The Boy Scouts of America will open itself to a "veritable Pandora’s box of litigation" if it allows homosexual boys to be scouts, warns a veteran Supreme Court litigator and special counsel to the Republican National Committee.
In a letter to each of the 1,400 scout leaders expected to vote finally on Thursday on a proposed change to the organization’s longstanding ban on gay boy scouts, prominent conservative lawyer James Bopp Jr. contends the change would undermine protections provided by the U.S. Supreme Court in a 2000 decision.
The Boy Scouts of America (BSA) is holding a two-day meeting of its local leaders in Grapevine, Texas. The proposed resolution would retain the ban on gay adult scout leaders.
In his letter, Bopp, himself an eagle scout since age 14, recounts his own scouting experiences which, he writes, were instrumental in developing his character and preparing him for the challenges of the legal profession.
"If passed, the proposed resolution will incite a new round of legal challenges by groups who seek to undermine the BSA and dilute its core values," argues Bopp of The Bopp Law Firm in Terre Haute, Ind. "The BSA and Scouting troops across the country will be hauled into courts and forced to defend this new policy from attacks by government agencies, private individuals, and advocacy organizations. A multitude of plaintiffs will once again be able to sue the BSA and its affiliates under state and local discrimination statutes and argue once again that the Boy Scouts must admit homosexuals in all instances."
However, Jon Davidson, legal director of Lambda Legal, countered, "I suspect this is just an effort to scare folks in order to try to defeat any effort to moderate the current policy."
Constitutional law and sexual orientation scholar Dale Carpenter of the University of Minnesota School of Law agreed, saying, "We’re seeing a lot of people who don’t want any change using this as a make-weight argument."
The argument, from Bopp’s perspective, is that the Supreme Court in Boy Scouts of America v. Dale held that the BSA’s ban was a protected form of associational expression under the First Amendment.
"From a constitutional perspective, the dual nature of the [proposed] policy—allowing homosexual boys as members but excluding homosexual adults as leaders—would reopen the question of the BSA’s expressed viewpoint that homosexuality is inconsistent with the values embodied in the Scout Oath and Law," Bopp writes. "This question was definitively settled by the Supreme Court in Dale with respect to the Scouts’ current membership policy. But, the clear change in policy that would occur if the new policy is adopted will provide footing for the Scouts’ opponents to argue that the Boy Scouts have abandoned the protections of Dale."
And vague language in the proposed policy that refers to "sexual orientation or preference" instead of "homosexual," warns Bopp, could be read to require admission of transsexual girls into the Boy Scouts, or, at the least, open the door to a new track of litigation.
Bopp also writes that defending the new policy in court would be damaging both financially and politically.
"Unless and until the Supreme Court definitively addressed the constitutionality of the proposed policy, the Boy Scouts would be forced to engage in full-blown litigation on all fronts," he contends. "This prospect should give any voting member pause as the cost of litigating even a single constitutional case to the Supreme Court can reach well into the millions of dollars. And, it would likely take several years and multiple cases to bring the issue back to the Supreme Court. In the interim, the Boy Scouts would be forced to defend a multitude of lawsuits across the country and in numerous courts. All told, the cost of such a litigation effort would likely reach well into the hundreds of millions of dollars."
Minnesota’s Carpenter said he had supported the decision in Dale "although I’m a gay rights activist." As he analyzes that decision and its strengths, he said, "I don’t think the Boy Scouts put themselves in a vulnerable position by liberalizing their policy.
"The Supreme Court made it clear that an organization is entitled to choose its members; the organization alone should determine what its message is and it’s not up to courts to second-guess what their message is, and it’s up to the organization to determine what would burden that message, not the courts," he said.
"One of the things the court said that it was sensitive to in the Dale case was that James Dale was a scoutmaster," he added. "Admitting James Dale would burden its ability to send [the Boy Scouts'] message about the proper moral behavior of young men."
Carpenter said he believes the Boy Scouts still will be able to make that claim if they liberalize their policy.
Lambda’s Davidson said he was "dubious" about Bopp’s legal analysis "given that the Boy Scouts still might draw a distinction between youth standards and adult leadership standards."
And Carpenter added, "I’m not saying they won’t be sued. Anybody with a printer and enough money for the filing fee will file a lawsuit, but I don’t think it will have much ground unless the Supreme Court reverses itself on Dale. I think they’re on safe ground making this change."
Bopp wrote his letter on his own behalf. The Republican National Committee has taken no position on the proposed change in scouting policy. However, the RNC does officially oppose gay marriage. In April, it passed a resolution reaffirming its opposition and stating, "The Republican National Committee implores the U. S. Supreme Court to uphold the sanctity of marriage in its rulings on California’s Proposition 8 and the Federal Defense of Marriage Act."
Contact Marcia Coyle at email@example.com.