Is the BSA, or BSA councils places of public accommodation or a business establishment?
Date: 28 June 2000
The Boy Scouts of America was held not to be
a place of public accommodation under federal law in Welsh v. Boy
Scouts of America, (7th Cir. 1993).
On June 28, 2000 the Supreme Court of the United States ruled that
Applying New Jersey's public accommodations law to require the Boy Scouts to
admit Dale (an avowed homosexual) violates the Boy Scouts' First
Amendment right of expressive association. Government actions that
unconstitutionally burden that right may take many forms,
one of which is intrusion into a group's internal affairs by forcing
it to accept a member it does not desire...The state interests embodied in
New Jersey's public accommodations law do not justify such a severe intrusion on the
freedom of expressive association. In so ruling, the Court is not guided by
its view of whether the Boy Scouts' teachings with respect to homosexual conduct
are right or wrong; public or judicial disapproval of an organization's expression
does not justify the State's effort to compel the organization to accept members
in derogation of the organization's expressive message. While the law
may promote all sorts of conduct in place of harmful behavior, it may not interfere
with speech for no better reason than promoting an approved message or discouraging
a disfavored one, however enlightened either purpose may seem.
In May, 1997, a federal court in San Diego ruled the Scouts is not a
business and does not have to give a leadership post back to a gay
police officer who was forced out after he disclosed his sexuality.
A similar ruling has come down in court cases in
a number of states.
In June, 1999, the Pennsylvania Human Relations Commission dismissed a
lawsuit seeking to use state public accommodations law to override Boy
Scouts' membership policies. The Commonwealth of Pennsylvania Human
Relations Commission voted to dismiss a complaint filed in 1993
by atheist activist Margaret Downey-Schottmiller who sued
to become an adult volunteer leader in Chester County Council, Boy Scouts
of America. Boy Scouts have won previous cases under the federal
public accommodations law and the public accommodations laws of five
states -- California, Connecticut, Oregon, Kansas, and Minnesota.
On March 23, 1998, in a pair of unanimous rulings, the California
Supreme Court ruled that Boy Scout groups were not "businesses".
For more information see Curran v. Mount Diablo etc. Boy
Scouts 3/23/98 and Randall v. Orange Co. etc. Boy
Scouts 3/23/98 under Supreme Court opinions at: