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THE BOPP LAW FIRM, PC
ATTORNEYS AT LAW
THE NATIONAL BUILDING 1 South Sixth Street TERRE HAUTE, INDIANA 47807-3510 Telephone 812/232-2434 Facsimile 812/235-3685 www.bopplaw.com
THOMAS J. MARZEN (1946-2007)
May 17, 2013 Dear Fellow Scouters, I write this letter to express my concern about the potential legal ramifications of the Proposed Membership Standards Resolution, scheduled to be voted on at the Boy Scouts of America National Annual Meeting later this month. My experience with Scouting first began when a joined the Cub Scouts and continued through my attainment of the rank of Eagle Scout at age 14. I also was awarded the Vigil Honor from the Order of the Arrow and served on our summer camp staff for five years. I currently serve on the Council Board of Directors for the Crossroads of America Council headquartered in Indianapolis, Indiana. My Scouting experience has been instrumental in developing my character and preparing me for the challenges of the legal profession.1 Simply put, it taught me how to be a man. Because of the impact Scouting has had on my life, I am deeply committed to ensuring that the B.S.A. remains in a position to impact the lives of America’s boys and mold them into young men. The proposed resolution threatens the B.S.A.’s ability to accomplish these goals. If passed, the proposed resolution will incite a new round of legal challenges by groups who seek to undermine the B.S.A and dilute its core values. The B.S.A. and Scouting troops across the country will be hauled into courts and forced to defend this new policy from attacks by government agencies, private individuals, and advocacy organizations.
For 40 years, I have practiced law concentrating on litigating First Amendment issues regarding campaign finance, religious liberty and sanctity of life, currently with The Bopp Law Firm, P.C. (www.bopplaw.com). In October, 2013, I will be arguing my seventh case in the United States Supreme Court, having won four so far. Among other positions, I am General Counsel for the James Madison Center for Free Speech, Special Counsel for the Republican National Committee, and General Counsel for the National Right to Life Committee. A few months ago, the National Law Journal named me one of the Hundred Most Influential Lawyers in America. The National Law Journal, The 100 Most Influential Lawyers in America, 2013, http://www.law.com/jsp/nlj/ PubArticleNLJ.jsp?id=1202593197565.
Boy Scouts of America May 17, 2013 Page 2 The Proposed Policy is Subject to Extensive Litigation The Boy Scouts current policy states that the B.S.A. does “not grant membership to individuals who are open or avowed homosexuals.” This policy is immune from constitutional challenge under the Supreme Court’s decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000). In Dale, the Court held that the Boy Scouts’ prohibition against admitting openly and avowed homosexuals was protected as a form of associational expression under the First Amendment.2 Central to the Court’s decision was its conclusion that “at least as of 1978 . . . the official position of the Boy Scouts was that avowed homosexuals were not to be Scout leaders.”3 Other courts may not reassess the Boy Scouts’ official position on homosexual membership so long as the policy remains unchanged.4 However, if the B.S.A. changes its official position by, for example, adopting the currently proposed resolution that would allow openly homosexual boys to be Scouts, the B.S.A. will open itself to a veritable Pandora’s box of litigation whereby the B.S.A.’s opponents can argue that the new policy is not entitled to constitutional protection. A multitude of plaintiffs will once again be able to sue the B.S.A. and its affiliates under state and local discrimination statutes and argue once again that the Boy Scouts must admit homosexuals in all instances. The Proposed Policy is Internally Inconsistent Both Morally and Logically As has been noted elsewhere, the proposed policy is vulnerable to attacks that it is internally inconsistent both morally and logically. From a constitutional perspective, the dual nature of the policy—allowing homosexual boys as members but excluding homosexual adults as leaders—would reopen the question of whether the B.S.A.’s expressed viewpoint that homosexuality is inconsistent with the values embodied in the Scout Oath and Law. This question was definitively settled by the Supreme Court in Dale with respect to the Scouts’ current membership policy.5 But, the clear change in policy that would occur if the new policy is adopted will provide footing for the Scouts’ opponents to argue that the Boy Scouts have abandoned the protections of Dale. These opponents will argue that the Scouts have waded into new territory that requires the courts to consider anew whether the Scouts’ viewpoint on homosexual members is entitled to constitutional protection. Indeed, these opponents will likely
530 U.S. at 644. Id. at 652.
Boy Scouts of Am. v. Dist. of Columbia Comm’n on Human Rights, 809 A.2d 1192, 1201 (D.C. 2002) (“Absent a demonstrated change in the Boy Scouts’ ‘official position’ . . . nothing in Dale suggests that a different tribunal may consider other evidence and define the Boy Scouts’ viewpoint differently . . . .”).
