Declaratory Ruling on Petition Filed by SECC

STATE OF CONNECTICUT
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

DECLARATORY RULING ON THE
PETITION FILED BY THE STATE EMPLOYEES’ CAMPAIGN COMMITTEE

I. INTRODUCTION

On November 19, 1999, the Commission on Human Rights and Opportunities (Commission or CHRO) received a Petition from the State Employees’ Campaign Committee (Committee) requesting a Declaratory Ruling. 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 requested that the Commission rule on CONN. GEN. STAT. §§ 46a-81d, 46a-81l, and 46a-81n, and any other state anti-discrimination statute or regulation over which the Commission has any oversight or jurisdiction.

At its regular meeting held on December 9, 1999, the Commission voted to issue a declaratory ruling on the Committee’s petition. On January 28, 2000, the Commission received a petition for Intervenor Status on behalf of: Connecticut Coalition for Lesbian, Gay, Bisexual and Transgender Civil Rights; Connecticut Civil Liberties Union; Connecticut Women’s Education and Legal Fund; and Gay & Lesbian Advocates & Defenders, in the matter of the Committee’s request for Declaratory Ruling. At its regular meeting on February 10, 2000, the Commission granted the Petition to Intervene, pursuant to CONN. GEN. STAT. § 4-176(e).

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

II. FACTS PRESENTED

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

In addition, on April 27, 2000, the Commission conducted a fact-finding public hearing at which it took testimony (both written and oral) and documentary evidence, in the form of exhibits. Further, the Intervenors and the BSA each filed position statements; and the United Way, the Committee and the BSA produced numerous documents in response to the Commission’s request for documents.

III. PARTIES

The parties to this declaratory proceeding are:

In addition, due to the subject matter, the following have an interest in this Ruling, although neither requested to be made a party or Intervene:

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 two questions:

1. Does the BSA’s and/or its local councils’ policy or policies on sexual orientation violate any state anti-discrimination statute or regulation over which your agency has any oversight or jurisdiction?
2. Is the Committee’s inclusion of BSA member agencies in the State Employee Campaign in violation of any state law over which your agency has oversight or jurisdiction, including but not limited to CONN. GEN. STAT. §§ 46a-81d, 46a-81l, and 46a-81n?

B.    The Committee’s Inclusion of BSA Member Agencies in the Campaign Violates CONN. GEN. STAT. §§ 46a-81i, l, & n, and Constitutes State Action.

CONN. GEN. STAT. § 46a-81l reads as follows: "No state department, board or agency may permit any discriminatory practice in violation of section 46a-81b, 46a-81d or 46a-81e."

Based on the evidence in the record, the BSA's policy of excluding homosexuals from participation violates Connecticut’s anti-discrimination statutes. As such, the Committee’s inclusion of BSA member agencies in the campaign for charitable giving constitutes State action and violates CONN. GEN. STAT. §§46a-81i, l and n.

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. All state agencies and facilities used in any way to effectuate the Campaign further discriminate by making funding possible to the BSA.

The Committee is comprised of thirteen 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). The solicitation occurs during the workday, on state time. CONN. AGENCIES REGS. § 5-262-2(b)(1996).

The Committee is charged with a number of tasks: selecting a federation through a competitive process; conducting a comprehensive review of the state employee Campaign; submitting to the Governor and the General Assembly a report on the results of the Campaign and recommendations for improvement; reviewing each federation application; notifying each federation of the Committee’s decision regarding participation; approving of the PCFO’s itemized budget of administrative expenses; submitting to the auditors of public accounts a financial report each year; establishing a competitive process; deducting salaries or wages of every participating state employee; transmitting all deductions collected to the PCFO; and transmitting a list of all contributors to each federation or member agencies. CONN. GEN. STAT. §§ 5-262(c)-(h).

