The California Supreme Court has ruled that the Boy Scouts may exclude members who are either gay or who refuse to affirm the existence of God in the Boy Scout oath. The American Civil Liberties Union of Southern California represented both a former Eagle Scout who was rejected as an adult member after his local scout council learned he was gay and twin brothers who refused to say the word "God" when they spoke the Boy Scout oath. The case of the gay scout is Curran v. Mt. Diablo Council of the Boy Scouts of America and that involving the twin boys is Randall v. Boy Scouts of America Orange County Council.
In these rulings the Court said the Unruh Civil Rights Act does not apply to the Boy Scouts because the Court does not recognize the organization as a business. Because this ruling pertains to state law, it may not be appealed to the United States Supreme Court.
Taylor Flynn, the ACLU of Southern California staff attorney who argued on behalf of the twins in Randall v. Boy Scouts of America Orange County Council, said, "This is not a victory that the Boy Scouts can be proud of. It tarnishes what that organization is supposed to embody: equal treatment for all boys."
Jon W. Davidson, Supervising Attorney with Lambda Legal Defense and Education Fund, who argued on behalf of Timothy Curran for the ACLU, clarified that this ruling is limited to California's public accommodations statute. "Lambda and the ACLU are litigating this issue across the country. Most recently, in an ACLU case in Illinois, the City of Chicago agreed to withdraw sponsorship of the Boy Scouts based on the ACLU's claim that this violated separation of church and state. The Chicago Human Relations Commission likewise recently ruled that the Boy Scouts anti-gay policy violates its city anti-discrimination ordinance. Earlier this month in a case brought by Lambda, the New Jersey Court of Appeal ruled that Scouting's expulsion of James Dale because he is gay violated New Jersey's public accommodations law. The days of the Boy Scouts' discriminatory policies are numbered."
While the ruling applies only to California law Davidson said, "it is a shame that this ruling shields blatantly discriminatory conduct on the part of an important American institution from even one state's law. Discrimination by the Boy Scouts is wrong, whether it be today's banishing of gay people and religious nonbelievers or the organization's past racial segregation of troops and exclusion of Japanese-American children after World War II. `A Scout is prejudiced' should not be a thirteenth point of Scout law."
Lynette Sperber, representing Parents, Families and Friends of Lesbians and Gays, said at the news conference, "As a native Californian, I can tell you that this decision not only tarnishes the Boy Scouts, it tarnishes this state. It says that we as Californians believe in discrimination and I know that not's true. I ask all Californians to join with us in sending a clear message to the Boy Scouts that until they take discrimination out of Scouting, we'll withdraw our dollars and our support."
In the Randall case in California, the brothers have received exemplary evaluations by troop leaders throughout their years as scouts and were awarded their Eagle Badges on March 15 after a unanimous vote by the Orange County Council Eagle board of review. "While the Boy Scouts may say that Michael and William aren't Eagle Scouts because the Orange County Council vote had not yet been confirmed by the National Council, to our knowledge, the National Council never failed to approve an Eagle award once granted by a board of review," said Flynn. "And, as Scouts' attorney, George Davidson, said in superior court last month, `Once an Eagle Scout, always an Eagle Scout.'"
Flynn said that organizations which donate money to Scouting should refuse to support discrimination. She said some organizations have already chosen to withdraw their support, giving the example of Levi Strauss and the United Way of San Francisco, which stopped funding Scouting because gay Scouts are excluded. In the Randall case, the Orange County Council had signed an agreement with the United Way, from whom the Council received approximately $750,000 per year, stating that it would not require a Scout to participate in any religious activity.
"It's now up to organizations such as the United Way, as well as the police and fire departments and other governmental entities which support Scouting, to make sure that their money is not funding discrimination," said Flynn. Flynn pointed out that this is particularly true for government sponsors of Scouting. "Taxpayer dollars should not support discrimination. Moreover, the Boy Scouts take the position that they are a religious organization. If true, then government sponsorship of Scout troops violates both the constitution's equal protection clause and its requirement of the separation between church and state."
Speaking at the news conference, James Randall, attorney and father of the Randall twins said, "On behalf of my wife Valerie and Michael and William, this is truly a sad day for freedom, for justice and for equality. The Court's decision may kick Michael and William out of Scouting but it cannot kick Scouting out of Michael and William.
"While this may be a legal victory for the Boy Scouts of America, it is not a moral or just victory and we challenge Jere Ratcliffe, the Chief Executive Officer of Scouting and Kent Gibbs the Chief Executive of the Orange County Council and the others who never chose to meet my sons to come out of their hiding places and meet two young men whose honesty, courage and integrity exemplify what Scouting is supposed to be about. While Michael and William will hand up their Scouting uniforms, they will never hang up the courage and honesty that led them to this important fight. In the year's to come, this unfortunate decision will undoubtedly be viewed as a dark day in Scouting. We look forward to the day when all California's young men are welcomed into an organization that says it believes in equality."