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 ACR 155 Page 2 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. ACR 155 Page 3 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 ACR 155 Page 4 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.) ACR 155 Page 5 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, ACR 155 Page 6 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 ACR 155 Page 7 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. ACR 155 Page 8 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