Embattled Scouts struggle to maintain funding, ideology

By Lyle Denniston, Globe Correspondent, 9/14/2003

WASHINGTON -- The Boy Scouts of America fought for years to establish a clear legal right to keep gays out of its ranks, and won a major Supreme Court case three years ago. But that policy has since proved costly to the Scouts -- a price that is escalating.

The Boy Scouts now are newly embroiled in a culture war with local governments and charities over gay rights, religion, and morality.

A growing number of sponsoring groups across the country have cut financial and other ties, costing local scouting councils money and status. About 350 school districts in 10 states have ended their sponsorship of scout units or activities, and more than 50 United Way chapters -- some in major cities like Philadelphia, Miami, and San Francisco -- have stopped making financial contributions.

The Scouts also have discovered that they no longer can routinely count on special or shared benefits provided by state and local governments, such as space for activities in parks or other public facilities. The city of Berkeley, Calif., for example, has denied Sea Scouts access to a city marina for as long as they exclude gays from membership and adult leadership.

Ironically, such cutoffs appear to be a direct outgrowth of the organization's victory in the Supreme Court's decision that insulated the Boy Scouts from antidiscrimination laws.

"People are organizing in a way to put pressure on the Boy Scouts to be more open," said Craig A. Rimmerman, a political science professor at Hobart and William Smith Colleges in Geneva, N.Y., who has written extensively on gay rights and on youth issues.

Over time, Rimmerman said, "we're going to go back and look at that decision as a watershed moment" that led to much closer scrutiny of the discriminatory policies of the Scouts.

The intensifying focus on scouting's membership policies has reached across the country. For the past two years, Boston's Minuteman Council has been trying to fend off criticism from gay rights activists by adopting policies that seem to be more open, but critics say council leaders have not said clearly that gays can be admitted.

The negative fallout from scouting's policy against gays, and a separate ban on atheists as members or leaders, is beginning to spread to the courts. When confronted with disputes surrounding scouting, lower courts in recent months have tended to shift away from protecting local councils when their policies get them into trouble with government agencies. Courts still will not disturb the Scouts' constitutional right to follow those policies; the Supreme Court settled that in 2000. But courts seem less willing to spare the Scouts the consequences.

In July, a federal appeals court upheld a decision of the Connecticut state employees' committee to exclude a local Scout council from an annual charitable giving campaign. The same month, a federal judge in California nullified an exclusive lease the Scouts had to use a part of the city of San Diego's Balboa Park; the judge ruled the contract was a form of unconstitutional favoritism for a religious organization. Lower state courts in California have upheld Berkeley's decision to deny marina access to Sea Scouts, a case now pending in the state's Supreme Court.

In general, there is a rising sensitivity within governments about appearing to be allied with the Scouts. In California, the state Supreme Court may have gone the furthest: In June, it adopted a new ethical rule requiring state judges with ties to scouting to disclose them and, if necessary, to avoid the appearance of bias, to disqualify themselves from some cases.

For more than 20 years, the Scouts have been energetically defending its membership restrictions in courts, Congress, city councils, school boards, and sponsoring organizations. All of that public activity, however -- especially, a string of high-visibility court cases -- has given those policies a prominence that has contributed to scouting's problems.

"All of this litigation has revealed to the American public that the Boy Scouts has those policies, and that has led a lot of people to question their support," said Jon W. Davidson of Los Angeles, a senior attorney with Lambda Legal, a gay rights advocacy group.

Nationally, the Scouts organization insists that it is doing well, its financial support and its membership growth are holding firm, and that boys still flock to its summer camps. The organization's latest annual report (for 2002) shows that the number of boys served -- 5,026,549 -- has edged up by 0.1 percent from a year earlier, the total number of adults involved -- 1,302,874 -- is up by 0.8 percent, and the number of packs, troops, and other units -- 128,055 -- is up by 1.7 percent. The only noticeable decline came in Cub Scouts membership, down 2.1 percent at 2,000,476, a drop that scouting says is due to changing patterns in the activities of young boys in society as a whole.

"Those indicators tell us the support is very strong," said Gregg Shields of Dallas, the national spokesman for the Boy Scouts. He said that the movement does not do polling to test public attitudes, but added that the leaders are confident that "the vast majority of Americans support our right to hold these beliefs" about membership.

Still, the range of rejections and disappointments has changed markedly the situation in which the youth organization had found itself three summers ago. Then, it was fresh from a clear-cut though narrow 5-4 victory in the Supreme Court, recognizing a constitutional right to express the organization's religious and social values by excluding homosexuals.

Now, with new challenges rising, the Scouts are not resting on their past court victories; instead, the movement is growing more aggressive in enforcing its membership restrictions, policing them far more closely than it did before the Supreme Court ruling.

A major test came earlier this year with the Boy Scouts' third largest local group, the Cradle of Liberty Council in Philadelphia. Last May, the council voted to adopt an antidiscrimination policy, after two years of negotiations with the local United Way of southeastern Pennsylvania, which follows a policy against discrimination in its funded programs based on sexual orientation and other characteristics.

The national Scouts organization, however, threatened to revoke the council's charter, and the council backed down, removing from the United Way-funded program a Scout, Gregory Lattera, who had announced that he was gay. On July 31, the United Way ended its support, canceling the remaining half of a $400,862 grant, which was to be used to build character among the city's youths.