the Scoutmaster Handbook, the Boy Scouts explained under the heading "Why Scoutmasters Need Scouting," the "[l]eadership of Scouts brings many `by-products' to the Scoutmaster," including rediscovering the Scoutmaster's own youth, healthy outdoor experience, learning outdoor crafts, clarifying ideas and discovery of his own qualities of leadership. Ex. C722 at 5 (Bates 7201).
320. Numerous witnesses -- irrespective of whether they were called by Mr. Pool and Mr. Geller or the Boy Scouts -- also agreed that Scouting provided adults with extraordinary leadership training, contacts and skills useful in business. Tr. 526-27 (Press); Tr. 1942-43 (Kirkner). For example, wood badge training, which is the highest level of adult leadership training, and is available only to registered members of the BSA, Tr. 294-96 (Jones), teaches skills and specific methods of leadership, such as resource management, getting and giving information, and organization. Tr. 294-95 (Jones); Tr. 1942-43, 2007 (Kirkner). Indeed, every witness with experience uniformly regarded wood badge as outstanding management and leadership training of great use both personally and professionally. Tr. 295 (Jones); Tr. 1381-82, 1424-25 (Turner); Tr. 1942-43 (Kirkner). The Boy Scouts also run a College of Commissioners with training and degrees. Tr. 524-25 (Press).
321. It is not unusual for Scouts or Scouters to list their Scouting achievements on their resumes. Tr. 63 (Geller), Tr. 526-27 (Press), Tr. 738 (Pool).
322. Through the Boy Scouts, adults can make contacts with leaders in the community and business. Tr. 1942-43 (Kirkner); Tr. 1379-80 (Turner).
VII. THE BOY SCOUTS' DEFENSES ARE PRETEXTS FOR DISCRIMINATION.
323. In an attempt to defend their policy of excluding homosexuals, the Boy Scouts have asserted an extensive array of purported justifications for the policy. Taken as a whole, several facts undermine the Boy Scouts' attempt to suggest that excluding homosexuals reflects some sort of core value of Scouting.
324. First, as noted above, there is a huge gap between the statements the Boy Scouts make as part of the program of Scouting and the public relations statements the Boy Scouts make when questioned about this policy. For example, the evidence of record shows it was not until 1991 -- ten years into litigation over the exclusion of homosexuals -- that the Boy Scouts ever suggested that the policy of excluding homosexuals was based on the Scout Oath and Scout Law that had existed since 1910, or that the exclusion was based on a perception of proper role models, or that Scouting served some sort of function of instilling or reflecting "traditional family values" apart from, or as part of, the Scout Oath and Law. If, in fact, the Scout Oath and Scout Law stood for heterosexuality, this point would be part of the Boy Scout program and self-evident to every Scout and Scouter with any experience. The fact that sexuality is concededly no part of the Scout program makes the Boy Scouts' attempt to find a policy of excluding homosexuals in these sources incredible.
325. The nature and depth of the opposition to the Boy Scouts' policy also wholly undermines the conclusion that excluding homosexuals is in any way basic to Scouting. Complainants did not merely produce a few witnesses who were unaware of any aspect of Scouting that required the exclusion of homosexuals, they produced a resolution by an entire council that was morally troubled by the Boy Scouts' policy, Ex. C1204, a memorandum by a second council articulating a policy much less restrictive than that actually imposed by the National Office, Ex. C1200 at A77, Ex. C1210, C1214A; a resolution by a Scout troop that opposed the policy, Ex. C506 at 5459, the reaction of those who attended Roland Pool's training session and the commissioner meetings and round table at which Thornell Jones asked for views on this policy, Tr. 409-10 (Jones), and the testimony and statements by witnesses with scores of years of experience in Scouting who understood this policy to be contrary to Scouting. See paragraphs 196 to 219, above, and Exs. C1202, C1203. That even one council would agree (unanimously, no less), to oppose a national policy of the BSA is an extraordinary testament to the fact that the policy involved is not basic to Scouting. Tr. 1730-31 (Wolfe).
326. In short, taken as a whole, the evidence is overwhelming that the exclusion of homosexuals from Scouting is not basic to Scouting. To the contrary, the argument that Scouting depends on this exclusion is contrived for purposes of attempting to defend the policy in litigation.
327. Nor were any of the Boy Scouts' various purported justifications taken individually supported by the evidence. In each case, the purported justification is not only post hoc, it is inconsistent with the principles the Boy Scouts have enunciated in their own documents.
A. The Scout Oath and the Scout Law.
328. The Boy Scouts' primary argument is to say that homosexuals are not permitted in scouting because homosexuality violates the prescriptions in the Scout Oath to be "morally straight" and in the "Scout Law" to be "clean." This argument is a pretext that is wholly belied by the clear definitions the Boy Scouts have provided of these terms in the extensive literature, the evidence of people's experience in Scouting and the nature of the policy the Boy Scouts purport to articulate.
1. The words "morally straight" do not support the Boy Scouts' exclusion of homosexuals.
329. As noted above, the current edition of the Boy Scout Handbook defines the words "morally straight" as follows:
To be a person of strong character, guide your life with honesty, purity and justice. Respect and defend the rights of all people. Your relationships with others should be honest and open. Be clean in your speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help you become virtuous and self-reliant.
Ex. C700 at 551.
330. There is nothing in this definition that suggests that "morally straight" refers to sexual orientation or conduct, per se, much less that there is some judgment being made that homosexuality is wrong whereas heterosexuality is right.****/
331. To the contrary, the references to being of "strong character," the words "[r]espect and defend the rights of all people," and "[y]our relationships with others should be honest and open," belie the reading the Boy Scouts would attach to the words "morally straight." It would be strange, to the point of bizarre, for the Boy Scouts to be teaching people to "respect and defend the rights of all people," by discriminating against them, or (as noted above, under the Boy Scouts' "known or avowed" formulation of their policy) to be "honest and open" in relationships by lying about one's sexual orientation.
332. The credible testimony of persons with hundreds of years of combined Scout experience establishes that, in Scouting, "morally straight" means what the Boy Scouts say it means in the Boy Scout Handbook and not what they say it means in the various position statements on homosexuality. For example, Thornell Jones testified that morally straight means that "everybody should have some kind of ethic" upon which they operate -- not necessarily the same ethic. Tr. 336-37. When asked whether "morally straight" has anything to do with someone's sexual orientation or homosexual versus heterosexual conduct, Charles Wolfe testified that, in Scouting, "morally straight" is "never discussed in that way." Tr. 1710. See also, e.g., Tr. 1968 (Kirkner) ("my understanding of `morally straight' is that you're forthright. . . . [T]he idea of being `morally straight' is in the idea of being a straight-shooter, a plain dealer. . . ."); Cahn Testimony at 75 ("morally straight means that one obeys his personal code of ethics"); Rice Testimony at 239-40 (similar).
333. As noted above, the Boy Scouts themselves recognize that there is no general or universal definition of morality that makes it obvious that homosexuals stand on one side and heterosexuals on the other. Ex. C727 at 6907-08. As Reverend Wogaman put it, morality is "behavior in accordance with what is real and good, and there are differences in views about morality, of course, because there are so many different views as to what is real and good." Tr. 1841.
334. Even more convincing is the fact that although the Boy Scouts could, in principle, have called any of millions of witnesses to support their case, and there were certainly some witnesses who personally have strong feelings about the morality of homosexuality, there was none who testified that Scouts were ever taught that "morally straight" meant heterosexual. Cf. Hill Dep. at 26-27 (noting that training she received as a professional mostly involved "making sure we understood the Scout Oath and Law," but "didn't say anything about homosexuality").
335. Thus, both the Boy Scout literature and the witnesses establish that the most that can be said for the Boy Scouts' position that homosexual conduct is not morally straight is that where you stand depends on where you sit. The BSA "recognizes the church and home as the primary sources of religious education." Tr. 1388-89 (Turner); Ex. R89; Ex. C1300 at NCAC116, Art. IX, § 1. If you are taught by your parents or your religion that being homosexual is not moral, you learn that from them.
336. But if a 12-year-old boy were to go to his parent or religious leader and ask whether homosexual conduct is immoral, and the parent or religious leader said "no," there is nothing in the vast body of Scouting literature -- literally involving thousands of pages -- or practice that informs the boy that the Boy Scouts disagree with this answer, much less that the boy should disobey the dictates of his parents and religious leaders. Tr. 1335-39 (Thomas); see, e.g., C700 at 527-28; Bond Dep. at 141-42. Except for public relations purposes and attempts to defend their policy of exclusion in litigation, the Boy Scouts do not articulate any message on the question of whether homosexuality is moral or immoral.
2. The word "clean" does not support the Boy Scouts' exclusion of homosexuals.
337. The current Boy Scout Handbook defines the eleventh point of the Scout Law -- "A Scout is Clean" -- as follows:
A Scout keeps his body and mind fit and clean. He chooses the company of those who live by these same ideals. He helps keep his home and community clean.
You never need be ashamed of dirt that will wash off. If you play hard and work hard you can't help getting dirty. But when the game is over or the work is done, that kind of dirt disappears with soap and water.
There's another kind of dirt that won't come off by washing. It is the kind that shows up in foul language and harmful thoughts.
Swear words, profanity and dirty stories are weapons that ridicule other people and hurt their feelings. The same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He avoids it in his own words and deeds. He defends those who are targets of insults.
Ex. C700 at 561 (emphasis added).
338. As with "morally straight," the Boy Scouts' own definition contradicts the meaning the Boy Scouts would attach to the word "clean." To the extent there is any sexual component to the idea that Scouts should not tell "dirty stories," it is not only vastly removed from any notion of what sexual orientation is proper, it is also specially directed to avoiding statements "that ridicule other people and hurt their feelings." Id. Moreover, in all the Boy Scout literature, there is not the slightest hint that "clean" is intended to distinguish between homosexual and heterosexual orientation or conduct.
339. As with "morally straight," the Boy Scouts presented no credible evidence to justify the conclusion that the term "clean" either requires or connotes a policy of excluding homosexuals. To the contrary, numerous experienced Scouters testified wholly credibly that the Boy Scouts' reading of this term for purposes of this litigation contradicted what the Boy Scouts had taught them in their years as a Scout or Scouter. Tr. 389-390 (Jones); Tr. 576-77 (Press); Tr. 1710-12 (Wolfe); Tr. 1969 (Kirkner); Cahn Testimony at 75-76.
3. The Scout Oath and Scout Law, in general, do not support the Boy Scouts' exclusion of homosexuals.
340. The Boy Scouts' position statements illustrate the difficulty the Boy Scouts have attributing a position on homosexuality to anything in the Scout Oath and Scout Law. In drafting position statements on its view of the duty to God, the BSA "proudly" states that the duty to God can be found in the Scout Oath and Law, and cites references to Scout Handbooks with language upon which it relies. See, e.g., Ex. C607 at NCAC8133. This is because, as the Boy Scouts point out, "[p]ledging a `duty to God' has always been a part of the Boy Scout Oath." Ex. C520 at NCAC5601 (emphasis in original); Tr. 1236-1238 (Carroll). If there were any language in the Scout Oath, the Scout Law or Scout Handbooks even vaguely similar by which the Boy Scouts could seek to justify the policy of excluding homosexuals, they assuredly would have featured that language in their many position statements and in this case. They have presented none to this Commission.
341. Indeed, the Boy Scouts' policy does not fit with the nature of the Scout Oath and the Scout Law. The Scout Oath and Law address conduct; they set forth "ideals to live up to" in one's daily life. Ex. C700 at 550-53. The Boy Scouts' policy however, is not based on conduct, only presumed predilection. The Boy Scouts do not just apply their policy to homosexuals who engage in conduct -- they apply it to homosexuals who are celibate. The Boy Scouts do not propose an explanation for how a celibate homosexual is supposed to have acted in a way that is immoral or unclean or violative of any provision of the Scout Oath or Law.
342. Moreover, in saying that the Scout Oath and Scout Law are "ideals," the Boy Scouts mean just that. The Scout Oath and Scout Law are goals, not prescriptions. Ex. C719 at 84; Ex. C723 at 4489, 4495; Ex. C725 at 5538; Tr. 329-31 (Jones); Ex. C1136 at NCAC2931 ("The ideals of Boy Scouting are spelled out in the Scout Oath, the Scout Law, the Scout motto and the Scout slogan. The Boy Scout measures himself against these ideals and continually tries to improve. The goals are high, and, as he reaches for them, he has some control over what he becomes."). As one of the Boy Scouts' witnesses pointed out, the application of these ideals requires judgment and depends upon the circumstances. Tr. 984-985 (Horne). Indeed, many of the prescriptions in the Scout Law, on their face, require judgment -- for example, a Scout is instructed that "[w]ithout good reason, he does not harm or kill any living thing." Ex. C700 at 555 (A Scout is Kind).
343. No Scout or Scouter is expected to be perfect, but rather is expected to strive toward these goals. Tr. 329 (Jones). As the Boy Scouts have explained to Scoutmasters:
As a Scoutmaster dealing with a group of other people's sons, you probably expect to have some behavior problems along the way. And indeed you will. Your troop, if it is like most, takes on whatever boys come to it, complete with their strengths and weaknesses.
You may be tempted to get rid of any boy who fails to meet the behavior standards. This is handy for the Scoutmaster, but quite opposite to the goals of the movement. The purpose of the program, of course, is to help boys and to prepare them for the life they have ahead. They must continue in the troop if they are to benefit from Scouting. Only when every reasonable effort has failed should a boy be dropped.
Ex. C727 at 6923. (Emphasis added).
344. The Scoutmaster Handbooks are replete with examples of how Scouts might engage in numerous types of conduct that everyone, or virtually everyone, would agree was immoral -- cheating, stealing and lying -- or using drugs or alcohol or engaging in vandalism. C727 at 6927-6932. In all of these instances, the approach of Scouting is not to expel the boy, but to work with him. Id. Tr. 321, 335-337 (Jones); Tr. 1082 (Horne).
345. As discussed in greater detail elsewhere, the Boy Scouts similarly do not hold adults to some standard of perfection. The Boy Scouts also do not generally require adults to refrain in their private lives from conduct that would be inappropriate for youth. Although Scouts have never been supposed to smoke cigarettes or to drink alcohol, see, e.g., Ex. C700 at 551; Ex. C716 at 8060-61; Ex. C717 at 1940, at least until the 1960s, the Boy Scouts merely "recommended" to Scoutmasters "that intoxicating liquors" or tobacco "not be used in connection with Scout meetings," and encouraged them to speak frankly and not to conceal from the Scouts their own use of tobacco. See, e.g., Ex. C722 at 7736; Ex. C724 at 5337; Ex. C725 at 5849. Although today, the Boy Scouts have stronger rules against adult use of alcohol and tobacco in front of Scouts, they still do not require that Scouters refrain from drinking or smoking in their own private life and, in fact, hold adult Scouting events where alcohol is served. Tr. 297 (Jones).
346. More importantly, as noted above, the Boy Scouts do not insist on moral perfection from heterosexuals. For the Boy Scouts to reserve a "moral perfection" standard for homosexuals is no reason for their policy, it is just an excuse for it.
347. Finally, and most importantly, however, the words "morally straight" and "clean" are not the only words in the Scout Oath and Scout Law. As discussed above, the Boy Scouts' policy of discrimination contradicts numerous points of the Oath and Law, including, at a minimum, the Scout's duty to "my country" to follow the law, to "help other people at all times," and the points of the Scout Law requiring a Scout to be "trustworthy," "helpful," "friendly," "kind," "obedient," "brave" and "reverent." See Tr. 1976-81 (Kirkner).
348. Indeed, the exclusion of homosexuals not only contradicts these points of the Scout Oath and Law in principle, it does so in practice. A good example of this fact is what happened to William Kirkner. As noted above, William Kirkner was an exceptionally experienced Scouter who achieved the highest ranks in Cub Scouting, Boy Scouting, Exploring and the Order of the Arrow, and the highest ratings for his skills as an instructor. Tr. 1940-41 (Kirkner). As of the fall 1993, he had discussed with his superior and mentor, Doug Fullman, the prospect the next summer of capitalizing on his success as part of the Camp Commissions by heading the Program Director Section of the National Camp School. Tr. 1940-42 (Kirkner).
349. This all changed, however, when Mr. Kirkner agreed to attest to his experience with the Boy Scouts and with Roland Pool. In January 1993, after going through an intense personal debate, and with the knowledge and advice of a Boy Scout professional as well as some volunteers familiar with the situation, Tr. 1981-89, Mr. Kirkner signed an affidavit that was filed in connection with Dale v. Boy Scouts of America, No. MON-C-330-92 (N.J. Super. Ct. Ch. Div.), rev'd, 708 A.2d 270 (N.J. Super. Ct. App. Div. 1998).
350. The next business day after that affidavit was filed, Mr. Kirkner received a call from Scout Executive Ron Carroll. Mr. Carroll said that, as a result of the affidavit, it was "unlikely" that Mr. Kirkner would be allowed to participate as a staff member at the National Camp School and that he should "tone down" his activities and training in the council. Tr. 1989-92.
