BILL ANALYSIS
ACR 155
Page 1
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