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Connecticut has the right to prohibit the Boy Scouts of America from participating in a state-employee charity drive because of the organization’s policy of excluding homosexuals from membership and employment positions, the 2nd U.S. Circuit Court of Appeals ruled Thursday. Upholding the decision of Judge Warren W. Eginton of the U.S. District Court for the District of Connecticut, the circuit court said that “removal of the Boy Scouts from this nonpublic forum did not violate the Boy Scout’s First Amendment right to expressive association.” The decision in Boy Scouts of America v. Wyman, 02-9000, concerned the Connecticut State Employee Campaign Committee’s annual workplace charity drive. The committee refused to allow the Connecticut Rivers Council, a local chapter of the Boy Scouts, to participate after the state’s Commission on Human Rights and Opportunities (CHRO) said that letting the Scouts help with the campaign would violate Connecticut’s anti-discrimination law, which protects gay rights. The CHRO had been asked to rule on the issue because of an apparent conflict between the Boy Scout’s avowed position against homosexuality and a certification from the Boy Scouts that it had a non-discrimination policy. The Boy Scouts of America (BSA) filed a federal suit in June 2000 alleging violations of its First Amendment rights, the state’s own regulations governing the charitable campaign, and state laws. The Boy Scouts said Connecticut laws prohibited the state from promoting homosexuality in state institutions and from discriminating against people with heterosexual preferences. Shortly after the suit was filed, the U.S. Supreme Court issued Boy Scouts of America v. Dale, 530 U.S. 640 (2000), in which it ruled that BSA’s right to expressive association was violated by New Jersey’s bid to force the organization to accept a gay man as an assistant scoutmaster. But the CHRO found that its decision was not affected by the Dale ruling and on July 21, Judge Eginton granted summary judgment against the Boy Scouts. Writing for the circuit court, Judge Guido Calabresi said that “on the record as a whole, we are unable to say with sufficient certainty that the decision to remove the BSA from the Campaign was not based in part on the BSA’s exclusion of gay activists from leadership positions, a practice that, under any reading of Dale, is constitutionally protected.” He said the 2nd Circuit must assume that the removal of the BSA from the campaign “was triggered at least to some extent by the BSA’s exercise of what the Supreme Court has held to be a constitutionally protected right.” The question, Calabresi said, was “whether removal in these circumstances violated the Constitution.” The court found that Connecticut’s anti-discrimination or gay rights law was “viewpoint neutral” as enacted. It then turned to the BSA’s argument that the law was applied in a discriminatory manner because the group was singled out for its anti-homosexual stance. “Evidence that the defendants, without legitimate reason, discriminated between discriminators — selectively enforcing Connecticut’s equal protection law only against anti-homosexual discrimination, and not against, for instance, anti-heterosexual discrimination — if adduced, might well be enough to preclude summary judgment for the defendants,” Calabresi said. “The BSA, however, has presented no evidence that meets this description.” Instead, he said, the BSA gave the court a list of organizations that target their services to people of specific races, ethnicities or groups, and gave the court no evidence that the groups on the list discriminate or have discriminatory policies. “As the district court noted … Connecticut has made a distinction between groups that discriminate in employment and membership policies and groups that discriminate in the provision of services,” he said. “Connecticut has decided that discrimination of the former sort violates its equal protection law and that discrimination of the latter sort does not. Such a distinction is both reasonable and viewpoint neutral.” The last step in the analysis was whether the removal of the BSA from the charitable campaign was reasonable. For its part, the BSA argued that it was “ludicrous” to say that allowing charities to be part of the campaign made “the State a party to the policies and actions of the individual charities.” But, Calabresi said, “Given the level of participation of state agencies in the campaign, we cannot say that the CHRO’s interpretation of state law on this matter was unreasonable.” The 2nd Circuit went on to reject the BSA claims on violations of state regulations and state law. Judges Fred I. Parker and Robert D. Sack joined in the opinion. George A. Davidson and Carla A. Kerr of Hughes Hubbard & Reed, and Daniel L. Schwartz of Day, Berry & Howard in Stamford represented the Boy Scouts. Assistant Attorneys General Joseph Rubin and William J. Prensky represented Connecticut.

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