351. Mr. Kirkner intended to remain with the Boy Scouts, to be a Commissioner and to "keep [his] head low," and wrote Mr. Carroll a letter evidencing that intent. Tr. 1993-96; Ex. C1208. But then he received a visit from his supervisor and mentor at the National Camp School, Doug Fullman. Mr. Fullman informed Mr. Kirkner that filing an affidavit was a "career-limiting move" in the Boy Scouts, and that Mr. Kirkner needed to demonstrate that this was "just a singular sort of thing" and not part of a "pattern" in order to restore his value as a trainer and to get back to the things he enjoyed doing. Tr. 1996-97. Mr. Fullman also indicated that people fight lawsuits to win and that they would try to find out things about not only Mr. Kirkner but people who worked for him at the National Camp School. Tr. 1997-99.
352. Although Mr. Fullman disagrees with some of the import of Mr. Kirkner's testimony, he does not differ with Mr. Kirkner over these basic facts. Fullman Dep. at 42-73. In particular, Mr. Fullman confirms that he felt it was inappropriate for Mr. Kirkner to participate in litigation, at least where he was not personally involved. Fullman Dep. at 71-73.
353. Mr. Kirkner still tried to remain in Scouting. But at a Commissioner Training Course, when he was teaching "how the purpose of the Boy Scouts of America was to teach kids to be strong, to be willing to stand up and be brave, and stand up for what they thought was right, to be willing to just be forthright and be a good moving force in the community," he realized he could not continue to represent that the Boy Scouts stood for these things. He took off his uniform and resigned. Tr. 1999-2002.
354. Nor is Mr. Kirkner the only example. As of 1998, David Rice had nearly 60 years of Scouting experience. Rice Testimony at 228-38. The BSA kicked him out because he worked with a boy in his troop who publicly opposed the Boy Scouts policy excluding homosexuals. Tr. 2545-51 (Leet).
355. It is difficult to imagine any conduct more clearly antithetical than what Scouting says it stands for than to have the Boy Scouts retaliate against someone for giving honest testimony in litigation or teaching a boy that standing up for what you believe in is a principle that only applies when others agree with you. This conduct not only has a chilling effect on the truth, it displays a fundamental disregard for the principles of citizenship the Boy Scouts have espoused since their inception and breaks a fundamental trust with the community that this organization has had since its Congressional charter. There is no benign way to discriminate. No matter how much good the Boy Scouts do in other contexts, or say in their literature, they cannot change the fact that intolerance breeds intolerance.
B. Scouting Since 1910.
356. The Boy Scouts assert that homosexual conduct has, since 1910, been inconsistent with the requirement in the Scout Oath to be "morally straight" and in the Scout Law to be "clean." For many reasons, this assertion is wholly incredible. To begin with, the very first memoranda enunciating this policy, Exs. C500, C501, reveal that the policy was enunciated because it was not obvious that the Boy Scouts had been following a policy of excluding homosexuals. Moreover, as discussed above, Scouters with tens of years or more of Scouting experience were wholly unaware that the Scout Oath and Scout Law even spoke to sexuality, per se, as opposed to other conduct, much less that it differentiated on the basis of sexual orientation. Additionally, a careful review of the Boy Scout literature, both current and historic, not only fails to reflect the idea that the Scout Oath and the Scout Law speak to sexual orientation, it reveals dozens of statements that contradict that inference.
357. In response to this evidence, the Boy Scouts attempt to argue that the only reason the policy excluding homosexuals was not articulated before 1978 was that, up until that time, homosexuality was so self-evidently immoral that it went without saying. Historically, this is not true. Even the Boy Scouts' own expert asserted that the so-called "gay liberation" movement began in the late 1960s. Tr. 1554-55 (Rekers). As noted below, there is not and has not been consensus about the morality of homosexuality amongst the religions much less the public and secular organizations that sponsor Boy Scout units. As noted above, numerous experienced Scouters never had that assumption about homosexuality. Nor does the Boy Scouts' argument explain why it is that even since 1981, when the Boy Scouts have been sued about this policy, their program materials still do not reflect the notion that the morality of homosexuality is a part of Scouting.
358. In any event, the Boy Scouts' premise -- that the Scout Oath and Scout Law have always meant the same thing for 88 years -- is clearly untrue. Although today, no one would understand segregation or deprivation of uniforms or facilities on the basis of race to be consistent with the Scout Oath and the Scout Law, James E. West, the first Chief Scout Executive and the person who coined the terms "morally straight" and "clean," expressly thought otherwise, Ex. C1600 at A2386-87, A2391, as did numerous other Scouters into at least the 1920s, 1930s and 1940s. Id. at A2430-31, 2432, 2473-76. Indeed, an early Scoutmaster Handbook commented on how some "street, foreign born and Negro boys" "may be more shiftless than others," and added that "[e]conomic and social conditions will naturally determine the place of a negro boy in the Scout movement, and is best to leave this problem to the local council and the Scoutmasters who are directly facing the situation." Ex. C721 at 6547.
359. Today, the Boy Scouts proudly announce that "[l]eadership knows no gender." Ex. C520 at NCAC5613. Up until 1936, however, women were not even permitted to register as den mothers; that year, the first Den Mother's Denbook advised the den mother to "keep somewhat in the background," making the "den chief" -- a Boy Scout assigned to the cub den -- "the important figure in the meeting." Ex. C1600 at A2466. In 1987, Chief Scout Executive Ben Love told Scouters that leadership positions in Webelos packs, Scout troops and Varsity Scout troops needed to remain all male because "the Boy Scouts of America has adhered to the principle that developing boys of Webelos Scout, Boy Scout and Varsity Scout age need a close association with adult males who can provide models of manhood." Ex. C900 at A1067. Yet, a year later, Chief Scout Executive Love declared that "[i]t is time to recognize that in a changing society the unique strength of our organization lies in the dedicated efforts of both men and women." Ex. C607 at NCAC8122.
360. In discussing advancement requirements, an early Scoutmaster Handbook warned that "it should be understood that no deviation or requirements for these degrees as set forth in the Handbook will be permitted," and that even if a boy were physically unfit, "it would be far better for a boy to enlist the care of a competent physician to help him regain his health" to meet a swimming requirement for his first class badge. Ex. C721 at 6465-66. In 1977, there was a "widely publicized case of a 23-year-old cerebral palsy victim in Roosevelt, N.Y., who had been denied an Eagle Scout badge after earning 24 merit badges because he was overage." Ex. C1600 at A2535. The next year, the Boy Scouts eliminated all age restrictions for severely handicapped persons. Id. at A2534-35. In 1981, the Boy Scouts instituted a Handicapped Awareness merit badge. Id. at A2535-36. By 1984, nearly half of all local councils had advisory committees to promote Scouting among persons with disabling conditions. Id. at A2551. And, at trial the Boy Scouts brought out in testimony the type of accommodations made for handicapped youth. Tr. 1003-04 (Horne); Tr. 1101 (Carroll); Ex. C902 at B1052. The NCAC has even sponsored a Workshop on Coping with Hyperactive Scouts. Ex. C1100 at NCAC5726.
361. The simple fact is that on all of these moral issues, the Boy Scouts have changed, and changed dramatically.
C. Traditional Family Values.
362. As noted above, in 1991, the Boy Scouts began to suggest in position statements that the Boy Scouts' policy of excluding homosexuals was based on a desire to promote "traditional family values." Ex. C503. It is impossible for the Commission to credit this argument because at no point in the Scouting literature or the testimony was anyone able to define "traditional family values." As noted above, the Boy Scouts' policy statements and question and answer sheets are themselves inconsistent on whether "traditional family values" is some concept that exists "in addition" to the Scout Oath and Scout Law, see Ex. C503, or as part of the Scout Oath and Law. Ex. C519 at NCAC2804.
363. Moreover, the phrase "traditional family values" cannot be located in any Boy Scout document before 1991, when it is used solely as one of the reasons for excluding homosexuals from Scouting in a position statement for dealing with the media. Experienced Scouters do not recognize the phrase to be part of Scouting. Tr. 387-388 (Jones); Tr. 1720-1721 (Wolfe). The Boy Scouts' mission statement states that "[t]he values we strive to instill are based on those found in the Scout Oath and Law," Ex. R1, and not some other concept like "traditional family values."
364. What "traditional family values" is supposed to mean is circular. According to the Boy Scouts' witnesses, The Scout Oath and the Scout Law are supposed to mean "to live a pure, clean traditional life," Mack Dep. at 146, and "traditional family values" are defined to mean "those values that are inherent in the Scout Oath and Law." Ex. C519 at NCAC2804. What values those are and what they have to say about sexual orientation is unexplained in any testimony or Boy Scout document. Indeed, the Boy Scouts' former President, Richard Leet, could not say whether the term "traditional family values" even dates back to 1910. Tr. 2536-37.
365. If understood to mean that the Boy Scouts exist to reaffirm the "traditional family structure," however, the phrase "traditional family values" is clearly inaccurate. To the contrary, the Boy Scouts pride themselves on reaching out to non-traditional families. Tr. 1720-23 (Wolfe); Tr. 2537-38 (Leet). The BSA makes this clear in its single-parent orientated, "Marketing to Today's Families." Ex. C810.
366. In 1994, the Boy Scouts changed their requirements so that in order to obtain the Eagle rank, all Scouts must obtain a Family Life merit badge. Ex. C1100 at NCAC6052; Ex. C1308 at NCAC1926. This change was effected because, with shifting family configurations and new issues facing families, Scout-age boys were being required to take on new responsibilities at home. Ex. C1100 at NCAC6089.
367. Similarly, when Cub Scouting seeks to help establish "strong family relationships," "Cub Scouting defines the family as the person or group with whom a boy lives. This is a broad definition that includes many types of family structures. It includes single-parent families, dual working families, families headed by stepparents and grandparents. We feel our program has something special to offer every boy and his family." Ex. C923 at 8489; Ex. C727 at 6937. See also Ex. C510 (position statement noting that "Parents, both mothers and fathers (or other legal guardians), are engaged to take an active role in their children's Scouting experience") (emphasis added).
368. Accordingly, the only conclusion to be reached from the evidence is that "traditional family values" is not a part of Scouting, but rather a part of public relations. In an effort to justify their policy, the Boy Scouts have substituted a political buzzword associated with anti-homosexuality from the principles it has, in fact, articulated in its literature. Indeed, the fact that the Boy Scouts felt required to go outside of the Scout Oath and Scout Law to import such a concept illustrates that these principles of Scouting do not support its position.
D. The Boy Scouts' Reference to the Views of Some Religious Groups Does Not Justify Their Policy of Excluding Homosexuals.
1. The Boy Scouts have always been "absolutely non-sectarian" and opposed to requiring Scouts to choose the moral views of one religion over another.
369. The Boy Scouts' policy concerning a belief in God and the role of religions is very clearly stated. Clause 1 of the Scouting Declaration of Religious Principles (the "Religious Principles") contained in the BSA By-Laws states:
The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God. In the first part of the Scout Oath or Promise the member declares, "On my honor I will do my best to do my duty to God and my country and to obey the Scout Law." The recognition of God as the ruling and leading power in the universe and the grateful acknowledgement of His favors and blessings are necessary to the best type of citizenship and are wholesome precepts in the education of the growing members. No matter what the religious faith of the members may be, this fundamental need of good citizenship should be kept before them. The Boy Scouts of America, therefore, recognizes the religious element in the training of the member but it is absolutely nonsectarian in its attitude toward that religious training. Its policy is that the home and the organization or group with which the member is connected shall give definite attention to religious life.
Ex. C1300 at NCAC116, Art. IX, § 1. (Emphasis added)
370. Clause 2 of the Religious Principles states:
The activities of the members of the Boy Scouts of America shall be carried on under conditions which show respect to the convictions of others in matters of custom and religion, as required by the twelfth point of the Scout Law, reading, "Reverent. A Scout is always reverent toward God. He is faithful in his religious duties. He respects the beliefs of others."
Ex. C1300 at NCAC116, Art IX, § 1 (Emphasis added).
371. Clause 3 of the Religious Principles states:
In no case where a unit is connected with a church or other distinctively religious organization shall members of other denominations or faith be required, because of their membership in the unit, to take part in or observe a religious ceremony distinctly unique to that organization or church.
Ex. C1300 at NCAC116, Art IX, § 1 (Emphasis added).
372. In explaining the Religious Principles in its Advancement Guidelines, the BSA states that it:
(1) Does not define what constitutes belief in God or the practice of religion.
(2) Does not require membership in a religious organization or association for enrollment in the movement but does prefer, and strongly encourages, membership and participation in the religious programs and activities of a church, synagogue or other religious association.
(3) Respects the convictions of those who exercise their constitutional freedom to practice religion as individuals without formal membership in organized religious organizations. In a few cases, there are those who, by conviction, do not feel it necessary to formally belong to an organized form of religion and seek to practice religion in accordance with their own personal convictions. Every effort should be made to counsel with the boy and his parents to determine the true story of the religious convictions and practices as related to advancement in Scouting. Religious organizations have commended the Boy Scouts of America for encouraging youth to participate in organized religious activities. However, these same organizations reject any form of compulsion to enforce conformity to established religious practices.
(4) If a boy says he is a member of a religious body, the standards by which he should be evaluated are those of that group. This is why an advancement committee usually requests a reference from his religious leader to indicate whether he has lived up to their expectations.
Ex. C731 at 2374.
373. The BSA's Advancement Guidelines also provide:
Throughout life, Scouts are associated with people of different faiths. Scouts believe in religious freedom, respecting others whose religion may differ from theirs. Scouting believes in the right of all to worship God in their own way.
Ex. C731 at 2374.
374. The non-sectarian nature of Scouting is very basic to its operation and purposes. Although the respondents focused attention in this case to those sponsors that are religious organizations (and, in fact, produced charts reflecting only religious sponsorship and not secular sponsorship), this is half the story. Only 50.91% percent of youth belong to troops sponsored by religious organizations. Ex. R180, Exhibit A. The remaining half of the youth participate in a pack, troop or post sponsored by the government (like a public school, fire department or military base) or a secular organization (like a PTA or a labor union). Ex. C1304 at NCAC2410; Ex. C1153; Ex. C917 at A1686. As noted above, the only statistics the Boy Scouts provided on youth membership for secular institutions indicate that, as of 1990, three times as many youth were active in units sponsored by public schools than any other category of sponsors. Ex. C1304 at NCAC2410; Tr. 2498-99 (Leet); Tr. 513 (Press).
375. Moreover, the fact that a troop is sponsored by a religious organization does not necessarily mean that the troop's program has any religious content. "Most units are fully open to those of any belief," and only "a few chartered organizations restrict their units' membership to a single denomination." Ex. C313 at A1205; Tr. 1276, 1288-99 (Thomas); Ex. C700 at 561; Ex. 731 at 2374; Tr. 1712-18 (Wolfe); Tr. 2500-02 (Leet).
376. Part of the purpose of Scouting historically was to break down barriers between various groups. "Scouting's aim is to . . . eradicate the prevailing narrow self-interest personal, political, sectarian, and national, and to substitute for it a broader spirit of self-sacrifice and service in the cause of humanity; and thus to develop mutual goodwill and cooperation. . . ." Ex. C727 at 7161. See also, e.g., Ex. C716 at 7814 ("Scouting knows no race or creed or class. Troops are found alike in Catholic Parish, Jewish Synagogue and Protestant Church."); Tr. 325-27 (Jones).
377. Thus, as both the Boy Scouts' literature and the witnesses agreed, the Boy Scouts, although requiring Scouts and Scout leaders to affirm a belief in God, otherwise scrupulously avoid instructing Scouts or Scouters on what their religious beliefs or practices should be. See, e.g., Tr. 1407-12 (Turner); Mack Dep. at 94-99, 110-11. The Boy Scouts are not a religious organization. They are required by the BSA's bylaws to be "absolutely non-sectarian," Ex. C1300 at NCAC116, Art. IX, § 1, and inform adults of this on every application. Ex. C806 at 1019. See, e.g., Ex. C520 at NCAC5595.
378. The Boy Scouts also avoid defining what constitutes a belief in God, Ex. C731 at 2374, and have always left religious training up to parents and religious leaders. See, e.g., C715 at 001002 (1st edition of Handbook for Boys, originally published 1911) ("If he be a Catholic boy scout, the Catholic Church of which he is a member is the best channel for his training. If he be a Hebrew boy, then the Synagogue will train him in the faith of his fathers. . ."); Mack Dep. at 116-17; Teare Dep. at 156-57.
