For several decades, the Boy Scouts of America have been involved in a debate about what are the rules for being a member of the BSA. Throughout this time, the BSA has stood strongly for an American’s right of “freedom of association.” The organization has fought its way to the US Supreme Court repeatedly and won every time.
Despite this repeated success, many dispute the propriety of the positions the BSA has defended. This page is not intended to further the debate or advocate for any position. (Any comments violating these intentions will be deleted without comment or apology.) Instead, this page undertakes to explain the BSA’s current membership policies and provide documentation (to the extent readily available to the general public.)*
This page is intended as a resource for Chartered Organizations and their Chartered Organization Representative to better learn about the policies. Often times these policies are misunderstood, misquoted, or abused to push one party’s political agenda against another.
Prior to 2012, BSA had a national policy that prohibited persons who were openly gay from being a member of the BSA, whether youth or adult. In 2012, a proposed change to national policy created a media sensation. Many threatened to leave the BSA. The policy change would have changed the rules for youth and adults. After several months of negotiations, the policy was only changed for youth. The rule now prohibited excluding youth on the basis of proclaimed sexual orientation.
There the issue remained for three years. Finally, in late July 2015, the BSA changed the rule for adult members. The BSA flipped the default rule. Prior to the new rule, BSA prohibited adults proclaimed to be gay. After the new rule, the BSA prohibited excluding adults on the basis of sexual orientation. There was a key exception. A chartered organization still controls who are adult members of their unit(s). For a chartered organization with a religious mission, the chartered organization was allowed to exclude adults from those units if there was a good faith religious belief based on sexual orientation.
Some of the oldest and most reliable chartered organizations in scouting still have religiously based ethical concerns about homosexuality. These organizations are concerned about being sued.
Part of these organizations’ concerns translate into knowing how litigation would affect the organization. They are not often interested in paying money to attorneys to defend them over a BSA policy. The BSA recognizes this. As part of the new policies, the BSA has undertaken to indemnify any chartered organization that is sued over the new policy. This means that the BSA will pay any court ordered damages on behalf of the chartered organization and to minimize the risks of such a court order, the BSA will hire lawyers to protect the chartered organization and the BSA.
These all beg the question of “How do you know that these assertions are true?”
Like all such matters, you have to look at the documents. These documents are the primary reason for this post.
The contractual right for indemnification arises in the annual Charter Agreement between the local council and the chartered organization. Here is the page with the most version of that form. The key language is in the section for council obligation to the unit.
The contractual language is intentionally simple and open-ended. It allows the BSA to adopt new resolutions that automatically are applicable to units without further paperwork. The problem is that you then need to track down each resolution needed. This is not easy. In this case, the adult membership resolution is straight forward. I have attached it here for your reference.
So why does the BSA seem to take these fights to the US Supreme Court, win, then change their policy. The BSA has had their Washington DC legal counsel prepare a legal memorandum that explains their strategy, method, and projection of future litigation environment. It is well worth reading to better understand what to expect in the future.
Based on the efforts that the BSA and its legal counsel have undertaken, the best way to interpret the future consequences is that the BSA is willing to fight for principles and has staked out the highest ground they can. When the battle comes, the attacking parties will have to attack a First-Amendment protected religious institution. As a result, the likelihood of success are very small for any party attempting to attack the BSA on membership policy grounds.
At the same time chartered organizations such as churches can continue to follow their religious faith in scouting. They don’t have to adjust their beliefs in order to support their scouting unit.
We also now have a road map of what to expect in future disputes over membership. The BSA will fight to defend the religious institutions and Constitutional prerogatives. Then once the principle is established, the BSA will do what it can to minimize the costs of future litigation.
Effects on Current Recruiting Efforts
Since many public schools excluded the BSA based on the membership policies, we are now in a position to re-visit whether BSA units should be in schools. In the dawns of BSA history the public schools owned the scout units. Consequently, few units paid significant fees for use of school facilities. That changed as schools pulled back from ownership. They started to treat scout units as visitors or tenants. Federal regulations allowed fees to be charged. Schools took advantage of that guidance to shift costs from the schools to the scout units.
Many schools are now seeing that no extracurricular activities at the school are offering the citizenship development and ethics training that scouting offers from day one in the program. They see the problem. They struggle to identify the solution.
Since we can now have a conversation about scouting at schools that does not end promptly with “we don’t agree with your membership policy,” we are in a better situation to ask questions about what the school sees in its duties to its students to instill principles of citizenship and ethics. We can ask about the success of the schools’ efforts to date.
I would hazard a guess that all schools see a role in instilling those principles in youth, yet few can report great success.
Finding schools that have scouting units will often report that they are having success on issues of citizenship and ethics. Since boys in scouts have a dramatically lower incidences of criminal activity and misbehavior, the school’s statistics will tend to follow that pattern.
Now the conversation can focus on helping the schools to their self-identified duty for their boys and not get side tracked into political conversations.
If you need more information on this subject or help in building relationships with existing or new chartered organizations, talk to your district membership chair, unit commissioner, or your district executive.