BILL ANALYSIS                                                                                                                                                                                                    



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          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  








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          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  








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               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.)









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          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. 









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               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  








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          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."








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          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. ?









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               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  








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               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.








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          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 








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          Regional Human Rights/Fair Housing Commission 
           
          Analysis Prepared by  :   Drew Liebert / JUD. / (916) 319-2334