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Boy Scouts Feel The Sting Of Discrimination
Sean Aqui shares a cautionary tale about the realities of excluding entire groups from your ranks.
In short, be careful what you wish for…
25 Responses to “Boy Scouts Feel The Sting Of Discrimination”
To some degree, it’s true that the Boy Scouts can’t have it both ways. They want to reserve the right to restrict membership on certain criteria because they are a private group, therefore they should not accept direct public funding. But where I disagree is that some communities choose to allow access to facilities to scouts as well as other groups, who also don’t meet strict standards of nondiscrimination. The community, local govt, etc should not be forced to provide meeting spaces but neither should it be forbidden to do so according to the will of the citizens of the community. What the article fails to mention is that the backlash didn’t happen spontaneously (which would imply that the city governments, schools, etc had voluntarily reconsidered their support of scouting) but rather they were strongarmed into doing so by ACLU lawsuits. The blacklisting is wrong because it creates a situation where potential sponsors can’t make up their own mind on whether they want to support scouts or not.
Stanley I see your point but the fact that the ACLU was able to force their ouster is because there was a law supporting it. If the law says that public money cannot go to associations that discriminate, then that law must be followed. You are allowed to exclude Gays, or Blacks, or Whites, Christians or Atheists, men or women from your clubs, but you can’t get public funding in that case. If you change that law then you open the door to truly discriminatory people like the KKK demanding equality in funding.
I do see a problem in that if no one powerfull like the ACLU goes after them, a discriminatory association can get away with getting public funds if the local government allows it, so the law is not applied equally, which is wrong. The aplication is wrong, the principle however, is correct.
The challenges weren’t on direct public funding though, they were on areas that are grey in the laws rather than black and white. The Supreme Court has upheld, for example, the right for religious groups to use school facilities after hours as long as the school officials have a policy that allows equal access to all groups. They have come down on the side of allowing these decisions to be made locally. And many of the ACLU challenges were settled out of court because the cities or schools didn’t feel they could fight the influence of the ACLU, so it’s not as though the Supreme Court ever got a chance to arbitrate where the law stands on the sponsorship issues.
If the will of the community is to support the KKK it’s their community right to do so? The fact of the matter some issues are bigger than a community and at the end of the day we are all American’s regardless of sexual orientation.
C Stanley do you have any specific examples of this? From what I’ve heard the ACLU fights against them when there is stuff like this:
Also the Jamboree is on a military base where again they pay $1/year to lease the land. From the ACLU site: “Last year a federal district court judge in Chicago found that the Pentagon’s special expenditure of more than $7 million for each Jamboree violated the principle of government neutrality in religion and ordered the funding stopped.”
I have not heard of any case where the ACLU sued a school for giving access to the Scouts for instance (although I *think* I remember hearing a case where there wasn’ equal access so there was a suit). What the ACLU sued public school districts about was chartering troops and helping to pay for their activities. I found this on a site complaining about the lawsuits: “Removal of a scouting unit’s charter from a school will not necessarily remove its presence from the school, Shields said, noting that groups will still have access to public school facilities; they just won’t be chartered by the schools.”
I think the main point was that the focus of the scouts has shifted and the organization is simply not what it was, and this fundamental change in the spirit has ruined a once great thing. People and kids want to hike and learn to have fun in nature, not go to an extended bible camp. The funding is just a secondary matter.
They can still rent the public facilities, they just won’t get the special discounts. Other groups also do NOT get these discounts.
Remember, the BSoA opened this can of worm on themselves. They wanted to restrict membership and the Supereme Court agreed. The same goes for the PGA, who doesn’t admit women (hence the formation of the LPGA). I know where was a case against the PGA for that and I don’t follow golf and I don’t know the resolution.
I have little sympathy for their plight for personal reasons. Here Utah all but one of the BSoA charters are sponsored by the LDS Church. While growing up I quit the Scouts because I was sneered at for not being a Mormon.
Mikkel,
You may be right about the sponsoring/chartering issue but my impression was that all that really implied was use of facilities. I will look into it further.
There are plenty of cases where ACLU suits are over free access issues though; in many of these that have made it to the SC the court has sided with the scouts (one in Oregon where the complaint was against the scouts recruiting at schools, handing out flyers, etc). And then there have been some cases where the courts have sided with ACLU, like this case against the Sea Scouts in Berkley (wrongly IMO)
Here is an article that covers the Jamboree issue. An exerpt:
In any case where there is direct funding, I agree that the law should exclude the scouts under their current rules. But a lot of these cases do involve free access issues, or indirect costs (which are also sometimes offset by the services that the scouts provide- I can’t find a reference and don’t remember the location but I also read of one park where the city ran out of funds to build a shelter, so the local scout troop volunteered to build and maintain it; the agreement lasted for years until the ACLU strongarmed the city into breaking the contract).
