BILL ANALYSIS
ACR 119
Page 1
Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
ACR 119 (Garrick) - As Amended: April 7, 2010
SUBJECT : BOY SCOUTS OF AMERICA: COMMEMORATION
KEY ISSUE : SHOULD THE LEGISLATURE CONGRATULATE THE BOY SCOUTS
OF AMERICA ON THE ANNIVERSARY OF THE GRANTING OF ITS FEDERAL
CONGRESSIONAL CHARTER DESPITE THE FACT THAT THIS ORGANIZATION
STEADFASTLY CONTINUES TO DISCRIMINATE AGAINST INDIVIDUALS
BECAUSE OF THEIR SEXUAL ORIENTATION OR RELIGIOUS VIEWS?
SYNOPSIS
This controversial resolution makes various findings to
congratulate the Boy Scouts of America (BSA) on the anniversary
of the granting of its Federal Congressional Charter. The
resolution also recognizes the outstanding achievements and
impacts the scouting program has had on youth in California. As
with similar resolutions introduced in the past, the resolution
raises once again the sincere and troubling concerns expressed
historically by many members of this Committee and a host of
groups and individuals committed to equality and
nondiscrimination, because the proposed resolution seeks to put
the California Legislature on record commemorating an
organization that has long discriminated against individuals
because of their sexual orientation or religious views, and
steadfastly continues this discriminatory policy amidst
heartfelt requests to discontinue it, and compelling stories of
hurt and pain that this long-standing policy has caused
individuals who are otherwise deeply committed to the values of
and participation in this long-standing institution. Opponents,
who include groups and individuals committed to equality and
nondiscrimination, state that the resolution "fails to note the
BSA's historical and ongoing discrimination against gays,
atheists, agonists, and girls" and argue that the Legislature
should "reconsider the language and intent of ACR 119 based on
the State of California's fundamental civil rights of all
persons of protected classes." As noted below, since the year
2000, at least a half dozen similar resolutions seeking to
commend this organization -- notwithstanding its discriminatory
policies -- have been brought to this Committee and have failed
due to the organization's continuing and unwavering adherence to
ACR 119
Page 2
its discriminatory policies.
SUMMARY : Seeks to congratulate and commend the Boy Scouts of
America on their 100th anniversary and centennial celebration.
Specifically, this measure :
1)Declares, among other things, that:
a) William D. Boyce, an American newspaper man, with Edward
S. Stewart and Stanley D. Willis, incorporated the Boy
Scouts of America on February 8, 1910, and applied for a
federal charter.
b) The Boy Scouts of America's goal is to train youth in
responsible citizenship, character development, and
self-reliance through participation in a wide range of
outdoor activities, educational programs, and
career-oriented programs in partnership with community
organizations.
c) Scouting is operated locally through units, led entirely
by volunteers, sponsored by churches, clubs, civic
associations, educational organizations and the like, which
furthers their mission to give back to their communities.
d) The achievements and contributions of the scouting
program are possible only through the dedicated service
hours of California's youth, and it is through their
leadership, and the efforts of all scouting volunteers and
families, that California's future will continue to
flourish.
e) Scouts have been urged to "Do a Good Turn Daily" from
the inception of the scouting movement; Scouting for Food
is an on-going annual program, started in 1986, that
collects food for local food banks; and in 1997, the Boy
Scouts of America developed Service to America, with a
commitment to provide 200 million hours of service by youth
members by the end of the year 2000, which included service
projects with the National Park Service.
f) In 2008, the Boy Scouts of America honored its
two-millionth Eagle Scout; the United States Mint issued
350,000 Boy Scouts of America Silver Dollar Centennial
Commemorative Coins; the United States Postal Service
ACR 119
Page 3
released the Celebrate Scouting commemorative stamp; and on
January 1, 2010, the Boy Scouts of America, for the first
time in its history, entered a float commemorating its
100th anniversary for the Annual Tournament of Roses Parade
held in Pasadena, California.
