BILL ANALYSIS �
ACR 128
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ASSEMBLY THIRD READING
ACR 128 (Feuer, et al.)
As Introduced March 13, 2012
Majority vote
JUDICIARY 7-2
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|Ayes:|Feuer, Atkins, Dickinson, | | |
| |Huber, Monning, | | |
| |Wieckowski, | | |
| |Bonnie Lowenthal | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Jones | | |
| | | | |
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SUMMARY : Seeks to commend the Boy Scouts of America on its
102nd anniversary while also urging the Boy Scouts to accept all
qualified boys and men without discrimination on the basis of
sexual orientation or religious belief and, amongst other
things, declares that the discriminatory policy of the Boy
Scouts of America is contrary to the policy of the State of
California.
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, medical condition, genetic information, marital
status, or sexual orientation are entitled to the full and
equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever."
2)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.)
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3)Declares discrimination on the basis of "race, color,
religion, sex, gender, gender identity, gender expression,
sexual orientation, marital status, national origin, ancestry,
familial status, source of income, disability, or genetic
information" against California public policy. (See, e.g.,
Government Code Section 12922, emphasis added.)
4)Provides, in the Scout Oath and Law, among other things, that
a Scout should "treat others as he wants to be treated."
(Emphasis added.)
FISCAL EFFECT : None
COMMENTS : This resolution seeks to commemorate the 102nd
anniversary of the Boy Scouts of America (BSA) and acknowledges
the important role that the Boy Scouts have played in the lives
of many Americans. This resolution additionally encourages 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.
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 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
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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 America permitted this express discriminatory
policy -- though the Court did not in any way condone such a
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. In 2004, the BSA
once again reaffirmined its discriminatory policy, and this
express policy of discrimination has reportedly been strictly
enforced against Scouts ever since up to the present. In 2005,
for example, a high-level employee of BSA was reportedly fired
by the National Council after the organization received a copy
of his bill from an alleged "gay resort" at which the employee
had vacationed. And in September of 2010, a Dallas-area father
who had helped organize fundraisers for the Scouts was
reportedly "told he can't wear the Scout leader shirt he was
given �the previous] year and that he cannot serve in a
leadership position because of his sexual orientation." ("Gay
Father Ousted as Scout Leader," Houston Chronicle, October 17,
2010.) The father remarked, "What message does that send to my
son? It says I'm a second-class citizen." (Id.)
Lest there be any question whether the Boy Scouts of America
continues to adhere to an anachronistic and hurtful policy of
discrimination against some Americans, several national news
organizations reported just this past week about a den mother
for her son's Cub Scout troop who was apparently "ousted" by the
Boy Scouts for no other reason than her sexual orientation.
According to this report:
Jennifer Tyrrell and her 7-year-old son have had many
rewarding experiences with the Boy Scouts of America,
but their participation in the national organization
came to an end because she is gay, and the group does
not allow open or avowed homosexuals in their
membership. Tyrrell learned the news on April 10. The
loss has been devastating.
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"We were like a family, so in essence ? we lost our
scouting family, but they also lost two members of
their scouting family," the former Tiger Cubs den
leader from Bridgeport, Ohio, told msnbc.com, at points
breaking down into tears. "The best time in our lives
we've had in the last year, it's gone ? because we
can't be scouts any more. I can't stop crying," she
later added? Tyrrell, a 32-year-old stay at home
mother of four, said she agreed to become the den
master on the day she signed up her son, Cruz Burns,
for the local troop, last year. She had concerns about
the Boy Scouts' policy against homosexuals, but a
Cubmaster said that - locally -- they wouldn't have
problem.
"He said they would stand, you know, hand in hand with
us and stand behind us all the way. Well, actually,
that's been true," she said. "I've never had a
problem."
Boy Scouts spokesman Deron Smith said Tyrrell was
removed from the program for being in violation of the
national policy regarding homosexuals? "This policy was
understood by her and her fellow volunteers, but not
followed, upon her registering in the program," he
wrote in an email to msnbc.com? Tyrrell said she would
still be at home, crying on the couch, if her friends
hadn't encouraged her to hold a protest in town against
her dismissal and start a campaign online to seek
changes to the Boy Scouts policy. That petition has
garnered more than 170,000 signatures?" Tyrrell said
she will continue to push for changes at the Boy Scouts
and called on them to take "the high road" and change
their policy to include "all Americans." "? because
we're just people," she said. "We're just gay people
who love their kids."
( http://usnews.msnbc.msn.com/_news/2012/04/26/11413346-gay-mom-upset-after-dismissal-by-boy-scouts?lite )
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Recognizing that the BSA is a private institution and thus
technically legally free to discriminate pursuant to Boy Scouts
of America v. Dale, supra., it is nevertheless instructive to
note that even the American Armed Forces, which had long had a
policy of discrimination based on sexual orientation, has
abandoned this former approach as both unnecessary and hurtful.
In 2010 Congress passed and President Obama signed legislation
repealing "Don't Ask Don't Tell" when the President, the
Secretary of Defense, and the Chairman of the Joint Chiefs of
Staff certified that repeal would not harm military readiness.
And the official repeal of this longstanding anachronistic
discriminatory policy became effective September 20, 2011. In
supporting this historic retreat from discrimination, then
Chairman of the Joint Chiefs of Staff Admiral Mullen stated that
"allowing gays and lesbians to serve openly �is] the right thing
to do."
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. During the decade
following the Dale decision, membership in the BSA "dropped by
more than 16 percent." ("Boy Scouts Seek a Way to Rebuild
Ranks," New York Times, by Katharine Q. Seelye, July 31, 2010.)
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."
In response to the BSA's policies, many government agencies have
been compelled to discontinue funding for programs and
partnerships involving the Scouts. For example, in 2010 the Los
Angeles Police Department restructured its youth "Explorer"
program so as to completely cut ties with "Learning for Life," a
subsidy of the Boy Scouts that had managed the program. ("LAPD,
Citing Discrimination, Ends Affiliation of Its Youth Program
with Scouts," by Howard Friedman, Religion Clause, Dec. 29,
2009.) The disassociation took place because "affiliation with
�the Boy Scouts] conflict�ed] with the city's non-discrimination
policy." (Id.)
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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, Illinois
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.)
Recently, the BSA's 294 local councils, charged with
administering the BSA program at the local level, have not
expressed uniform support for the BSA's stance. For example,
some councils, without expressly disavowing the BSA's
discriminatory policies, have reportedly begun to "look the
other way when it comes to membership rules." ("Local Scouting
Policy Unclear; National BSA Disallows Gays," by Bronislaus B.
Kush, Worcester Telegram & Gazette, July 25, 2010.) Explicit
disagreement has also begun to emerge: for example, the Mohegan
Council, a local council in Massachusetts, has adopted a
non-discrimination policy that expressly prohibits
discrimination based upon sexual orientation, religion, or
creed. The Mohegan Council's policy evinces its recognition
that excluding or marginalizing others based upon their
religious beliefs or sexual orientation is simply incompatible
with one of the basic goals of scouting-"to teach youth 'to be
friendly, courteous and kind and to help other people at all
times.'" (Id.)
The growing rejection of BSA policies within its own ranks
suggests that the sustained efforts of public officials, civil
rights advocates, and concerned citizens may have begun a
process that may eventually result in the BSA appropriately
repudiating all forms of arbitrary discrimination. The author
notes that such a repudiation will hopefully result in a policy
similar to that of the Girl Scouts of the United States of
America, an organization that has been repeatedly commended by
this Legislature for its proud history of inclusion and its
steadfast refusal to discriminate on the basis of sexual
orientation or religious belief.
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Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0003530