Challenging the Discriminatory Practices of the Boy Scouts of America
Downey, Margaret, The Humanist
In December 1992, nearly seven years ago, I filed discrimination complaint with the Pennsylvania Human Relations Commission (PHRC) against the Chester County Council of the Boy Scouts of America (BSA) for rejecting the applications of my son, Matthew Schottmiller, and myself. Matthew, then fourteen years of age, had attempted to reinstate his Boy Scout membership; he'd previously been active in Cub Scout and Boy Scout troops in two states over a seven-year period. At the same time, I had applied to become a BSA adult volunteer. On the forms provided, we'd each crossed off the word God in the BSA's "Declaration of Religious Principle." Such honest clarification of our philosophical views was, in the eyes of BSA officials, enough to disqualify us. For we were told outright that it was necessary to "acknowledge the existence of God as a condition of becoming a Boy Scout or an adult volunteer."
After filing our complaint, matters in Margaret Downey-Schottmiller v. Chester County Council of the Boy Scouts of America progressed slowly, with the BSA denying that its discrimination against nontheists was unlawful. The BSA argued that membership in the organization was "not an accommodation, advantage, or privilege of a public accommodation" and emphasized that "the Boy Scouts are distinctly private" within the meaning of the law. Thus, the BSA held that it could enforce its rule "that all persons seeking youth or adult membership must agree to observe the Scout Oath and Scout Law," each of which includes reference to God. We, on the other hand, argued that, pursuant to its federal charter and bylaws, the BSA is mandated to make Scouting available to all boys who meet entrance age requirements--irrespective of race, religion, or ethnic origin.
Finally, on January 18, 1996, the PHRC issued a Finding of Probable Cause. The commission concluded:
Probable cause exists to credit the Complainant allegations that both she and her minor son were unlawfully discriminated against, in violation of Section 6 (i) of the Pennsylvania Human Relations Act, because of religious creed when Respondent [the BSA] advised the Complainant that belief in the existence of God was a requirement to obtain the accommodations, advantages, facilities, and/or privileges offered to Boy Scouts and adult membership volunteers.
The BSA was then ordered to immediately advise us of our right to apply for membership at the appropriate levels; to notify all administrative personnel and volunteers in writing that " individuals who are unwilling or unable to acknowledge a belief in God for religious reasons may nonetheless apply for and be accepted as scouts and/or volunteers"; and to post and exhibit prominently the commission's public accommodations fair practices poster, advising people of the rights guaranteed under the Pennsylvania Human Rights Act. (By then, however, my son had turned eighteen, making him too old to continue as either a Boy Scout or Varsity Scout; only the Explorer and adult volunteer programs cover young people his age.)
Did the BSA comply? No. Three more years passed as the organization stood in opposition to the ruling and refused to cooperate with any conciliation negotiations. This culminated in a pre-hearing conference on January 20, 1999, at which the PHRC determined that its only recourse was to take the BSA to the next phase of forced compliance: a public hearing.
That hearing was held this past May but, unfortunately, we didn't prevail. On June 28, the decision of the full commission was seven to two against us. Our complaint was dismissed and the BSA was declared a private organization not subject to the anti-discrimination laws of Pennsylvania. Since then, however, the American Civil Liberties Union (ACLU) has taken up our cause and we have filed an appeal.
Similar results have occurred elsewhere. Randall v. Boy Scouts of America failed to prove that the BSA was a business subject to the Unruh Act, a California anti-discrimination law. …