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Pool & Geller v. BSA


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     In 1992, Roland Pool (age 31) and Michael Geller (age 29), both Eagle Scouts, were expelled from the Capital Area Council after separately informing the council that they were gay. At the time of their expulsion, both men were registered adult leaders with the council.
     The ACLU of the National Capital Area filed complaints with the District of Columbia's Department of Human Rights & Minority Business Development on behalf of Roland and Michael, as they both wished to continue to serve youth. Their suit alleged that BSA's policy of excluding gay men from serving as adult leaders violated the D.C. Human Rights Act's prohibition of discrimination based on sexual orientation in employment and in access to places of public accommodation.
     After lengthy administrative proceedings, the Department ruled in April 1995 that it had no jurisdiction over the cases because BSA is not a "place of public accommodation" covered by the Human Rights Act, and because a volunteer is not an "employee" within the meaning of the Human Rights Act, and that the only paid BSA employment positions in this area are in Maryland. This decision was based on a Federal court ruling out of Chicago, based on its interpretation of federal anti -discrimination laws, which exempt private clubs from the public accommodations definition.
     Both the ACLU and the Gay & Lesbian Alliance (GLAA) protested this ruling. The DC Corporation Counsel was asked to review the Department's ruling. In February 1996, the Corporation Counsel overturned the Department's finding, agreeing that the District's Human Rights Law only exempts "distinctly private clubs" from the definition of public accommodations. The District had already found in earlier cases that the Big Brothers' local chapter was not a distinctly private club and therefore would have to give up its anti-gay ban (which they did, without further appeal), and that the Cosmos Club, perhaps the ritziest club in town, was not a distinctly private club, either, and therefore had to admit women as members.
     The Corporation Counsel effectively remanded the case back to the DC Department of Human Rights & Minority Business Development in May 1996, to resolve some other factual and legal issues -- such as whether BSA is covered as a "place" of public accommodations.
     On March 28, 1997, the Commission found "sufficient documentation" that the BSA Council violated the Human Rights Act when it expelled both Roland and Michael. This determination is required before a full hearing before the Commission can be held.
     On January 20, 1998, the Commission began hearing the case. In May 1998, Roland and Michael's counsel filed their Proposed Findings of Fact and Conclusions of Law (available as a WEB document), to which BSA responded with their own Findings and of course, Roland and Michael's counsel replied to BSA's Findings (available as a WEB document).

     In a stunning decision (available as a PDF file), on June 20, 2001, the DC Commission on Human Rights, found that the DC Human Rights Act's prohibition on sexual orientation discrimination in a place of public accommodation could be applied to require reinstatement of Roland and Michael, because in this case "admitting Complainants as adult leaders would not significantly affect the Boy Scout's [sic] ability to advocate its public or private viewpoints."
     In part, the Commission contrasted the situations of Roland and Michael to that of James Dale: "There is no evidence in the record that Mr. Geller is a gay activist. . . . He has not expressed his views about homosexuality to the public. . . . Like Mr. Geller, there is no evidence in the record that would suggest that Mr. Pool would advocate homosexuality as a BSA adult leader. . . . Further, the Commission finds that Mr. Pool was not a gay activist. He has not advocated any issues concerning homosexuality. . . . Accordingly, the Commission finds that Mr. Pool like Mr. Geller are individuals who would not send messages about homosexuality or its lifestyle [sic]."
     A lawyer for the BSA said the organization will almost certainly appeal to the D.C. Court of Appeals.
     "It's astounding that a commission located only a few blocks from the United States Supreme Court would so blatantly depart from controlling Supreme Court precedent," said George A. Davidson, who argued the Dale case before the high court and represented the BSA before the commission.

     On November 7, 2002, the District of Columbia Court of Appeals reversed the Commission's 2001 ruling against the BSA. The Commission has not decided if it would seek a reversal. To read the decision, click here, for media reports of this decision, click here.
 

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