Declaratory Ruling - Boy Scouts

    On July 7, 2000, the Commission on Human Rights and Opportunities (Commission or CHRO) received a Petition from the State Employees’ Campaign Committee (Committee) requesting a Declaratory Ruling. (Attachment 1) Under the authority of CONN. GEN. STAT. § 4-176 and CONN. AGENCIES REGS. § 46a-54-122 (1993), the Committee seeks a ruling from the CHRO on the policy of the Boy Scouts of America (BSA) of excluding homosexuals from participation. The Committee has now requested that the Commission rule on the effect, if any, of the United States Supreme Court decision in Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446 (2000) (Dale) on the CHRO’s May 12, 2000 Declaratory Ruling on the Committee’s Petition.

    At its regular meeting held on July 12, 2000, the Commission voted to issue a declaratory ruling on the Committee’s petition. The Commission caused a Notice to be published in the July 29, 2000 edition of the Hartford Courant and the August 8, 2000 edition of the Connecticut Law Journal. (Attachments 2 & 3, respectively) Additionally, on August 2, 2000, the Commission wrote to all the Intervenors from the earlier declaratory ruling process, the BSA (through its attorney of record), and to the United Way, notifying them of the Commission’s action and advising them of their rights to become parties and/or intervenors. (collectively Attachment 4, without enclosures)

    On August 28, 2000, the Commission received a petition for Intervenor Status on behalf of: Connecticut Coalition for Lesbian, Gay, Bisexual and Transgender Civil Rights; Connecticut Women’s Education and Legal Fund; and Gay & Lesbian Advocates & Defenders, in the matter of the Committee’s request for Declaratory Ruling. On August 31, 2000, the Commission received a petition for Intervenor Status on behalf of the Connecticut Civil Liberties Union (CCLU), in the matter of the Committee’s request for Declaratory Ruling. At its regular meeting on September 11, 2000, the Commission granted these Petitions to Intervene, pursuant to CONN. GEN. STAT. § 4-176(e). These were the only petitions to intervene filed with the Commission relative to this declaratory ruling process.

    With the consent of the Intervenors, pursuant to CONN. GEN. STAT. § 4-176(i), the CHRO voted on November 9, 2000 to extend the time to issue the declaratory ruling to February 15, 2001. Subsequently, the party consented to the extension of time until February 15, 2001. At its regular meeting on January 11, 2001, the CHRO ratified, nunc pro tunc, its action taken at the November meeting extending the deadline.

    In accordance with CONN. GEN. STAT. § 4-176(e)(1), the CHRO issues this Declaratory Ruling on the Petition of the Committee.

    In its petition, the Committee provides the following factual background for the CHRO to examine:

    The Intervenors filed position statements. Additionally, the complete record of the proceedings related to the Committee’s first request for declaratory ruling is hereby incorporated and made a part of the record of this proceeding.

The party to this declaratory proceeding is:

The Intervenors in this declaratory proceeding are:

    In addition, due to the subject matter, the following have an interest in this Ruling, although none requested to be made a party or intervenor:

and

IV. ANALYSIS OF THE ISSUES PRESENTED BY THE COMMITTEE’S PETITION FOR DECLARATORY RULING

A. Introduction

    In its petition for declaratory ruling, the Committee has asked the CHRO to issue a declaratory ruling on the following question:

Committee’s Petition, dated July 7, 2000.

    The Committee’s request flows from this Commission’s declaratory ruling which ruled that "inclusion of BSA member agencies in the State Employee Campaign violates Connecticut’s antidiscrimination statutes", and the subsequent decision of the United States Supreme Court’s decision in Dale.

    Following the Commission’s issuance of its declaratory ruling, the Committee excluded the BSA from further participation in the Campaign. The Commission takes administrative notice that the BSA has sued the Committee (and the Comptroller) seeking to remain in the Campaign. See BSA, et al. v. Nancy Wyman, et al., Civil No. 300 CV 1037 WWE, (D.Conn.). The Commission was not named as a party to the lawsuit.

