GOVERNMENT OF THE DISTRICT OF COLUMBIA

COMMISSION ON HUMAN RIGHTS

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IN THE MATTER OF :

:

Roland D. Pool and Michael S. : Docket Nos.: 93-030-PA

Geller, : and 93-031-PA

:

Complainants, :

:

-v- :

:

Boy Scouts of America and :

National Capital Area Council :

Boy Scouts of America, :

:

Respondents. :

:

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COMPLAINANTS' REPLY TO RESPONDENTS' PROPOSED

FINDINGS OF FACT AND CONCLUSIONS OF LAW
 

David M. Gische

Merril Hirsh

Julie P. Glass

ROSS, DIXON & MASBACK, L.L.P.

601 Pennsylvania Avenue, N.W.

North Building

Washington, D.C. 20004-2688

(202) 662-2000
 

TABLE OF CONTENTS
 

INTRODUCTION 1

PROPOSED SUPPLEMENTAL FINDINGS OF FACT 4

I. This Is Not a Case about Advocacy or Conduct 4

II. The Boy Scouts Have No Evidence that Supports the Assertion that
Homosexuality Is Inconsistent With Principles of Scouting 7

III. Having a Uniform and Rituals at the Troop Level Does Not Make the
"Largest Youth Movement the Free World Has Ever Seen" Distinctly Private 14

IV. The Boy Scouts Are Not a Religious Organization and Are Not Acting
To Further Any Views on Religion They Enunciate

PROPOSED SUPPLEMENTAL CONCLUSIONS OF LAW 20

I. Even if the Boy Scouts Had Proven that Michael Geller and Roland Pool
Were Testers (Which They Did Not), Their Attempt to Argue that Testers
Cannot Bring Claims Under the DCHRA Would Be Baseless 20

II. The Boy Scouts' Assertion that the Commission Lacks "Jurisdiction"
to Rule On Their Discrimination Against Two People In the District
of Columbia Also Has No Merit 22

III. The Common Premise of the Boy Scouts' Public Accommodations and
Constitutional Arguments -- that Their National Organization and Council
Can Escape Enforcement Under the DCHRA Based Upon the Size of Units
that Had No Involvement With the Events of this Case -- Is Incorrect 23

IV. The Boy Scouts Have Denied Complainants "the Full and Equal Enjoyment
of the Goods, Services, Facilities, Privileges, Advantages, and Accommodations"
of a Place of Public Accommodation 28

V. The Boy Scouts are not "distinctly private" 41

VI. The Boy Scouts' Argument that They Did Not Deny Any Goods, Services,
facilities, Privileges, [or] Advantages" When They Excluded Roland Pool
and Michael Geller From Participation in Scouting Is Also Insupportable 41

VII. The Boy Scouts New Claim That They Are Not a Religious Organization
Has Been Waived And Would be Unavailing in Any Event 42

VIII The Boy Scouts cannot use a "slippery slope" argument to exempt
themselves from the DCHRA 44

IX. The Boy Scouts' Constitutional Arguments Are Equally Unavailing 46

X. The Boy Scouts' Threat to Leave the District if Required to Submit to
Law is Not a Reason to Exempt Them From It 48
 
 
 
  TABLE OF AUTHORITIES

CASES
 

AMAF International Corp. v. Ralston Purina Co., 428 A.2d 849 (D.C. 1981) 23 Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) 27,46,47

Bob Jones University v. United States, 4Gl

U.S. 574 (1983) 49

Curran v. Mount Diablo Council of the Boy

Scouts of America, 72 Cal. Rptr. 2d

410 (Cal. 1998) 25,26

Dale v. Boy Scouts of America, 706 A.2d 270

(N.J. Super. Ct. App. Div. 1998) 3, 24, 25, 26, 30,

38,48

Dean v. District of Columbia, 653 A.2d 307

(D.C. 1995) 38

Dickerson v. D.C. Department of Human

Services, DN 89-465-PA (Department of Human

Rights, 1989) 33

Evans v. United States, 682 A.2d 644 (D.C.