2)Resolves that the Assembly, with the Senate concurring,
congratulates the Boy Scouts of America on their 100th
Anniversary and Centennial Celebration and recognizes the
outstanding achievement and impact the scouting program has
had on youth and their dedication to service and volunteerism
in their communities.
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 (2000)
530 U.S. 640.) 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.)
ACR 119
Page 4
5)Provides that a state does not violate the Boy Scouts' First
Amendment rights by terminating its participation in a state
workplace charitable campaign due to its discriminatory
membership policy. ( Boy Scouts of America v. Wyman (2003) 335
F.3d 80.) The United States Supreme Court declined to review
the case.
6)Provides that governmental entities in California may withhold
support from non-profit organizations that practice
discrimination on the basis of sexual orientation and
religion. ( Evans v. City of Berkeley (2006) 38 Cal.4th 1.)
The United State Supreme Court declined to review the case.
FISCAL EFFECT : The measure as currently in print is keyed
non-fiscal.
COMMENTS : This resolution seeks to commemorate the 100th
Anniversary of the Boy Scouts of America. Last February 9,
2010, the Boy Scouts of America (BSA) officially celebrated its
100th Anniversary. According to the author's office, the goal
of the BSA is to train youth in responsible citizenship,
character development, and self-reliance through participation
in a wide-range of outdoor activities, educational programs, and
career-oriented programs in partnership with community
organizations.
In addition, the author's office notes that entities of the
Federal Government have honored the Boy Scouts including the
United States Postal Service, which issued a commemorative stamp
and the United States Mint, which issued some 350,000 Silver
Dollar Centennial Commemorative Coins, and that honoring the
achievements and contributions of this organization should be
the goal of this Legislature.
In support of the resolution, the author states:
Over the past 100 years, the Boy Scouts of America have
influenced millions of youth across the country and the
world. Many of these former youth have gone on to do
prestigious things for this country and the world. Eagle
Scout Gerald Ford was elected President of the United
States and Eagle Scouts Neil Armstrong and Charlie Duke,
along with 11 other scouters, left their footprints from
Earth on the moon.
ACR 119
Page 5
The Scouting program has committed itself to serving youth
and the communities from which they reside. As an
all-volunteer organization, the Scouting program has
continued its efforts to feed the hungry through the
Scouting For Food Program and has stepped up its efforts to
preserve the outdoors for future generations by committing
over 2 million service hours to the National Forest
Service.
It is fitting and right that the California State
Legislature honors the Boy Scouts of America on its 100th
Anniversary and commends their continuous contributions to
our state's youth.
The Scout Oath and Law. In evaluating this resolution,
opponents state that 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."
The Rehnquist Supreme Court Decision 2000 . In Boy Scouts of
America v. Dale , supra., the U.S. Supreme Court, in an opinion
by Chief Justice William Rehnquist, ruled on whether requiring
the Boy Scouts to approve James Dale, a gay man, as an assistant
scoutmaster would significantly affect the Boy Scouts' ability
to advocate its viewpoints. In this case, the nation's highest
court held that requiring the Boy Scouts to admit openly gay
people violates the group's First Amendment right of expressive
association. 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.) 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. ) The Court held that
the First Amendment association rights of the Boy Scouts of
ACR 119
Page 6
America permitted this express discriminatory policy.
BSA's Repeated Reaffirmations of Its 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 reaffirmation 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 [then] 92-year history.
In 2004, the BSA once again reaffirmined its discriminatory
policy, including the following as a "Youth Leadership" policy:
"[We] believe that homosexual conduct is inconsistent with
the obligations in the Scout Oath and Scout Law to be
morally straight and clean in thought, word, and deed. The
conduct of youth members must be in compliance with the
Scout Oath and Law, and membership in Boy Scouts of America
is contingent upon the willingness to accept Scouting's
values and beliefs. Most boys join Scouting when they are
10 or 11 years old. As they continue in the program, all
Scouts are expected to take leadership positions. In the
unlikely event that an older boy were to hold himself out
as homosexual, he would not be able to continue in a youth
leadership position."