CONN. GEN. STAT. §§ 46a-81a-r, commonly referred to as the Gay Rights Law, was enacted by the Connecticut General Assembly in 1991. The Gay Rights Law prohibits discrimination based on sexual orientation in employment, public accommodations, and by the State in various ways.

CONN. GEN. STAT. § 46a-81i reads:

CONN. GEN. STAT. § 46a-81l reads:

CONN. GEN. STAT. § 46a-81n reads:

    The Committee, established by CONN. GEN. STAT. § 5-262(b), is an annual campaign designed to raise funds from state employees for charitable and public health, welfare, environmental, conservation and service purposes. The funds are administered through a Principal Combined Fund Raising Organization ("PCFO"), one of the participating charitable organizations.¹ The funds are dispersed to the participating charitable federations for distribution to their member agencies. These federations are composed of member agencies, some of which are local councils of the BSA. (See Committee’s Request for Declaratory Ruling dated November 19, 1999). Pursuant to CONN. AGENCIES REGS. § 5-262-3 (k) (1996), each federation must have a stated policy of non-discrimination, equal employment opportunity, and public accommodations with respect to its programs, clients, officers, employees and volunteers. The regulations further require that each federation maintain on file "a written policy of non-discrimination". CONN. AGENCIES REGS. § 5-262-4(a)(4)(A)(vii) (1996).

    Membership in the Committee is designated by statute. The Committee is comprised of thirteen state employees (and two retired state employees), including the Comptroller, the Commissioner of Administrative Services, and the Executive Director of the Joint Committee on Legislative Management (or their designees). CONN. GEN. STAT. § 5-262(b). Further, the Committee meets regularly on a monthly basis for approximately one hour; in addition, it meets throughout the year as needed. See Ex. 19-E (pp. 14, 20-22), 20-O (p. 1). State agencies are allowed--even expected--to "loan" employees to the Committee to work on the Campaign. See CONN. AGENCIES REGS. § 5-262(d)(1996); see also Ex. 19-D.

    Pursuant to CONN. GEN. STAT. §§ 5-262(c)-(h), the Committee is charged with a number of tasks:

The solicitation occurs during the workday, on State time. CONN. AGENCIES REGS. § 5-262-2(b)(1996).

    Several other provisions enumerate the State’s work on this Campaign. See CONN. AGENCIES REGS. §§ 5-262-6, 7(c), 8, & 9(a). This campaign, coordinated and conducted by the State, results in pecuniary gain to the BSA. See Ex. 20. All state agencies are implicated by virtue of their participation in the annual Campaign. The Office of the State Comptroller is further implicated by virtue both of committee membership and by processing all the paperwork necessary to effectuate the payroll deductions.

    After the Commission issued its declaratory ruling on the Committee’s request, the United States Supreme Court issued a decision which possibly implicates the question presently pending before the Commission. Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446 (2000) (Dale). In Dale, the Court ruled that the BSA’s exclusion of an openly gay adult volunteer was allowed by the First Amendment’s right of expressive association. The case had been appealed to the Supreme Court because the New Jersey Supreme Court had ruled that the BSA’s policy violated its public accommodation statute’s prohibition of discrimination on the basis of sexual orientation.

    The Dale decision is not dispositive of the issue presented in this declaratory ruling. The focus of this ruling is on the activities of the state through the Committee, not the BSA. The statutes at issue in this ruling, earlier at pp. 6-7, regulate the activities of state agencies not the BSA. The issue is whether the State of Connecticut can sanction or assist the BSA in the maintenance of its discriminatory policies. Even the BSA in its Reply Brief in Dale acknowledged the right of the government to withdraw any support or benefits. Specifically, the BSA wrote, "To the extent that New Jersey sponsors Scouting units or provides special benefits, it is entitled to withdraw support if it now disapproves of Scouting." See BSA Reply Brief at 13.