379. As the Boy Scouts have explained since their first edition of the Scoutmaster Handbook in 1913 and 1914, "[w]e can not conceive of a church, Sunday School or religious society which can seriously object to the idea of Scouting if a clear idea is presented of what Scouting gives to the boy." Ex. 721 at 6525-26; Ex. 723 at 4934 ("The Boy Scout program conflicts with no religious doctrine."). The Boy Scouts welcome not only Christians, Jews and Moslems, but Buddhists, Ex. C1140; Mack Dep. at 101-02, and Hindus, Tr. 1344-45 (Turner), whose conception of God is quite different than that found in Western religions, and individuals who are not members of any organized religion. Ex. C731 at 2374. As former Chief Scout Executive Ben Love put it, "I don't care if he worships the Great Turtle, you have to believe in something." Tr. 2004-05, 2030-31. (Kirkner).
380. Most importantly, it is absolutely contrary to the BSA's by-laws, literature and principles for the Boy Scouts to pick and choose among the moral views of different religions or among the faithful within particular religions. Hill Dep. at 65; Tr. 327-28, 333-35 (Jones); Tr. 550-53 (Press). A Scout is told repeatedly to follow his parents and his religious leaders in being faithful to his own religion and that the failure to respect the religious beliefs of others is as contrary to the principles of Scouting as faithlessness in one's own religious beliefs. See, e.g., C700 at 550, 561; Cahn Testimony at 76.
2. The Boy Scouts' policy of excluding homosexuals, however, not only picks and chooses among the diverse views of various religions, it fails to track the views of any religion.
381. In light of these clearly expressed positions in Scouting, the views of various religions on the morality of homosexuality not only fail to support the Boy Scouts' adoption of a general exclusion, it undermines the Boy Scouts' premise that there is any rational basis for this policy. The evidence presented concerning the positions taken by various religious groups on the morality of homosexuality established that there is no agreement on this issue, either in general or in particulars and that the various formulations of the Boy Scouts' policy correspond to the position of no religious group.
382. Indeed, the evidence shows that many of the religious denominations that sponsor Boy Scout troops encourage the full participation of homosexuals in their congregations. For instance, the Complainants called as a witness Reverend A. Knighton Stanley, who for the last 30 years has served as Senior Minister of People's Congregational United Church of Christ, located on 13th Street, N.W. Tr. 2038 (Stanley). Reverend Stanley's church has served as a Boy Scout charter organization for at least 35 years and sponsors one of the largest troops in the NCAC. Tr. 2043 (Stanley). He testified that the United Church of Christ ("UCC") as a denomination supports the full participation of gays and lesbians in church life, Tr. 2051 (Stanley), and that consistent with this, his own congregation welcomes new members without regard to their sexual orientation. Tr. 2049-50 (Stanley). Reverend Stanley also noted that sexual orientation is not a factor in the UCC ordination process, Tr. 2055-56 (Stanley), and that he knows of openly gay UCC ministers. Tr. 2072 (Stanley). See also, Ex. C1700.
383. Complainants also called as a witness Reverend Michael W. Hopkins, who is Vicar of St. George's Mission, Tr. 2286 (Hopkins), an Episcopal Church within the Washington Diocese. Tr. 2289 (Hopkins). In addition to his pastoral duties at St. George's, Reverend Hopkins serves as Moderator of the Diocesan Council, which makes him the third or fourth ranking leader within the Washington Diocese of the Episcopal Church. Tr. 2290-91 (Hopkins). Reverend Hopkins testified that Episcopal Church Canon, which is binding on all dioceses, Tr. 2292 (Hopkins), forbids discrimination against gays and lesbians in both the ordination process and the participation of lay people in the life of a congregation. Tr. 2297 (Hopkins); see also, Ex. 1725. Reverend Hopkins testified that between one-half and two-thirds of all Episcopalians, including those of the Washington Diocese, belong to dioceses that ordain openly gay priests. Tr. 2296 (Hopkins). Reverend Hopkins also testified that St. Timothy's Episcopal Church in Southeast Washington, which sponsors Troop 1650, see e.g., Tr. 1090, has been particularly supportive of gay and lesbian people and has self-identified as a "welcoming congregation." Tr. 2297-98 (Hopkins).
384. The Quakers serve as the chartered organization for a number of Scouting units nationwide. Ex. R180. Hayden Wetzel, a member and a leader within the Friends Meeting of Washington, Tr. 2352 (Wetzel), testified that "the gay presence in [our] Meeting is . . . known and easily accepted." Tr. 2355 (Wetzel). By way of example, Mr. Wetzel noted that Roland Pool, who is a member of the Meeting, has been active on numerous committees integral to the life of the Meeting and assists with religious school activities. Tr. 2357-58 (Wetzel). Mr. Wetzel, himself an Eagle Scout and longtime volunteer with Troop 98 in Washington, D.C., Tr. 2347-2348 (Wetzel), introduced the Religious Emblems program for Quakers to the District of Columbia. Tr. 2351-2353 (Wetzel).
385. Particularly striking, the evidence shows that still other religious denominations that have historically had relationships with the Boy Scouts have taken public stands against the Boy Scouts' policy of excluding homosexuals. In this regard, Complainants called as a witness Rabbi Robert Saks, who is rabbi of Congregation Bet Mishpachah, a non-denominational gay and lesbian Jewish congregation which convenes at the District of Columbia Jewish Community Center, located at 16th and Q. Streets in N.W. Tr. 2328 (Saks). Rabbi Saks, who has practiced as a Reform rabbi since 1972, Tr. 2310 (Saks), testified that the Reform Jewish Movement, which represents approximately forty percent of affiliated Jews, Tr. 2326 (Saks), has a strong tradition "welcoming lesbian and gay Jews into its congregations and encouraging their participation in all aspects of synagogue and communal life." Ex. C1720 at A002185, including the ordination process. Tr. 2312-14 (Saks); Exs. C1714 through C1718; C1720. In addition to passing a number of resolutions calling for the end of discrimination against gays, the Central Conference of American Rabbis, which is the umbrella group for Reform rabbis, Tr. 2316-17 (Saks), passed a resolution calling upon the Boy Scouts to open its membership to gay boys and men. Ex. C1715; R180. In a similar vein, Complainants introduced evidence that the Unitarian Universalist Association ("UUA") affirms the full participation of gays in religious and secular life and, in view of the Boy Scouts' exclusion of gays, has requested that the Boy Scouts remove from their literature any reference to the UUA as a chartered organization. See e.g., Ex. C1733; R180.
386. The evidence demonstrates that numerous other religious denominations that sponsor Boy Scout troops welcome gays and lesbians to join their congregations and to participate in many aspects of religious life. For instance, Complainants called as a witness Reverend J. Philip Wogaman, who since 1992 has been the Senior Minister of Foundry United Methodist Church ("Foundry"), which is located at 16th and P. Streets, N.W., Tr. 1774-75, and which includes as members President Clinton and his family. Tr. 1778-81 (Wogaman). Reverend Wogaman testified that Foundry, the sponsor of a Boy Scout troop, Tr. 1779 (Wogaman), has for years made a specific point of being open to persons without regard to their sexual orientation. Tr. 1784-85 (Wogaman). Moreover, in 1995, the official governing body of Foundry United Methodist Church adopted a Statement of Reconciliation declaring itself to be a church that welcomes everyone into its membership, including specifically gays and lesbians. Ex. C1724; Tr. 1782-84 (Wogaman). As Reverend Wogaman explained, there is nothing in the doctrine of the United Methodist Church that prevents a church from having such policies. As Reverend Wogaman explained, the current Church teaching is to "call on our churches to reach out in love and compassion to all persons regardless of [sexual orientation]." Tr. 1800-01 (Wogaman); Ex. 1723. The only limitation on the participation of gays in the life of the Methodist Church is with respect to the ordination of ministers. Tr. 1817 (Wogaman). Even with respect to ordination, however, the United Methodist Church position is that someone can be homosexual, but not practicing, or even practicing, but not technically avowing their practice of homosexuality, and be ordained as a minister. Tr. 1802-06 (Wogaman).
387. Similarly, Complainants introduced evidence that the Evangelical Lutheran Church of America ("ELCA") welcomes all people as members, regardless of sexual orientation, and actively supports "legislation, referendums, and policies to protect the civil rights" of gays and lesbians. Ex. C1730. The only restrictions on the participation of homosexuals in the ELCA relate to ordination. According to Church doctrine, sexual contact is only appropriate within a heterosexual marriage. Therefore, gays and lesbians are only eligible for ordination if they commit to a life of celibacy. Ex. 1730.
388. Likewise, Rabbi Saks, who was ordained as a Conservative rabbi, Tr. 2310, testified that the Conservative Jewish Movement, which represents approximately forty percent of affiliated Jews, Tr. 2326 (Saks), welcomes gays and lesbians to participate broadly in synagogue life, Ex. C1721, restricting them only from serving as clergy. Tr. 2334 (Saks). As Rabbi Saks explained, the Conservative Movement's position derives from a belief that "homosexuality is against . . . Jewish law just as eating non-kosher meat is against . . . Jewish law." Tr. 2333. However, as Rabbi Saks further noted, the Conservative Movement distinguishes between its religious position and its civil perspective, and has been unequivocal in its support for nondiscrimination against gays and lesbians in civil law. Tr. 2321. See also Exs. C1721 and C1722.
389. Although the Boy Scouts suggest that the position of the Mormon Church on homosexuality supports the need for its own policy on gays, on closer inspection the position of the Boy Scouts is far more restrictive and absolute. In the Mormon Church, homosexual orientation by itself is not a transgression. Tr. 1894-98 (Ellison); Ex. C1727 at A1778-79. The Mormon Church acknowledges that it has homosexuals as members, and that these are good people who are not engaging in transgression. Id. Significantly, it is as much a transgression in the Mormon faith for a heterosexual to engage in premarital sex as it is for a homosexual to engage in sex. Tr. 1875-76, 1892-93 (Ellison); R81; C1727 at A1778-79. And, if a homosexual engages in sexual conduct, he is subject to discipline, but the type of discipline is not automatic and depends upon the circumstances. Tr. 1898-99 (Ellison). The Mormon Church, unlike the Boy Scouts, teaches its leaders to have compassion for homosexuals and to work with them. Tr. 1899-1901 (Ellison); Ex. R82.
390. The Boy Scouts' policy on gays is also more restrictive than that of the Catholic Church. Unlike the Boy Scouts, which excludes all gays on the basis of orientation alone, the Catholic Church distinguishes between homosexual orientation and conduct. According to the Catholic Church, homosexual orientation, in and of itself, is morally neutral. Tr. 1469 (Hummel). Therefore, those of homosexual orientation are eligible for the priesthood, provided they - like their heterosexual counterparts - remain celibate. Tr. 1470-71 (Hummel).
391. By far, the strongest views on homosexuality presented into evidence were those expressed in resolutions of the Southern Baptist Convention. The Southern Baptist Convention has adopted some extraordinarily strong resolutions concerning sexual practices generally and homosexuality in particular. The Southern Baptist Convention believes that Scripture condemns not only homosexual practices, but also premarital sex, adultery and pornography, among other things. Ex. R95; see also Tr. 2122 (Ingram). The Boy Scouts, however, do not have general policies of excluding people who engage in premarital sex or adultery.
3. The use by some religions of the religious emblems program does not support the Boy Scouts' policy.
392. At the hearing, the Boy Scouts presented considerable evidence concerning the Religious Emblems program. The Religious Emblems program provides Scouts with an award for the successful completion of a program of religious endeavor designed by the Scout's religion.
393. For numerous reasons, the existence of the Religious Emblems program in no way supports the Boy Scouts' policy of excluding homosexuals. Although boys are allowed to wear religious emblems on their Scout uniform, these emblems are not Scouting awards. Ex. C701 at 227-28 (Boy Scouts); Ex. C923 at 8491 (Cub Scouts); Mack Dep. at 102. These awards are sponsored and administered, not by the BSA, but by the various religious organizations that sponsor Scout troops. Tr. 1389 (Turner). The publications that set forth the religious study are designed, written and paid for privately by the religions that use them. Tr. 1389-90 (Turner).
394. Religious emblems are in no way required. Although a religious emblem can be used for advancement in Cub Scouts, it is not required; and it is no part of advancement in the Boy Scouts to obtain a religious emblem. Tr. 1389-91 (Turner); Ex. C701 at 227-28. In fact, only about 5 percent of Boy Scouts obtain such emblems. Ex. C900 at A1038.
395. More importantly, the religious emblems program connotes nothing in particular about the morality of homosexuality. For example, the Unitarian Universalist Church, which holds strongly to the view that discrimination against gays and lesbians is wrong, includes information about this view as part of its Religious Emblems program, Religion in Life and Love and Help. Ex. C1733; Tr. 2143-46 (Savin-Williams); Ex. R467. See also Ex. C700 at 626 and Ex. R10 at NCAC8458 (describing the emblems available respectively to Boy Scouts and Cub Scout/Webelos). Hayden Wetzel, the person responsible for initiating the Quaker religious emblems program in the District of Columbia, testified that discrimination against homosexuals has no part in either his religion or his experience in Scouting. Tr. 2355, 2366-69 (Wetzel); Tr. 1430 (Turner).
396. Indeed, religious emblems are not unique to the Boy Scouts. These emblems are also offered by various religions to Girl Scouts, Tr. 2351-52 (Wetzel); and the Girl Scouts of America do not exclude homosexuals as members or adult leaders. Ex. C1801 at A1375.
4. The existence of a religious relationships committee does not support the Boy Scouts' policy.
397. The National Council of the BSA maintains a "Relationships Committee" that has representatives from various sponsors, both secular and religious, and a "Religious Relationships Committee" with representatives from various religious organizations. Tr. 1414-18 (Turner); Teare Dep. at 27-28, 31.
398. The Religious Relationships Committee is not in any way limited to religions that have views opposed to homosexual conduct. It includes, for example, the Episcopal Church, the United Church of Christ, and the Quakers, without regard to the fact, as discussed elsewhere, that these churches have very open policies toward homosexuals. Ex. C1508; Tr. 1413-14, 1418-19 (Turner). Reverend Turner testified that he did not know of a more ecumenical group in the country than the Religious Relationships Committee. Tr. 1360 (Turner); Tr. 1365-66 (Turner) (discussing how 100 chaplains of numerous denominations participate in the Scout Chaplaincy at National Jamborees).
399. The fact that the Boy Scouts assemble a group of individuals from various religions with wide-ranging views on homosexuality certainly does not support the premise that excluding homosexuals is basic to Scouting. Rather, it underscores the fact that Scouting does not exist to choose from among the views of various religious groups on this issue.
5. The Boy Scouts failed to prove that sponsors would pull out of Scouting if the BSA's national office stopped requiring the exclusion of homosexuals from Scouting.
400. The Boy Scouts also attempted to suggest that some sponsors would object to having homosexuals in Scouting and, therefore, pull out of Scouting, if the policy of exclusion were changed. As discussed below, this argument is not really a defense. The Boy Scouts are not entitled to perpetuate discrimination based upon the premise that others who support them would like them to do so.
401. In any event, much of this testimony did not even support the Boy Scouts' conclusion. For example, during his direct testimony the Boy Scouts' own witness, Father Hummel, testified that if the Boy Scouts policy of excluding homosexuals were changed, he suspected that "so long as we were able to maintain our right to choose our leaders as a Catholic institution, that we could certainly make an accommodation in that regard." Tr. 1463 (Hummel).
402. On cross-examination, Rev. Turner of the Southern Baptist Convention acknowledged that, even with the strong views held by at least some Baptists on homosexuality, there would be a clear distinction between, on the one hand, requiring Baptist Scout troops to have homosexuals as leaders (which is not at issue in this case) and, on the other, a decision that merely prevented the BSA and councils from forcing a policy of discrimination on troops, or at the district, council or national level. Tr. 1425-28 (Turner).
403. Similarly, Mr. Thomas testified that he "feel[s] sure" that "many" local Methodist churches would cease to sponsor Scouting and there would be "either a retraction or certainly a frowning" by the governing body of the United Methodist Church if Scouting changed its position concerning homosexuality among its leadership of the Boy Scouts' local Units." Tr. 1278-79 (emphasis added). He never testified that there would be any reaction if the Boy Scouts were simply made to accept the judgment of local sponsors, troops and councils about the unit leaders they wanted, be they heterosexual or homosexual.
404. Moreover, the testimony that was provided was uniformly speculative and unconvincing. Various of the Boy Scouts' witnesses, including Mr. Thomas, the Methodist Representative, and Mr. Crayton, who is active at an African Methodist Episcopal Church, acknowledged that the Committees for Scouting organized by members of their respective faiths actively promote organizations such as the Girl Scouts, who do not have general policies of excluding gays or lesbians. Tr. 1268-70, 1279-84 (Thomas); see also Tr. 1428-29 (Turner); Exs. C1801 at A1375; C1805.*****/
405. Mr. Thomas also conceded on cross-examination that the Methodist Church's Book of Discipline, in fact, bars discrimination against persons on the basis of sexual orientation, that Methodists do not prevent celibate homosexuals from being ordained ministers, or practicing homosexuals from lay leadership positions in the church, and that he could not say whether there was a single Methodist Church in the District of Columbia that would exclude persons from lay leadership positions on the basis of their sexual orientation. Tr. 1309-1315, 1330-31 (Thomas). Particularly in light of Reverend Wogaman's testimony, the Commission finds that Mr. Thomas' speculation on how Methodist Churches might react to a change in policy lacks credibility.