1996) 38,39,40

Fair Employment Council of Greater

Washington, Inc. v. BMC Market3'-ncr

Corp.-, 28 F.3d 1268 (D.C. 1994) 20

Gay Rights Coalition, 526 A.2d at 27 32, 34, 36, 42, 43,

44,48

Gay Rights Coalition v. Georgetown

University, 536 A-2d 1 (D.C. 1987) 31, 32, 34, 35, 36,

37,42

Gould v. Big Brothers of the Nat'l Capital

Area, DN 89-026-P(CN), (Department (Office) of

Human Rights, 1989) 33

Griggs v. Duke Power CO., 401 U.S. 424

(1971) 31,32

Guevara v. Reed, 598 A.2d 1157 (D.C. 1991) 23

In the Matter of Richardson v. Chicago Area Council
Boy Scouts of America, No. 92-E-80(Chicago Comm'n. on
Human Rights, Feb. 21, 1996), 48

James v. Team Washington, Inc., WL 633323,

(D.D.C. Oct. 7, 1998) 29

Kiwanis International v. Ridcrewood Kiwanis

Club, 806 F.2d 468 (3d Cir. 1986) 25,26

Matthews v. Automated Business Systems &

Services, Inc., 558 A.2d 1175 (D.C. (1989) 22

Molovinsky v. Fair Employment Council, 683

A.2d 142 (D.C. 1996) 20,21

National Organization for Women, Essex Ch.

v. Little League Baseball, Inc., 318

A.2d 33 (N.J. Super. App. Div.),

ff'd., 338 A.2d 198 (N.J. 1974) 44

National Organization for Women v. Mutual

of Omaha Insurance Co., 531 A.2d 274

(D.C. 1987) 38,39

U.S. Power –Squadrons v. State Human Rights

Appeal Board, 452 N.E.2d 1199

1983) 30,38

Ouinnipiac Council BSA v. Commission on

Human Rights and Opportunities, 528

A.2d 352 (Conn. 1987) 25, 29, 30, 38, 41,

42

Randall v. Orange County Council, Boy

Scouts of America, 72 Cal. Rptr. 2d

453 (Cal. 1998) 25

Roberts v. United States Jaycees, 468 U.S.

609 (1984) 27, 29, 35, 36, 46,

47

Schwartz v. The Cosmos Club, DN 86-PA-428

(Department (Office) of Human Rights, 1987) 33

Schwenk v. Boy Scouts of America, 551 P.2d

465 (Or. 1976) 25,30

Seabourn v. Coronado Area Council, Boy

Scouts of America, 891 P.2d 385 (Kan.

1995) 25

Smith v. Department Of Employment

Services, 548 A-2d 95 (D.C. 1988) 33

Timus v. D.C. Department of Human Rights,

633 A.2d 751 (D.C. 1993) 33

United States Jaycees V. Bloomfield, 434

A-2d 1379 (D.C. 1981) 24,33,40

United States Jaycees v. McClure, 305

N.W.2d 764 (Minn. 1981) 29,38

United States Jaycees v. McClure, 534 F.

Supp. 766 (D. Minn. 1982), rev’d on

other grounds, 709 F.2d 1560 (8th

Cir. 1983), rev'd, 468 U.S. 609

(1984) 27

Welsh v. Boy Scouts of America, 993 F.2d

1267 (7th Cir. 1993) 25,30,31
 

STATUTES
 

36 U.S.C. 23 (1916) ..........16

42 U.S.C. 2000a 31

D.C. Code 1-2502(24) (emphasis added) 29,45

D.C. Code 1-2503(a) 45

D.C. Code 1-2503(b) 42,43,45

D.C. Code 1-2519 24, 28, 30, 34, 36, 41, 42

D.C. Code 1-2520 34,42

D.C. Code 1-2532 (1987) 31

D.C. Code 1-2544(a) 21

D.C. Code 1-2556(a) 16, 17, 21

D.C. Code 13-423(a)(1) 23

D.C. Code 23-105(a) 39

D.C. Law 7-50 2, 34 DCR 6887 34

4 D.C.M.R. 413.3(a) 42

GOVERNMENT OF THE DISTRICT OF COLUMBIA

COMMISSION ON HUMAN RIGHTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

IN THE MATTER OF :

