BILL ANALYSIS                                                                                                                                                                                                    



                                                                  ACR 155
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          Date of Hearing:  August 17, 2006

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Dave Jones, Chair
                    ACR 155 (Cogdill) - As Amended:  May 31, 2006
           
          SUBJECT  :   BOY SCOUTS OF AMERICA: COMMENDATION OF EAGLE SCOUTS

           KEY ISSUE  :  SHOULD THE LEGISLATURE RECOGNIZE THE EFFORTS OF BOY  
          SCOUTS WHO EARN THE RANK OF EAGLE SCOUT WITHOUT ALSO ENCOURAGING  
          AT THE SAME TIME THE BOY SCOUTS OF AMERICA TO STOP  
          DISCRIMINATING AGAINST INDIVIDUALS BECAUSE OF THEIR SEXUAL  
          ORIENTATION OR RELIGIOUS VIEWS?

                                      SYNOPSIS
          
          This resolution makes various findings in recognizing the  
          efforts of Boy Scouts who earn the rank of Eagle Scout.  It  
          notes that the "scouts who have attained the rank of Eagle are  
          some of the best ambassadors the state could have, as they  
          represent the qualities consistent with those held by the  
          founders of this nation during its creation."  The resolution  
          further provides that "the courage represented by an Eagle Scout  
          is that of standing up for what he believes in without  
          compromising his own beliefs."

          This resolution, however, does not also encourage the Boy Scouts  
          of America (BSA) to accept for membership and leadership  
          positions all qualified boys and men without discriminating on  
          the basis of sexual orientation or religious belief.  As the  
          analysis indicates, the BSA continues to maintain membership  
          policies that discriminate against individuals on the basis of  
          their sexual orientation or religious beliefs.  This resolution  
          makes no mention of this regrettable continuing reality in the  
          BSA.  

          When faced with a similar resolution last year, this Committee  
          rejected it (ACR 38) due to its equal lack of encouraging the  
          Boy Scouts of America to accept for membership and leadership  
          positions qualified boys and men without discriminating on the  
          basis of sexual orientation or religious belief.   

          Supporters of this resolution argue that ACR 155 is appropriate  
          because the Eagle rank is a milestone in the scouting program  
          and is a distinction of the hard work and efforts of many boys  








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          in the BSA.  Opponents, on the other hand, oppose the measure  
          because they oppose the BSA's policy of discriminating against  
          Boy Scouts because of their sexual orientation or religious  
          beliefs.

          The analysis suggests that given the Committee's longstanding  
          concern about the BSA's discriminatory policies on the basis of  
          sexual orientation or religious belief, the Committee may wish  
          to inquire whether the author is now prepared to amend the  
          measure to add a statement encouraging the BSA to halt its  
          discriminatory policies so that Boy Scouts, like their Girl  
          Scout counterparts, can be appropriately recognized for the good  
          works that they have accomplished.   
          
           SUMMARY  :  Seeks to recognize the efforts of Boy Scouts who earn  
          the rank of Eagle Scout without encouraging the organization to  
          halt its discriminatory policies that regrettably harm  
          individuals seeking to be scouts and excluded from this  
          opportunity solely due to their personal characteristics.   
          Specifically,  this resolution  :  

          1)Declares, among other things, that:

             a)   Since the founding of the Boy Scouts of America, over  
               one million Boy Scouts have earned the rank of Eagle, the  
               highest honor that can be bestowed on a youth in the Boy  
               Scouts of America.

             b)   Those scouts who have attained the rank of Eagle are  
               some of the best ambassadors the state could have, as they  
               represent the qualities consistent with those held by the  
               founders of this nation during its creation.

             c)   An Eagle Scout lives honorably, not only because honor  
               is important to him, but because of the significant example  
               he sets for other scouts.

             d)   The courage represented by an Eagle Scout is that of  
               standing up for what he believes in without compromising  
               his own beliefs.

             e)   An Eagle Scout is helpful in service, as the Eagle  
               stands as a protector of the weak and helpless, will aid  
               and comfort the unfortunate and oppressed, and will always  
               "Be Prepared" to put forth his best.