406. The only witness the Boy Scouts had testify from any religion that does not actively support the Girl Scouts was Elder Ellison of the Church of the Latter Day Saints (the Mormons). For several additional reasons, however, his speculation that the entire Mormon Church would abandon an 80-year commitment to Scouting if non-Mormon troops in the District of Columbia were not prohibited from having or taking advantage of homosexuals leaders, is inherently not credible. First, the Mormon Church has numerous unique membership requirements on its Scouting program (such as prohibitions on adult leaders drinking coffee or tea or on girls participating in Exploring) without ever insisting that those restrictions be applied generally to troops sponsored by other organizations. Tr. 1859-62, 1869-70, 1883-84, 1887-91 (Ellison); Ex. C1153 at 13-14.
407. Second, the Mormon Church's views on sexual conduct do not correspond to the Boy Scouts' policies. The Mormon Church has not pulled out of Scouting because Scout leaders engage in premarital sex or registered members are single parents, even though these are equally considered to be "transgressions" in the Church. Tr. 1876-77, 1892-93 (Ellison); R81; C1727 at A1178-79.
408. Finally, there is only one Mormon Church that sponsors units in the District of Columbia. Ex. R16; Tr. 1879-80 (Ellison). A finding that the Boy Scouts, like every other public accommodation in the District of Columbia, is bound to follow the District of Columbia Human Rights Act, is a finding that they are subject to law. There is no reason to believe that this finding would lead the Mormon Church to abandon the seventh point of the Scout Law, which requires that Scouts be obedient to laws, even those with which they disagree. Indeed, those Mormons who live and work in the District of Columbia are already subject to this law in myriad facets of their daily lives -- including the day care centers and schools to which their children attend, the governmental agencies with whom they do business, the stores at which they shop and the restaurants at which they eat.
409. The evidence on the view of religious groups only serves to underscore both the diversity in Scouting and the fact that the exclusion of homosexuals is not basic to the program. The Boy Scouts are perfectly willing, for example, both to maintain active relations with national churches that encourage homosexuals to take an active part in the church and oppose discrimination against homosexuals and to permit specific churches, such as Peoples United Church of Christ, Foundry United Methodist Church, St. Timothy's Episcopal church and others to sponsor Scout troops even though their position on accepting homosexuals is quite clear.
410. So far as the Boy Scouts are concerned, the fact that certain churches, or for that matter, secular organizations such as the American Federation of Teachers or the National Educational Association, see, e.g., Ex. 1807, 1808, believe that excluding homosexuals is wrong does not mean that these institutions are unwilling to uphold the Scout Oath and Scout Law. Teare Dep. at 34-36; Mack Dep. at 55-57 (no general policy of excluding such sponsors).
E. "Known or Avowed".
411. As discussed above, there is no way of reconciling the various formulations of the Boy Scouts' supposed application of its policy only to "known or avowed" homosexuals. There is no way of reconciling this restriction with the policy statements the Boy Scouts have issued for years on this point, or to make sense of how it would apply in practice. The lack of consistency on this point convinces the Commission that the purported focus on "known or avowed" homosexuals, like the references to religion or the Scout Oath and the Scout Law, is designed for the purpose of attempting to make a purely status-based discrimination look as if it had some component of conduct or speech.
412. Even if the assertion of a "known or avowed" policy were not pretextual, however, it would still not change the fundamental nature of the policy. Discrimination does not cease to be status based just because it is restricted to people the violator knows or is told about. A policy of excluding "known or avowed" Catholics or Italians from the Boy Scouts would not be one based on conduct or speech. To assume that all homosexuals will act the same way, speak the same way about an issue, or have the same (or any) need to express themselves on any particular issue is a stereotype that the Boy Scouts have been unable to support with either logic or evidence.
413. Moreover, "avowal" of beliefs that would, in some sense, contradict Boy Scout policy is not a general reason for excluding adults from Scouting. For example, although the Boy Scouts would find it inappropriate for someone to use Scouting generally as a means of converting people to different religions, they do not presume that people who "avow" a personal commitment to convert people to Christianity will carry out this mission while wearing a Scout uniform. Tr. 1409-13 (Turner). There is no basis for the Boy Scouts to presume (irrebuttably) that anyone who simply self-identifies as a homosexual, without avowing any mission, not only has such a mission, but will carry it out while wearing a Scout uniform. Cf. Kay Dep. at 130 (Boy Scouts encourage citizenship, but do not condone individuals representing a political position by the Boy Scouts).
F. Role Modeling.
414. The Boy Scouts also assert, largely through the testimony of their expert, Professor George Rekers, that homosexuals are excluded from Scouting because they are inappropriate role models. Even if the Commission were to credit as accurate 100 percent of Professor Rekers' testimony and to disregard, in its entirety, the testimony of Professor Savin-Williams, the expert called by Mr. Pool and Mr. Geller, the testimony would not justify either the Boy Scouts' general policy or its application to Mr. Pool or Mr. Geller.
415. Although Dr. Rekers is concerned that permitting Scouts to have close and frank access to persons they might learn are homosexuals would lead some Scouts to engage in homosexual behavior, the BSA does not assert this concern as a basis for its policy in any of its policy statements. As noted above, the Boy Scouts run a Learning for Life Program in which youth have access to role models and mentors who can be "known or avowed" homosexuals; the Boy Scouts in fact decided this February to expand this program by moving all of career-based exploring into Learning for Life. Tr. 2466-67, 2507, 2519-20 (Leet); C1007. The Boy Scouts' national witness, Richard Leet, conceded that the BSA is not concerned that access to role models, mentors and Explorer post advisors who are gay will lead youth to engage in homosexual behavior. Tr. 2521.
416. As the Boy Scouts' witness Mr. Horne testified, "my personal life is my personal life." Tr. 1078 (Horne). Nor is there any particular reason to think that sexuality would be discussed. The Boy Scouts have a strong policy of "two-deep leadership," in which Scouts are never alone with Scout leaders in a troop. Tr. 2093-94 (Ingram); Tr. 541-44 (Press). This lessens the possibility that a Scout leader would ever be involved in the type of personal discussion that would lead a Scout to have an understanding of his adult leaders' sexual practices.
417. If the Boy Scouts' policy really is a "known or avowed" policy -- and the Boy Scouts are perfectly happy to have homosexuals serve as Scout leaders, so long as they do not say they are a homosexual -- their policy is quite in contrast to Professor Rekers' views. If that policy were applied, the Boy Scouts' policy would mean that any Scout leader, anywhere, could potentially be a homosexual. The only certainty would be that any adult leader who is a homosexual is not honest or forthright enough to reveal it.
418. Moreover, if role modeling were the concern, the Boy Scouts would be much more concerned about adults engaging in improper heterosexual behavior. Professor Rekers maintains that only a very small fraction of people ever consider themselves to be homosexual. Tr. 1608. Even he concedes that the risk of exposure to role modeling is limited to the risk that there might be homosexual experimentation -- not that someone becomes a homosexual because he knows or admires someone who is a homosexual. Tr. 1612. Accordingly, if sexual conduct were the concern, and role modeling were as strong as Professor Rekers suggests, exposure to a Scout leader who engages in premarital or extramarital heterosexual sex would be far more likely to lead Scouts to "unwanted" conduct than exposure to someone whose sexual interests are so different from their own.
419. In any event, even Professor Rekers concedes that role modeling requires that the youth have extensive personal contact with and grow to trust the adult. Neither Mr. Pool nor Mr. Geller were in positions where they would have had the contact Professor Rekers describes as essential. Michael Geller was serving in name on a troop committee. Roland Pool would have been a Unit Commissioner, not a Scoutmaster. And under the Boy Scouts' "two-deep" leadership policy, even Scoutmasters do not have private contact with Scouts. Accordingly, even if credited, Professor Rekers' testimony would not justify the discrimination in this case.
420. In fact, however, the Commission does not find Professor Rekers' testimony on any of several points to be credible. To begin with, Professor Rekers appears to be functioning upon a basic misconception about how the Boy Scouts' program operates. Professor Rekers believes the Boy Scouts' program would instruct a curious youth to "[a]sk [your] parent, ask your religious leader, ask your Troop Leaders if you have any questions about sexuality." (emphasis added). Tr. 1593. Although the Boy Scouts were certainly in a position to inform him of the testimony of their own representatives that it is no part of the Boy Scout program to teach about homosexuality, Teare Dep. at 86; Hayes Dep. at 80, they apparently never did.
421. As discussed below, Professor Rekers' testimony rests also on premises that are contrary to the conclusions reached by every established scientific organization concerning the origins of homosexuality.
422. Professor Rekers' testimony -- essentially that every scientific organization abandoned its commitment to science in favor of politics on this issue -- is a testament to the strength of his own biases, not the weaknesses of those he criticizes. Professor Rekers' writings make it clear that his views on this matter are very strongly informed by his own religious viewpoints concerning the morality of homosexuality. Although Professor Rekers is, of course, entitled to his religious views, experts in his own field have recognized that, in his case, he has substituted religion for science. Ex. C1909; Tr. 2198-99.
423. The Commission finds much more credible the testimony of Complainants' expert, Professor Ritch C. Savin-Williams. Professor Savin-Williams is a Professor of Developmental Psychology at Cornell University in Ithaca, New York. Tr. 2124; Ex. C1900. He has both a PhD in Psychology from the University of Chicago and a Masters Degree in Religious Studies, is a widely-published researcher in the field of adolescent development and, in particular, peer relationships, how leadership groups form, self-esteem, and the development of gay and lesbian youth; he has spent many years teaching youth as a camp counselor and Sunday school teacher, and since 1993 has practiced as a clinician treating patients. Tr. 2124-33, 2134-35; Ex. C1900.
424. Professor Savin-Williams has published some 69 books, book chapters and articles. Ex. C1900. Even apart from the sheer number of publications, his background is impressive because of the quality of the review his works have undergone. His books and book chapters have been published by numerous top-ranked and competitive academic publishers, such as Routlage Press, Harcourt-Brace, Springer-Verlag, John Wiley & Sons and Oxford University Press. Tr. 2150-51. Many of his articles have been published in the flagship publications in this field -- peer reviewed journals such as the Journal of Counseling and Clinical Psychology, Developmental Psychology, Child Development, Family Relations, American Journal of Sociology, Journal of Adolescent Research, with rejection rates of 80 to 90 percent. Tr. 2151-52. He is also on the editorial board of several peer-reviewed journals in the field. Tr. 2147-48.
425. During cross-examination, Profession Savin-Williams demonstrated a detailed knowledge of the scientific studies, particularly in the field of the causes of homosexuality. Tr. 2242-79.
426. Professor Savin-Williams currently teaches courses in Sexual Minorities and Human Development, which includes the etiology of homosexuality, through the life course, and Adolescence and Youth. Tr. 2134. He is a member of the American Psychological Association and has presented his research to both the Association and the American Psychological Society, as well as various governmental agencies and the United Nations Convention on Rights of the Child. Tr. 2136-37, 2139, 2153-54.
427. As Professor Savin-Williams explains, "sexual orientation" is an enduring, stable sense that one is attracted to members of one gender over another or both genders or no gender. The consensus in psychology is that sexual orientation is either formed at the time of birth or in the first three to five years of life. Tr. 2159, 2162-63; Ex. C1905.
428. The reason for this conclusion is not that any one study is conclusive, or has methodological perfection, but that (1) there is a good deal of scientific data pointing to observable differences between heterosexuals and homosexuals at birth, Tr. 2162-66, 2169-71; (2) every systematic study attempting to test out hypotheses for causes of sexual orientation at some later point in life has been so unsuccessful in coming up with any evidence to support that conclusion that it is currently viewed as a "dead-end" in science, Tr. 2171-72; (3) the only serious arguments being presented for post-birth causes of homosexuality are psychoanalytic theories of development that would take place very early in life, Tr. 2172-73; and (4) there is a considerable body of research in which individuals can trace awareness of same sex attractions to very early ages and in which scientists have drawn connections between gender non-conformity very early in life and homosexuality. Tr. 2174-79.
429. Thus, for example, parents can recognize as early as six months sex-atypical behavior that, even Professor Rekers concedes, has a very strong relationship to sexual orientation. Tr. 2177-79 (Savin-Williams); Tr. 1578 (Rekers). If that is true, it undermines the conclusion that sexual orientation is formed in teenage years.
430. By contrast, there is no body of psychological opinion to support any of the theories Professor Rekers put forth for the causes of homosexuality -- whether child abuse, prostitution, or role modeling. Tr. 2177.
431. Professor Savin-Williams' opinions on these matters are not just his own. In 1973, the American Psychiatric Association determined that it was wrong to declare homosexuality to be a mental disorder (i.e., a deviation from some accepted norm of heterosexuality); in 1974 the American Psychological Association endorsed this decision and neither has changed its view on this matter since. Tr. 2181-82, 2188-89 (Savin-Williams); Ex. C1903; see also C1904 (American Psychoanalytic Association statement). They made the change because blind studies demonstrated that purportedly-expert psychiatrists could not identify who was or was not homosexual based upon the results of psychiatric testing, and there was therefore no basis for associating homosexuality, per se, with pathology. Tr. 2184-88.
432. The American Psychological Association is the premier organization in psychology for those who are psychologists, both clinicians and researchers. Tr. 2136. It currently has approximately 150,000 members. Id. The American Psychiatric Association, founded in 1844, is the nation's leading organization of physicians specializing in psychiatry, with approximately 40,000 members as of the mid-1990s. Ex. 1905 at A1928. These organizations, along with the National Association of Social Workers, itself an organization of more than 160,000 members, id., have all gone on record as supporting the conclusion that sexual orientation is likely to have been determined by the time boys and girls reach adolescence, and that "there is no reliable evidence that `sexual orientation is amenable to redirection or significant influence from psychological intervention.'" Id. at A1934. These views reflect the consensus of science. Tr. 2193-97.
433. Nor do Professor Rekers' views reflect the consensus view of science with respect to the effect of modeling. As any parent who has seen a 4-year-old become a 14-year-old can attest, adolescence is not the time of life when the behavior of youth is most susceptible to influence from adults. Tr. 2200-02 (Savin-Williams). Although modeling was once an active field in the psychological literature, it is now not a major field of research because the effect of third-party role models was much weaker than biology, parents or peers. Id.
434. What studies have shown is that, to the extent modeling has an impact, the modeling has to be very intensive. The adult must be perceived to be very rewarding and of high prestige; the modeling is most successful in getting children to conform to prevailing cultural norms (as opposed to producing deviation from those norms), and there needs to be reinforcement and repetition and practice of the behavior that is being conveyed. Tr. 2203-05 (Savin-Williams).
435. In the actual context of the Boy Scouts, where sex is not generally a matter of discussion, where some adults have little or no contact with the youth at all, and even those with the most contact never meet with youth alone and keep their private lives to themselves, the likelihood that discovering that an adult leader is a homosexual will lead youth to decide to engage in homosexual behavior is extraordinarily remote. Tr. 2205-07 (Savin-Williams).
436. In short, even taken for its full value, the Boy Scouts' role modeling theory is no basis for discrimination, and there is no particular reason to give any significant weight to this theory.
G. Standardization -- The Least Common Denominator.
437. As an additional argument, the Boy Scouts appear to suggest that even if some, many or even most units in the District of Columbia would be perfectly happy with a homosexual leader, a need for standardization necessitates that no unit be permitted to have such a leader. This argument is also clearly pretextual.
438. To begin with, although the Boy Scouts certainly standardize things like training and program materials -- materials that make no mention of homosexuality or its morality -- they do not generally standardize all significant requirements for adult leadership or religious content of programs. As Reverend Turner pointed out, one of the ways in which the Boy Scouts encourage development of the program is by informing various organizations -- both religious and secular -- that they can adapt the Scouting program to be "uniquely Baptist, Presbyterian, Methodist, Catholic, etcetera, as long as the stated principles of Scouting are not violated." Tr. 1384-85 (Turner); Kay Dep. at 30, 45.
439. For example, the Mormon Church's approach to Scouting is quite different from that of other religions. Other sponsors do not use Scouting as a part of a uniquely Mormon program of religious instruction into the Aaronic Priesthood, Tr. 1883-84 (Ellison). See Tr. 1276, 1288-99 (Thomas); Ex. C700 at 561; Ex. 731 at 2374. Although some troops with religious sponsors have religious aspects to the program, others, even among those with religious sponsors, much less sponsors like public schools or police departments or labor unions, do not. Tr. 1712-18 (Wolfe).
440. Conversely, the Boy Scouts have not taken the position that the fact that one or another unit or sponsor might not feel comfortable with certain leaders requires a general rule that no units should be permitted to have those leaders. For example, two of the Boy Scouts' witnesses, Mr. Horne and Mr. Crayton, testified that in their troop it was very important for the adult leaders to be black males. Tr. 1647 (Crayton); Tr. 1063 (Horne). The Boy Scouts, however, certainly do not require all leaders to be black or male. That decision in virtually any other context would be left up to the unit.
