Will religious Boy Scout troops be tolerated when ban on gay leaders ends?

Washington D.C., Jul 27, 2015 / 16:08 pm

The Boy Scouts of America is moving to change its leadership standards in order to allow openly homosexual adult leaders and volunteers. While the organization promises that individual church-affiliated councils can choose their own leaders, at least one critic warns the move will expose churches to further pressure.

"This change allows Scouting's members and parents to select local units, chartered to organizations with similar beliefs, that best meet the needs of their families," the Boy Scouts of America said July 13. "This change would also respect the right of religious chartered organizations to continue to choose adult leaders whose beliefs are consistent with their own."

The proposal drew criticism from Richard John Matthews, former general counsel for the Boy Scouts of America, who now serves as general counsel for Trail Life USA, an alternative scouting organization formed after previous policy changes.

In a July 22 memorandum, Matthews said the policy change means it is "only a matter of time" until the Boy Scouts of America incorporate LGBT teachings into its programs and merit badge instructional material that deal with family life, relationships, and sex education.

The change also creates "numerous legal ramifications" for the Boy Scouts of America and religious organizations that charter local troops, he said.

"The church-chartered troop will likely be sued the moment it tries to revoke the membership of the homosexual member who wears his uniform to the Gay Pride Parade, revokes or denies membership to an adult who publicly gets married to someone of the same sex, or denies membership to the girl who believes she is actually a male," said Matthews.

According to the text of the Boy Scouts of America's July 13 executive committee resolution, no adult employee applicants or non-unit-serving volunteer who otherwise meets the organization's requirements "may be denied registration on the basis of sexual orientation." The resolution says sexual relations between adults should be "moral, honorable, committed and respectful." It says it recognizes the right for each chartering organization to select its leaders, and bars local councils from denying a charter to a unit that is following its religious beliefs.

The scouting group's National Executive Board met July 27 and was expected to ratify the resolution.

In a July 8 memo, the Boy Scouts of America said its policy barring adult homosexuals from leadership is "no longer legally defensible." It warned of staggering costs of litigation, the threat of overly-broad court decisions, an increase in anti-discrimination laws and policies, and the federal government's "use of executive power to deter private action."

The U.S. Supreme Court's gay marriage decision will accelerate these trends, the memo said.

"Several conservative states have retreated from religious freedom legislation – most recently Indiana  and Arkansas – due to the business community wanting to avoid appearing anti-gay," the Boy Scouts' memo noted.

The scouting organization no longer holds the position that homosexuality is "immoral and unclean," a position the organization successfully defended before the Supreme Court in a 2000 lawsuit that sought to force the organization to change its moral standards.

Many local councils, leaders, and supporters now openly disagree with the leadership standard barring active homosexuals from leadership, the Boy Scouts of America noted.

The organization promised to "steadfastly defend the right of religious chartered organizations to select leaders whose beliefs are consistent with those of the religious organization."

It advocated moving towards a policy that "accepts and respects different perspectives and beliefs."

The Boy Scouts of America referred to a memo from the Hughes, Hubbard & Reed law firm that said Boy Scout units which are not chartered by religious organizations could not exclude homosexuals from leadership.

The memo said religious-sponsored Boy Scout groups could face the risk of a lawsuit from a homosexual activist seeking admission, but that any lawsuit challenging a religiously-chartered scouting unit would be "unlikely to succeed or even make much progress" due to existing religious freedom protections, such as a 2012 Supreme Court decision which recognized constitutional protections for religious organizations to choose their own leaders.

The memo also predicted a low likelihood of success for a lawsuit seeking to force the Boy Scouts of America to end a relationship with a religiously-chartered organization because it does not include homosexual adults.

The memo said the Boy Scouts of America would "not seek to exert pressure on any religious chartered organization" but would "help safeguard the religious chartered organizations by defending their protected expression and religious liberties."

Matthews, however, predicted the policy change will cause problems for churches that do not condone homosexual acts.

"Even if you believe the BSA's statement that it will bear the costs of defense, the disruption of having to deal with the litigation process, the adverse publicity and the likely intimidation of donors and church members will likely be detrimental to the overall mission of churches and religious organizations," he said.

Religious-chartered organizations will be vulnerable to legal challenges under state laws governing public accommodations, he added.
 
"Granting the use of facilities to the BSA – with its acceptance of homosexuality – by religious organizations could result in the loss of their legal protection to deny facility use to other 'gay-friendly' or homosexual advocacy groups."

A church-chartered council will still be under the guidance of local, state, and national Boy Scout groups that now allow homosexuals in leadership positions, Matthews said.

"It is difficult to see how a court will uphold a religious organization's claim that allowing homosexual adult leaders violates its religious beliefs, when that same religious organization is sending its unit to activities, events and facilities under the leadership of homosexuals," he said.

Matthews argued the Hughes, Hubbard & Reed memo was incorrect to hold that Supreme Court decision that allows religious schools to set moral and religious standards for teachers will apply to scout leaders. Scout leaders are "rarely involved in ministerial activities or religious instruction." They teach camping and other outdoor skills, not religion, he said.

The Boy Scouts of America has faced significant corporate and political pressure to change its moral teachings and its membership policies. The organization announced it would allow openly homosexual members, but not leaders, in May 2013.

CNA contacted the National Catholic Committee on Scouting for comment, but did not receive a response by deadline.