Downey v. Boy Scouts of America Clears Important Legal Hurdle

by Margaret Downey
GREATER PHILADELPHIA STORY-January 1999

 Nearly seven years ago, I filed a discrimination complaint against the Chester County Council of the Boy Scouts of America (BSA) with the Pennsylvania Human Relations Commission (PHRC). My son Matthew Schottmiller, then fourteen years old, attempted to reinstate his Boy Scout membership after having participated in BSA in two states over a seven year period. I applied to become a BSA volunteer at the same time. Both applications were rejected because we crossed off the word 'God' in the BSA's 'Declaration of Religious Principles' (DRP). The DRP is a BSA membership requirement. The BSA recently began requiring signed DRPs even from seven year old Cub Scout applicants.

 Boy Scout officials repeatedly indicate that those who would not sign the DRP cannot be the 'best kind of citizens.' I found this religious test policy bigoted and insulting.

 Recently there have been two major developments in my case. A Pre-Hearing Conference took place on January 20, 1999. BSA stood firm against the PHRC's ruling of Probable Cause. They are determined not to comply with the ruling and have refused to cooperate with any conciliation negotiations. The PHRC's only recourse is to take the BSA to the next phase of forced compliance: a public hearing.

 To avoid the public trial, the BSA initiated a proceeding in Commonwealth Court asking, in essence, for the case to be thrown out of court without any hearing of its facts. As if indignant that they have to go through the legal processes like anyone else, the BSA made grandiose arguments. Repeatedly, it has claimed that it should not have to defend such a case because they must use contributors'-money to defend it.

 They asked for several seldom-used extraordinary remedies: declaratory judgment, mandamus, and preliminary injunction. None of these were appropriate to this case. The BSA raised them only to confuse the issues and rush the court into rejecting the case out of hand.

 In sum, BSA urged the court to rule that the PHRC may not operate as the statutes set it up. The BSA claimed that this proceeding would cause 'irreparable harm' to it. In reality, the sweeping remedies they asked for would have done irreparable harm to the PHRC.

 Pamela Darville, the Assistant Chief Counsel for the PHRC, argued strongly against the BSA's request. In a legal submission Darville said that the PHRC has 'the authority to exercise its police power to ensure the fundamental rights of the Commonwealth's citizens to be free of unlawful discrimination' and it was the PHRC's responsibility to 'promptly eradicate unlawful discrimination that adversely affects the health and safety of the citizens of the Commonwealth.' Darville also pointed out that granting the BSA the requested relief 'would result in substantial harm to the PHRC because it would set precedent for the judicial intervention of non-adjudicative determinations made by the PHRC.'

 Darville called the BSA's request 'absurd' and emphasized that the it was 'manifestly apparent that the request for declaratory relief from the Court is in reality an attempt to thwart the PHRC's established statutory scheme by avoiding the PHRC's administrative proceeding.'

 We are very thankful to Darville for her thorough and wholehearted advocacy of our case in the recent months. The lengthy court papers filed by the BSA required equally lengthy responses drafted by Darville.

 Fortunately, Commonwealth Court saw through the BSA's strategy and ruled in our favor. It demanded that a public trial begin the week of May 17, 1999.

 Lest we get too confident, we must remember that a case against the BSA in California was unsuccessful: Randall v. Boy Scouts of America failed to prove that the BSA was a business so as to bring it under a California anti-discrimination law (Unruh Act). In my case we are not claiming that the BSA is a business. Pennsylvania anti-discrimination laws are not the same as California Also, Connecticut, Kansas, and Oregon cases against BSA failed because BSA was held not to be a 'public accommodation' operating at a fixed location. What makes the outcome more hopeful in Pennsylvania is that an organization can be found to be a 'public accommodation' which may not discriminate even though it does not have a particular location or  In Chicago, Illinois (Welsh v. Boy Scouts of America) case the appellate court determined that Title II of the Civil Rights Act of 1964, was inapplicable on the facts of the case once again stating that it was not proved that the BSA was an established 'place of public accommodation.' Distinguishing that ruling the PHRC reminded the Court that in Pennsylvania there does not need to be a 'place' or operate from a 'physical location' for anti-discrimination laws to apply. In a powerful statement to the Court, the PHRC states that other organizations even smaller than the the BSA have been forced to abide by anti-discrimination laws. The legal brief submitted by the PHRC points to the Rotary Club, Jaycees, Kiwanis, Fraternal Order of Eagles, International Association of Lions, YMCA, and the United States Power Squadron.

