Attorneys caution Scouts of legal fallout

Two attorneys’ opinions were circulated to all 1,400 national BSA voting delegates May 17 in an email from Lee Beaman, president of the BSA Middle Tennessee Council Board.

The proposed membership change would leave in place the prohibition on homosexual Scout leaders but would allow youth who identify as gay to join. The Middle Tennessee Council said earlier in May it “will not vote to approve the resolution” but to retain the current membership policy.

“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,” wrote James Bopp Jr., an attorney in Terre Haute, Ind., who achieved the rank of Eagle Scout and has won four cases presented at the U.S. Supreme Court.

Among the legal concerns Bopp raised:

— While the current membership policy is immune from constitutional challenge under the Supreme Court’s decision in Boy Scouts of America v. Dale, a change in the BSA’s official position on homosexual membership would open the organization 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,” Bopp wrote.

— 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” is acceptable, Bopp wrote, adding that opponents would argue the Scouts have “abandoned the protections of Dale.”

Bopp said it’s difficult to assess whether the Scouts would prevail in the Supreme Court again if given a chance, but he predicted at least some lower courts would side with opponents and require the Scouts to admit all persons.

— Because of a vagueness of language, the proposed policy could require the admission of transsexual girls into the Scouts. Rather than using the term “homosexual,” the proposed policy refers only to “sexual orientation or preference.”

“Whatever policy is ultimately decided,” Bopp counseled, “the voting members should ensure that the language chosen accurately reflects their intentions.”

— Defending the proposed policy in court would be politically and financially damaging to the BSA. The proposed policy is not likely to be viewed any more favorably in the broader culture than the current policy, Bopp said, and litigation “will only reignite the controversy in the public arena and subject the Boy Scouts to even more pressure from opponents” calling for the Scouts to admit homosexual leaders.

Financially, the Scouts would be “forced to engage in full-blown litigation on all fronts,” with the cost of litigating even a single constitutional case to the Supreme Court reaching into the millions of dollars.

Bopp predicted it would take several years and multiple cases before the issue would appear before the Supreme Court again, and the Scouts would be “forced to defend a multitude of lawsuits across the country and in numerous courts.” The cost of such an effort, he said, could reach into the hundreds of millions of dollars.

“For these reasons and others, I urge the voting members to vote against the proposed resolution,” Bopp wrote.

In a second letter sent to the voting delegates in the same email, Orlando attorney John Stemberger, also an Eagle Scout, offered 10 reasons to vote against the proposed membership policy. Some of his reasons were similar to those listed by Bopp.

Among Stemberger’s concerns:

— The proposed policy “will inevitably create an increase of boy-on-boy sexual contact which will result in further public scandal to the BSA, not to mention the tragedy of countless boys who will experience sexual, physical and psychological abuse.”

“The leaders setting forth the proposed policy clearly did not have the safety and security of the boys in the BSA as their paramount concern,” Stemberger wrote.

— The proposal “forces and requires every chartered Scouting unit, regardless of religious convictions, to accept ‘open and avowed homosexual’ boys in their program.” This is much worse than the original idea for a local option, Stemberger said, because it fails to respect the religious beliefs of the churches that charter more than 70 percent of all Scouting units.

— A mass exodus of parents, Scouts and other supporters can be expected if the proposal is adopted, leading to a severe financial crisis. “Camps will close, executives will be let go and properties will be sold off as a result of the vast loss of finances from major donors, private foundations and declining membership,” Stemberger wrote.

— The proposed policy “robs parents of the sole authority to raise issues of sex and sexuality with their kids” by injecting a “sensitive and highly-charged political issue into the heart of the BSA, against the wishes of the vast majority of parents.”

— The proposal stands in direct contradiction to the BSA’s 2010-12 study which determined that the current membership standards prohibiting “open and avowed homosexuality” was “the absolute best policy” for the Scouts. A handful of top BSA officials, Stemberger said, “caved from the pressure and criticism they received from their own adult peers.”