:

Roland D. Pool and Michael S. : Docket Nos.: 93-030-PA

Geller, : and 93-031-PA

:

Complainants, :

:

-v- :

:

Boy Scouts of America and :

National Capital Area Council :

Boy Scouts of America, :

:

Respondents. :

:

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COMPLAINANTS' REPLY TO RESPONDENTS'

PROPOSED FINDINGS OF FACT

AND CONCLUSIONS OF LAW

Introduction

The Findings of Fact and Conclusions of Law proposed by Respondents Boy Scouts of America ("BSA") and National Capital Area Council, Boy Scouts of America ("NCAC") (collectively the "Boy Scouts") overlook most of the evidence provided at the hearing. Instead of quoting any of their own position statements on homosexuality, or the extensive testimony about them, or confronting the scores of references in the Scouting literature that contradict their premises, the Boy Scouts simply declare without record citation that "homosexual conduct is inconsistent with the promise to be morally straight and clean". R-FOF ¶ 25. The Boy Scouts also declare, again with any record citation or evidence, that "Complainants are not being excluded because of their status as homosexuals, but because of their expression." R-COL ¶ 69.^*/

When declaring themselves to be "distinctly private," the Boy Scouts ask the Commission to overlook who the Respondents really are. Instead of the organization that proudly presents itself to the public as the "largest youth movement the free world has ever seen," the Boy Scouts pretend that Mr. Pool and Mr. Geller sued some Scout troop. Of course, the Boy Scouts cannot point to any Scout troop that played any role in these men being told to sever their ties with Scouting. To the contrary, the only troop that played any role in this matter -- Mr. Geller's Troop 37 -- affirmatively wanted Mr. Geller as an adult leader.

When announcing themselves to be a "religious organization," the Boy Scouts do not mention their Congressional Charter, their public sponsors, their use of military facilities or the laws written specifically for their public support. Indeed, they do not even cite the whole of the Declaration of Religious Principles, or the fact that it is absolutely contrary to hundreds of references in the Scouting literature for the Boy Scouts to pick and choose among the views of various religions and dismiss those they consider (in fact incorrectly) to be "minority."

When discussing Mr. Pool and Mr. Geller, they ask the Commission to disregard their qualifications and experience. If the Commission were to adopt the Boy Scouts' findings, the reader would have almost no clue that Michael Geller or Roland Pool was ever in the Boy Scouts, and would certainly never know that Michael Geller is an Eagle Scout, or that Roland Pool had ever been to Philmont Scout Ranch.

And when the Boy Scouts turn to the law, they do not even mention Dale v. Boy Scouts of America, 706 A.2d 270, 277-83 (N.J. Super. Ct. App. Div. 1998), or In the Matter of Richardson v. Chicago Area Council Boy Scouts of America, No. 92-E-80 (Chicago Comm'n on Human Rel'ns, Feb. 21, 1996) ("Richardson") (Att. A)^**/ -- two cases that rejected the arguments the Boy Scouts assert. Instead, their legal analysis depends upon an array of assertions that are simply incorrect -- citations to cases that reject the propositions for which they are cited or were explicitly repudiated by the District of Columbia Court of Appeals, reliance on excerpts taken out of context, failures to address relevant statutory language and an overall logic that cannot be reconciled with the District of Columbia Human Rights Act, its intent, its spirit, or the cases that have applied it.

Complainants believe that their proposed Findings and Conclusions cover the vast majority of points the Boy Scouts make and explain the evidence and law that the Boy Scouts do not discuss. Accordingly, rather than review each point with which they disagree, Complainants will focus on rebutting the specific points that appear to lie at the heart of the Boy Scouts' arguments.

PROPOSED SUPPLEMENTAL FINDINGS OF FACT

I. This Is Not a Case about Advocacy or Conduct.

1. At the heart of the Boy Scouts' defense in this case is a request that the Commission act without evidence to institutionalize a stereotype. The stereotype is that all homosexuals are advocates: that they all have an alternate agenda that compels them to make whatever organization of which they are a member a bully pulpit from which to place their sexual orientation at issue.