441. Indeed, one of many incongruities in the Boy Scouts' policy of excluding homosexuals is that the policy is dictated from above. In most contexts, the Boy Scouts stress how the unit is "owned" and "administered" by the sponsor, and emphasize how sponsors can adapt the Scouting program for their own use. See, e.g., Tr. 1384-85 (Turner); Ex. C1160 ("Scouting is not something that a religious group `sponsors' for the Boy Scouts of America. Scouting is a resource, a way to help with youth outreach. A religious organization provides the Scouting program according to its own principles. . . ."). See also Hill Dep. at 31-33 (ordinarily once a Scoutmaster approves an application the boy is in the Boy Scouts). In order to enforce their policy against homosexuals, however, the Boy Scouts have decided to overrule the judgment of sponsors and units; indeed, the BSA's position statements and media guides on this issue teach Scout Executives to tell the public that it is the Boy Scouts that "select" people who "in our judgment meet the BSA standards and qualifications for membership." Ex. C508 at NCAC1024; Tr. 1724-25 (Wolfe).
H. Expressive Message.
442. Although the Boy Scouts have attempted to liken this case to a situation in which the NAACP were being forced to admit a Klansman, the facts of this case bear no similarity whatsoever to that situation. Although it may well be part of the expressive purpose of the NAACP to express views on the immorality of prejudice, it is no part of the expressive purpose of the Boy Scouts to express views on the morality of homosexuality.
443. The Boy Scouts do not even maintain that people join their organization for the purpose of expressing a message about homosexuality. Ex. C1507 at 64-65. Indeed, in their own "known or avowed" formulation, the Boy Scouts have no desire to make any statement concerning homosexuality; they simply desire not to have the issue come up at all. The credible testimony demonstrates that the purported "message" of excluding homosexuals is one the Boy Scouts have contrived.
444. Moreover, there is no evidence that allowing Roland Pool or Michael Geller or other homosexuals in Scouting would conflict with an expressive purpose. Neither of these individuals has expressed any desire to express anything about the morality of homosexuality within the context of Scouting. And the notion that every single homosexual has an agenda in which their purpose is to express a view about sexual orientation is unsupported by any evidence or logic.
I. Other Possible Justifications.
445. During the course of this litigation, the Boy Scouts have either conceded or abandoned other possible justifications for this Policy. The Boy Scouts do not maintain that the policy of excluding homosexuals exists to serve or does serve any end of avoiding child sexual abuse. The Boy Scouts recognize that the two issues are "not related," Ex. C520 at NCAC5589, NCAC5594; Teare Dep. at 146, 154, and, in fact, have trained Scouters to avoid the mistake of acting on the "myth" that "children are at greater risk of sexual victimization from `gay' (homosexual) adults than from `straight' (heterosexual) adults." Ex. C602 at 12.
446. Although they initially asserted in their answer the defense that they are a "religious organization," the Boy Scouts did not attempt to raise this issue in their prehearing statement and abandoned it at trial. In any event, the Boy Scouts concede that "Scouting is not a religion." Ex. C607 at NCAC8133; Teare Dep. at 156. In seeking tax status, or operating under a federal charter or running programs in public schools or taking advantage of public facilities such as military bases made available to them, the Boy Scouts treat themselves as a charitable organization, not as a religious organization subject to strictures of separation of church and state. See, e.g., Exs. C1104, C1114-1120.
447. The Boy Scouts also attempted to link Roland Pool to Queer Nation, a now-defunct organization that, at one point, protested the Boy Scouts' policies of excluding homosexuals. Tr. 824 (Church). Even if there were some connection between Mr. Pool or Mr. Geller and Queer Nation, the Boy Scouts' evidence would not have been especially relevant. The Boy Scouts do not exclude from Scouting only those homosexuals who are members of Queer Nation and they certainly had no information at the time they excluded Mr. Pool or Mr. Geller that they were part of Queer Nation.
448. In any event, there is no merit whatsoever to the Boy Scouts' attempts to connect Mr. Pool or Mr. Geller to Queer Nation. Neither Roland Pool nor Michael Geller has ever been a member of Queer Nation, attended any Queer Nation meeting, contributed money to Queer Nation, participated in any Queer Nation event, reviewed or approved of any Queer Nation literature or tactics or (apart from agreeing that it was wrong for the Boy Scouts to exclude homosexuals) shared its perspectives. Tr. 777 (Pool); Tr. 105-107 (Geller); Tr. 824-32 (Church).
449. Nor does the evidence support the Boy Scouts' attempt to brand Mr. Pool as a "tester." As noted above, the evidence established that Mr. Pool was an extraordinarily dedicated Scout and Scouter. Years before Mr. Pool had any idea the Boy Scouts had any policy of excluding homosexuals from Scouting, he began and continued collecting Boy Scout memorabilia and using them to cover a wall of his home. Tr. 778 (Pool). Even while he was out of Scouting, he went to the National Jamboree. Tr. 942 (Pool). And even after he was excluded from the Boy Scouts based purely on his sexual orientation, he has continued to purchase Scout literature and equipment. Tr. 937 (Pool). It is no surprise that he uniformly impressed the Scouters with whom he would have worked. His lifelong interest in Scouting was manifest in his testimony.
450. Taken together, the Boy Scouts' policy of excluding homosexuals adds up to one thing -- it is not the Scout Oath or the Scout Law, it is not role models, traditional family values, history, the consensus of religions, some need for standardization or any other of the purported rationales that animate this policy; it is prejudice. In an effort to support this policy of exclusion, the Boy Scouts have engaged in conduct clearly contrary to the principles they have espoused since 1910. They have attacked experienced Scouters with stereotypes and intimidation, fueled prejudices within their own organization and turned dedicated people like Roland Pool and Michael Geller into pawns in a public relations battle.
451. The evidence shows that the Boy Scouts' defense of its policy of discrimination against homosexuals is an attempt to rewrite history in an effort, after the fact, to justify a policy that has no basis in the expressive message of this organization. In this proceeding, the Boy Scouts have failed absolutely to demonstrate that Scouting is benefited in any way by preventing the local units and district officials who would be more than happy to use the exceptional skills and experience of these individuals from making use of them.
452. Nor is the policy something simply benign. During the hearing, the Commission heard compelling testimony from the people affected by this policy. Although the policy has hurt Roland Pool and Michael Geller, it has not just hurt them.
453. The policy hurt William Kirkner, a remarkable Scout and Scouter, who even at the hearing could not contain his enthusiasm for the good parts of the Boy Scouts' program, and learned of this policy of intolerance at the exact moment when he was speaking about the Boy Scouts' powerful statements against discrimination. For standing up for what he believed in, and being, as every citizen should, a witness to what he saw, he was stripped of Scouting responsibilities and ultimately led to resign.
454. The policy hurt Thornell Jones, who lost the services of both Roland Pool and William Kirkner at a time when he desperately needed them to promote the Boy Scout program in the District of Columbia. Tr. 1999-2002.
455. The policy hurt David Geller, who must reconcile the fact that the organization in which he has invested 55 years has turned on his son. It has also hurt Virginia Boyce Lind, who must reconcile the fact that the organization her father founded did not let her son participate.
456. Most of all, however, the policy has hurt the Scouts themselves, who lose the services and skills of talented and dedicated people like Roland Pool and Michael Geller, and must reconcile themselves to being part of an organization that earnestly preaches tolerance while practicing intolerance.
457. In sum, each of the Boy Scouts' justifications for its discrimination against gays can be shown to be the empty excuse it is. Mr. Geller and Mr. Pool have been victims of the Boy Scouts' illegal discrimination and are entitled to redress.
CONCLUSIONS OF LAW
I. THE BOY SCOUTS' DISCRIMINATION AGAINST ROLAND POOL AND MICHAEL GELLER VIOLATES THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT
A. The District of Columbia Human Rights Act is Intended to be Aggressively Applied to Eradicate Discrimination in the District of Columbia
1. The Boy Scouts discriminated against Roland Pool and Michael Geller on the basis of their sexual orientation. In doing so, the Boy Scouts have violated Mr. Pool's and Mr. Geller's rights under the District of Columbia Human Rights Act, § 1-2501, et seq., ("DCHRA" or "Act").
2. The DCHRA was enacted to:
secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income and place of residence or business.
DCHRA, § 1-2501. In enacting the DCHRA, the City Council intended that it be construed broadly and enforced aggressively, because the eradication of discrimination in the District is a goal of the "highest priority." District of Columbia City Council, Committee Report of Bill 2-179, "The Human Rights Act," at 1, 3 (July 5, 1977).
3. To achieve this goal, the Act proscribes discrimination based on several suspect classifications -- including sexual orientation -- in a variety of contexts, including a proscription against discrimination by places of public accommodations. See DCHRA, § 1-2519. The DCHRA, § 1-2519 provides in part:
(a) General. It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based on the . . . sexual orientation . . . of any individual.
(1) To deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations;
(2) To print, circulate, post, or mail, or otherwise, cause, directly or indirectly, to be published a statement, advertisement, or sign which indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation will be unlawfully refused, withheld from or denied an individual; or that an individual's patronage of, or presence at, a place of public accommodation is objectionable, unwelcome, unacceptable or undesirable.
4. The District of Columbia Court of Appeals has noted that the City Council viewed the end of discrimination based on sexual orientation as not merely a "compelling governmental interest," but an "interest of the highest order." Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1, 32 (D.C. 1987). Indeed, "[i]n the Council's view, all forms of discrimination based on anything other than individual merit are equally injurious, to the immediate victims and to society as a whole." Id.
B. Roland Pool and Michael Geller Easily Meet their Burden of Proof in Demonstrating that the Boy Scouts have Discriminated Against them in Contravention of the Act
5. "In analyzing discrimination cases brought under the District of Columbia Human Rights Act, the Commission on Human Rights and the District of Columbia Court of Appeals follow the legal framework set out by the United States Supreme Court in reviewing cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq." In the Matter of Michael Lewis, Esq. on behalf of Gregory Smith v. Dr. Richard S. Runkle, COHR Docket No. 92-154-PA(N) (Decided July 1, 1993), at 14 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); RAP, Inc. v. District of Columbia Commission on Human Rights, 485 A.2d 173, 176 (D.C. 1984); Greater Washington Business Center v. District of Columbia Commission on Human Rights, 454 A.2d 1333, 1338 (D.C. 1982).
6. The Supreme Court's legal framework contemplates two "`different evidentiary paths' available to a plaintiff seeking to prove the ultimate issue of defendant's discriminatory intent." Randle v. Lasalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989) (quoting Terbovitz v. Fiscal Court of Adair County, 825 F.2d 111, 115 (6th Cir. 1985), and Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir. 1987), and citing Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). A complainant may attempt to prove that he was discriminated against through direct evidence or through indirect evidence of discriminatory animus. The latter approach has come to be known as the McDonnell Douglas "shifting burden" analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The "shifting burden" approach provides a formula which is meant to assist the finder of fact in arriving at a conclusion as to whether a particular action was motivated or influenced by a discriminatory factor. Id.
7. Where there is direct evidence of the discrimination, however, there is no need to employ a shifting burden analysis. Price Waterhouse v. Hopkins, 490 U.S. 228, 247 (1989). Indeed, as it is well recognized:
[W]here a plaintiff is able to prove through direct evidence that the employment decision at issue was based upon an impermissible factor, he or she has carried the initial burden of proof. At that point, the analysis and burdens associated with the `pretext' inquiry outlined in McDonnell Douglas . . . are irrelevant because plaintiff has directly proved that the impermissible factors have come into play.
Randle, 876 F.2d at 568-69. See also, e.g., TWA v. Thurston, 469 U.S. 111, 121 (1985) ("the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination . . . the shifting burdens of proof set forth in McDonnell Douglas are designed to assure that `the plaintiff [has] his day in court despite the unavailability of direct evidence'") (citations omitted); EEOC v. G-K-G, Inc., 39 F.3d 740, 747 (7th Cir. 1994) (direct discrimination theory "d[oes] not rely on McDonnell Douglas formula"); In the Matter of Richardson v. Chicago Area Council Boy Scouts of America, No. 92-E-80 (Chicago Comm'n on Human Rel'ns, Feb. 21, 1996) ("Richardson"), at 31-33.
8. As the Chicago Commission on Human Relations noted with respect to the Boy Scouts' arguments in Richardson, "the instant case does not deal with `presumptions' or inferences.' The Respondent's discriminatory motives are as plain as day and are not denied." Richardson, at 33. The DCHRA bars discrimination irrespective of what perception about homosexuals it is that leads the Boy Scouts to discriminate and whether the perceptions the Boy Scouts claim to rely upon turn out to be the real ones that motivated their undeniably discriminatory conduct. As discussed above, Findings of Fact ¶¶ 76-399, and below, Conclusions of Law ¶¶ 8-97, the various excuses offered by the Boy Scouts for their policy are, in fact, pretextual. Where, as here, the discrimination is undenied and clear, however, complainants do not have the burden of proving that such excuses are pretextual in any event. EEOC v. G-K-G, Inc., 39 F.3d at 747.
C. The Boy Scouts are a Place of Public Accommodation Subject to the District of Columbia Human Rights Act
9. The DCHRA makes it unlawful to discriminate against individuals on the basis of sexual orientation by depriving them "full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation." DCHRA, § 1-2519(a) (emphasis added). As found in the Findings of Fact ¶¶ 4-75; 269-322, Roland Pool and Michael Geller have undoubtedly been denied the "full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations." They have been severed from an organization that is a major part of their lives, have lost the opportunity to participate in its activities, to benefit from the training, awards and connections it provides, and to enjoy the access it affords to camping and other facilities.
10. DCHRA, § 1-2502(24) defines "place of public accommodation" by illustration with an expansive list of examples:
`Place of public accommodation' means all places included in the meaning of such terms as inns, taverns, road houses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest; restaurants or eating houses, or any place where food is sold for consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure where spirituous or malt liquors are sold; ice cream parlors, confectioneries, soda fountains and all stores where ice cream, ice and fruit preparation or their derivatives, or where beverages of any kind are retailed for consumption on the premises; wholesale and retail stores, and establishments dealing with goods or services of any kind, including, but not limited to, the credit facilities thereof; banks, savings and loan associations, establishments of mortgage bankers and brokers, all other financial institutions, and credit information bureaus; insurance companies and establishments of insurance policy brokers; dispensaries, clinics, hospitals, bath-houses, swimming pools, laundries and all other cleaning establishments; barber shops, beauty parlors, theaters, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, trailer camps, resort camps, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiards and pool parlors; garages, all public conveyances operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; public halls and public elevators of buildings and structures, occupied by 2 or more tenants, or by the owner and 1 or more tenants. Such term shall not include any institution, club, or place of accommodation which is in its nature distinctly private except, that any such institution, club or place of accommodation shall be subject to the provisions of § 1-2531. A place of accommodation, institution, or club shall not be considered in its nature distinctly private if the place of accommodation, institution or club:
(A) Has 350 or more members;
(B) Serves meals on a regular basis; and
(C) Regularly receives payment for dues, fees, use of space, facilities, services, meals, or beverages directly or indirectly from or on behalf of non-members for the furtherance of trade or business.
11. The last sentence of this definition was added by amendment, which was enacted as Section 2 of the D.C. Law 7-50, 34 D.C.R. 6887, and became effective December 10, 1987. The amendment, referred to as the "Cosmos Club Amendment," evinces the intention of the City Council that the Act be applied broadly to membership organizations.
12. In their Answer, the Boy Scouts concede that the NCAC and the BSA "are each institutions, clubs or places of accommodation." Ex. C-1500, Answer at 4, ¶ 2. See Memorandum of District of Columbia Corporation Counsel, Charles Ruff, February 5, 1996 (hereafter "Ruff Memorandum") noting that the Boy Scouts' admission to being a "place of public accommodation" should be weighed as evidence. However, even had they not made this concession, it would be clear that the Boy Scouts are a "place of public accommodation."
13. Section 1-2502(24) is intended to apply to "establishments dealing with goods or services of any kind." Consistent with these words, membership organizations that are much smaller and more private than the Boy Scout, have been recognized as public accommodations under the Act. For instance, in Gould v. Big Brothers of the Nat'l Capital Area, DN 89-026-P(CN), the Office of Human Rights found that Big Brothers could not discriminate against gays because, as a volunteer non-profit organization, Big Brothers was subject to the jurisdiction of the Human Rights Act. The Office found that Big Brothers a:
place , of public accommodation and not exempt from coverage of the Human Rights Act -- and for good reason. By broadly prohibiting discrimination in the District of Columbia, the Council through the Human Rights Act provided protections for citizens from a number of serious social and personal harms.
