Pool and Geller vs Boy Scouts of America

Friends,

The DC Court of Appeals announced there decision in our Boy Scout discrimination case on Nov 7. We lost. They reversed the decision of the DC Human Rights Commission which had ordered the Boy Scouts to reinstate Michael Gellar and I. It was a big disappointment after 10 years of hard legal work and waiting. After a week of legal and scientific analysis, I can say dispassionately, "It sucks."

The court said it felt constrained by the Dale Supreme Court decision of 2000. In other words, they felt like their hands were tied. The decision is pretty dry. They quoted extensively from the Dale decision. By omission they said two important things. The court never said it agreed with the Supreme Court. Two, they never said discrimination against gays was legal. They made an exception for the BSA. If your interested the decision canbe read at: http://www.dcbar.org/dcca/pdf/01-AA-925.pdf

The Supreme Court accepted the Boy Scouts argument that they were fundamentally organized to exclude gay scouts and leaders. Homosexual conduct was not "morally straight" according to the Scout Oath and homosexuals were unclean according to the Scout Law. I wish that our case had reached the Supreme Court first. We had evidence and witnesses that said the boy scout policy was incoherent and conflicted. Not at all like the solid front that the BSA presented in the Dale case. We also
had better lawyers.

I don't know if we will appeal to the Supreme Court. We are going to have some people who have gone to the supreme court read the decision.

I am glad to know there are organizations like SMYAL in DC (where I volunteered for three years) where gay youth are excepted and treated as human beings. But I feel sorry for gay youth in small towns across America where the Boy Scouts are the only major youth organization.

I've appended the Washington Post article on the event to the end of this email.

Roland Pool
505-266-5772

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Washington Post
Rejection of Gay Scout Leaders Is Upheld D.C. Appeals Court Overturns Ruling by Rights Panel Ordering Reinstatement
By Arthur Santana Washington Post Staff Writer
Friday, November 8, 2002;
Page B03

The Boy Scouts of America did not act illegally [wrongfully] in rejecting two gay men as scout leaders, a D.C. appellate court ruled yesterday, overturninga ruling issued last year by the D.C. Commission on Human Rights ordering that the men be reinstated.

Besides losing their bid to return to scouting, Michael S. Geller and Roland D. Pool will not be able to collect the $50,000 each they were awarded by the commission in damages from the Boy Scouts and National Capital Area Council.

The D.C. Court of Appeals found that the commission's ruling was flawed because of a June 2000 Supreme Court ruling declaring that the Boy Scouts of America was within its rights when the organization expelled another adult scout leader because he is gay.

The Supreme Court overruled the New Jersey Supreme Court in ruling 5 to 4 that the Boy Scouts had a First Amendment right to "expressive association "that would be violated if it was forced to admit a gay man, James Dale, as an assistant scoutmaster. But one year later, the D.C. commission reliedon the D.C. Human Rights Act of 1977 and found that Geller and Pool were illegally subjected by the Boy Scouts to "humiliation, embarrassment andindignity."

In yesterday's ruling, Appellate Judges Stephen H. Glickman, Michael W. Farrell and Inez Smith Reid said they were compelled to abide by the Supreme Court decision because they could find no significant difference between the two cases. The commission contended that Dale was a public gay activist but that Gellerand Pool gave no indication they would advocate homosexuality as Boy Scoutleaders. As a result, the commission declared last year, "the District's interest in eradicating
discrimination outweighs the Boy Scouts' right of expression."

But the appellate court disagreed, saying Geller and Pool had indeed been vocal about their homosexuality.

George A. Davidson, a New York-based lawyer who represented the Boy Scouts, said he was pleased with the court's decision.

The Boy Scout code mandates that scouts must be "morally straight," and Davidson said that "homosexual conduct is not morally straight." Dale, Geller and Pool did not belong in leadership roles in the Boy Scouts because they would likely "advocate a lifestyle contrary to the dictates of the scout oath,"he said. Geller, 40, who lives in Washington, maintained that the appellate court "misread the whole thing." In 12 years as a scout leader, he said, he never shared his homosexuality with
youths.

"It's a bitter disappointment after 10 years of fighting this," Geller said.

Pool, 41, who now resides in New Mexico, also took issue with the court's determination that he and Geller were vocal about their homosexuality.

"We never went around carrying a flag that we had this case against the BoyScouts, and other than being involved in many community gay organizations, that's about as public as we were," Pool said.

Cornelius Alexander, the chief hearing examiner for the D.C. Commission on Human Rights, expressed disappointment with the court decision. Merril Hirsh,the lawyer who represented Pool and Geller, declined to say yesterday whether he will seek another review of the case.

Geller was an adult leader of his troop in Oswego, N.Y., before moving to Washington. His membership was revoked in 1992 after he wrote 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 rejected by the scouts after he indicatedthat he was gay on an
application to be a scout unit commissioner.

"It feels like I lost my best friend," Pool said yesterday. "I feel like it was one of the most important organizations influencing me as I grew up. I gave all that up to stand up for what I thought was right, and now it looks like I will have given that up for life."