See:

http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

Currently, the BSA is discussing potentially removing the national membership restriction regarding sexual orientation. This would mean there would no longer be any national policy regarding sexual orientation, and the chartered organizations that oversee and deliver Scouting would accept membership and select leaders consistent with each organizations mission, principles, or religious beliefs. BSA members and parents would be able to choose a local unit that best meets the needs of their families"

The way I read this is the CO will be able to select leaders based on its own criteria, so I think they can. It also states people should choose a unit that best meets its needs, so if a CO does not, then look elsewhere if they want to be a member.

There should be ample precendent with respect to potential litigation regarding denying gay adults membership in a specific CO's unit. COs are currently allowed to discriminate based on gender. How many lawsuits have been filed by women because they couldn't join a specific CO and has the BSA defended the CO?

If this is a serious issue, there should be many cases available to cite since half the population is female. And please don't cite any cases involving employment law. These are volunteer positions and not the same as a paid employee.

SA

The Dale decision is still the law of the land. Right of Free Association. Charter organizations can discriminate on membership with the full backing of the SCOTUS.

I think Sentinel947 has it right. That Supreme Court decision cuts both ways. If a private club can discriminate, then that's that. I don't see this as a problem.

As a matter of fact, it brings membership to the marketplace. People will be free to choose membership in units that reflect their views.
So let's see, greater freedom, more choices....What IS the problem?

The Dale decision is still the law of the land. Right of Free Association. Charter organizations can discriminate on membership with the full backing of the SCOTUS.

If they're private organizations that can discriminate in those ways (sexual orientation, religion, sex, age), yes. But if a council is rash enough to start chartering public schools without the BSA allowing atheists, that won't fly.

For reference, here are a couple of instances of scout leaders being rejected on the basis of religion (Muslim and LDS); I don't think there were any lawsuits:

http://www.deseretnews.com/article/452361/SCOUT-LEADER-LOSES-HIGHER-POST-DUE-TO-RELIGION.html?pg=all
http://www.deseretnews.com/article/700074848/North-Carolina-Scout-leadership-post-denied-for-Mormon-parents.html?pg=all

The plight of the little existing Church CO and whether the BSA will defend them keeps popping up on other boards too. I dont see much problem here.

To echo and supplement a point made by OGE and others, a Chartered Organization applying its own principles or beliefs in denying membership or leadership would be applying principles or beliefs they already apply in other parts of Chartered Organization operation. Given this, one would assume that they are firmly convicted enough in that to hold fast to their principles and beliefs.

For example, plenty of churches allow no gay priests, or gay coaches of sports teams, or gay teachers in Sunday school. They almost certainly know how to deal with this and any protests, press, complaints or suits. One way or another they make clear their organizations principles and beliefs, and those who join or consider joining can exercise their right of association: if that church is too non-inclusive for them in terms of priests, coaches and teachers, there is probably a more inclusive church nearby.

We can all associate in a church whose applications of principles and beliefs are aligned with our own.

So, yeah, those churches would probably apply that to Scout leaders too and not approve gay Scout leaders. Actually, continue to apply it, as they are now.

And I suspect those churches would not abandon their programs of liturgy and pastoral care because of demands of gay potential priests, or abandon athletic teams because of complaints of gay potential coaches, or stop Sunday School because of gripes of gay potential teachers. Likewise, if Scouting fits with their youth programs, I suspect theyll not abandon Scouting because of claims or lawsuits of gay potential leaders or members. (Plus, the BSA did them a solid favor in the Dale case, which allows association in this fashion.)

Yeah, the BSA issue -- since it has been a hot button issue -- may attract more complaints, protests or even lawsuits (certain to fail on account of Dale) just because there is more press about that today than there is about sports or Sunday school or (in some, but not all, faiths) gay priests. And, as noted, the 1st Amendment limits government redress here for a complaining party against a church, so between that and Dale, lawsuits are not likely.