 The BSA claims to be exempt and different from all of the above mentioned organizations because it has its members cite an Oath which contains the terms 'to do my duty to God.' The PHRC contends that this Oath does not make the BSA 'private' or 'religious.'

 In a federal court case, Jacques v. Hilton, the court stated 'The Boy Scouts and the Girl Scouts of America both espouse simple codes of personal conduct . . . these organizations are clearly not religious.'
 The strongest piece of evidence that the BSA is not 'religious' or 'private' is their own Congressional Charter. There is not one mention of religion in that Charter and the wording clearly states that the BSA is a public organization dedicated to teaching 'Scoutcraft.'

 Even though the case has dragged on for over seven years, I remain optimistic. When I brought this case of discrimination before the PHRC I was sure that the statutory provisions of the PHRC were clear. As stated in those provisions, the PHRC fights discrimination because 'discrimination foments domestic strife and unrest, threatens the rights and privileges of the inhabitants of the Commonwealth, and undermines the foundations of a free democratic state.'

 The statute goes on to say that discrimination fails to 'utilize the productive capacities of individuals to their fullest extent . . . threatening the peace, health, safety, and general welfare of the Commonwealth and its inhabitants.' Those words reinforce my belief that justice will be served.
 It is indeed unfortunate that millions of BSA dollars are being spent to keep nontheist families from participating in the BSA and it is indeed unfortunate that taxpayer dollars are being spent to enforce Pennsylvania anti-discrimination statutes to defeat BSA. It would be easy and prudent for BSA to simply do as Girl Scouts of America did in 1993 ' allow interested applicants to join with an alternative oath and eliminate the DRP.
 In other developments, the American Civil Liberties Union (ACLU) Chicago branch filed a federal lawsuit against schools, military basses and other publicly funded groups that are entangled with the BSA. The DRP requirement places publicly funded groups in violation of constitutional requirements of separation of church and state. ACLU attorney Roger Leishman said, 'Government agencies simply cannot spend tax dollars on programs that exclude people because of their religious beliefs.'

 In an effort to defend their position Robert Hall, first assistant attorney with the Chicago Public Schools, averred that 'There is no allegation that any individual student or leader has suffered any kind of discrimination based on religion in connection with any program sponsored by the Chicago Public Schools.' It appears he is conveniently overlooking the 1989 Welch v. Boy Scouts of America case.

 The Anti-Discrimination Support Network (ADSN), a committee of the FSGP, encourages people nationwide to utilize state statutes, federal laws, and local anti-discrimination policies. Each new case reveals the harm that the BSA brings to society. When people learn to separate themselves from each other due to religious differences, this nation's policy of tolerance and diversity is threatened.

 The Minneapolis Civil Liberties Union (MCLU) recently filed a lawsuit on behalf of second-grade teacher, David Perry. Perry is employed at Dayton's Bluff Elementary School in St. Paul. School officials allowed the BSA to enter Perry's classroom so that they could recruit new members. Initially Perry did not object, he decided instead to complete a BSA  As you can well imagine, Perry's job may be in jeopardy. The ADSN commends Perry for his courage and principles. This movement needs more people like Perry who are willing to stand tall against the face of adversity.

 There is something you can do too. Contact city agencies that hold BSA charters, object to United Way offices funding the BSA, protest against public schools that allow the BSA to recruit for new members, and send a donation to the ADSN.

 As we can well imagine, BSA has billions of dollars at their disposal while ADSN struggles to finance daily expenses. We can win and you can help.