What a difference two years makes. Since the policy change in 2013, acceptance of gays has grown dramatically among the general population. Prohibitions on same-sex marriage have systematically met their demise at the hands of courts, legislatures, and even voters. Finally, the U.S. Supreme Court recently ruled that states and local governments must recognize gay marriage.
Quite frankly, top BSA leaders have been preparing for this situation since 2013. Just days after the Supreme Court issued its recent ruling, the BSA executive board voted to abolish its general ban on homosexual adult leaders (see KSL article, St-Ex article, BSA Newsroom Blog post). Most adult membership requirements will still be maintained at the national level, but questions regarding sexual orientation of adult leaders will now be shifted to local sponsoring organizations. More on this in a moment.
The new BSA document titled Why the BSA Must Reconsider the Adult Leader Standards does exactly what its title says. Here are some salient quotes:
- "Over the last three years there has been a sea change in the law with respect to gay rights."
- "The inescapable consensus in the legal community is that a protracted legal battle to defend the BSA’s current standard excluding gay adult leaders is unwinnable."
- "[O]verly-broad court decisions could limit the BSA from maintaining any membership standard until an appellate court reaffirms the BSA’s and religious chartered organizations’ constitutional rights with respect to the duty to God."
"[I]nstead of leaving the matter for the courts or lawmakers to decide"—a process that has been increasingly unfriendly to moral objections to homosexuality—the executive board decided to take actions that would preserve the right of religious organizations that sponsor BSA units "to determine the standards for their Scout leaders."
Some warned in 2013 that the vote to drop the BSA's ban on gay youth members would eliminate the legal basis for maintaining any kind of ban on gay adult members. They were right. The BSA's own document states, "The BSA no longer has a policy stating that homosexuality is immoral and unclean, which was the basis for the BSA prevailing in Dale." Ergo, the BSA no longer has a legal basis for its ban on gay adult members. Some leaders that supported the policy change anticipated this development.
A second BSA document titled Effect of Changes In Adult Leader Standard On Religious Chartered Organizations offers a legal analysis of potential challenges to BSA unit sponsors that restrict gays from holding BSA adult leadership positions. Non-religious organizations that sponsor BSA units will have no legal protection if they attempt to restrict gays from holding leadership positions. The document mostly addresses churches.
A strong case for First Amendment and other legal protections allowing religious organizations to choose leaders for their BSA units is laid out. It assumes that churches will maintain pretty much the same rights they have for selecting ministers. The writers opine concerning two potential types of lawsuits, apparently unable or unwilling to imagine other approaches that will certainly be tried.
Some Scout camps, for example, are on property leased from the Forest Service or another government agency. What if the government creates a policy stating that organizations that discriminate against gays will not be permitted to use this property? It would be argued that this policy is not specifically directed at religious groups.
Under this scenario, the BSA could continue to operate the camps, but BSA units sponsored by churches that do not allow gay people to serve as leaders would be banned from attending those camps. Where would the courts come down on this issue? How certain is that outcome, especially given how courts have ruled recently? How much would the litigation cost?
The Church of Jesus Christ of Latter-day Saints, which sponsors the largest number of BSA units, might be able to circumvent a problem like this, since it allows people with same-sex attraction to serve in all kinds of callings, as long as they keep the church's chastity code, which prohibits homosexual behavior (see MormonsAndGays.org).
Still, activists will undoubtedly step up to challenge any restriction on homosexual behavior. After all, churches argue that the Constitution protects religious behavior and not just religious belief. Activists will contend that the same is or ought to be true for sexual orientation.
While the BSA Executive Board paints its proposal as a best case scenario, it's clear that the envisioned bed of roses is fraught with many thorns. It seems clear to pretty much all observers that the Supreme Court's recent ruling will lead to many legal clashes involving religious freedom. The proposed BSA policy change will feed into that.
The BSA National Executive Board will vote on the executive board's proposal on July 27. There are somewhere around 77-81 members of the national board, including high ranking LDS Church officials Elder Jeffrey R. Holland of the Quorum of the Twelve Apostles, Primary General President Rosemary M. Wixom, and Young Men General President Stephen W. Owen.
Apparently the national executive board's vote is the final word on the matter. I'm not sure why the the 1,400 member BSA National Council doesn't get to vote on it, as was the case with the last major membership policy change. But apparently leaders have found a way avoid that body—a body that might not go along with the proposal. But I would be surprised if the vote on the 27th failed to affirm the executive board's proposal.
In my own circles, I know more than a few that will be dissatisfied with the policy change, seeing the BSA as an organization that fails to stand for the principles it purports to espouse. People will withhold donations and will refrain from doing BSA volunteer work.
Some will be disappointed when the LDS Church fails to drop the Scouting program following the vote, perhaps to the point that it negatively impacts their testimony of the faith. Perhaps they would prefer to stand on their moral high ground while riding the old policy down to the legal destruction of the BSA.
Some that are called to serve in Scouting positions in the LDS Church will simply refuse to implement the BSA programs, substituting their own ideas instead. I admonish any that feel this way to follow the counsel of Mac McIntire from his 9/8/2014 LDS-BSA Relationships Blog post.
Regardless of the outcome of the vote on July 27th, Scouting will continue to offer valuable programs to young people. But to continue to exist, the BSA must operate in the legal and cultural environment of the day. I know of those that will disagree with this statement, but I say better some Scouting than none. It's not a perfect program, but I have seen it bless the lives of many people. May it continue to do so.