Whenever that is the case, I agree Rambie, but often the suits are brought even in cases where other groups DO get the discounts (see the link I just posted about the Sea Scouts in Berkley) or where there have been agreements for the scouts to provide services in exchange for free meeting space.
Most synagogues which sponsored Boy Scout troops ceased to do so over this issue and most Jewish parents withdrew their children from Boy Scout troops. It didn’t have anything to do with the ACLU but rather with doing the right thing.
Holly,
I fully support the synagogues’ right to do so if that is their feeling about it.
Er, I’m confused C Stanley. You said it should be up to the localities to decide but the Sea Scouts thing was the city removing the access…not the ACLU. Is tehre something I’m missing? Plus “concluding that the Sea Scouts remain free to exercise their constitutional rights at the full price of berthing in the marina.” Again, it’d show favoritism to charge them nothing.
Nevermind I missed the point about the other programs. But still it was the city’s choice.
I agree it should be decided locally, there have been cases filed here in Utah about it. Most cities still support the Scouts and I have no problem with it as it was decided locally.
I read about the Sea Scouts issue a while back. In fact, it was cited here in a Utah case. It was the City who decided to pull free birthing, not a national group. I don’t consider the BSoA web site a non-biased news source for this issue.
That link references this a news article with this:
So the Boy Souts want to discriminate, but do NOT want to be discriminated themselves. So they do want it both ways…. no pun intended. The article goes on to say the Sea Scouts didn’t loose the birth, but had to pay rent.
If anything, the Sea Scouts should try to get the city’s anti-discrimination laws changed.
Mikkel,
You are right, I mistakenly lumped the Berkley case with others that were brought by ACLU. To clarify, here’s my stance:
1. Boy Scouts chose to limit their membership and they do thus have to live by certain consequences of that decision.
2. Some funders may choose not to fund, some venues may choose not to give free use of facilities (which is fine by me as long as the policy also applies to other such groups), and some parents may not wish their kids to become scouts.
3. My objection in regard to ACLU is that it stepped in where it had no business to do so, in effect “blacklisting” BSA and filing and threatening suits to prevent cities, schools, etc from offering free access rights to BSA. Whenever that is done on an equal basis with other private membership organizations, the deal should be between the city/school/etc and the organization without outside interference.
4. My objection to the Berkley Sea Scout decision is that the rules aren’t being applied equally across the board. Either no groups with membership restrictions should be allowed free use of the space, or all of them should.
5. I feel that the ACLU has also misrepresented facts to the public by neglecting to acknowledge that in some situations where the BSA had agreements to use facilities without fees, the agreements were based on the BSA donating services to ‘pay their way’. I’m sure that is not true in all cases, and where they were given beneficial treatment in comparison with other similar organizations, I would agree that the deals are not fair, but the ACLU has led many people to believe that the BSA was completely asking for preferential treatment in all cases.
Rambie,
What the Sea Scouts were asking for in the Berkley case was a ruling on the city’s anti discrimination laws being applied fairly; other private membership organizations which “discriminate” (not a fair word for this practice IMO- either you accept that private organizations can choose who to include/exclude or you don’t) are not targeted by the city, but the BSA are. Clearly the city is trying to redefine discrimination in a way that the SC already ruled in the other direction. The city is trying to distinguish between gender ‘discrimination’ by some private groups (which it does not have a problem with) and sexual orientation ‘discrimination’ which it does have a problem with.
Link
I skimmed the case in March when the California court ruled. I did not remember the Sea Scouts showing any evidence that Berkeley is funding or subsidizing any other groups who refused to “provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy”
CS, can you point to any specific evidence? I did a quick Google News search and didn’t find any evidence listed in the articles.
I agree that if a City has a nondiscrimination policy they need to be consistent in enforcement and the City needs to live by it. Just like the Scouts have to live with their pro-discrimination policy.
Rambie,
Here’s a link to a brief that was filed by BSA counsel on behalf of the Sea Scouts. It references other organizations which could similarly be accused of ‘discrimination’ because of their membership policies based on age, gender, etc. But the main argument that they are making is that the city’s policy as it is being interpreted is an example of viewpoint discrimination; they are requiring the scouts to denounce a policy as discriminatory when the SC has already upheld their policy and protected it, which distinguishes it from illegal discrimination. If that decision is accepted, then the city can’t put further restrictions on it.
CS, did the City require those groups to, “provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy” for free rent on a berth or any other city “funding or subsidy”?
I skimmed the document, as an Amius Curiae Brief its trying to support one side against the other and is full of references to other cases. I’m not a lawyer and I do not have access or the background to research it fully.