And compared to the current universal ban, the plight of a Scout or Leader banned from a less inclusive church unit will not seem as dire. If that churchs Scout unit is too non-inclusive for them, there is probably a more inclusive church and Scout unit nearby. Last I checked, the transfer fee on an application was a buck.

Just like picking a church, we can all associate in a Scouting unit whose applications of principles and beliefs are aligned with our own.

The notion that the BSA is opening up CO's to individual lawsuits over CO's making their own decision over allowing gay members and leaders is akin to the notion that the government is going to take your gun if you have to register it.

It's nonsense being used as a scare tactic hoping enough ignorant people will make a stink.

(note how neatly I brought the two hot issues right now together?)

"If they're private organizations that can discriminate in those ways (sexual orientation, religion, sex, age), yes. But if a council is rash enough to start chartering public schools without the BSA allowing atheists, that won't fly.

For reference, here are a couple of instances of scout leaders being rejected on the basis of religion (Muslim and LDS); I don't think there were any lawsuits: "

You couldn't be more right Merlyn. Utimately allowing Homosexuals doesn't change the faith-based nature of the program.

The BSA still will not allow Atheists, and so the Schools should not be chartering BSA Units.
On the Atheism in Scouting thing, the situation hasn't changed.

Sentinel947

Yes, SCOTUS has stated that the BSA is a private organization. Getting out of the Ft. A.P. Hill set-up for jambo should re-inforce that belief.

But, keep in mind that I can see why some folks feel the BSA should be legally viewed as a public organization.

But, as a private organization, there should be zero legal blow-back for barring membership based on sexual orientation.

Politically, I can see very little damage in having more restrictive membership qualifications for adults but I would think the negative feedback for not allowing youth membership would be quite a bit higher.

no offense acco, but what people "feel" doesn't always translate into what the law is. At the moment the law says the BSA is a private organization.

I agree that the BSA has a very interesting relationship with public and private entities.

Yours in Service,
Sentinel947

Yah, OK, let's hold on for a moment.

At first blush, I agree with most here. It's hard to imagine a viable case against a church which wouldn't get laughed out of court with a summary dismissal.

It gets quite a bit trickier, though, when we get beyond da churches. In all likelihood a lot of our charter partners - mens' groups, VFW posts, "parents of" organizations, etc. would fall under state anti-discrimination laws without da same sort of special protections that churches have.

Remember, the Dale decision was fairly limited, eh? It did not give blanket approval to "private" organizations to discriminate. Rather it turned specifically on da notion of "expressive association." It has to be a part of da mission of da organization in some fundamental way, which would be impinged upon by the statute. That case may be harder to make for some of our charter partners, who up until now have sheltered under da BSA's position and mission to instill the values of the Scout Oath and Law.

On a more practical level, most charter partners do not have da financial resources to be able to contest this sort of case very easily, even if they are in da right. And there would be no reasonable grounds for da BSA to intervene in such a case, having given up its interest in expressive association in this way.

Beavah, you are the lawyer, I'm the lowly Political Science Major.. So I'll take your judgement over mine on this sorta stuff. However you wrote: "mens' groups, VFW posts, "parents of" organizations".

Most of these groups don't seem like the kind to have discriminatory policies. Especially the VFW after the end of DADT. I'm sure there ARE, but because of the Secular nature of those groups, I'd assume that many of them wouldn't be electing to discriminate against openly homosexual leaders.(This message has been edited by Sentinel947)

Most of these groups don't seem like the kind to have discriminatory policies.

Hard to say, eh? Up until now, all these groups have sheltered under da BSA position, and haven't really had to have policies on da matter. Da American Legion is a major charter partner, and has generally come down on da conservative side on this issue. There are a lot of parents in "Parents of" organizations that feel pretty strongly on this issue as well, eh? We have a lot of business/industry charters, some of 'em to conservative-owned private industry. I don't know what da position of da private schools like military boarding schools is. It's a pretty diverse group of non-church civic organizations that charter units.

B