Posted on 09/23/2002 3:49:22 AM PDT by kattracks
(CNSNews.com) - The Boy Scouts of America is seeking to overturn a decision by the District of Columbia Human Rights Commission that the scouts unlawfully discriminated against two Washington area scout leaders because they were homosexual.
A three-member panel of the District of Columbia Court of Appeals, the District's highest court, is considering the case after listening to arguments Sept. 10 by representatives for the Boy Scouts and by lawyers for Michael Geller, 40, and Roland Pool, 41, whose membership in the scouts was revoked in 1992 because of their homosexuality.
In a ruling in June 2001, the D.C. Human Rights Commission ordered the Boy Scouts and the National Capital Area Council to admit both men as adult members, to pay their attorney fees and to pay them $50,000 each in damages.
The Boy Scouts argued that the District of Columbia didn't have jurisdiction in the case and that the verdict went against a decision by the Supreme Court, which ruled in June 2000 that the Boy Scouts is not a public accommodation subject to state anti-discrimination laws.
In a 5 - 4 decision, the Supreme Court ruled that the Boy Scouts therefore had the right to exclude James Dale as a scout leader because of his homosexuality.
Merril Hirsh, a lawyer with the law firm of Ross, Dixon and Bell, which is representing Geller and Pool, said the commission gave careful consideration to the Dale case before making its ruling.
In the Dale case, the Boy Scouts convinced the Supreme Court that they had a constitutional right to exclude someone who - in the Boy Scouts words before the Supreme Court - was so publicly associated with advocacy that it was "as if he had wrapped a banner around his neck," Hirsh said.
In the case of Geller and Pool, however, the commission found that the Boy Scouts were attempting to expand their exclusion and apply it to everyone who is homosexual, Hirsh said.
"We argued that being able to protect a First Amendment right of expression doesn't mean you can exclude everybody who is gay and lesbian," he said.
Frank Wu, chair of the D.C. commission and an assistant professor of law at Howard University, said after last year's decision that the Geller and Pool case differed from the Dale case in significant respects.
Although Geller and Pool were openly homosexual, they were not activists, Wu said on National Public Radio.
"What the three members of the commission have found was applying the human rights act will not infringe upon the Boy Scouts' First Amendment right to free expression.
"The commission also found that admitting the two individuals as adult leaders would not significantly affect the Boy Scouts' ability to advocate its public or private viewpoints.
"And finally, the commission found that the District of Columbia, under the Human Rights Act, in balancing all these factors, it has a compelling state interest in eliminating discrimination of public accommodations," Wu said.
Gregg Shields, a spokesman for the Boy Scouts, said he was confident the appeals court will rule in favor of the scouts, however.
As the Boy Scouts sees it, the case is similar to the Dale case, which centered on whether the scouts have the right as a private-member organization to define their own membership and leadership standards, Shields said.
"The Boy Scouts have long taught American family values as held in the scout oath and law, and the right to believe in these values to define our membership was affirmed by the Supreme Court two years ago," he said.
E-mail a news tip to Lawrence Morahan.
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