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Merino v. Boy Scouts of America

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     In 1977, 22-year-old Chuck Merino joined the El Cajon Police Department as a police officer. Because of his interest in youth and excellent service record, he was asked to serve as the Explorer Advisor for the department's Law Enforcement Explorer Post in 1988. On August 25, 1992, Chuck was expelled from the Boy Scouts of America.

     Several months earlier, Chuck had revealed that he was gay at a community meeting on hate crimes against gays. The BSA council heard about this and sent Chuck a letter stating that he was unfit to be a Scout leader because his homosexuality violated BSA's requirements that its members be "morally straight" and clean. According to Ron Brundage, Scout Executive of the San Diego County Council of the Boy Scouts, "It means clean in thought, word and deed."
     This came as news to Chuck. He had been a respected El Cajon police officer for 15 years, a popular volunteer football coach at Grossmont High School and, until recently, was much-admired as a Scout leader. This also was a surprise to Police Chief Jack Smith, who praised Merino as a model officer. In response to BSA's actions against Chuck, the San Diego and El Cajon police departments later severed their ties with BSA.

     Chuck sued the BSA in 1992 under the California Civil Rights Act and San Diego's Human Dignity Ordinance, both of which ban discrimination on the basis of sexual orientation. Before the trial, Chuck's lawyer, Everett Bobbitt, threatened to ask San Diego officials to kick the BSA off their city-owned land at Balboa Park and Fiesta Island, which the Scouts lease for a total of $2 a year, if the court did not sustain Chuck's position. In light of Chuck's suit, the San Diego School Board voted in January 1993, to forbid Scouting activities during class hours in schools, effective July 1, 1993.
     Chuck's day in court finally came in March 1994. Chuck was the only witness presented in the first phase of the case. He testified that he is a good role model for youth. "I believe I've got a set of values and standards I live by that I think are rather high."
     One interesting event during the trial was the testimony of Christopher Leach, a volunteer active with the San Diego Council. Leach testified that the tenet in the Boy Scout oath requiring a Scout to be "morally straight" prohibits homosexuals from becoming Scouts or Scout leaders. Leach, reading from the Boy Scout Handbook, said being "morally straight" means being honest and open in relationships. Nevertheless, he agreed that Merino was expelled from the Boy Scouts after he openly admitted he was gay.
     "Morally straight implies being in a relationship that is heterosexual and monogamous," Leach said. Chuck's attorney, Bobbitt, hammered Leach, about his beliefs on homosexuals, religion and laws prohibiting discrimination.
     "It's wrong to discriminate against anybody," Leach said. "But you don't want them (homosexuals) in the Boy Scouts?" Bobbitt said . "Correct," Leach replied. "What are you afraid of if the doors of the Boy Scouts were open and gays were Scout leaders?" Bobbitt asked. "I will tell you: There will be a lot less people in Scouting. I do not want an openly gay individual teaching my children," Leach said. "I'm afraid they will become exposed to a lifestyle with which I disagree."
     The interesting aspect of Leach's testimony was when Chuck's attorney produced two witnesses to show the flaws in the BSA's policy of prohibiting homosexuals. Bobbitt called two men to the stand, who said that the testimony would "demonstrate the inability of the Boy Scouts to accomplish what they want to accomplish."
     According to Bobbitt, "Mr. Leach is gay. He goes to bathhouses and peep shows. . . . It is the best evidence of the foolhardiness of their policy and the difficulty in enforcing their policy."

     J. Mark Crouse, an accountant at the San Diego Convention Center, testified that he recognized Leach from a photograph in The San Diego Union-Tribune that appeared with an article about his testimony in the case. He said he first met Leach at an adult bookstore in the fall of 1990 and saw him on and off for a month. Crouse said he saw Leach again in the spring of 1991 at a bathhouse patronized by gay men. "Sometimes we would have sex together, sometimes we would not. Sometimes we would just talk," Crouse testified.
     Under questioning by a BSA lawyer, George Davidson, Crouse denied he had an interest in Merino winning his case against the Boy Scouts. "I did it (testified) only because I had a truth to tell in this matter," Crouse said.
     Another witness, Len Potter, who said he is acquainted with Leach and his wife, said he saw Leach at a gay X-rated video store about two years ago. He said that Leach also saw him and that Leach covered his face with his hand. He said he followed Leach to the back of the store. "He was embracing another man, mutual fondling, touching," Potter said.
     Leach testified that he believed Potter was biased against him because he had to lay off Potter's former wife from her job at his accounting firm. He also said he had difficulties with Potter being late in making lease payments on a Jeep Comanche he rented to Potter.
     "Were you in the Cinema F in April 1992?" Edwards asked Leach. "No, I was not," Leach replied. "Have you ever been there?" Edwards asked. "No, I have not," Leach said. Leach also denied having an affair with Crouse, saying that he spent his weekend evenings at Scouting activities or with his wife and family, going to the movies or out for pizza. "I've never been into a gay bathhouse and I don't know a man named Crouse," Leach said.
     Bobbitt had subpoenaed Leach to return to the witness stand March 31st, but Leach did not appear because he had gone to Utah with his family. Leach said he left at a time when he was receiving harassing phone calls and death threats.