Further, the Committee meets monthly for approximately one hour. 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. Further, numerous other provisions enumerate the State’s work on this Campaign. See CONN. AGENCIES REGS. §§ 5-262-6, 7(c), 8, & 9(a). A campaign which is coordinated and conducted by the State results in pecuniary gain to the BSA. See Ex. 20. Further, according to the United Way, it received 49% of the proceeds from the 1998 Campaign. Ex. 20-O(p. 8) Given the large number of Boy Scout member agencies of the United Way, the financial benefit to the BSA from the Campaign is indisputable. Ex. 9. See generally Ex. 20. The United Way distributes an average of 16.8% of the donations received from the Campaign to participating local Boy Scout councils. Ex. 9 (pp. 25-54).

Clearly the above factors far exceed the amount of time and resources expended by the State in Gay & Lesbian Law Students Association v. Board of Trustees, 236 Conn. 453 (1996). There our state supreme court easily found the State’s action to violate the Gay Rights Law’s proscription on discrimination by the State.

In that case, 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. Id. at 467. The Intervenors are correct in their argument that

See Intervenors’ Position Statement at pp. 14-15.

Gay & Lesbian Law Students Association, supra, at 481-82, n. 24. Further, the court referenced the legislative history of the Gay Rights Law, which supports the court’s conclusion that the Gay Rights Law was enacted in response to the invidious discrimination against gays. During the floor debate, Representative Tulisano engaged himself in rhetorical repartée and asked, "As a body, have we determined there is invidious discrimination against people who are homosexual?" He then replied, "I believe that we have." Ex. 16 (p. 175)

The U.S. 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.

Even the BSA in its Reply Brief in the BSA v. Dale Supreme Court case 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. To be consistent, then, the BSA cannot expect the State to continue its support in the face of this finding of discrimination.

To the extent that the CHRO does not have before it an applicant to be a leader, a volunteer, or a scout, this fact is irrelevant. This issue was squarely addressed in Gay & Lesbian Student Association, supra, at 469-70. "The relevant question is not whether one of the Plaintiff’s members wants to join the military; rather the relevant question is whether the members are receiving the same placement opportunities as heterosexual students." Id.

Further, in Gay & Lesbian Law Students Association, the court had occasion to address government sanctioned discrimination. In the matter presently pending before this Commission, the BSA has questioned whether the Commission should await the U.S. Supreme Court’s decision in BSA v. Dale, supra, before rendering its Declaratory Ruling. It argues that if the Court rules in its favor, then the issues before the Commission are moot. This is not so, because the Court is only considering specific facts related to the service of an openly gay male as an adult volunteer. The Court does not have before it whether the BSA’s failure to employ a homosexual would violate a state’s anti-discrimination law, neither is the issue of State action related to providing financial assistance to the BSA before the Court. Thus, even if the U.S. Supreme Court were to overrule Dale and allow the BSA to discriminate, the Commission still has jurisdiction to consider the second question presented in the Request for Declaratory Ruling. By comparison, the military enjoys the legal right to discriminate against individuals based on their sexual orientation, nonetheless, our state 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, the CHRO finds no law which requires the State or any of its actors to allow the BSA to participate in the Campaign.

As noted by one of Connecticut’s most well respected jurists,

Gay & Lesbian Law Students Association, supra, at 491 (Berdon, J. concurring).

V.    CONCLUSION

In response to the Committee’s first question, the Commission declines to rule. However, the Commission on its own motion initiates a proceeding for declaratory ruling on the first issue raised by the Committee.

In response to the Committee’s second question, the Commission finds that Committee’s inclusion of BSA member agencies in the State Employee Campaign violates Connecticut’s anti-discrimination statutes, specifically CONN. GEN. STAT. §§ 46a-81i, 46a-81l, and 46a-81n.

The BSA’s policy of excluding homosexuals from participation violates Connecticut’s Gay Rights Law. As a result of this finding, the Committee’s inclusion of Boy Scouts member agencies in the Campaign also violates Connecticut’s Gay Rights Law.

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

Attested 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 May 11, 2000, at Hartford, Connecticut.

Attest:

___________________

Amalia Vazquez Bzydra, Chairperson Date