Rep John Hostettler ( R-Indiana ) has introduced a bill to prohibit the Commission on Human Rights of the District of Columbia from implementing a decision it rendered against the Boy Scouts of America.
The "Boy Scouts' Constitutional Rights Protection Act," introduced late on June 28, would prohibit the D.C. government from spending money to collect the penalty assessed against the Scouts for discriminating against two gay troop leaders.
The long-running saga began in 1992 when Roland Pool and Michael Geller filed complaints with the Office of Human Rights charging that the Scouts and their National Capital Area Council engaged in unlawful discrimination by revoking their scout membership because of their sexual orientation.
They argued that action was in violation of the D.C. Human Rights Act of 1977 that functions as a bill of rights for the District, which does not have a state constitution.
The cases went through a prolonged series of procedural rulings and appeals before 12 days of public hearings, the administrative equivalent of a trial, held in early 1998. Additional briefs were filed after the U.S. Supreme Court rule in the "Dale" case, in June 2000, that the Scouts were a private organization that had the right to discriminate.
The Commission found for Pool and Geller in their decision issued on the evening of June 20. In a 75-page decision that drew in great detail from the record of the hearings and case law, the Commission laid out why it had jurisdiction and how this case differed from the Dale case.
"There is nothing in the record since the inception of the Boy Scouts in 1910 that such a policy [ of anti-gay discrimination ] existed prior to 1978." It found, "The policy appears to be no more than a private statement of a few BSA executives, a view that is not actually expression the BSA engages in ... the policy was never publicly expressed in various BSA literature—unlike, as an example, the Scout Oath and Law."
The Commission argued that the U.S. Supreme Court applied free speech and association arguments to the James Dale case because of his role as co-president of the Rutgers' Lesbian/Gay Alliance and associated media coverage. That visibility established Dale's credentials as an advocate and introduced a specific set of dynamics to his continued relationship with the Scouts.
But "there is no evidence in the record that Mr. Geller is a gay activist ... there is no evidence in the record that would suggest that Mr. Pool would advocate homosexuality as a BSA adult leader." It called them "individuals who would not send messages about homosexuality or its lifestyle."
"Mr. Geller and Mr. Pool are non-messengers. They merely have the status of being gay. Their inclusion within the BSA will not infringe on any message the BSA has about instilling values into youth. And because they are not messengers" as was the case in the Hurley decision, their "inclusion in the BSA would not infringe upon BSA's public or private viewpoints about homosexuality."
Finally, the Commission found "that the District of Columbia has a compelling interest, over First Amendment rights, in eliminating discrimination in public accommodations." It cited D.C.'s Human Rights Act: "Every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District and to have an equal opportunity to participate in all aspects of life, including but not limited to…places of public accommodation."
It found that the BSA and National Capital Area Council did discriminate against the two men "because of their sexual orientation." It ordered that Pool and Geller be reinstated as members of the Scouts, awarded $50,000 each in compensation for "humiliation and embarrassment," and that the Scouts pay their legal fees.
BSA attorney George A. Davidson said that his client likely would appeal the decision to the DC Court of Appeals.
Gay Activist Alliance vice president Rick Rosendall had mixed emotions about the verdict. While he was grateful for the win in light of the Dale ruling, "there is something chilling about a decision that says if you keep your mouth shut you are protected, but if you express your opinion, that makes you an activist and you are not protected."
"It demonstrates how accepting an outrageous ruling in the first place [ the Dale decision ] is very corrupting" on the legal process, he said.
Rep. Hostettler, in a statement released by his office, said it was "frightening that a so-called 'human rights commission' feels it can penalize an institution like the Boy Scouts for practices that are clearly protected by the U.S. Constitution." Thus he offered his bill to prohibit D.C. from spending money to implement the ruling. Six other right-wing legislators in the House have joined as initial co-sponsors of the measure.
It seems unlikely to advance on its own but may later be offered as an amendment to an appropriations bill for the District of Columbia. D.C.'s budget, including locally raised property, sales, and income tax revenue, is technically part of the federal budget and must be approved by Congress.
"We all expected that, and from the usual suspects," Rosendall of the bill. He argues that if the legislators really believe that the Commission ruling will not stand up in light of the Dale decision, they should let the appeals process run its course.
But politics rather than justice is what is driving this legislation. Those same representatives are the ones that have offered "riders" to D.C. bills on a number of social issues. Their targets in recent years have been to prevent implementation of the locally passed medical marijuana initiative, needle-exchange programs to reduce the spread of HIV, and adoption by gays and lesbians.
Rosendall calls it "cost-free demagoguery" as it does not affect the people living in the representatives' home districts.
The Senate traditionally has been less sympathetic to such amendments. That seems to be even more the case now that it is under Democratic control.
The Human Rights Commission decision is available online at www.rdblaw.com/boyscouts.pdf