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D.C. Panel Reinstates Two Gay Adult Scouts

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By Sewell Chan

The D.C. Commission on Human Rights has ruled that the Boy Scouts of America violated the city's anti-discrimination law by expelling two adult Eagle Scouts in 1992 for being gay.

In a long-awaited ruling issued Wednesday night, a panel of three commissioners found that the two men "were subjected to humiliation, embarrassment and indignity" when the Boy Scouts revoked their membership in 1992. They ordered the Boy Scouts and the National Capital Area Council to admit both men -- Michael Geller, 39, and Roland Pool, 40 -- as adult members, to pay each $50,000 in compensatory damages and to pay the men's attorney fees.

Legal experts said it was the first time such a judgment has been rendered against the Boy Scouts since the Supreme Court ruled 5 to 4 last year that the organization had a First Amendment right to "expressive association" that would be violated if it were forced to admit a gay man, James Dale, as an assistant scoutmaster.

The D.C. panel maintained that several distinctions made the Supreme Court ruling inapplicable in the cases of Geller and Pool. But the two sides in the dispute disagreed yesterday on whether the 73-page D.C. ruling was a potential precedent for future cases or an instance of legal chutzpah that will soon be overturned.

"Everyone will wonder, 'How can the D.C. Human Rights Commission do this when the U.S. Supreme Court just seemed to say the opposite?' " said commission Chairman Frank H. Wu, a law professor at Howard University. "The answer is that these are different cases."

A lawyer for the Boy Scouts said the organization will almost certainly appeal to the D.C. Court of Appeals.

"It's astounding that a commission located only a few blocks from the United States Supreme Court would so blatantly depart from controlling Supreme Court precedent," said George A. Davidson, who argued the case before the high court and represented the Boy Scouts before the commission.

Geller, who was an adult leader of his troop in Owego, N.Y., had his membership revoked after writing a letter to the Boy Scouts in response to a Washington Post article that quoted the National Capital Area Council's top official as saying that gay men were inappropriate role models.

Pool, a Louisiana native and former computer specialist and geologist at the Smithsonian Institution, was expelled after he indicated on an application to be a scout unit commissioner that he was gay.

"I'm thrilled, because it's been a long time in waiting for this. I'm a little stunned, too," said Geller, who now works for the World Bank and lives in Shaw. "I had never sought compensatory damages. The highlight of the document for me is that it says I am reinstated as an active adult leader."

The commission agreed that the Boy Scouts have a right to advocate their point of view. But it said the Scouts "did not have a firm exclusionary policy [against gays] based on a long historical philosophy."

Davidson said the Supreme Court ruled that judges should defer to current Scout leaders' statement of the group's position.

The commission also contended that Dale was a public gay activist, unlike Geller and Pool, "who would not send messages about homosexuality or its lifestyle." Finally, the commission argued that because Geller and Pool "are not advocating any particular message," the District's interest in eradicating discrimination outweighs the Boy Scouts' right of expression.

Davidson said the commission advanced no new arguments. "It just flies right into the teeth of Dale," he said. "They're essentially the same case."

The Office of Human Rights dismissed the complaint in 1995. But the office reversed itself in 1997, and the commission held 12 days of public hearings in early 1998. Both sides have since waited, filing additional briefs after last year's Supreme Court decision.

The Boy Scouts challenged the commission's jurisdiction over the matter. But the commission noted that the city's 1977 Human Rights Act had been expanded to include larger clubs and institutions that had been considered private. The panel also noted the organization's congressional charter and its list of District-based sponsors, which have included the D.C. police, the U.S. Park
Police, Banneker Senior High School and Malcolm X Elementary School.

Ruth Harlow, legal director for the Lambda Legal Defense and Education Fund, said the ruling is a sign "that the Boy Scouts will continue to be plagued with litigation, and more importantly, be subjected to many of their members and supporters resigning and cutting off support if the Boy Scouts continue to try and enforce their discriminatory policy."

But Greg Shields, a spokesman for Boy Scouts of America, said that "public support has remained strong."

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