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          2)Resolves that the Legislature recognizes the outstanding  
            efforts of Boy Scouts who, through persistence and hard work,  
            earn the rank of Eagle Scout, promote the brotherhood of  
            scouting across international boundaries as a model of  
            leadership, character, and honor, and provide a solid  
            foundation and common thread to unite all persons around the  
            world.

           EXISTING LAW  :  

          1)Provides, under the Unruh Civil Rights Act, that "[a]ll  
            persons within the state are free and equal and, no matter  
            what their sex, race, color, religion, ancestry, national  
            origin, disability or medical condition are entitled to the  
            full and equal accommodations, advantages, facilities,  
            privileges, or services in all business establishments of  
            every kind whatsoever."  (Civil Code section 51.)

          2)Construes the protection of the Unruh Act broadly, holding  
            that its protections also cover gay men and lesbians, families  
            with children, persons under 18, and individuals who associate  
            with members of a protected class.  (See,  Rolon v. Kulwitzky   
            (1984) 153 Cal.App.3d 289;  Hubert v. Williams  (1982) 133  
            Cal.App.3d Supp. 1;  Marina Point, Ltd. v. Wolfson  (1982) 30  
            Cal. 3d 721;  O'Connor v. Village Green Owners Assn.  (1983) 33  
            Cal.3d 790;  Winchell v. English  (1976) 62 Cal. App. 3d 125.)

          3)Provides, under the First Amendment and the California State  
            Constitution, a right to expressive association.  (U.S. Const.  
            Amend. 1 and Cal. Const. Art. I. Sect. 3.)

          4)Provides that requiring the Boy Scouts to admit openly gay  
            people violates the group's First Amendment right of  
            expressive association (  Boy Scouts of America v. Dale  530 U.S.  
            640 (2000)) and provides that the Boy Scouts are not a  
            "business establishment" under the Unruh Civil Rights Act with  
            respect to their membership policies and decisions.  (  Curran  
            v. Mount Diablo Council of Boy Scouts of America  (1998) 17  
            Cal.4th 670.)  However existing law does not prevent  
            policy-makers from encouraging organizations, especially those  
            it commemorates, to end any organizational policies that  
            discriminate against others based upon their personal  
            characteristics.  And government may actually bar the receipt  
            of public subsidies by organizations that have discriminatory  








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            policies.  (See, e.g.,  Grove City College v. Bell  (1984) 465  
            U.S. 555, 575-576; and  Evans v City of Berkeley  (2002) 127  
            Cal.Rptr.2d 696.)

           FISCAL EFFECT  :   The resolution as currently in print is keyed  
          non-fiscal. 

           COMMENTS  :  This resolution makes various findings in recognizing  
          the efforts of Boy Scouts who earn the rank of Eagle Scout.   
          However, this resolution, like the author's similar ACR 38 of  
          last year, does not also encourage the Boy Scouts of America  
          (BSA) to accept for membership and leadership positions all  
          qualified boys and men without discriminating on the basis of  
          sexual orientation or religious belief.  When faced with the  
          similar resolution last year, this Committee soundly rejected it  
          due to its similar lack of encouraging the BSA to halt its  
          discriminatory policies pertaining to sexual orientation and  
          religious belief.

          In support of the resolution, the author states: 

               I have authored this ACR in an effort to honor the hard  
               work, dedication, commitment, determination, and service of  
               the young men of this country that diligently sought and  
               obtained the rank of Eagle Scout.
           
          The Scout Oath and Law.   In evaluating this resolution, it is  
          important to understand the content of the Boy Scout Oath and  
          Law.  In relevant part, the Scout Oath states "On my honor I  
          will do my best to keep myself morally straight."  Additionally,  
          Scout Law provides that a Scout is, among other things, "clean"  
          and a Scout "goes around with those who believe in living by  
          these same ideals."  Scout Law also provides that a Scout "treat  
          others as he wants to be treated."

