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Can private organizations like BSA discriminate?

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BSA has gotten embroiled in various discrimination issues over the past many years.  Most of us remember the flap over whether gay scouts should be allowed. Then it was, well, how about gay adults?  Then we had the gender flaps about girls in troops and whether a transgender was male or female or other....

We know how most of these have washed out.

But the general questions still linger in the minds of many in the legal community, and among certain conservatives who regard the issues as "religious questions".

I'm not taking any stand on any of these issues, but I find it interesting to learn about the reasoning that underlies the various arguments. That's why I enjoyed reading this article about whether or not BSA was within its rights as a private organization to set policies as to who it would or would not associate with.  You may find it interesting as well...
https://www.law.com/njlawjournal/2019/11/14/revisiting-boy-scouts-of-america-v-dale-and-the-right-to-discriminate/ 

 

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If a business provides a service or product, it may not discriminate against the customer. (ie "we don't serve your kind".)

An organization and can have its own membership policies (Freedom of Association). BSA  acting as a business selling popcorn cannot choose to "not sell to certain groups". Or if they "rent" their facilities to others, they cannot discriminate.  

This is how I see it (as a non-attorney).

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Cannot find a way to actually read the piece.  Is there another link I am missing?

 

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52 minutes ago, skeptic said:

Cannot find a way to actually read the piece.  Is there another link I am missing?

 

There's not a paywall there, so it's possible you have a problem with your local web browser.

Try browsing via a high-level page, then navigate to the article. You can find it linked by entering this as your URL:
law.com/njlawjournal

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Analysis

Revisiting 'Boy Scouts of America v. Dale' and the Right to Discriminate

How the Boy Scouts’ court victory to exclude gays defeated the organization and is instructive in the struggle for LGBTQ rights today.

By Thomas H. Prol | November 14, 2019 at 10:00 AM
 
   
boy-scoutsBigstock.

In 1999, a decision by the Supreme Court of New Jersey read as follows:

 
 

This is what I am getting on both the link just shared and the one that comes up in the original post.  I can see no way to actually get the article unless some kind of registration occurs.  Maybe I am missing something.

 

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It should be the top result in this search.

https://news.google.com/search?q=revisiting-boy-scouts-of-america-v-dale-and-the-right-to-discriminate&hl=en-US&gl=US&ceid=US:en

This article reminded me of the flap over Susan G. Komen's relationship with Planned Parenthood. In wavering back and forth in an attempt to please everyone, you please no one.

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Much as Pickett's Charge breaching the Union line on Cemetery Ridge at the Battle of Gettysburg (1863) is considered by some the "high-water mark of the Confederacy," the Supreme Court decision in the Dale case (2000) could be considered the high-water mark of BSA's war in defense of "traditional values."  With each, there was a brief period of seeming victory, followed by retreat and disappointment.  According to this article, after Dale, BSA's membership suffered a casualty rate similar to that of the Confederate forces attacking the center of the Union line that day -- approximately 50% (4.8 million as of 1998, 2.3 million as of 2016).  I don't know that it is accurate to attribute all of that membership decline to public disapproval of BSA's "right to discriminate."  Some of that decline was self-inflicted in 2013-2014 after BSA decided to admit gay youth and in 2015 when the ban on gay adult leaders was lifted.  All part of the same war, though.  

There will always be debates over whether Pickett's Charge (also known as Longstreet's Assault) was a mistake -- whether Lee should have realized after the first two days of battle that his advantage had been lost and there was no knock-out blow to be had at Gettysburg.  The same could be said of BSA and Dale -- after all, Ellen DeGeneres had come out as lesbian on national television in 1997 and the New Jersey state Supreme Court had ruled 7-0 against BSA in 1999 -- public sentiment concerning homosexuality was already turning.

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The article's regurgitation of facts is very confusing. It attributes BSA's membership loss to its entrenchment in Dale, but elevates GS/USA for its support of a permissive sexual ethic without acknowleging it's equally precipitous membership trajectory. It further ignores the rise in membership of the nascent TL/USA and AHG, both of which uphold restrictive sexual ethics.

It also fails to acknowledge that the court made clear that artisans cannot be compelled to act as conscripts of a cause to spite their religion.

Furthermore, it does not opine on BSA's declaration of religious principle, and how that has truly hampered the organization's role in public institutions.