ACR 119
Page 7
This express policy of discrimination has reportedly been
strictly enforced against Scouts. In 2005, a high-level
employee of BSA was reportedly fired by the National Council
after the organization received a copy of his bill from a gay
resort at which he had vacationed. In 2009, the parents of a
Vermont Scout were reportedly prohibited from volunteering for
his pack when it was discovered that they were gay.
BSA's Values of Respect, Opponents Suggest And This Committee
Has Repeatedly Affirmed, Are Wholly Inconsistent With the
Organization's Actions in Dismissing Members Because of Their
Beliefs. In 2002, various news accounts reported that Darrell
Lambert, an Eagle Scout at the time, was told he had to
completely disassociate himself from the BSA because he was 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,
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. ?
ACR 119
Page 8
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 Rehnquist opinion in
Dale , many parents, religious groups, corporations, cities,
schools and non-profit entities alike have reportedly responded
by withdrawing their support, including financial support, from
the BSA. As Lambda Legal Defense and Education Fund Executive
Director Kevin M. Cathcart 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, one of the most famous Eagle Scouts of all,
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 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 also this past
decade made similar appeals, leading to the expulsion of some
troops, including 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.)
ARGUMENTS IN OPPOSITION : In opposition, the California National
Organization for Women argues:
We cannot accept the idea that character development
includes fostering of bigoted attitudes towards others in
our diverse society. Nor can we support the idea that boys
and young men can be taught to be good citizens while
rejecting the ideals of religious and social tolerance on
which our country was founded?
The BSA also vehemently opposed the foundation of Girl
Scouts USA, attempting to restrict the use of the words
"scout(s)" and "scouting" only for the BSA. Women and
girls have also been prohibited from participation in BSA
troops, including expulsion of girl members and closure of
ACR 119
Page 9
entire troops that had been organized by women leaders in
the absence of willing male volunteers.
Further, in opposition, the Regional Human Rights/Fair Housing
Commission states that "[t]he intent of our opposition is not to
deny the Boy Scouts of America their First Amendment right of
expression. Rather, our intent is aimed at the Legislature for
its failure to up hold the State of California's legal
protections for our LGBT community. ? There will always be
segments of our society that maintain a bias against certain
groups; but our State Legislature should not be one of them. It
would be wrong for our Legislature to condone, commemorate or
honor any one, group, organization or affiliate that the
Legislature willing acknowledges discriminates against anyone."
Prior Related Legislation: ACR 155 (Cogdill) of 2006 sought 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, died in Committee.
ACR 38 (Cogdill) of 2005 sought 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, died in Committee.
ACR 69 (Goldberg) of 2005 (Ch. 82, Stats of 2005) similarly
recognized the achievements of the Boy Scouts but 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 170 (Robert Pacheco) of 2004, which would have recognized
various youth organizations including the Boy Scouts of America,
died in this Committee.
ACR 59 (Robert Pacheco) of 2004, which would have recognized the
outstanding efforts of the 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, failed passage in
this Committee.
ACR 119
Page 10
ACR 89 (Goldberg) of 2003, 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 90 (Robert Pacheco) of 2001, which would have made various
findings in congratulating the Boy Scouts of America on the 85th
anniversary of the granting of its federal charter by Congress,
failed passage on the Assembly Floor.
ACR 140 (Robert Pacheco) of 2001, which would have made various
findings in congratulating the Boy Scouts of America on the
anniversary of the granting of its Federal Congressional
Charter, failed passage in this Committee.
SR 15 (Knight) of 2001, which congratulated the Boy Scouts of
America 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 Boy Scouts of
America (the Boy Scouts), to discriminate in its membership
decisions by exempting such organizations from the Unruh Civil
Rights Act, died in this Committee.
AJR 72 (Thompson) of 2000, which would have urged the U.S.
Congress to affirm the charter of the Boy Scouts of America and
the President to reaffirm his support for the Boy Scouts of
America, died in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
California National Organization for Women
Equality California
ACR 119
Page 11
Regional Human Rights/Fair Housing Commission
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334