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