     On July 7, 1994, San Diego County Superior Court Judge Anthony Joseph ruled in favor of Chuck Merino. Joseph found that the Unruh Act covers the BSA, and that they cannot expel a gay person except for misconduct.
     "Public acknowledgment of homosexuality does not translate into `teaching' that homosexuality is proper or improper," wrote the judge. Joseph awarded Merino $5,000 in damages, attorney fees, and a reinstatement order.
     BSA filed an appeal with the California Fourth District Court of Appeal. The ruling ordering Chuck's reinstatement was stayed, pending completion of the appeal process. On March 12, 1997, the appellate court heard oral arguments concerning the appeal. Even though the Curran case was still pending before the state Supreme Court, the Appellate Court said their decision would not be delayed waiting for a decision to be reached by the state Supreme Court in the Curran case.
     A ruling from the San Diego panel, which included Justices Richard Huffman, Gilbert Nares and Judith Haller, was handed down on May 22, 1997. The 4th District Court of Appeals reversed the 1994 Superior Court ruling. The justices ruled that BSA is not a business under the Unruh Civil Rights Act.
     "Boy Scouts of America is, in our view, chiefly an organization composed of and promoting relationships which . . . take place more or less outside the public view,'' Huffman wrote.
     Chuck and Bobbitt, said they weren't surprised by the 3-0 decision written by Huffman. In oral arguments before the justices, Bobbitt was questioned intensely while the attorney for the council emerged unscathed.
     "I think it's wrong," Chuck said. "You're starting to tell people that you can discriminate against who you want. I don't think anyone can do that, particularly a business that works on public property." Bobbitt vowed to appeal the decision, all the way to the US Supreme Court if necessary.
     "From an intellectual point of view, (the decision) is poorly written," Bobbitt said. "We waited three years to get an opinion from the court of appeal, and they didn't answer his question. He deserved better than that."
     Although Huffman wrote the ruling, with Justices Nares and Haller concurring, he went further in a separate opinion written on his own. Huffman wrote that even if the BSA were considered a business, they had the right to exclude gays under their First Amendment right to free association. "Applying the (Unruh) act here would suppress (BSA's') ideas that an avowed homosexual is not an appropriate role model and moral example within Scouting," Huffman wrote.
     Darrell Watkins, Council Executive of the Desert Pacific Council, said the ruling affirms the values at the heart of Scouting. But Karen Marshall, executive director of the Lesbian and Gay Men's Community Center, expressed dismay with the ruling. "I'm sorry to see that equality is not there and that they're allowed to discriminate," she said. "It puts gay kids in a very bad position because if they want to participate, they have to lie. It's sad."
     Chuck appealed to the California Supreme Court, but his case was dismissed after the court ruled in the Curran and Randall cases that the anti-discrimination law does not apply to private organizations like the Boy Scouts.
     Chuck then appealed to the US Supreme Court on September 30, 1998. The appeal asked the US Supreme Court to overturn the California court ruling. Chuck argued that, while the BSA may not be subject to the law, its joint venture with a governmental entity (the San Diego police department) is subject to the law and that his position as head of the Law Enforcement Explorer program is a public job that is protected by the law. Thus, he argued, that BSA can't throw him out of that post because of its discriminatory policy against Gays.
     In addition to asking the US Supreme Court to rule on whether the BSA's Explorer program with police departments requires the BSA to abide by the laws applying to the police department, Merino's petition asked that the court define that standard of review courts should apply in gay-related discrimination cases.
     One November 30, 1998, the US Supreme Court, without comment, refused to review the California court ruling. Thus, ending Chuck's battle against BSA.

     As a consequence of Chuck's lawsuit, BSA transferred it's career-oriented Explorer programs (like the El Cajon Police Department's Explorer Post) to a newly created entity called Learning for Life. The difference between Learning for Life and the other programs BSA provides is that the exclusionary and discriminatory policies in BSA's "traditional programs" (Cub Scouts, Boy Scouts, and Venture Scouts), are not present in Learning for Life programs. As such, if the El Cajon Police Department wanted to have another Law Enforcement Exploring unit, Chuck would be allowed by BSA to be it's leader.

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