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A coalition of civil rights groups say Connecticut should not permit the Boy Scouts of America to raise money from state employees as long as the Scouts discriminate against homosexuals. The Boy Scouts are among a number of organizations that receive money raised during the annual State Employee Campaign for Charitable Giving. The Scouts received about $10,000 from the campaign in each of the past two years. Last fall, the Campaign Committee, at the urging of state Comptroller Nancy Wyman, asked the state Commission on Human Rights and Opportunities to rule on whether the Scouts’ policy and their inclusion in the campaign violate state law. The CHRO is to consider the question this week. Four civil rights groups, including the Connecticut Civil Liberties Union, have intervened in the case, saying the Scouts should not be allowed to participate in the campaign because they are violating the state Gay Rights Law, which outlaws discrimination based on sexual orientation. The groups say the Scouts’ policy helps promote a climate of bigotry against young gays and lesbians, and that their inclusion in the campaign illegally uses state resources to further discrimination. The Scouts are candid about their refusal to admit openly gay members. To do so, says attorney Daniel L. Schwartz, would be contrary to the Scouts’ moral code. But Schwartz denies that the Scouts are violating state law. In fact, he says, the Scouts’ policy is protected by the First Amendment. The CCLU, the Connecticut Coalition for Lesbian, Gay, Bisexual and Transgender Civil Rights, the Connecticut Women’s Education and Legal Fund, and Gay and Lesbian Advocates and Defenders, say the state’s interest in eliminating discrimination outweighs the Scouts’ constitutional protections. Both sides presented their cases to the CHRO April 27, two days after the U.S. Supreme Court heard oral arguments in Dale v. Boy Scouts of America, which involves the dismissal of a gay scoutmaster in New Jersey. Schwartz, of the Stamford office of Day, Berry & Howard, has asked CHRO to delay its decision until the high court rules in Dale. The central question in both Dale and the Connecticut case, Schwartz said, is whether the Scouts’ policy on gays is protected by the First Amendment’s guarantees of freedom of speech and of association. Schwartz said it would be “nonsensical” for the CHRO “to attempt to interpret or determine the Boy Scouts’ Constitutional rights of free speech and freedom of expression when that very issue is due to be decided by the U.S. Supreme Court by the end of June.” But Maureen M. Murphy, one of three attorneys for the civil rights organizations, sees a significant difference between the two cases. Not only does Dale involve New Jersey law, said Murphy, a New Haven solo, but it’s likely Dale will address only the question of whether the Scouts must hire or permit openly gay adult volunteers, and not the larger issue of accepting gay Scouts. Murphy, the CCLU’s Philip D. Tegeler, and Boston attorney Jennifer L. Levi rely on the state Supreme Court’s 1987 decision in Quinnipiac Council v. CHRO, which they say held that the Scouts are a place of public accommodation subject to Connecticut’s anti-discrimination law. They also cite the 1996 case of Gay and Lesbian Law Students Association v. Board of Trustees, in which the state high court barred the U.S. military from recruiting on the University of Connecticut Law School campus because of the military’s discriminatory policy against homosexuals. The civil rights lawyers said that, unlike other organizations, exempt from anti-discrimination laws because they selectively recruit members, the Boy Scouts are a nationwide organization that actively seeks a large and diverse membership. The civil rights groups also contend that First Amendment protections that would attach if the Scouts had been formed primarily for the “expressive purpose” of promoting its views on sexuality do not apply in this case because Scouting’s core purpose is recreational and educational. The civil rights groups say that any First Amendment guarantees that do apply must give way to the state’s compelling interest in eliminating discrimination. The Scouts’ policy of barring gay members and volunteers, they said, “fosters bigotry in the society at large, and in particular, among adolescents who participate in scouting.” Such an atmosphere of bigotry, they said, “creates a climate of intolerance that predictably leads to violence” and to a high suicide rate among homosexual teenagers. Schwartz replied that the Boy Scouts teach nothing “that would lead to violence.” The Scouts, he said, “promote obedience to law [and] duty to God — I don’t think there’s anything about the Scouts’ actions that contribute to bigotry or violence.” He said the Boy Scouts do believe that homosexual conduct is “inconsistent with the requirements of the Scout Oath and Law.” The Boy Scouts, he wrote in a position statement, are taught “to be morally straight, to live their lives with purity.” Schwartz, too, cites Quinnipiac Council. Unlike the civil rights groups, however, he finds the case stands for the proposition that the Scouts are not a public accommodation To insist otherwise is “absurd,” he said. Schwartz said such an interpretation would mean that the General Assembly intended that the public accommodations law, which also prohibits discrimination on the basis of sex or age, requires that the Girl Scouts admit boys, or that “elderly men become Brownies.” Schwartz also argues that the fund drive is not a state facility. Any other finding, he said, would open a can of worms. Should Scouts be barred from camping in state parks? he asks. Schwartz also contends that the Scouts are exempt as a religious and educational institution, and that the Scouts’ policy on sexual orientation is constitutionally protected under the U.S. Supreme Court’s 1995 holding in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc. In Hurley the high court held unconstitutional a Massachusetts law that would have forced the organizers of a Boston St. Patrick’s Day parade to include a contingent of gays and lesbians. The court held that such an application of the law “violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message,” including “what not to say.” Similarly, argued Schwartz, a declaration by the CHRO that the Boy Scouts are “required to accept avowed homosexuals would interfere with Boy Scouting’s ability to control the content of its message. Indeed, the very service of an openly gay person as a role model would convey a message with which Boy Scouting does not wish to be associated.” Tegeler responds that Hurley does not apply in the CHRO case because the parade organizers did not bar gay people from participating in the march, but only from carrying a banner identifying their organization. Hurley, Tegeler said, is about expressive speech “in somebody else’s parade � It was not about an otherwise open organization discriminating against someone who’s gay.” But Schwartz says that admitting openly gay Scouts or volunteers would be “equivalent to a banner” proclaiming that the Scouts approve of an openly gay lifestyle. Murphy said she is pleased that the State Campaign took it upon itself to seek a declaratory ruling in the matter, rather than waiting for an individual to challenge the Scouts’ practice. “I applaud the comptroller’s office and the campaign,” Murphy said. “It’s a wonderful way for the whole system to work.” Comptroller Wyman said that if the Commission finds the Boy Scouts in violation of state law, the State Employee Campaign Committee would meet to decide what action to take. Wyman, the only elected official on the Campaign Committee, says she believes the state has “a responsibility to assure that state resources are not being used in violation of any state anti-discrimination law.”

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