Statement of Loretta S. Caldwell, Acting Director, District of Columbia Office of Human Rights, Aug. 4, 1989 ("Statement of Loretta S. Caldwell"). See also Schwartz v. The Cosmos Club, DN 86-PA-428.
14. Similarly, in Dickerson v. D.C. Department of Human Services, No. 89-465-PA(N) (Comm'n on Human Rights, May 23, 1991), the Commission found the Department of Human Services to be "a place of public accommodation under the Act."
Section 1-2502(24) of the Act states that a place of public accommodation is an `establishment dealing with goods and services of any kind.' The respondent is an agency of the District of Columbia Government, providing various services to District residents including income maintenance in the form of general public assistance, medicaid and food stamps.
15. The decision by the District of Columbia Court of Appeals in United States Jaycees v. Bloomfield, 434 A.2d 1379 (1981), which arguably applied a more restrictive definition to the term "place of public accommodation" for purposes of a preliminary injunction motion, predated the so-called "Cosmos Club Amendment." It also predated the decision in Cosmos Club and Big Brothers, which are now the controlling administrative decisions. See Jaycees, 434 A.2d at 1382 n.6. (noting that a court would defer to the reasonable decision of the administrative agency charged with enforcing discrimination law); Timus v. D.C. Dept. of Human Rights, 633 A.2d 751 (D.C. 1993) (administrative decisions entitled to deference). Given this, the applicable law is that enunciated in Cosmos Club and Big Brothers. See also Ruff Memorandum (the existing record and legal standards will likely support a finding that the Boy Scouts is a place of public accommodation). See also Dean v. District of Columbia, 653 A.2d 307, 319 (D.C. 1995) (based upon amicus brief by members of the Commission, court assumed, without formally deciding, that the Marriage License Bureau is a place of public accommodation); Gay Rights Coalition v. Georgetown Univ., supra (intent of DCHRA necessitates broad interpretation). See also, e.g., U.S. Power Squadrons v. State Human Rights Appeal Bd., 452 N.E.2d 1199, 1203-04 (N.Y. 1983) (finding that identical language in New York's public conveyance law applied to a boating safety organization with 70,000 members nationwide); Dale v. Boy Scouts of America, 706 A.2d 270, 277-83 (N.J. Super. Ct. App. Div. 1998) (Boy Scouts are public accommodation within the meaning of similar language in New Jersey law); Quinnipiac Council BSA v. Commission on Human Rights and Opportunities, 528 A.2d 352, 387 (Conn. 1987) (Boy Scouts are a public accommodation under Connecticut law).
16. There are cases that have found that the Boy Scouts do not fall within the applicable definition of other statutes. In Curran v. Mount Diablo Council of the Boy Scouts of America, 72 Cal. Rptr. 2d 410 (Cal. 1998), the court concluded, based upon an extensive analysis of its own prior statutory interpretation and legislative history, that the Boy Scouts were not within the ambit of a statute that protected against discrimination in "business establishments of every kind whatsoever." 72 Cal. Rptr. 2d at 420-31. See also Seabourn v. Coronado Area Council, Boy Scouts of America, 891 P.2d 385, 392 (Kan. 1995) (statute that applies to "places of business which are held open to the general public and where members of the general public are invited to come for business purposes" does not apply to the Boy Scouts). In Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir. 1993), cert. denied, 510 U.S. 1012 (1993), the court concluded that the Boy Scouts were not included in a specific list of "entities" identified in Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(b), "none of [which] remotely resembl[ing] a membership organization." 993 F.2d at 1269. Specifically, the court found that the Boy Scouts were not a "place of exhibition or entertainment" within the meaning of that statute. Id.
17. In each of these instances, the respective courts reached their determinations on different factual records. They also based their ruling on statutory language that differs materially from the language at issue in this case. Based on the record here, the Commission would find that the Boy Scouts operate as a business establishment and as a place of exhibition or entertainment in the District of Columbia. Indeed, the question of whether the Boy Scouts are a "business establishment" was a matter of intense differences of opinion among the lower courts of California before Curran was decided, see Dale, 706 A.2d at 278-79 & n.2 (summarizing the decisions), and the Welsh majority's interpretation of the language of Title II was criticized in a persuasive dissent. 993 F.2d at 1278-84 (Cummings, J., dissenting). However, the Commission need not reach those issues, because the DCHRA does not speak in terms of business establishments or merely in terms of physical "places" at all. The DCHRA includes services by public accommodations that are not necessarily limited to physical places, such as "travel or tour advisory services," "credit facilities," "banks, savings and loan associations, establishments of mortgage bankers and brokers, all other financial institutions, and credit information bureaus," and specifically references "institutions" and "clubs" as being within its ambit. These differences in language cannot simply be assumed to be meaningless. See Dale, 706 A.2d at 278-79 (distinguishing the New Jersey statute from the statutes at issue in Curran, Seabourn and Welsh).
18. In any event, even a reading that ignored language in the DCHRA -- one that limited the Act to its specific examples and overlooked both the words "goods or services of any kind," § 1-2502(24), and the references to "institutions" and "clubs" -- would still include the Boy Scouts. As discussed in the Findings of Fact ¶¶ 269-322, the Boy Scouts are not merely an organization that accommodates the public, they also hold the keys to a vast array of physical facilities in and out of the District of Columbia, including, of course, "resort camps" with "swimming pools." § 1-2502(24). And, irrespective of whether the facility is a day camp the Boy Scouts operate, or a school, or public building, or banquet hall, or meeting facility or Bolling AFB they are using in the District of Columbia, or a camping facility like Goshen or Philmont outside of the District of Columbia, the Boy Scouts would be liable under the Act for denying access to these facilities. See, e.g., Matthews v. Automated Business Systems & Services, Inc., 558 A.2d 1175, 1180 (D.C. 1989) (DCHRA prevents discrimination in the District of Columbia with respect to opportunities outside of the District); Green v. Kinney Shoe Corp., 704 F. Supp. 259 (D.D.C. 1988) (decision to discriminate in the District violates DCHRA even if the decision is made elsewhere).
D. The Record Does Not Support the Boy Scouts' Claim That They Are a "Distinctly Private" Organization
19. Although admitting that they are a "place of public accommodation," the Boy Scouts nonetheless maintain that they "are in their nature distinctly private." The evidence however, demonstrates that the Boy Scouts are about the least "distinctly private" organization that can be imagined.
1. The "distinctly private" exemption is extremely narrow and does not apply to the Boy Scouts
20. The exception under the Act for "distinctly private" organizations is exceedingly narrow. As the Office of Human Rights recognized in Cosmos Club:
It must be remembered that the Act does not refer simply to private clubs or establishments closed to the public but uses more restrictive language excluding from the statute's provisions only clubs which are `distinctly private.'
Thus, the qualifier `distinctly' is significant. It evinces an intent and desire on the part of the Council of the District of Columbia that the exemption ... not be applied to just any association calling itself private, but carefully applied only to those associations which are distinctly private. The Office, therefore, construes the exemption narrowly to promote the clear intent of the Council of the District of Columbia.
Schwartz v. Cosmos Club, at 12 (emphasis in original). Based on this, the Office of Human Rights rejected the contention of the Cosmos Club -- a club much smaller than the Boy Scouts -- that it was a "distinctly private" club within the meaning of the Act. Id.
21. Courts construing statutes similar to the DCHRA have likewise concluded that membership organizations much smaller than the Boy Scouts are public accommodations and are not "distinctly private." For instance, in Power Squadrons, the New York Court of Appeals interpreted an essentially identical statute that may well have been the statute upon which the District of Columbia based its wording, and found that United States Power Squadrons ("Power Squadrons"), a nonprofit membership organization that promoted safety and skill in boating, was a "public accommodation, and was not "distinctly private" under the New York Human Rights Law. Power Squadrons, 452 N.E.2d at 1203-05. See also Brounstein v. American Cat Fanciers Ass'n, 839 F. Supp. 1100, 1107 & n.7 (D.N.J. 1993); New York State Club Ass'n v. City of New York, 505 N.E.2d 915, 919 (N.Y. 1987) ("the State Legislature's very use of the adverb `distinctly' in its own statutory exemption for private clubs indicates a concerted attempt to narrow its application"), aff'd, 487 U.S. 1 (1988).
22. The United States Supreme Court has also noted the application of state civil rights statutes to membership organizations such as the Boy Scouts. See Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987); Roberts v. United States Jaycees, 468 U.S. 609 (1984). "This expansive definition [of public accommodation] reflects a recognition of the changing nature of the American economy and of the importance, both to the individual and to society, of removing barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups . . . ." Id. at 626 (citations omitted).
23. In assessing whether the Boy Scouts are "distinctly private," the Commission must consider the factors that it and the courts have identified as determinative in assessing whether an entity is "distinctly private": (1) the genuine selectivity of the group in its admission of its members; (2) whether the organization advertises for members; (3) the purpose of the club's existence; (4) the history of the organization; (5) the commercial nature of the organization; (6) the use of organization facilities by nonmembers; and (7) the use of public facilities by the organization. See Schwartz v. The Cosmos Club, DN 86-PA-428; Power Squadrons, 452 N.E.2d at 1204-05; Roberts, 468 U.S. 609 (1984). Each of these factors militates against a finding that the Boy Scouts are "distinctly private."
2. The Boy Scouts' nonselectivity in admitting members demonstrates that they are not "distinctly private"
24. The most important factor in assessing whether an organization is "distinctly private," as recognized by the United States Supreme Court in Roberts, 468 U.S. at 621-22, and by the Office of Human Rights in Cosmos Club at 17, is its selectivity in admitting members. Selectivity is evaluated in light of an organization's size, whether it imposes any upper limit on its total number of members, criteria for membership, and how the membership is selected. See e.g., Cosmos Club at 13-14. See also, Power Squadrons, 452 N.E.2d at 1204 ("The essence of a private club is selectivity in membership . . . . Organizations which routinely accept applicants and place no subjective limits on the number of persons eligible for membership are not private clubs."); National Organization for Women, Essex Ch. v. Little League Baseball, Inc., 318 A.2d 33, 37 (N.J. Super. App. Div.) (finding that the hallmark of a public accommodation is the invitation to the public to join), aff'd, 338 A.2d 198 (N.J. 1974); Rogers v. International Ass'n of Lions Club, 636 F. Supp. 1476 (E.D. Mich. 1986). Complainants have clearly demonstrated the Boy Scouts' nonselectivity in admitting members.
25. To be protected, an organization must have a "plan and purpose of exclusiveness." Ruff Memorandum, at 17 (citing Sullivan v. Little Hunting Park, 396 U.S. 229, 236 (1969). For this reason, "large clubs do not lend themselves to, and cannot foster the kind and nature of intimate and personal relationships between members worthy of legal protections restricting governmental interference." Cosmos Club, at 13. Not only are the Boy Scouts large, they proudly acknowledge that they are "the largest youth movement the world has ever seen." See e.g., Ex. C719 at 52. Since its founding in 1910, the Boy Scouts have had over 93 million members. Ex. C1122 at NCAC4881. The Boy Scouts' size alone "belies [their] contention . . . that the formal selection criteria operate to exclude numerous applicants." Ruff Memorandum, at 18.
26. Rather than operating with a plan of exclusivity, the record demonstrates that the Boy Scouts operate with an ethos of inclusiveness. Findings of Fact ¶¶ 76-457. They believe that "Scouting must be shared with as many young people as possible," and increasing the number and diversity of the members of Scouting is a primary objective of the organization. The Boy Scouts' emphasis on inclusiveness, and lack of any upper limits on membership, stands in stark contrast to their claim that they are "distinctly private."
27. The Boy Scouts also lack any subjective membership criteria that would demonstrate selectivity in membership decisions. As noted in Cosmos Club:
the distinctly private club envisions personal and close relationships and interaction between its members; or the sharing of philosophies, views, or convictions among its members...The selection criteria are almost always subjective, as opposed to objective. . . . They generally screen very carefully, and make inquiries calculated to determine if the prospective member will "fit in" from both an intimate and personal standpoint, as well as from the standpoint of philosophies, views, and convictions.
Cosmos Club, at 17. As the record makes plain, Findings of Fact ¶¶ 4-457, the Boy Scouts are open to all age-eligible boys who swear allegiance to the Scout Oath and Law. No subjective criteria are used nor is any investigation into the background of an applicant undertaken. If a potential member meets these objective criteria, he will generally be admitted, regardless of his other "philosophies, views, and convictions." Cosmos Club, at 18. This lack of attention to potential members' personal attributes "detracts markedly from [the Boy Scouts'] contention that it is a distinctly private club." Cosmos Club, 18-19. See also, Power Squadron, 452 N.E.2d at 1205 ("A purely private club does more to make certain that desirables are admitted than simply exclude persons believed to be undesirable . . . ."); Rogers v. International Ass'n of Lions Clubs, 636 F. Supp. 1476, 1481 (E.D. Mich. 1986) (a club is not private simply because it may potentially exclude some people).
3. The Boy Scouts' intensive promotional efforts belie the contention that they are a "distinctly private" organization
28. Another consideration in the determination of whether an organization is "distinctly private" is the extent to which the organization in question promotes itself to the general public for purposes of increasing membership. See e.g., Power Squadrons, 452 N.E.2d at 1204. Again in this regard, the evidence is uncontrovertible and stands in stark contrast to any claim by Respondents that they are "distinctly private."
29. As demonstrated in the Findings of Fact, ¶¶ 269-322, the BSA and its councils engage in extensive and systematic public relations campaigns to bring the Scouting message to as wide an audience as possible. The BSA, an intensely media-conscious organization, not only retains a public relations firm to promote the image of Scouting, but staffs an External Communications office at its national headquarters to deal with the Boy Scouts' public relations. The NCAC also promotes itself extensively -- sponsoring high-profile events like the biennial Extravaganza on the Mall and intensive recruitment programs in area schools -- so as to increase the awareness of Scouting in the community and boost membership.
30. Indeed, the Boy Scouts cast as wide a net as possible in which to gather new members and public support, a characteristic not readily found in clubs that are "distinctly private." See Ruff Memorandum at 18 (noting that the Boy Scouts' extensive use of media for recruitment purposes militates against a finding that they are "distinctly private").
4. The purposes which brought the Boy Scouts together preclude a finding that the organization is "distinctly private"
31. Another factor to be considered in determining whether an organization is "distinctly private" is whether the purpose of the organization is to promote the personal relationship of its members, as opposed to providing general information, instruction or promoting civic causes. See Cosmos Club, at 15. An organization with a general and broad purpose that requires no exclusivity to achieve its ends tends to demonstrate that the organization is not "distinctly private." See e.g., Rogers, 636 F. Supp. at 1480 (community service organization did not have the exclusivity of purpose to warrant a finding that it was "distinctly private").
32. In considering this criterion, in Cosmos Club, the Office of Human Rights observed that the Cosmos Club's purpose -- "the advancement of its members in science, literature, and art, (and) their mutual improvement in social intercourse . . ." -- was "broad, somewhat universal, and gives no indication of exclusivity." Cosmos Club, at 15. Based on this finding, the Office determined that the admission of women would not adversely affect the organization's purposes. Id. The purpose of Scouting, like that of the Cosmos Club, lacks any indication of exclusivity. The purpose of Scouting, as set forth in the BSA's charter, is to promote "the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues," Ex. C1300 at NCAC102; Ex. C1302 at NCAC2238. As one witness testified, Scouting is about "knots and hiking safety and feeding the poor . . ." Tr. 2366 (Wetzel). The Boy Scouts' general purpose, then, militates against a finding that the organization is "distinctly private."
5. The Boy Scouts' connection with nonmembers and public facilities weakens their argument that they are "distinctly private"
33. Another indication that an organization is not "distinctly private" is its relationship with the public and its use of public facilities. See e.g., Roberts, 468 U.S. 609, 622 (1984); Power Squadrons, 452 N.E.2d at 1205; Rogers, 636 F. Supp. at 1480. As the record demonstrates, the Boy Scouts have virtually unparalleled contacts with the general public and with government and government facilities that are not "wholly consonant with their claim to be distinctly private." Power Squadron, 452 N.E.2d at 1205.
34. Indeed, "we cannot ignore the BSA's historic partnership with various public entities and public service organizations." Dale, 706 A.2d at 282. The Boy Scouts, which was issued a Congressional Charter in 1916, have relationships with over 75 community organizations including public schools, churches, labor unions, law enforcement agencies, fire departments, and other community service organizations. The United States Army, Navy, Air Force and National Guard have long provided the Boy Scouts with services and facilities; in fact, Congress has even passed legislation to ensure that the Boy Scouts receive certain assistance from the military.
35. As the record shows, the Boy Scouts hold meetings and activities in places that are open to the public such as parks and public schools; indeed, public schools comprise the single largest sponsor of units. The BSA's "Learning for Life" program has also been introduced into many public school classrooms throughout the country.
