CHICAGO (BP)–In a ruling that has both sides claiming victory, an Illinois appeals court overturned a lower court decision that had found the Chicago Area Council of the Boy Scouts of America (BSA) discriminated in its hiring practices.
On Tuesday, May 1, a three-judge panel at Chicago’s First District of the Illinois Appellate Court reversed a 1999 decision that had ordered the Scouts to stop barring homosexual applicants.
While the case was sent back to the Chicago Commission on Human Relations for further proceedings, New York attorney George Davidson is confident it will ultimately be resolved in favor of the Scouts.
He noted that the plaintiff, Keith Richardson, had not been an authentic job applicant but had merely talked to the Chicago council of BSA for the purpose of filing a discrimination complaint.
But in acting as a “tester,” the appeals court found his claim wasn’t valid, the lawyer said. He said the U.S. Supreme Court’s ruling last June that upheld a prohibition against homosexual scoutmasters was a key to the May 1 Illinois decision.
The high court overturned a ruling by the New Jersey Supreme Court that said assistant scoutmaster James Dale was entitled to remain a member despite his avowed support of homosexual rights.
Davidson called it significant that the case established that the Chicago council does not bar homosexuals from all employment, just from professional scoutmasters’ positions.
“It only [relates] to positions relative to the expressive purposes of the Boy Scouts,” he said. “It’s not a broad policy. It’s a narrowly defined policy, which the Supreme Court upheld in the Dale case. There would be no discrimination against a computer operator or [other applicants].”
National spokesman Gregg Shields also reacted favorably to the ruling, saying BSA thought the case should have been dismissed at the local level.
“We’re pleased that in vacating the injunction issued by the human relations commission that the court recognized the Chicago Area Council’s right to decline to employ openly homosexual persons as professional scoutmasters,” he said.
However, Richardson’s Chicago attorney termed the ruling a triumph for his client.
“The appellate court decision was a significant victory for Mr. Richardson, as well as the public at large,” said Chip Peters. “What the court held is that the Supreme Court’s decision in Dale does not apply to all employment positions, and that the Boy Scouts can’t simply hide behind the Dale position in discriminating against gays or lesbians for any employment.”
Unless the Boy Scouts decide to appeal the ruling — Davidson said no decision has been made — Peters plans to contest the case further.
He said he will introduce evidence at a future commission hearing that the Chicago council had refused to consider his client for any position.
Despite the written policy, Peters said an employee had written a memo saying she had been instructed not to follow that policy.
The case goes back to 1992, when Richardson complained to the commission that the Scouts had discriminated against him on the basis of his sexual orientation.
Background included in the court ruling included this summation:
The plaintiff had participated in the Boy Scouts as a youth and attained the highest rank of Eagle Scout. He also became involved in various leadership roles and attained honors.
In his early 20s, after acknowledging he was a homosexual, he left Scouting. After college, he worked in restaurants and bars catering to the homosexual community that featured sexually explicit videos and live sex shows, the court said.
After losing employment, Richardson saw an advertisement for “Forgotten Scouts,” a group that seeks to change the Boy Scouts’ policy barring homosexuals’ employment. After meeting with a founder of the group, he called the BSA Chicago Area Council a month later.
A day after being told there was no way the group would go against BSA’s policy of hiring homosexuals, Richardson filed his complaint.
It took nearly four years for the commission to issue its ruling, and three more years before a circuit court judge handed down his decision.
In its 21-page ruling, the appellate court found there were similarities between Richardson and last year’s Dale case.
“Richardson’s presence in an expressive position as a role model or leader within Scouting would similarly compel [the Chicago Area Council] to broadcast to youth members and the world that homosexual conduct was a legitimate form of behavior,” the court said.
“The city’s interest in eradicating employment discrimination would not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association.”
The panel also noted that the commission’s finding that Richardson was denied employment as a professional scouter came prior to the Supreme Court’s decision.
The court said the commission had failed to make a factual discovery of whether he sought a non-expressive position that is not contrary to the Dale ruling. Such failure was grounds to invalidate its injunction.
Last year’s Supreme Court case also is a factor in another discrimination case in central Indiana. The mid-March ruling denied an Indiana boy the right to attend special-interest classes at a girls’ facility that is partially funded by the government.
However, Sandra Leek, director of the Indiana Civil Rights Commission, cited the Supreme Court’s decision in rejecting the complaint filed by Shelbyville resident Jim Hall after his son was unable to enroll in two special interest classes sponsored by Girls, Inc.
Leek said the girls’ facility had a right to determine who could enroll in its classes.
“We similarly conclude that application of [state law] in this case would impermissibly burden the respondent’s First Amendment right to expressive association,” she said.
“This is like comparing apples to oranges because Boy Scouts do not receive public taxpayer funding,” responded Hall, a freelance writer. “What this all boils down to is that a little boy is being denied his right to take advantage of a program that is partially taxpayer-funded because of his gender.”