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Mark Welsh v. BSA

October 2009 Update

     Mark is presently working in Chicago's financial district as a software engineer and project leader for a financial software company, having graduated from Purdue a few years back with highest honors in math and computer science.


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In 1989, six-year-old Mark Welsh of Burr Ridge, Illinois (a suburb of Chicago), was handed a flyer in his public school by his teacher: Join Tiger Cubs, BSA, & Have Lots of Fun! The flyer said "any boy . . . can join."
     His father, Elliott Welsh, who had been a Cub Scout, Boy Scout and Explorer Scout like his father before him, accompanied Mark to the meeting in the public school gym. He was told Tiger Cubs requires an adult to join with the child to serve as the Tiger Cub Partner, and to join Elliott had to complete a BSA Adult Application.
     On every BSA membership application (youth and adult) is an acknowledgment of agreement with the "Declaration of Religious Principles." After reading the application he explained he could not sign it. Upon hearing Elliot's refusal, a BSA official told him non-religious families could not participate at any level.
     They left school with Mark near tears and the family filed suit in March 1990 in federal court against BSA for violating Title II of Civil Rights Act of 1964 prohibiting places of public accommodation from discriminating. Later, when Mark could have joined Cub Scouting without an Adult Partner, it was made clear that the BSA would not permit his joining due to Mark's own agnosticism.

     As is usual in most cases, BSA filed a motion to dismiss the case in 1990. Judge Rovner held that in light of the First Amendment, it was questionable whether Congress would have the power to charter an organization officially entitled to discriminate on the basis of religion. Recognizing the admission of the BSA, to-wit: "It is not the role of the Boy Scouts of America to give theological interpretations. Religion is the responsibility of the Scout's family and religious leaders." ["Reaffirmation of the Position of The Boy Scouts of America on 'Duty to God'", 1985], Judge Rovner further stated that the BSA believe that Protestant members are willing to participate alongside of Catholics, Jews, Buddhists, Hindus, Unitarians, Deists, Hare Krishnas, and adherents to all religions known to humankind -- but not atheists or agnostics. "Indeed, the concept of 'God' is sufficiently vague that it is difficult to understand how the Boy Scouts can actually use, in practice, belief in God as a criterion for membership."
     Recognizing that invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment which has never been accorded affirmative constitutional protection, Judge Rovner stated that the BSA did not call to the Court's attention any specific expressive activities which the BSA conducts.
     Rejecting the BSA's argument that the organization was entitled to protection and a right to associate because they were bound by a common belief, the Court held that a whites-only club might similarly argue that its members are engaged in expressive association because they are bound together by a common belief that whites are better than blacks.
     Judge Rovner further stated that in light of the BSA's apparent tolerance for an innumerable variety of religious beliefs, it was difficult to understand how the organization could -- even if it so desired -- present a unified expression on positions concerning religion.
     Holding that the BSA do not engage in overtly religious activities or expression, based upon a review of the By-Laws, Rules and Regulations and other documents, the Court held that requiring the BSA to admit individuals who do not believe in God would not require the organization to alter any of its activities. As the United States Supreme Court held in Roberts v. United States Jaycees (1984) 468 U.S. 609, the admission of women into the Jaycees would not impede the organization's ability to engage in protected activities or to disseminate its preferred views, nor would the admission of two atheists or agnostics or "religiously ambivalent" Scouts impede the expressive activities of the Boy Scouts of America.

     In June 1991 the case of Welsh v. Boy Scouts of America, Inc., et al., (U. S. District Court for the Northern District of Illinois, Eastern Division, Case Number 90 C 1671.) went to trial.
     As is customary, the federal judge offered, in chambers, to mediate any possible compromise on the issue. BSA's attorneys indicated that their instructions permitted no deviations whatever on "duty to God." According to Elliott Welsh, "They made it clear that some folks simply weren't fit to be Boy Scouts, solely on religious grounds. They also made it clear that we were among those folks."
     The district court ruled that the BSA did not qualify as a place of public accommodation under the statute because "they do not operate from or avail their members of access to a particular facility or location." Judge Cummings later noted in his dissent the seemingly completely opposite conclusions that Judge Rovner had stated before and after the trial: "Since this case involves primarily legal not factual questions, it is unclear what occurred during the trial to cause such a remarkable change in the district court's reasoning."
     The Welshes appealed the decision to the United States Court of Appeals for the Seventh Circuit. The case was argued on November 13, 1992 and the appellate court released their opinion on May 17, 1993.
     The appellate court upheld the district court ruling in favor of the BSA. Both the district court and the Court of Appeals for the Seventh Circuit in Chicago held, on the narrow grounds of the lawsuit, that BSA is not a "place of public accommodation," therefore the Civil Rights Act did not apply.
     The Welshes appealed the case to the US Supreme Court and the BSA, in an unusual move, urged the Supreme Court to take the case. In December 1993, the US Supreme Court refused the Welsh appeal, thereby letting the circuit court's decision stand.
     "If BSA intends to issue invitations to children in public schools, they ought to 'Be Prepared' to abide by the admissions standards of public schools and stop discriminating on the basis of religious belief," noted Elliott Welsh. A "private religious club" should not expect the public to support it. The Welsh's local school board, as a result of the religious-based discrimination, stopped recruiting for BSA and now requires them to pay rent, like any other religious organization using school facilities.
    In other matters relating to the case, a local Tiger Cub volunteer who told the council that she too was non-religious, was forced to resign after more than three years of service. A Scout volunteer for 35 years was removed as a volunteer after testifying for the Welshes in court. The reasons? Simply for exercising his First Amendment right.

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