530 U.S. at 656.
Boy Scouts of America May 17, 2013 Page 3 argue that, because of the new policy, the inclusion of homosexual adults in leadership roles would not “significantly affect the Boy Scouts’ ability to advocate public or private viewpoints” about homosexuality as the Supreme Court concluded in Dale.6 While it is difficult to assess whether the Boy Scouts would ultimately be able to prevail in the Supreme Court again, if given a chance, it is not a stretch to assume that at least some courts would side with the Boy Scouts’ opponents and require the Scouts to admit all persons, no matter their sexuality. The Proposed Policy is Vague and Could Require Admission of Transsexual Girls into the Scouts There is another related issue with the proposed policy that is perhaps even more problematic. In its current form, the new policy articulated in the proposed resolution uses vague terms to describe who cannot be denied membership. Rather than use the term “homosexual” as the existing policy does, the proposed policy refers only to “sexual orientation or preference.” The terms are not necessarily synonymous. Because of the vagueness in the proposed policy, it could be read to require admission of transsexual girls into the Boy Scouts. And this vagueness could open the door to a different track of litigation aimed at requiring the Scouts to admit transsexual girls as well. Whatever policy is ultimately decided, the voting members should ensure that the language chosen accurately reflects their intentions. Defending the Proposed Policy Would Require Millions in Legal Fees Over a Decade or More Defending the new policy in court would be both politically and financially damaging to the B.S.A. From a political standpoint, the litigation would thrust the B.S.A.’s position on homosexuality in Scouting back into the public arena at a time when the issue is at a high water mark in terms of visibility and public controversy. There’s little reason to believe that the media would frame the issue in a light favorable to the B.S.A., and the new policy will not likely be viewed anymore favorably than the B.S.A.’s current policy. Indeed, The Washington Post has already published several articles condemning the proposed resolution and its predecessors for not going far enough.7 Litigation will only reignite the controversy in the public arena and
Id. at 650, 656.
Editorial Board, The Boy Scouts’ proposal on gay participation goes the wrong way, Wash. Post, April 27, 2013, http://articles.washingtonpost.com/2013-04-27/opinions/38859049_1_ gay-scouts-boy-scouts-scout-oath; Jena McGregor, No merit badges for the Boy Scouts’ proposal on gays, Wash. Post, April 22, 2013, http://articles.washingtonpost.com/2013-04-22/ national/38729223_1_gay-scouts- boy-scouts-glaad; Jonathan Capehart, Not impressed by Boy Scouts’ plan on gays, Wash. Post, April 19, 2013, http://www.washingtonpost.com/blogs/ post-partisan/wp/2013/04/19/not-impressed-by-boy-scouts-plan-on-gays/; Editorial Board, The
Boy Scouts of America May 17, 2013 Page 4 subject the Boy Scouts to even more pressure from opponents. Of course, this is not to say that the B.S.A. should hide from its principles. The point is that the new policy likely will not appease the Boy Scouts’ critics and will only lead to calls for the Scouts to go further in admitting homosexual members and leaders. The financial impact of the litigation could be even more significant. Unless and until the Supreme Court definitively addressed the constitutionality of the proposed policy, the Boy Scouts would be forced to engage in full-blown litigation on all fronts. This prospect should give any voting member pause as the cost of litigating even a single constitutional case to the Supreme Court can reach well into the millions of dollars. And, it would likely take several years and multiple cases to bring the issue back to the Supreme Court. In the interim, the Boy Scouts would be forced to defend a multitude of lawsuits across the country and in numerous courts. All told, the cost of such a litigation effort would likely reach well into the hundreds of millions of dollars. For these reasons and others, I urge the voting members to vote against the proposed resolution.
Sincerely, The Bopp Law Firm, P.C. S/ James Bopp, Jr. James Bopp, Jr.
Boy Scouts’ small step on gay rights, Wash. Post, January 31, 2013, http://articles.washingtonpost.com/2013-01-31/opinions/36657232_1_boy-scouts-sponsor-local-t roops-gay-members; Editorial Board, Boy Scouts reaffirm their intolerant ban on gays, Wash. Post, July 19, 2012, http://articles.washingtonpost.com/2012-07-19/opinions/35487248_1_ boy-scouts-scout-law-avowed-homosexuals.
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