2. This, however, is not a case about advocacy. The Boy Scouts do not have a policy that says that we will only admit people -- heterosexual or homosexual -- who believe that homosexuality is immoral. The Boy Scouts admit heterosexuals who disagree with that view, or even those who march in gay and lesbian parades, (C-FOF ¶ 82); but they would exclude a homosexual priest who, on a daily basis, advocates the position that homosexual conduct is contrary to his religion. Tr. 1470-72 (Hummel). The Boy Scouts welcome sponsorship from Peoples United Church of Christ, or St. Timothy's Episcopal Church or Foundry United Methodist Church, all of which publicly announce their strong policies of welcoming gays and lesbians to their congregations, C-FOF ¶ 382-83; but they will expel a homosexual who is compelled to reveal his/her sexual orientation under oath. Tr. 1197 (Carroll). Indeed, at the hearing, the Boy Scouts actively sought the identity of homosexual Scouters and conceded that they would use that information to investigate the Scouters named. Tr. 1749-54.

3. Nor is this case about conduct. The Boy Scouts' Proposed Findings add the word "conduct" to every attempt they make to justify their policy, see, e.g., R-FOFs ¶¶ 25, 27, 28, 29, 31. They also transform the policy into one about conduct for purposes of trying to find support among the views of religious groups. See id. ¶¶ 102-38. But, in fact, the Boy Scouts knew nothing at all about Roland Pool's conduct when they demanded that he sever his relations with Scouting for life. The Boy Scouts do not generally exclude heterosexuals who practice sex out of marriage, or care about whether their private sexual conduct implicates sodomy laws. C-FOF ¶ 85-88; Tr. 588 (Press). But they exclude celibate homosexuals. C-FOFs ¶¶ 77-78, 235, 244.

4. Indeed, it is indicative of the very discrimination Complainants challenge that the Boy Scouts have proposed Findings of Fact and Conclusions of Law that seek to pin labels on Mr. Pool and Mr. Geller rather than to treat them as individuals. The Boy Scouts announce that Mr. Pool is a "tester" -- based essentially on the fact that he happened to run into an acquaintance who referred him to counsel. Tr. 775-76. They define Mr. Geller as someone interested only in "moral approval" based on words that are those of the Boy Scouts' counsel, not his own. Tr. 258-59. And they fail almost entirely even to mention these individuals' Scouting experience.

5. Not surprisingly, the Boy Scouts' labels are wholly belied by the record. These men are Eagle Scouts. They were chosen from their Scout peers to become members of the Order of the Arrow. Michael Geller's history in Scouting does not just go back to his eleventh birthday -- when he joined the Scouts on his first day of eligibility -- but to his father, brother, uncles and cousins, whose experience in Scouting amounts to decades. Tr. 43-44 (M. Geller); Tr. 464-65, 472 (D. Geller).

6. Roland Pool's and Michael Geller's respective commitment to Scouting is not only demonstrated by their achievements, it is evident in the almost encyclopedic knowledge of the program they demonstrated during detailed questioning, from the boxes and boxes of Scouting memorabilia they still retain, not to mention the Scouting books, mugs and artifacts that Roland Pool to this day continues to use and to display in his home. Tr. 50-74, 148-214 (Geller); Tr. 716-61, 877-94 (Pool); C-FOF ¶ 37.

7. Not only was their testimony of their own commitment wholly credible, it is echoed in the sentiments of Scouters who knew them. To declare that Roland Pool does not have a sincere commitment to Scouting would require finding that every single witness or affiant with knowledge about him -- Michael Herde, Hayden Wetzel, Russell McLaren, Daniel Shaw, William Kealey, Thornell Jones, Daniel Press and William Kirkner -- was completely mistaken or lied under oath (Tr. 443-4 (Herde); Tr. 2365-6 (Wetzel); C-FOF 44-45; McLaren, Shaw and Kealey Affidavits) it would also mean that Mr. Pool's supervisors at Philmont were poor judges of character and commitment when they recommended Roland Pool to become Chief Ranger -- the supervisor of 150 Philmont Rangers. C-FOF ¶ 34. To so declare about Michael Geller would require not only disregarding the persuasive testimony of his father, David Geller, but also the testament of the entire Baden-Powell Council that, in the wake of the Boy Scouts' action against Mr. Geller, took the extraordinary step of passing a unanimous resolution opposing the BSA's national policy of excluding homosexuals. Exs. C1204, C1210, C1214A, Tr. 483-5 (D. Geller).