          In  Boy Scouts of America v. Dale  , supra., the U.S. Supreme Court  
          ruled on whether requiring the Boy Scouts to approve James Dale,  
          a homosexual, as an assistant scoutmaster would significantly  
          affect the Boy Scouts' ability to advocate its viewpoints.  In  
          its ruling, the Court noted the following position statement  
          promulgated by the Boy Scouts in 1991:  "We believe that  
          homosexual conduct is inconsistent with the requirement in the  
          Scout Oath that a Scout be morally straight and in the Scout Law  
          that a Scout be clean in word and deed, and that homosexuals do  
          not provide a desirable role model for Scouts."  (  Dale  at 652.)   








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          The Court also noted a 1993 position statement which read "The  
          Boy Scouts of America has always reflected the expectations that  
          Scouting families have had for the organization.  We do not  
          believe that homosexuals provide a role model consistent with  
          these expectations.  Accordingly, we do not allow for the  
          registration of avowed homosexuals as members or as leaders of  
          the BSA."  (Id.)  These position statements are consistent with  
          the February 2002 affirmation noted below.

           BSA's Affirmation of Discriminatory Membership Policy.   On  
          February 6, 2002, the National Executive Board of the BSA  
          "reaffirmed its traditional leadership standards" in rejecting  
          proposals by individual Scout Councils seeking flexibility to  
          determine their own membership and leadership.  A press release  
          announcing the Board's affirmation which rejected gays and  
          atheists as members and leaders of the Boy Scouts stated: 

               The board received three resolutions suggesting changes  
               in leadership standards in order to permit avowed  
               homosexuals to serve as Boy Scout leaders.  The board  
               referred the resolutions to the appropriate committee,  
               which formed a diverse task force composed of chartered  
               organization representatives to consider the  
               resolutions.  The BSA reaffirmed its view that an  
               avowed homosexual cannot serve as a role model for the  
               traditional moral values espoused in the Scout Oath and  
               Law and that these values cannot be subject to local  
               option choices.  In affirming its existing standards of  
               leadership, the board also agreed that duty to God is  
               not a mere ideal for those choosing to associate with  
               the Boy Scouts of America; it is an obligation, which  
               has defined good character throughout the BSA's 92-year  
               history.
           
          BSA's Values of Respect Arguably Inconsistent With Its Actions  
          in Dismissing Members Because of Their Beliefs.   In 2002,  
          Darrell Lambert, an Eagle Scout, was told that he must  
          completely disassociate himself from the BSA because he is an  
          atheist.  Lambert objected to his dismissal, explaining that he  
          believed it "unjust and opposed to the very values that Scouting  
          claims to uphold."  In a letter to the Western Region Appeal  
          Committee, he wrote: 

               To me the issue at hand should not be if I believe or  
               don't believe in God.  It should be about my character,  








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               my citizenship, and my devotion to Scouting.  Every  
               parent of my Scout troop sees me as a good role model  
               for their kids.  They may not agree with my view on God,  
               but they can focus on the important issues and see the  
               person I really am. ?

               Everybody can be a good citizen; it doesn't matter if  
               you are a Christian, a Buddhist, a spiritualist, or an  
               atheist.  Morals come from more then just a belief in  
               God.  They come from inside - they are what makes you  
               feel happy to help someone, to teach them, and to see  
               them succeed.  Scouting is about loyalty to one another,  
               it is about being trustworthy and having trust in each  
               other, it is about going camping and hiking and  
               developing your skills out of doors, it is about  
               becoming a leader and standing up for people that need  
               help.  It is about giving back to the community and  
               society to make your country that much better.  That is  
               what Scouting is about for everyone.  Religion is an  
               individual choice and should be recognized as that by  
               Scouts, but it should never be used to exclude boys from  
               Scouts. ?

               Not allowing atheists into Scouts defies both American  
               and Scouting values.  It teaches kids to hate and to  
               think of atheists as lesser people.  It teaches them to  
               fear differences rather than understand them.
           
          Public Withdrawal Of Support For The Boy Scouts Demonstrates  
          Intolerance For Discrimination.    Since the Court's decision in  
           Dale  , parents, religious groups, corporations, cities, schools  
          and non-profit entities alike have responded by withdrawing  
          their support, including financial support, from the BSA.  The  
          message conveyed via their collective disassociation is  
          intolerance for legally sanctioned discrimination.  As Lambda  
          Legal Defense and Education Fund Executive Director Kevin M.  
          Cathcart has stated, "Parents, religious groups, corporations,  
          cities, and schools agree: the Boy Scouts may have a legal right  
          to discriminate, but that doesn't make discrimination right."  