36. There is ample evidence that the Boy Scouts likewise go to great efforts to involve public officials and other prominent members of the community in their activities. Complainants have also shown that the Boy Scouts provide non-members with access to organization facilities and derive substantial revenues for their use. See Cosmos Club, at 20 (use of an organization's services and facilities by nonmembers weighs against finding that an organization is "distinctly private").
37. The Boy Scouts' relationships with the public, their use of public facilities, and the advantages they receives from government all "underscore the BSA's fundamental public character." Dale, 706 A.2d at 283.
II. THE DCHRA DOES NOT INFRINGE ON THE BOY SCOUTS' RIGHTS OF ASSOCIATION
38. The Boy Scouts assert an affirmative defense that it violates their members' constitutional rights of free association for the District of Columbia to prohibit their discrimination against homosexuals. This defense is wholly unsupported by the record and has no merit.
39. The extent to which parties may use a purported constitutional right of association to justify discrimination is limited:
[T]he Constitution... places no value on discrimination, and while [i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections.
Runyon v. McCrary, 427 U.S. 160, 176 (1975). Accord Hishon v. King & Spalding, 467 U.S. 69, 78 (1984); Norwood v. Harrison, 413 U.S. 455, 470 (1973).
40. "The federal constitution does not expressly recognize the right to freedom of association." Dale, 706 A.2d at 285. Rather, this right is "inferred from other rights and protections guaranteed by the constitution," specifically the First Amendment freedoms of speech and peaceable assembly. Id.; NAACP v. Alabama, 357 U.S. 449, 460 (1958).
41. In Roberts and its progeny, the Supreme Court considered how this inferred right of association applied to public accommodations statutes. There, the court noted that the First Amendment protects freedom of association "in two distinct senses: freedom of intimate association, and freedom of expressive association." Dale, 706 A.2d at 285 (citing Roberts, 468 U.S. at 617-18).
A. The Exclusion of Homosexuals is a Discriminatory Practice That Cannot be Protected on the Basis of Pretextual Claims to Freedom of "Intimate Association"
42. The Boy Scouts have not contended that their exclusion of homosexuals is entitled to protection under the First Amendment right of intimate association, and there is no justification for such a finding. "Freedom of intimate association shields against unjust governmental intrusion into individual's choice to maintain intimate or private associations with others." Dale, 706 A.2d at 285-286 (citing Roberts, 468 U.S. at 618-19). Family relationships best exemplify the type of intimate associations deserving such protection. Roberts, 468 U.S. at 619. This protection applies only to groups of "relative smallness" with a "high degree of selectivity in decisions to begin and maintain affiliation" and seclusion from others. Id. at 620.
43. The Supreme Court has held that the protection of intimate relationships does not apply to large organizations like the Jaycees and the Rotary Club. Roberts, 468 U.S. at 620; Rotary Club, 481 U.S. at 545-46. So too, the "[Boy Scouts] lack the distinctive qualities that might afford constitutional protections [for intimate associations]." Dale, 706 A.2d at 286. Indeed, contrary to a situation where a small group is deciding with whom to associate, this is a situation where a national organization is dictating national policy to those at the council and troop level. As established in the Findings of Fact, even where councils and troops disagree with the national policy of excluding homosexuals, even where they might want to be open to homosexuals, they are proscribed from doing so by the national organization. As BSA former President Richard Leet declared, "[y]ou know, a Troop is not an organization that is part of a policymaking chain." Tr. 2548.
The Boy Scouts Office in Irving, Texas cannot direct over five million members on a nationwide basis not to associate with people whom they otherwise would welcome into their troops and then assert that these members' rights of intimate association would be violated by lifting the restriction.
B. An "Expressive Association" Defense is Unsupported by the Facts.
44. "Freedom of expressive association is a correlative right to an individual's freedom to speak." Dale, 706 A.2d at 286 (citing Roberts, 468 U.S. at 622). It protects association where, and to the extent that, the association is "in pursuit of" one of the "wide variety of political, social, economic, educational, religious and cultural ends" that "brought them together." Roberts, 468 U.S. at 622, 623.
45. The right of expressive association is, by its nature, limited. Respondents are not permitted to escape anti-discrimination laws merely by having their leadership announce a wish (even an earnest one) to discriminate. "By adopting this reasoning we would expand the definition of speech well beyond the communication of ideas, allowing litigants to eviscerate civil rights statutes, as well as other government regulations, by claiming that a [membership] decision equates to speech." Richardson, at 73; Dale, 706 A.2d at 287.
46. Moreover, the fact that an association can have expressive purposes does not mean either that everything done by those who have associated is expressive, or that any particular expression reflects the purpose that brought them together. "Generally speaking, `[o]vertly political organizations [or organizations formed to advance gender or race based interests] are the ones most likely to demonstrate successfully a genuine relationship between their discriminatory practices and their objectives.'" Dale, 706 A.2d at 286 (citation omitted). The Ku Klux Klan fits that description perfectly. See Invisible Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmont, 700 F. Supp. 281, 288-89 (D. Md. 1988) ("If ever there were a case where the membership and the message were coextensive, it is here. . . ."). The Boy Scouts do not.
47. In a trilogy of cases, Roberts, 468 U.S. 609 (1984); Rotary Club, 481 U.S. 537 (1987); and New York State Club Ass'n v. New York, 487 U.S. 1 (1988), the Supreme Court described the method courts are to use to differentiate between the circumstances in which laws against discrimination impinge on the genuine expressive purposes of organizations from those in which they do not.
48. In Roberts, the Supreme Court upheld the application of Minnesota's Human Rights Act, which prohibits discrimination in places of public accommodation, to compel the Jaycees to admit women. The Court found that, although the Jaycees engaged in a "not insubstantial" amount of expressive activities, they failed to demonstrate that the anti-discrimination statute at issue "impose[d] any serious burdens on the male members' freedom of association." Roberts, 468 U.S. at 626. The Court also declared that the State's goal of "eliminating and assuring its citizens equal access to publicly available goods and services . . . plainly serves compelling state interests of the highest order," id. at 624, and further pronounced that any infringement by Minnesota of the Jaycees' freedom of expressive association was no greater than necessary to accomplish the State's legitimate purpose. Id. at 628-29.
49. The Supreme Court reaffirmed this position in Rotary Club, in which the Court upheld the application of an anti-discrimination law to the Rotary Club. Using the test formulated in Roberts, the Court determined that "admitting women to Rotary Clubs will [not] affect in any significant way the existing members' ability to carry out their various purposes." Rotary Club, 481 U.S. at 548. The Court further held that even if the anti-discrimination statute infringed "on Rotary members' right of expressive association, that infringement is justified because it serves the State's compelling interest in eliminating discrimination against women." Id. at 549.
50. In New York State Club, the Court upheld a New York City anti-discrimination law designed to end discriminatory membership practices in certain private clubs with 400 or more members. The Court held that the right of expressive association is not restricted by an anti-discrimination statute unless application of the law requires membership organizations "to abandon or alter" activities that are protected by the First Amendment, or otherwise affects "`in any significant way' the ability of individuals to form associations that will advocate public or private viewpoints." New York State Club, 487 U.S. at 13 (citing Rotary Club, 481 U.S. at 548). By broadening the reach of Roberts and Rotary Club to include clubs that are smaller, more selective, and more business-oriented than the Jaycees and the Rotary Club, the Supreme Court further limited the ability of private membership organizations to assert their associational rights as a defense for unlawful discrimination.
51. Through these cases, the Supreme Court articulated a three-step analysis to determine whether a claimed right of expressive association can be used to avoid the need to comply with a public accommodations law. Under this line of cases, the first step of the analysis is to identify the "specific expressive purposes" for which an organization is established. Roberts, 468 U.S. at 626-27; Rotary Club, 481 U.S. at 548 (examination of association's "positions" on issues and "basic goals"); and New York State Club, 487 U.S. at 14.
52. Second, a court must identify whether enforcement of a given anti-discrimination statute "will affect in any significant way the existing members' ability to carry out their various purposes." Rotary Club, 481 U.S. at 548. See also Roberts, 468 U.S. at 627 (issue is whether application of anti-discrimination statute "imposes any serious burdens" on freedom of expressive association); New York State Club, 487 U.S. at 13 (organization must show that "it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership" to individuals sharing the same trait).
53. Finally, even if the anti-discrimination law infringes on an organization's right of expressive association, the government's action may still be appropriate. According to the Court:
Infringement on that right [of expressive association] may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.
Roberts, 468 U.S. at 623.
54. The Boy Scouts' claim of infringement of expressive association survives none of these three steps.
1. Exclusion of homosexuals is a discriminatory policy of the Boy Scouts' leadership and is not an expressive goal of the organization
55. In examining the Boy Scouts' expressive goals, several principles bear special mention. The Supreme Court has required that the claim of an expressive interest in discriminating be real. "[T]he organization or club asserting the freedom has a substantial burden of demonstrating a strong relationship between its expressive activities and its discriminatory practice. Any lesser showing invites scuttling of the state's anti-discrimination laws based on pretextual expressive claims." Dale, 706 A.2d at 287 (citing Sally Frank, The Key to Unlocking the Clubhouse Door: The Application of Anti-Discrimination Law to Quasi-Public Clubs, 2 Mich. J. Gender & Law, 27, 63 (1994)).
56. Also the Supreme Court has held that a constitutional claim to a right of "expressive association" applies to "only those views that brought [the members] together." Roberts, 468 U.S. at 623. See also Rotary Club, 481 U.S. 537; New York State Club, 487 U.S. 1. The First Amendment right of expressive association does not protect an association's discriminatory conduct in accordance with views that some members coincidentally share. See Brown v. Dade Christian Schools, Inc., 556 F.2d 310, 312 (5th Cir. 1977), cert. denied, 434 U.S. 1063 (1978). Instead, the Commission must look for evidence demonstrating whether the interest at issue -- in this case, condemnation of homosexuality -- is a goal or philosophy of Scouting and whether it is expressed as one of Scouting's goals. See Roberts, 468 U.S. at 612, 614, 626; Rotary Club, 481 U.S. at 548-49; New York State Club, 487 U.S. at 1; Dale, 706 A.2d at 287-91.
57. The record in this matter, which is extensive, demonstrates that this is not a situation where a group's "specific expressive purpose" is in conflict with the requirements of an anti-discrimination law." See New York State Club, 487 U.S. at 13. The record includes thousands of pages of Scouting manuals, recruiting materials, and correspondence. It also includes the testimony of numerous witnesses -- on behalf of Complainants and Respondents -- who have devoted many years, if not lifetimes, to Scouting. As this extensive record reveals, members of Scouting do not associate for purposes of advocating a moral position on homosexuality. Condemnation of homosexuality is not an expressive goal of the organization. In fact, the issue of homosexuality is not addressed as part of the Scouting program at all.
58. As noted in the Findings of Fact, ¶¶ 195-268, not a single witness testified that as part of his Scouting experience, he was taught that homosexuality was wrong or immoral. In contrast, numerous witnesses -- including those appearing on behalf of Respondents -- testified that the issue of sexual orientation was never mentioned throughout their Scouting experience -- not in weekly Scout meetings, Jamborees, Camporees or other Scouting events.
59. The evidence also demonstrated that potential members are never informed that condemnation of homosexuality is a fundamental goal or value of the organization. The Boy Scouts' recruitment literature makes no mention of sexual orientation. Scouting's membership applications are similarly silent, even as they identify other values that are important to Scouting, such as a belief in and recognition of a duty to God. The Boy Scouts also refrain from bringing out their policy of excluding gays at recruitment functions, such as the NCAC's "Join Scouting Night." It defies logic to think that opposition to homosexuality can be an expressive goal of the Boy Scouts when recruits are not even told about this policy.
60. Also significant is the fact that nowhere in Scouting's vast library of generally distributed publications is the condemnation of homosexuality identified as an expressed goal of the Boy Scouts or a value to be instilled in youth. In its more than 80-year history, the Boy Scouts have gone through ten different versions of the Boy Scout Handbook. Nowhere in any of these editions is there any mention of the morality of homosexuality. The Boy Scouts' Charters, Mission Statements, By-Laws and Annual Reports are also silent on the issue of homosexuality. What these documents make clear is that a particular moral position on homosexuality is not what "brought [the original members] together," Roberts, 468 U.S. at 623; Dale, 706 A.2d at 288. Rather, the Boy Scouts were formed for the "train[ing] [of youth] in Scoutcraft, and to teach them patriotism, courage, self-reliance and kindred virtues," see e.g., Ex. C1300 at NCAC102; Ex. C1302 at NCAC2238. Cf. Brown, 556 F.2d at 312 ("the absence of references to school segregation in written literature stating the church's beliefs, distributed to members of the church and the public by leaders of the church and administrators of the school, is strong evidence that school segregation is not the exercise of [the church's] religion").
61. The few Boy Scouts' documents that do mention sex and sexuality advise leaders that they are not to "instruct Scouts in any formalized matter in the subject of sex and family life. The reasons are that it is not construed to be Scouting's responsibility . . ." Ex. C727 at NCAC6934. These documents also advise Scout leaders that when issues of sex and sexuality do arise, the leaders must direct Scouts to consult with their family, religious leaders, doctors or other professionals.
62. Prior to 1991, the Boy Scouts' expression of opposition to homosexuality came in the form of two internal memoranda, dated February 13, 1978 and March 17, 1978 respectively, which were distributed exclusively to BSA Scout Executives. Since 1991, the Boy Scouts have produced several position statements purporting to clarify the Boy Scouts' position on homosexuality. As demonstrated in the Findings of Fact, ¶¶ 76-268; 323-457, these documents fail to articulate clearly the nature of the Boy Scouts' position on homosexuals, much less demonstrate that members of Scouting have come together for over eight decades for the express purpose of expressing that view. Even without the benefit of all the conflicting testimony about what these statements mean, the Dale court concluded that, "[w]e cannot accept the proposition that this `Position Statement,' issued for the first time seventy-six years after Congress granted the BSA its Charter, represents a collective `expression' of ideals and beliefs that brought the Boy Scouts together." Dale, 706 A.2d at 290; see also id. (noting that, given the timing of these statements, it is "not unrealistic to view these `Position Statements' as a litigation stance taken by the BSA rather than an expression of a fundamental belief concerning its purposes"). We agree.
63. The Boy Scouts unsuccessfully argue that the Scout Oath and Law have always stood for traditional values of heterosexuality. In making this argument the Boy Scouts rely on the use of the term "morally straight" in the Scout Oath and the term "clean" in the Scout Law. However, the record demonstrates that within Scouting, there is no universally understood definition of "morally straight" and "clean." Numerous witnesses, with years of Scouting experience, testified that they never understood the terms "morally straight" and "clean" to refer to heterosexuality. To the extent that other witnesses think otherwise, it is clear that they come to this understanding not through Scouting, but through personal experiences, values and religious training. Indeed, The Boy Scout Handbook, where the definitions of these terms are set out at length, does not even hint that the terms refer to sexual orientation. See Dale, 706 A.2d at 290.
64. The testimony from various religious leaders revealed a lack of consensus among religious organizations on the morality of homosexuality. Many of the Boy Scouts' sponsoring organizations -- both religious and secular -- have policies totally at odds with the Boy Scouts' exclusion of homosexuals. Respondents' acceptance of sponsors with positions totally opposed to that of the Boy Scouts belies their contention that the policy is justified by the purported right of Scouting's members to associate with only those who share their views on homosexuality. See Dale, 706 A.2d at 291 (it is "clear" the BSA's exclusion of homosexuals "is employed without regard for the diverse ideological differences among the religious groups and institutions and other groups who support the BSA's ideals and activities").
65. Moreover, the Boy Scouts have vacillated on the content of their purportedly deeply-held expressive purposes -- announcing one day that they think all homosexual conduct is immoral, see Findings of Fact ¶¶ 76-457; on another that it is only "known or avowed" homosexuals who are really of any concern, see Findings of Fact ¶¶ 76-457; on a third day that this can all be found in an oath and law that, on its face, preaches nothing of the sort, see Findings of Fact ¶¶ 76-457; on a fourth that it is really based in some notion of "traditional family values," which is found in no written material whatsoever, see Findings of Fact ¶¶ 76-457; and, on a fifth that it is really based in role models, who although perfectly acceptable for some programs teaching organizational values, represent some incredible danger for others. See Findings of Fact ¶¶ 76-457. Such pronouncements, unrooted in organizational literature, or solicitation or instruction, are statements of convenience designed to create arguments for lawsuits, not expressive purposes for which people can be said to have joined the organization.
66. The Commission finds itself fully in accord with the conclusions reached by the Chicago Commission on Human Relations in Richardson that there is "no evidence that opposition to homosexuality was an expressive goal, significant or otherwise, of Scouting." Richardson, at 59. Respondents' claim that opposition to homosexuality is a shared goal of the members of Scouting is totally unsupported by the record in this case. Indeed, it is nothing more than a pretextual claim asserted as a defense to invidious discrimination.
2. Enforcement of the Act would not substantially burden the Boy Scouts' expressive goals
67. Even if the Boy Scouts could demonstrate that Scouting is an association whose members have joined together for the purpose of expressing moral opposition to homosexuality, there is no evidence that Roland Pool's and Michael Geller's membership in Scouting would impose "serious burdens," Roberts, 468 U.S. 627, and "affect in [a] significant way," Rotary Club, 481 U.S. at 548, the ability of other members to express those views. Like the Jaycees, the Rotary Club, and the New York State Club Association, the Boy Scouts cannot meet this burden.
68. The DCHRA, like the statute in Roberts, "imposes no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members." Roberts, 468 U.S. at 627. Rather, the DCHRA "prevents an association from using race, sex, [sexual orientation] and other specified characteristics as short-hand measures in place of what the [state] considers to be more legitimate criteria for determining membership." New York State Club, 487 U.S. at 13.
69. The Supreme Court's reference to "short-hand measures" is extremely significant. Even if one were to accept, notwithstanding the overwhelming contrary evidence, that the Boy Scouts' members joined together for the purpose of expressing the view that homosexual conduct is wrong, the Boy Scouts would still have to demonstrate -- through real evidence, not the "short-hand measures" of stereotypes -- that compliance with the DCHRA imposed "serious burdens" on their ability to express that message. See Dale, 706 A.2d at 289.
70. Here, however, stereotypes is all that the Boy Scouts do present. The Boy Scouts' basic premise is that, if one is a homosexual (or at least owns up to being a homosexual), that makes someone an advocate. The only way the Boy Scouts can support their status-based ban is to presume, irrebuttably, that everyone who shares a particular sexual orientation -- whether the former head of Queer Nation or a Catholic priest -- (1) has an agenda of promoting homosexuality as some kind of appropriate "lifestyle," and (2) will use his or her position in the Boy Scouts to promote that agenda.
71. As discussed in the Findings of Fact, ¶¶ 76-268, it is clear that the Boy Scouts do not actually believe this argument. They, themselves, are not concerned about this supposed agenda in the Learning for Life program or career-exploring or mentoring. The Boy Scouts also readily retain heterosexuals and sponsors who admit to having alternative agendas, including acceptance of gays, or promotion of particular religions or political viewpoints, without any presumption that they will use their position in the Boy Scouts as a bully pulpit for an alternate agenda.
72. But even if the Boy Scouts did believe the argument that all homosexuals are uncontrollable advocates, they still would not have the right to insist that the Commission agree with it. Someone who believes that all members of a minority group are dishonest has no right to use that stereotypical belief as the justification for discrimination:
Roberts cautions that, in examining an association's freedom of expressive association claim, `legal decision making that relies uncritically on such [unproven] assumptions' must be condemned. . . . Such assumptions, predicated on stereotypical generalizations, rather than fact, cannot be employed as `shorthand measures' in place of legitimate factors justifying First Amendment protection."
Dale, 706 A.2d at 289 (quoting Roberts, 468 U.S. at 628 and New York State Club, 487 U.S. at 13).
73. Accordingly, in this case, the Boy Scouts' contention that requiring them to follow the DCHRA would impose a "serious burden" on their expressive association is unproven in all senses of the term. Not only have the Boy Scouts failed to show that they have the relevant expressive association, or that, even assuming that association existed, they have any justification for the status-based exclusion of homosexuality, they have failed to show that any such justification has a basis in fact. There is no evidence upon which to conclude that all homosexuals are advocates or that all homosexuals lack an ability to determine when it is appropriate to advocate those views that they hold.
74. Thus, as both the Dale court, 706 A.2d at 288-89, and the Richardson tribunal, Richardson, at 59-60, concluded, we find that Respondents presented no evidence that requiring them to comply with the DCHRA would impose a "serious burden" on or affect in a "significant way" the ability of the members of Scouting to conduct their activities. There is no evidence that, if the Boy Scouts were required to admit homosexuals, they would have to alter or modify their activities or programs.
3. The District of Columbia has a compelling interest in eradicating discrimination that justifies enforcement of the DCHRA
75. Even had there been evidence that the condemnation of homosexuality is an expressive purpose of the Boy Scouts, and that requiring them to admit homosexuals as members would impede their ability to carry out those purposes, the District of Columbia would be justified in enforcing the DCHRA because the Act serves "compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." Roberts, 468 U.S. at 623. See also Rotary Club, 481 U.S. at 549.
76. As the Supreme Court held in Roberts, public accommodation laws protect individuals from "a number of serious social and personal harms," Roberts, 468 U.S. at 625, and reflect the state's "strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services. That goal, which is unrelated to the suppression of expression, plainly serves a compelling state interest of the highest order." Id. at 624. And it is clearly established that the DCHRA serves the same compelling interests as those underlying the statute in Roberts.
77. As noted earlier, in enacting the DCHRA, the City Council viewed the end of discrimination on the basis of sexual orientation as an "interest of the highest order." Gay Rights Coalition v. Georgetown Univ., 536 A.2d at 38. There can thus be no doubt that the eradication of discrimination based on sexual orientation is a compelling government interest.
78. Furthermore, like the laws at issue in Roberts and Rotary Club, the DCHRA is aimed at invidious discrimination rather than viewpoints, and is thus unrelated to the suppression of ideas. See Roberts, 468 U.S. at 629; Rotary Club, 481 U.S. at 549. The DCHRA is not intended to limit protected speech, and imposes no restraints on the freedom of Scouts or Scouters to express their views. Id.
79. Finally, the DCHRA is narrowly tailored to end discrimination in public accommodations and there is no alternative for accomplishing that goal that is less restrictive of associational freedom. Like the discrimination statute at issue in Roberts, the DCHRA "'responds precisely to the substantive problem which legitimately concerns' the State and abridges no more speech or associational freedom than is necessary to accomplish that purpose." Roberts, 468 U.S. at 629 (citations omitted).
80. Moreover, the Complainants here are seeking narrow relief. They are not seeking to have the Commission decide for any troop, any pack or any post, who they should choose as an adult leader or to suggest any criteria they should be prohibited from using. The effect of the order sought here will be to prevent the BSA and the NCAC -- organizations who have failed utterly to demonstrate that they have come together for the purpose of expressing a view concerning homosexuality -- from themselves discriminating or requiring units to do so.
81. In sum, the DCHRA is a narrowly drawn anti-discrimination statute that serves a compelling state interest of the "highest order" unrelated to the suppression of ideas, and this case involves a narrowly-drawn remedy. The First Amendment's protection of expressive association does not shield the Boy Scouts' discrimination from the application of the Act.
4. The Supreme Court's Decision in Hurley lends further support to this conclusion
82. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), a group of gay men, lesbians, and bisexuals ("GLIB") challenged the denial of their application to march as an official unit in Boston's St. Patrick's Day Parade. The parade organizers contended that the forced inclusion of this group's message within their parade would infringe upon their right to free speech.
83. The trial court in Hurley used an "expressive association" analysis in connection with the case. On appeal, however, the defendant-organizers argued that "their right to freedom of speech. . ., not their right of expressive association, was the operative right in this case." Irish-American Gay, Lesbian and Bisexual Group v. City of Boston, 636 N.E.2d 1293, 1298-99 (1994), rev'd sub nom., Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557 (1995). In making this argument, the parade organizers emphasized the unique nature of parades, asserting that "a parade is a `pristine form of speech.'" Id. at 1299. The appellate court affirmed the ruling of the trial court that the parade lacked any specific expressive purpose entitling it to protection under the First Amendment. Id. at 1297.
84. In reversing the opinions below, the Supreme Court focused on the special characteristics of parades and did not even address the "expressive association" issue. Id. at 568-80. The Supreme Court noted that "we use the word `parade' to indicate marchers who are making some sort of collective point. . . . Parades are thus a form of expression, not just motion." Id. at 568. The Court went on to find that inclusion of GLIB's marching unit would have impermissibly compelled the parade organizers "to modify the content of their expression. . . ." Id. at 578. The Court based this conclusion on its finding that the gay, lesbian and bisexual group's purpose was "to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals . . . " Id. at 561. Based on its finding that both the parade and the group's participation in the parade as a marching unit were expressive acts, the Court concluded that the forced inclusion of the group would have had the effect of declaring the organizer's speech to be a public accommodation, and would require the organizers to alter the expressive content of their parade. Id. at 572-73.
85. Hurley, however, is distinguishable from this case both legally and factually. The parade in Hurley figured significantly in the Court's decision, which as stated above turned on free speech rather than associational grounds. The Hurley court found that a parade is inherently expressive and as speech, is entitled to First Amendment protection. In contrast to a parade, Scouting is not a form of speech, and the activities of the Boy Scouts are not inherently expressive such as those of the parade marchers in Hurley.
86. Moreover, the facts of Hurley are just the opposite of the facts in this case. In Hurley, as specifically noted by the Court, the parade organizers did not seek to exclude gay, lesbian, or bisexual individuals from marching in the parade. The intention of the parade organizers was to exclude the message GLIB proposed to advocate in marching as a distinct unit. In contrast, the Boy Scouts exclude homosexuals based on status alone, while they include heterosexuals -- even if they are proponents of gay rights who express these views within the organization. Richardson, at 57-77; Dale, 706 A.2d at 291-93.
III. OTHER ARGUMENTS BY THE BOY SCOUTS ARE NOT LEGALLY-COGNIZABLE DEFENSES.
87. Along with their other contentions, the Boy Scouts have urged several points that do not amount to legally-cognizable defenses. First, in some of the Boy Scouts' arguments, they appear to suggest that their discrimination stems not from their own desires, but rather from the expectations of sponsors. They urge, for example, that one or another church would abandon Scouting entirely if the Boy Scouts adopted the same policy the Girl Scouts have with respect to homosexuals.
88. Second, the Boy Scouts have attacked the Complainants, particularly Roland Pool, arguing that, notwithstanding their many years of commitment to Scouting and obvious knowledge and dedication to it, they are really only "testers."
89. Third, the Boy Scouts have suggested that the Commission lacks "jurisdiction" over this case because these cases do not involve sufficient acts in the District of Columbia. In Michael Geller's case, this takes the form of argument that, although he was a District of Columbia citizen and resident when the BSA implemented its national policy telling him to sever all his ties with Scouting, his particular troop registration at the time was in Owego, New York. In Roland Pool's case, the Boy Scouts' argument takes the form of asserting that, because the Boy Scouts rejected his application almost immediately after his training for a Unit Commissioner position in the Banneker District, he therefore did not spend much of his Scouting experience in the District of Columbia.
90. As discussed in the Findings of Fact, in each of these instances, the Boy Scouts failed to support these arguments with facts. As noted in the Findings of Fact ¶¶ 2-457, the Commission rejects the Boy Scouts' speculation that sponsors will abandon Scouting if they are given the option to permit homosexuals to participate. In the Findings of Fact ¶¶ 2-457, the Commission rejects the Boy Scouts' assertions that Mr. Pool and Mr. Geller are "testers." In the Findings of Fact ¶¶ 2-457, the Commission notes the basic fact that the discrimination against both of these men occurred in the District of Columbia and that both of them were prevented from participating in Scouting here. Indeed, the assertion that Mr. Pool somehow lacks a claim because the Boy Scouts expelled him before he could do substantial work in the District of Columbia is, at best, a Catch 22.
91. Even if these allegations had been proven, however, they would still lack legal merit. Even if the Commission were to assume that sponsors would leave Scouting if Scouting did not discriminate against homosexuals, the DCHRA does not permit Respondents to justify an exception to its requirements "by the facts of increased cost to business, business efficiency, the comparative characteristics of 1 group as opposed to another, the stereotyped characterization of 1 group as opposed to another, and the preferences of co-workers, employers, customers or any other person." § 1-2503(a). This sensible rule prevents the defense that "I don't really want to discriminate; it is just my customers, or sponsors or workers who could not accept it."
92. Similarly, even if it had been proved that Roland Pool and Michael Geller were "testers," testers can challenge discrimination as well. "Standing under civil rights statutes has always been broadly construed in order to effectuate the goals of those statutes. Complainants have been allowed to act not only on their own behalf, but also as private attorneys general to vindicate important societal policies embodied in the civil rights laws." Richardson, at 36 (citing Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 211 (1972); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990)); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982). Indeed, the Boy Scouts never asked Roland Pool and Michael Geller whether they were members of Queer Nation, or any organization, before they demanded that they sever all their ties with Scouting; and the Boy Scouts do not pretend that a homosexual who stays clear of these organizations will be welcomed into their fold.
93. Finally, the Boy Scouts are simply incorrect that the DCHRA permits discrimination in the District of Columbia, so long as some of the discriminatory events occurred outside the District of Columbia. As the District of Columbia Court of Appeals explained in Matthews v. Automated Business Systems & Services, Inc. ("ABSS"):
The purpose of the Human Rights Act is `to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit. . . .' D.C. Code § 1-2501 (1987) (emphasis [in opinion]). Discriminatory practices in employment are expressly made unlawful by D.C. Code § 1-2512 (1987). If the events alleged in Matthews' complaint occurred in the District of Columbia, they are subject to scrutiny under section 1-2512, regardless of whether her `actual place of employment' was in Maryland, the District, or both.
558 A.2d at 1180 (second emphasis added). See also Green v. Kinney Shoe Corporation, 704 F. Supp. at 260 (rejecting the proposition that the DCHRA could fairly be read to permit discrimination "regarding jobs located in the District of Columbia simply if the application and the decision to discriminate were made outside the District," and concluding that the "broad language of the Act . . . was intended to cover all discrimination concerning jobs located in the District of Columbia, even if the application and decision to discriminate were made outside the District").
IV. ROLAND POOL AND MICHAEL GELLER ARE ENTITLED TO RELIEF
94. The facts of this case have clearly demonstrated that the Boy Scouts
are a place of public accommodation subject to the DCHRA, and that they violated the Act by discriminating against Roland Pool and Michael Geller because they are homosexuals. Accordingly, the Commission finds that the Complainants are entitled to the following relief. A. Injunctive Relief
95. DCHRA, § 1-2553(a)(1)(C) establishes that upon a finding that Respondent has engaged in an unlawful discriminatory practice, the Commission shall order Respondent to cease and desist from such unlawful discriminatory practices, and to "[extend] . . . full, equal and unsegregated accommodations, advantages, facilities and privileges to all persons." Having found that Respondents unlawfully discriminated against Mr. Pool and Mr. Geller on the basis of their sexual orientation, the Commission so orders the Respondents. In particular, the BSA, whether acting by itself, or through its councils and other subdivisions, and the NCAC, whether acting by itself, or through its subdivisions, shall:
a. Reinstate Mr. Pool and Mr. Geller to membership in the BSA, together with all the rights, privileges and advantages accorded to that membership;
b. Act without regard to Mr. Pool's and Mr. Geller's sexual orientation, upon an application they may make for any position within the BSA or the NCAC;
c. With respect to residents of, or Scouting activities in, the District of Columbia, cease and desist from investigating, inquiring into, harassing or excluding any individual from Scouting based upon his or her sexual orientation, or requiring or encouraging any unit or sponsor to do so;
d. Take no action in retaliation against Mr. Pool, Mr. Geller or any witnesses or affiants participating in this proceeding.
This ruling shall mean that Respondents shall not discriminate on the basis of sexual orientation in the District of Columbia or encourage units or sponsors to do so. As units and sponsors are not parties to these proceedings, their decisionmaking authority -- to the extent it is currently within their purview -- has not been made the subject of this order.
B. Compensatory Damages
96. Having determined that Respondents unlawfully barred Complainants from Scouting, the Commission also finds credible Complainants' testimony regarding the emotional strain and disappointment they experienced as a result of Respondents' actions.
In accordance with DCHRA, § 1-2553(a)(D), the Commission awards Mr. Pool compensatory damages in the amount of ________, and Mr. Geller compensatory damages in the amount of __________.
C. Attorneys' Fees & Costs
97. Pursuant to D.C. Code § 1-2553(a)(1)(E) and (F), the Commission hereby orders Respondents to pay Complainants' reasonable attorneys' fees and costs. Complainants shall, within ___ days of notice of this Order, file a fee and cost petition with the Commission.
ROSS, DIXON & MASBACK, L.L.P.
David M. Gische
Julie P. Glass
601 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2688
AMERICAN CIVIL LIBERTIES UNION
OF THE NATIONAL CAPITAL AREA
1400 - 20TH St. N.W.
Washington, D.C. 20036
Dated: May 1, 1998
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that, on ________________, 1998, copies of Complainants' Findings of Fact and Conclusions of Law were served by hand-delivery to:
Mr. Gerald Draper, Director
District of Columbia Department of Human Rights
and Minority Business Development
441 4th Street, N.W.
Washington, D.C. 20001
and by hand-delivery and/or overnight mail to:
George A. Davidson, Esquire
Carla A. Kerr, Esquire
Hughes Hubbard & Reed
One Battery Park Plaza
New York, New York 10004
Dennis S. Klein, Esquire
William A. Barrett, Esquire
Hughes Hubbard & Reed, LLP
1300 I Street
Washington, D.C. 20005-3306
David M. Gische