8. If Michael Geller and Roland Pool wanted to make their sexual orientation an agenda for Scouting, they had ample opportunities to do that for years. Roland Pool knew his sexual orientation when he was 13. He found no need to make even a single person aware of it in connection with any Scouting activity. Tr. 766-68 (Pool). Michael Geller continued to be registered with his troop for nine years after he realized his sexual orientation. Tr. 93-94 (M. Geller).

9. Roland Pool and Michael Geller are not requesting some right to speak about homosexuality in the context of the Boy Scouts. They only ask not to be excluded from the Boy Scouts on the basis of their sexual orientation.

10. In short, it is wholly disingenuous for the Boy Scouts -- an organization that excludes homosexuals irrespective of what or whether they will make any statement about the morality of sexual orientation -- to contrive a post hoc theory so contrary to the evidence in this case.

II. The Boy Scouts Have No Evidence that Supports the Assertion that Homosexuality Is Inconsistent With Principles of Scouting.

11. The Boy Scouts have virtually nothing to say in response to the overwhelming evidence of record in this case contradicting their contention that homosexuality violates the prescriptions in the Scout Oath and Scout Law. See C-FOFs ¶¶ 90-268, 323-413. Indeed, what the Boy Scouts say on this subject is so thin that it reinforces the point.

12. Primarily, the Boy Scouts simply announce, without any reference to anything in the record, that: Boy Scouts believes that homosexual conduct is inconsistent with the promise to be morally straight and inconsistent with the requirement that a Scout be clean in body and mind. R-FOF ¶ 25. 13. Even putting aside the inapt reference to "conduct" in a case involving discrimination based upon status, not even the former President of the Boy Scouts, Richard Leet, believes that the Boy Scouts' assertion is true. He testified that a practicing homosexual who keeps his/her private life behind "closed doors" can "sincerely take the Scout Oath and Scout Law and be part of the Boy Scouts so far as the Boy Scouts is concerned." Tr. 2539-40 (Leet).

14. Moreover, in response to scores of statements from its literature that either directly contradict or glaringly omit to mention any Scouting statement about the morality of homosexuality, and the extensive testimony that belies their position, the best the Boy Scouts can do is to read inferences into snippets of quotes that under any fair reading could not sustain their position. The Boy Scouts' primary quote is an excerpt from the 1972 edition of the Scoutmaster Handbook that states: Incidents of sexual experimentation that may occur in the troop could run from the innocent to the scandalous. They call for a private and thorough investigation, and frank discussion with those involved. It is important to distinguish between youthful acts of innocence, and the practices of a confirmed homosexual who may be using his Scouting association to make contacts. A boy of 15 cannot be assumed to be acting out of innocence, and should be separated from the Troop for the protection of younger boys. R-FOF ¶ 30 (citing Ex. R171 -- which is also Ex. C726 -- at 74).

15. Even if this paragraph were the only thing the Boy Scouts said on the subject of homosexuals in Scouting, it would contradict their premise that the Scout Oath and Scout Law required that homosexuals be automatically excluded from Scouting. The passage talks not merely about someone who is homosexual, but someone who is "using his Scouting association to make contacts." Yet, even under those circumstances, it does not say "of course, any such homosexual must be immediately expelled from Scouting." It does not even say "you must tell this boy that he is violating the Scout Oath or Law." It says that such a boy should be "separated from the Troop," and then "for the protection of younger boys."