          And, strikingly, several years ago former Eagle Scout and  
          now-filmmaker Steven Spielberg stepped down from an advisory  
          board of the Boy Scouts stating "The last few years in Scouting  
          have deeply saddened me to see the Boy Scouts of America  
          actively and publicly participating in discrimination.  It's a  








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          real shame." ("Supreme Court Ruling Yields Unexpected Lesson for  
          Boy Scouts of America", Lambda Legal Defense and Education Fund,  
          Press Release, June 21, 2001.)  Individual troops have made  
          similar appeals, leading to the expulsion of seven different  
          troops in Oak Park, IL because of their refusal to comply with  
          the anti-gay policy.  ("Boy Scout Policy Sparks Impassioned  
          Debate on Gays," Gannett News Service, by Fredereka Schouten,  
          March 12, 2001.)  Individual scouts have also come forward to  
          renounce and return their hard-earned Eagle Scout badges.  

           Possible Author's Amendment  :  Given that the Committee has  
          repeatedly made clear its long-standing commitment against  
          discrimination, the Committee may wish to inquire of the author  
          whether the author is willing to amend the measure to add a  
          statement encouraging the BSA to halt its discriminatory  
          policies, so that Boy Scouts, like their Girl Scout  
          counterparts, can be appropriately recognized for the good works  
          that they have accomplished over the years.

           Prior Related Legislation:   As noted above, ACR 38 by the  
          author, which would have made various findings in recognizing  
          the efforts of Boy Scouts who earn the rank of Eagle Scout and  
          did not encourage the BSA to stop its discriminatory policies,  
          died last year in this Committee.

          ACR 69 (Goldberg), Resolution Chapter 82, Statutes of 2005,  
          recognized the achievements of the Boy Scouts.  ACR 69  
          additionally encouraged the BSA to accept for membership and  
          leadership positions all qualified boys and men without  
          discriminating on the basis of sexual orientation or religious  
          belief.  
           
           ACR 89 (Goldberg), Resolution Chapter 118, Statutes of 2003,  
          recognized the achievements of the Boy Scouts and acknowledged  
          the important contributions individual Boy Scouts make in their  
          communities.  The resolution also encouraged the BSA to accept  
          for membership and leadership positions, including the rank of  
          Eagle Scout, all qualified boys and men without discriminating  
          on the basis of sexual orientation or religious belief.

          ACR 59 (Robert Pacheco) of 2003, which would have made various  
          findings in recognizing the efforts of Boy Scouts who earn the  
          rank of Eagle Scout and did not encourage the BSA to stop its  
          discriminatory policies, died in this Committee.









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          ACR 90 (Robert Pacheco) of 2001, which would have made various  
          findings in congratulating the BSA on the 85th anniversary of  
          the granting of its federal charter by Congress, and did not  
          encourage the BSA to stop its discriminatory policies, failed  
          passage on the Assembly Floor. 

          SR 15 (Knight) of 2001, which congratulated the BSA on the  
          occasion of the 85th anniversary of its congressional charter,  
          was adopted by the Senate.

          AB 1592 (Wyman) of 2001, which would have allowed a charitable,  
          expressive, and social organization, such as the BSA, to  
          discriminate in its membership decisions by exempting such  
          organizations from the Unruh Civil Rights Act, where the  
          organization's formation and activities are unrelated to the  
          promotion or advancement of the economic or business interests  
          of its members, died in this Committee.

          AJR 72 (Thompson) of 2000 which would have urged the U.S.  
          Congress to affirm the charter of the BSA and the President to  
          reaffirm his support for the BSA, died in this Committee.

          AJR 74 (Thompson) of 2000, which would have resolved that the  
          California Legislature agreed with the  Dale  case and urged  
          Congress to affirm the charter of the BSA and the President to  
          reaffirm his support for the BSA, died in this Committee.  

          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None on file

           Opposition 
           
          Equality California

           
          Analysis Prepared by  :    Drew Liebert / JUD. / (916) 319-2334