Yes they did say a private organization, like the BSA, can determine who may/may not join their organization.
However, the SCOTUS also upheld, without comment, the California Supreme Court ruling of:
You’d have a case if they refused to rent a berth to the Sea Scouts at all, but the City did not do that.
You’d also have a case if there was documented evidence of the City was asking the Sea Scouts to file a document but let the KKK through.
In this case, I feel, the BSA is reaping what they have sown.
Left out by closing…
What the SC ruled today is consistent.
- Private organizations like the BSA, and affiliated groups, can choose who to allow to join their organizations.
- A government can require a recipient of funding or subsidy to provide compliance with nondiscrimination policies in order to get said funding or subsidy.
I supported the first SC ruling as I don’t think government should be sticking its nose into private organizations. I also support this new ruling too, as private organizations shouldn’t be entitled to government funding or subsidies if they do not comply with nondiscrimination policies.
Rambie,
I can see this particular issue both ways but my personal feeling is that government entities shouldn’t be judging the political correctness of a nonprofit group in making subsidies like this. It is fine for that judgement to be part of an individual, corporation, foundation or church group’s decision to give support to a nonprofit, but if the membership policies have been upheld by the courts then I don’t think a govt entity should have the right to put further restrictions on it. What they are then doing is giving preferential treatment to groups that meet their own politically correct viewpoint standards. In effect, the SC already decided that the BSA policy isn’t causing harm, which should be the standard in regard to discrimination IMO. This is different from what the city’s policy on discrimination among its employees should be, for example, because the city must ensure equal opportunity for employment to all citizens. It is not obligated (nor should it) to ensure equal opportunity to enroll in scouting activities.
So, in allowing the community to decide support for nonprofits, my feeling is that it has to be all or nothing. Either the govt entities in the locale say that all nonprofits (which have to fit the criteria of performing services for the greater good, so I don’t think the KKK would meet the standard- they’re not a nonprofit, are they?) should be given equal treatment. In my view, either Berkley allows all nonprofits to get the free berth space or none of them get it. The city isn’t supposed to be in the position of judging the discrimination/nondiscrimination policies of the nonprofits, because by doing so it endorses discrimination of certain viewpoints.
“In effect, the SC already decided that the BSA policy isn’t causing harm, which should be the standard in regard to discrimination IMO…The city isn’t supposed to be in the position of judging the discrimination/nondiscrimination policies of the nonprofits, because by doing so it endorses discrimination of certain viewpoints.”
Courts rule on what’s constitutional, not what causes “harm.” The legislature can pass laws on what morals they think should be held in the city as long as it doesn’t infringe on “rights” that the courts have upheld. From another thread you state this directly: “There are a number of behaviors that I believe are morally wrong and in some of these cases I feel there is reason for the govt to discourage rather than encourage the behavior.”
A better argument in my opinion is that the city shouldn’t judge discrimination policies because of the irony of discriminating themselves. I think this might have validity, but there are thousands of laws about the “public good” that have implicit endorsement of certain viewpoints. I think a reasonable compromise would have been to sign a contract where the scouts could use it for free but do the pay your way through labor agreement.
Mikkel,
My opinion on this is evolving and I tend to agree with your final statement. I’m sort of reaching the point of saying that the city govts shouldn’t do any of these subsidizing deals because it seems impossible to meet all standards of constitutionality; but since that would mean that nonprofits would suffer since they often don’t have the cash, they could provid in-kind services to pay their way instead.
On that we agree. The easiest and most fair thing to do would be to make all non-profits pay their way thorugh in-kind services if they can’t afford it. Either arrangements could be made where clubs contribute directly through their stated purpose (like scouts building things), or there could be assorted charity drives if the nonprofit’s aim isn’t in line with an in-kind service, or for some nonprofits that aim to help society in the long run (through trying to get research done on diseases or whatever) the city could provide access as long as the nonprofit attempts to use their contacts to bring business to the community.
CS: …either Berkley allows all nonprofits to get the free berth space or none of them get it.
I can too see this issue from both sides, and in this particular instance, I wouldn’t care if the Sea Scouts got a free berth. Even though they are associated with the BSA they have never been accused of discriminating themselves.
A few questions I never heard asked of them are: All news reports that bring it up say there are associated with the BSA. What does this association bring the Sea Scouts? Does that mean the Sea Scouts have to follow all the rules of the BSA? If not, and given their history of not discriminating, couldn’t the Sea Scouts just of signed the form Berkley asked them to?
However, I liked Mikkel’s suggestion, “I think a reasonable compromise would have been to sign a contract where the scouts could use it for free but do the pay your way through labor agreement.”