    The Dale decision is relevant, if at all, to this proceeding in its confirmation of the discriminatory policies of the BSA with regard to its treatment of homosexuals, specifically as volunteer scoutmasters. Proof of intent to discrimination is often difficult to establish. As a Connecticut court recognized in an early case of racial discrimination:

    The BSA’s discriminatory treatment of homosexuals is documented in the exhibits and testimony of this proceeding (see discussion below on p.12). It is replete in the Dale case as well as a number of other cases where the BSA have defended their discriminatory policies. Unlike most cases of discrimination, there is no question as to the discriminatory policy of the BSA regarding homosexuals.

Based on the evidence in the record, it is clear that the BSA excludes homosexuals from employment, despite Connecticut’s Gay Rights Law. Ex. 5, 30, & 34. (By contrast, the Girl Scouts of America has no such restriction. Ex. 18.) See also BSA’s Position Statement, and exhibits attached thereto. Additionally, the BSA excludes gay boys from scouting. See generally Ex. 20-D (p. 8), 20-K (p. 9), 20-L (pp. 32-33), 34, 35, 37, 38, & 41.

In another Declaratory Ruling², initiated by CHRO, the Commission answered the following question:

The Commission ruled that the BSA’s policy of excluding homosexuals as employees (including leaders) is covered by CONN. GEN. STAT. § 46a-81c.³ As a result of the foregoing, the Committee’s inclusion of BSA member agencies in the Campaign for charitable giving constitutes discriminatory state action and violates Connecticut’s Gay Rights Law, specifically CONN. GEN. STAT. §§46a-81i, l and n.

    The statutes at issue in this declaratory ruling prohibit the Committee from sanctioning or supporting the BSA’s discriminatory exclusion of homosexuals. All state agencies and facilities used in any way to effectuate the Campaign further discriminate by making funding possible to the BSA. These statutes (CONN. GEN. STAT. §§46a-81i, l and n) have been construed by the Connecticut Supreme Court in a decision that has many parallels to the issues presented here. That decision will be discussed next.

    In Gay & Lesbian Law Students Association v. Board of Trustees, 236 Conn. 453, 467 (1996), the court found state action in the school’s Office of Career Services allocation of resources to military employers and arranging for and following up on on-campus interviews. The Connecticut Supreme Court easily found the state’s action violated the Gay Rights Law’s proscription on discrimination by the State. Clearly the Committee’s duties outlined above on pp. 7-10 far exceed the amount of time and resources expended by the school’s Office of Career Services in Gay & Lesbian Law Students Association.

    The fact that state facilities were used was not dispositive of the Court’s ruling in Gay & Lesbian Law Students Association. The Intervenors are correct in their argument that

Intervenors’ Position Statement at pp. 14-15.

The Committee by allowing the participation of the BSA in the state campaign is also sanctioning and supporting discrimination by the BSA. The Commission, at its hearing on April 27, 2000 heard first hand the feelings of shock, anger, humiliation, frustration and helplessness caused by the BSA’s discriminatory policy. See Transcript of Hearing pp. 36-37, 39, 40-41, 49-50, 53.

    In Gay & Lesbian Law Students Association, the court considered government-sanctioned discrimination. The military enjoys the legal right to discriminate against individuals based on their sexual orientation, nonetheless, the Connecticut Supreme Court found no law which required the State to allow the military to recruit on campuses or in other state facilities. Gay & Lesbian Law Students Association, supra, at 470, n. 13. Likewise, while the BSA has a constitutional right to discriminate (Dale), the CHRO finds no law that requires the State or any of its actors to allow the BSA to participate in the Campaign. Just the contrary is the law. The identical statutes at issue in this declaratory ruling prohibit the Committee from doing what the law school was prohibited from doing. To allow the Committee to retain the BSA violates the principles enunciated by the Connecticut Supreme Court in Gay & Lesbian Law Students Association.

    In the above case, the court referenced the legislative history of the Gay Rights Law, which supports its conclusion that the Gay Rights Law was enacted in response to the invidious discrimination against gays. During the floor debate, Representative Tulisano asked, "As a body, have we determined there is invidious discrimination against people who are homosexual?" He then replied, "I believe that we have." Connecticut General Assembly House Proceedings 1991, Vol. 34, Part 7, p. 2696.