16. The context of the statement still further belies the Boy Scouts' claim that Scouting teaches that homosexuality is immoral. The passage immediately before the Boy Scouts' quote explains that Scoutmasters are not supposed to instruct Scouts in any formal way about sex: You must respect the right of parents to teach their sons about life. You must also recognize that many of them will not do this very well, and some won't do it at all. Some of their failings will come to light in your troop. You may find magazines at practically any level of obscenity being circulated during a camp-out. You may have boys asking you for information or advice about sexual matters. You may overhear dirty stories or dirty talk, both informed and uninformed, in your troop. You may discover or hear about incidents of sexual experimentation among troop members. How should you handle such matters?

Rule number one: You do not undertake to instruct Scouts, in any formalized manner in the subject of sex and family life. The reasons are that it is not construed to be Scouting's proper area and that you are probably not well qualified to do this.

Rule number two: If Scouts come to you to ask questions or to seek advice, you would give it within your competence. A boy who appears to be asking about sexual intercourse however, may really only be worried about his pimples so it is well to find out just what information is needed.

Rule number three: You should refer boys with sexual problems to persons better qualified than you to handle them. If the boy has a spiritual leader or a doctor who can deal with them, he should go there. If such persons are not available, you may just have to do the best you can. But don't try to play a highly professional role. And at the other extreme, avoid passing the buck. Ex. R171 at 73-74; Ex. C726 at 73-74 (emphasis added).

17. The passage right after the one the Boy Scouts quote explains that Scoutmasters are not supposed to take dramatic action like demanding that the boy sever all of his ties with Scouting: It is of greatest importance that such occasions be kept quiet. Avoid accusations and any loose talk. Avoid making a small and innocent act into a mammoth offense. Ex. R171 at 75; Ex. C726 at 75.

18. Earlier in the same 1972 Handbook from which the Boy Scouts take their quote, in the section discussing "Moral Fitness," the Boy Scouts deny that there is any one view of what is moral. They tell Scoutmasters, "[w]hat you consider moral or immoral depends on your upbringing and background," C726 at 6052, and instead of dictating a particular morality, they should look to see if a Scout displays the qualities of "Courage about what he believes," "Respect for other people's viewpoints when they differ from his." "Compassion for others' feelings and needs," "Acting as if the rights of others matter to him," and "Accepting others as equal in worth and dignity." Ex. R171 at 33; Ex. C726 at 33.

19. Later, in that same manual, the Boy Scouts instruct Scoutmasters that when they counsel boys, they should absolutely refrain from giving advice, even if it is asked for: Q: By counseling, do you mean the leader giving the boy advice?

A: No. A good counselor absolutely refrains from giving advice, even if it is asked for.

Q: Should a counselor use a counseling session to let the other person know "where he stands," so to speak?

A: No, he should not. That would be offering judgment. No one can counsel and judge at the same time. Ex. R171 at 78; Ex. C726 at 78 (emphasis added).

20. Moreover, any fair review of the evidence would require looking at what the Boy Scouts' Scoutmaster Handbooks have said since 1972. The next edition of the Scoutmaster Handbook was the seventh edition, which was in use in its eighth printing in 1987. Ex. C727. There, the Boy Scouts reiterated all of the additional statements made in the preceding four Findings -- see Ex. C727 at 6934 (Scoutmasters "do not undertake to instruct Scouts, in any formalized manner, in the subject of sex and family life," and "should refer boys with sexual problems to personnel qualified to handle them"); id. at 6935 ("[i]t is of greatest important that such occasions be kept quiet"); id. at 6907-08 (same discussion of "Moral Fitness"); id. at 6941, 6943 (same discussion of "counseling" and "Understanding Your Role") -- but changed the last line of the passage from the 1972 Scoutmaster Handbook upon which the Boy Scouts rely. In this edition, the passage reads: Incidents of sexual experimentation that may occur in the troop could run from the innocent to the scandalous. They call for a private and thorough investigation, and frank discussion with those involved. It is important to distinguish between youthful acts of innocence, and the practices of a confirmed homosexual who may be using his Scouting association to make contacts. A boy of 15 cannot be assumed to be acting out of innocence. Assist him in securing professional help. Ex. C727 at 6935 (emphasis added). Thus, the Boy Scouts advised that even a boy who might be using Scouting to make sexual contacts with younger boys should be "assist[ed] in securing professional help." There is not even a mention of separating the boy from the Troop for the protection of younger boys, much less a statement that the Scoutmaster was supposed to demand that the boy he is "assist[ing]" sever all of his ties with Scouting.