It is neither investigative nor instructive. We've seen these articles before.

What is clear: private organization's can and do discriminate, but should they?

 

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I remember researching and reading on this as it was fascinating.  I always wondered if this case would be decided differently now ... or differently depending on the mix of the Supreme Court (which has recently gone conservative again).  I reference the membership rules for a local community organization.  I'm trying to remember the group.  Not the Lions.  ??? ... I can't remember the name.  Back in the 1980s they did not admit women.  Then they were sued and lost.  It bounced different levels up the court system but they did conclusively lose in the end.  The argument was was the organization was mainly a civic organization and there were laws to promote non-discrimination.  As such, there was strong interest in the state to see that such civic organizations did not discriminate.  

I always wondered if BSA could have lost as BSA serves far more in the civil role than a religious role.  Thus it could have been strongly argued that BSA had to not restrict membership. ...   BUT units could have been restrictive, if the charter was a religious organization, as you can't force a religious organization to violate it's own fundamental tenants.  

My oldest son entered 1st grade right after Dale v BSA concluded.  Our family has seen the membership ranks dwindle drastically.  ... BUT ... I don't think it's all Dale v BSA.  Some yes, but I think the larger issue is the change in society.  In the last twenty years, society has drastically shifted what's ok / not ok.  Habits and tech has also drastically shifted. 

It's clear Dale v BSA has affected our access to schools.  That has hurt recruitment.  BUT, I think there are other larger factors happening at the exact same time.  The old "perfect storm".  

....

Sears recently failed.  It could be argued Sears failed to stay current and significant to the current generation.  I really hope BSA does not go the same way.

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5 hours ago, qwazse said:

It attributes BSA's membership loss to its entrenchment in Dale, but elevates GS/USA for its support of a permissive sexual ethic without acknowleging it's equally precipitous membership trajectory. It further ignores the rise in membership of the nascent TL/USA and AHG, both of which uphold restrictive sexual ethics.

It also fails to note that the BSA suffered a similarly sized membership loss between 1970 and 2000, long before Dale.

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52 minutes ago, fred8033 said:

... I'm trying to remember the group.  Not the Lions.  ??? ... I can't remember the name.  Back in the 1980s they did not admit women.  Then they were sued and lost.  It bounced different levels up the court system but they did conclusively lose in the end.  The argument was was the organization was mainly a civic organization and there were laws to promote non-discrimination.  As such, there was strong interest in the state to see that such civic organizations did not discriminate.  

The Jaycees.  ... What's sad is that the local Jaycee organization is now gone.  Was that due to the court ruling?  Or society trends?  Not sure.  

https://en.wikipedia.org/wiki/Roberts_v._United_States_Jaycees

I always thought the Jaycee case was similar to the Boy Scout case.

Edited by fred8033

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I think there we are feeling the effects of both sides of this argument.  First people left (or didn't join) because we were discriminatory. Then another group left because we "abandoned traditional values" without the first group really coming back. The statement of religious principle still prevents many others from viewing us as non-discriminatory. 

Admitting girls should have set us up for a bit of revival by putting us in the news in a good light.  The problem is that it has come as the exact same time as the abuse scandals.  I still don't view this as a program problem. We mostly have a PR problem.  

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43 minutes ago, fred8033 said:

The Jaycees.  ... What's sad is that the local Jaycee organization is now gone.  Was that due to the court ruling?  Or society trends?  Not sure.  

 

The Jaycees case was different because they in fact already admitted women; but at a lower standard of [non-voting] membership - basically second class citizens/members. The Jaycees also treated older men the same way. The result of the case was that women would be able to seek full membership. I don't think it helped older men.

I would imagine that if the Jaycees had completely excluded women, then the result of the case would have been different.

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36 minutes ago, Hawkwin said:

The Jaycees case was different because they in fact already admitted women; but at a lower standard of [non-voting] membership - basically second class citizens/members. The Jaycees also treated older men the same way. The result of the case was that women would be able to seek full membership. I don't think it helped older men.

I would imagine that if the Jaycees had completely excluded women, then the result of the case would have been different.

I did not know that, but it could be BSA admitted girls but at a lower level (volunteer and paid leaders, but not participants).   I still would argue that there is a reasoning / logic link between the two.

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