The Connecticut State Supreme Court agreed, and wrote

Gay & Lesbian Law Students Association, supra, at 481-82, n. 24. See also Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1 (D.C.App. 1987).

    Case law suggests that an organization may exclude persons in the exercise of its First Amendment rights; as a result, such an organization may not, however, be entitled to benefits conferred by the government if that organization discriminates. See, e.g., Bob Jones University v. United States, 461 U.S. 574 (1983).

    Bob Jones University is a Christian fundamentalist educational institution with strict policies based on its interpretation of the Bible. At issue in the lawsuit was the university’s policy barring admission to applicants engaged in interracial marriage or advocates of interracial dating and/or marriage. When the IRS denied the university tax-exempt status because of its racist policy, the university challenged the IRS ruling by asserting a constitutional right to implement policies consistent with its religious principles.

    The U.S. Supreme Court agreed that the university enjoyed, pursuant to the Religion Clauses of the First Amendment, the right to discriminate. The Court disagreed with the university’s position, however, when it ruled that because of the university’s racist policy it did not enjoy the right to tax-exempt status. "In 1861, this Court stated that a public charitable use must be ‘consistent with local laws and public policy’." Bob Jones University at 591 (internal citations omitted.)

    This situation is similar to the matter before us. The United States Supreme Court, in Dale, agreed that the BSA enjoyed, pursuant to the First Amendment’s guarantee of the right of expressive association, the right to discriminate against homosexuals. "The right to expressive association includes the right to pursue, as a group, discriminatory policies that are antithetical to the concept of equality for all persons. See Boy Scouts of America v. Dale, --- U.S. ----, ----, 120 S.Ct. 2446, 2457-58, 147 L.Ed.2d 554 (2000)." White v. Lee, 227 F.3d 1214, 1227 (9^th Cir. 2000). As in Bob Jones University, a constitutional right to discriminate does not equate with a right to have the government sanction or support an organization’s discriminatory policies.

    The Court’s discussion in Bob Jones University is particularly appropriate here, for although that case involved the tax-exempt status of an alleged charitable organization, the rationale applies to this proceeding. For example, regarding tax-exempt status, the Court wrote "when the government grants exemptions or allows deductions, all taxpayers are affected." Bob Jones University at 591. Similarly, when the State grants the BSA permission to participate in the Campaign, all taxpayers are affected because their tax dollars support the effectuation of the Campaign which provides a pecuniary gain to the BSA.

    The United States Supreme Court has had occasion to discuss the impact of state action in the midst of allegations of private discrimination. "The question then is whether there is significant state involvement in the private discrimination alleged." Gilmore v. City of Montgomery, 417 U.S. 556, 573 (1974)(internal citations omitted). Here, the record amply demonstrates that the State is significantly involved in furthering the "private" discrimination of the BSA. "Invidious discrimination takes its toll on the freedom to associate, and it is not subject to affirmative constitutional protection when it involves state action. Norwood v. Harrison, 413 U.S., at 470, 93 S.Ct. at 2183." Id. at 575.

    The State of Connecticut has a compelling interest in the enforcement of its antidiscrimination statutes. Despite an allegation by the BSA, there is no evidence in the record to suggest that the BSA has been singled out for any reason other than its policy of excluding homosexuals from participation⁴. The United States Supreme Court has held that states enjoy a compelling interest in the eradication of discrimination even when balancing constitutional rights. For example, although it ultimately ruled in favor of the BSA, the United States Supreme Court noted in Dale that the right of freedom of expressive association is not absolute. Dale at 2447-2448. According to the United States Supreme Court, "infringement on that right may be justified by the regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedom." Roberts v. United States JayCees, 468 U.S. 609, 628 (1984). By this declaratory ruling, the Commission is not requiring the Boy Scouts to associate with individuals they do not wish to associate with, therefore, no balancing of constitutional rights is necessary.

    Raising a constitutional defense to a charge of discrimination does not necessarily end all inquiries. "Even protected speech is not equally permissible in all places and at all times." Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799 (1985). See also U.S. v. Lee, 455 U.S. 252, 257-258 (1982) ("Not all burdens on religion are unconstitutional. . . The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.").

    In Dale, the impending State action had a direct impact on the BSA’s constitutional rights: the BSA would have been required to accept individuals with whom it did not wish to associate. Thus, the State was required to prove that a compelling interest justified the application of New Jersey’s antidiscrimination law to the BSA. But here, the Commission’s ruling does not limit or impair the BSA’s constitutional rights; it only limits the BSA’s opportunities for public support because of its statutorily prohibited discriminatory policies. Unlike the question presented in Dale, an affirmative answer to the Committee’s question will not require the BSA to accept individuals with whom it does not wish to associate.

    Neither the Commission, in its May 12, 2000 declaratory ruling, nor the Committee, in its implementation thereof, can compel the BSA to change its discriminatory policies. We conclude that because of its discriminatory policies, the BSA cannot participate in the Campaign without causing the State to be a party to discrimination. We further note that the Campaign is only one of many means by which the BSA solicits financial support. Clearly those state employees who want to continue to support the BSA financially can still make direct contributions to the BSA. Nothing in this ruling should be interpreted otherwise.

    As the United States Supreme Court has stated, "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

    In response to the Committee’s request for a declaratory ruling clarifying the impact of Dale on the Commission’s earlier declaratory ruling, the Commission rules that there is no substantive impact. The Commission finds that the Committee’s inclusion of BSA member agencies in the State Employee Campaign violates Connecticut’s antidiscrimination statutes, specifically CONN. GEN. STAT. §§ 46a-81i, 46a-81l, 46a-81n.

CONNECTICUT COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

    Adopted by a unanimous vote of the Commissioners of the Commission on Human Rights and Opportunities present and voting at the regular monthly meeting of the Commission held on February 8, 2001, at Hartford, Connecticut.

Amalia Vazquez Bzdyra, Chairperson 2/8/01

Endnotes

1. The BSA, at the hearing conducted by the Commission on the Committee’s first request, questioned whether the Committee was a state agency. It is important to note that the salient question is whether state action is involved not whether the Committee is a state agency. Nonetheless the Commission is satisfied that the Committee is a state agency. The statutes establishing and regulating the Committee are found in Title 5 entitled, "State Agencies." The Committee satisfies both prongs of the definition of "agency" found in the uniform Administrative Procedures Act, [CONN.GEN. STAT. §4-166(1)]. The Committee has authority to issue and has, in fact, issued regulations. Also, the Committee has authority to hear contested cases.

2. See Declaratory Ruling on the Petition filed by the Connecticut Commission on Human Rights and Opportunities, dated November 15, 2000.

3. The Commission noted, however, that to determine whether the policy actually violates the statute requires an inquiry on a case-by-case basis, depending on the specific facts of a particular case. In such an instance, the BSA will be required to satisfy its affirmative burden of proof that its exclusionary policy constitutes a legitimate BFOQ. In that same ruling the CHRO wrote: "As a result of the U.S. Supreme Court’s ruling in Dale, we conclude that the application of CONN. GEN. STAT. § 46a-81d to the Boy Scouts, as it specifically relates to the participation of openly gay and/or avowed homosexuals as adult (volunteer) leaders, may not be applied to the BSA without violating its rights of expressive association." Finally, the Commission declined to rule on the question of whether the BSA’s policy of excluding homosexuals as scouts violates CONN. GEN. STAT. §§ 46a-81d.

4. The United States Supreme Court, in Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799 (1985) ruled that the Combined Federal Campaign (CFC) could exclude organizations from participation as long as the basis for the exclusion was reasonable and not a façade for viewpoint based discrimination. In Connecticut, the Committee excluded the BSA because its openly discriminatory policies regarding homosexuals would cause the Committee to violate state law. The Committee’s exclusion of the BSA is clearly reasonable and not a façade for viewpoint-based discrimination. The Committee excluded twenty-nine (29) organizations (see attachment 5 for a list of these organizations) from the year 2000 campaign because they did not provide a copy of their non-discrimination policy as well as confirm that they neither discriminate nor permit discrimination in violation of Connecticut's antidiscrimination laws.