21. When the Boy Scouts came to issue their current, eighth, edition of the Scoutmaster Handbook, they dispensed with even this discussion in favor of a "sex curiosity" section that simply advises that Scoutmasters are to "[a]ccept all youth as they are. Your acceptance will reassure them that they are normal." Ex. C701 at 154.

22. What is most telling about this discussion, however, is that the passage from the 1972 Scoutmaster Handbook (limited as it is on its face, and in context, and rejected in subsequent manuals issued well after that Boy Scout ostensibly articulated a policy of excluding homosexuals), is the strongest evidence the Boy Scouts were able to locate in their hundreds of thousands of pages of material to support the notion that Scouting exists to make some sort of statement about the morality of homosexuality.

23. The few remaining excerpts the Boy Scouts cite from their vast literature do not help their argument. First, the Boy Scouts cite the definitions of "morally straight" and "clean" in the current Handbook and try to argue that these "refer to moral sexual `activity.'" R-FOFs ¶¶ 20-22.  As C-FOFs ¶¶ 323-68 explain, however, the definitions of "morally straight" and "clean" -- either current or historic -- not only fail to mention homosexuality, they specifically state "Respect and defend the rights of all people. Your relationships with others should be honest and open"; and the reason to avoid "Swear words, profanity, and dirty stories" is because they "are weapons that ridicule other people and hurt their feelings," like "racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations." Ex. C700 at 551 and 561. And, in fact, these provisions of the Scout Oath and Scout Law only "refer to sexual `activity'" in the sense that the Scout Oath and Scout Law refer to conduct generally, including sexual conduct. C700 at 550-53; Tr. 763-6 (Pool); Tr. 74-79 (M. Geller); Tr. 388-90 (Jones); Tr. 1710-11 (Wolfe).

24. Then, the Boy Scouts excerpt quotes from the Sexual Responsibility portion of the current Scout Handbook and a general statement from the Scoutmaster Handbook that Scoutmasters are supposed to be "very open and clear when talking with [Scouts]." R-FOF ¶ 23. As explained by William Kirkner, who participated in drafting the Sexual Responsibility section upon which the Boy Scouts rely, this section says nothing about sexual orientation. Tr. 1947-58. In fact, it reiterates to Scouts that the question of sex involves a "responsibility to your beliefs" Ex. C700 at 528 (emphasis added) The Boy Scouts do not say that "[a]bstinence until marriage," is a moral imperative or a requirement of the Scout Oath or the Scout Law; they describe abstinence merely as a "very wise course of action." Id. Consistent with the views of the Boy Scouts generally, the passage states that "[f]or the followers of most religions, sex should take place only between married couples"; it does not instruct the Scout that his religion takes that position. Id. Similarly, as Ron Carroll noted, even when a boy has identified himself as a homosexual, being "very open and clear in talking" does not mean expressing any view on the morality of homosexuality. C-FOF ¶ 133.

25. In short, the Boy Scouts cannot point to a single statement in the Scouting literature that would tell a Scout whose parents or religious leader did not believe that homosexuality was immoral that the Boy Scouts disagreed with that position, or that the Scout should follow the teachings of anyone else besides his parents or religious leader.

26. The Boy Scouts also have no explanation for the scores of statements in the Scout Oath, the Scout Law and the vast Scout literature that teach people not to discriminate against anyone. They have no explanation for the testimony of their own witnesses that it is no part of the Scouting program to teach of homosexuality. C-FOFs ¶¶ 90-134, 228-64. And, although they allude to the various position statements, R-FOF ¶ 29, the Boy Scouts do not quote them, much less explain how they can be reconciled internally or with each other, C-FOFs ¶¶ 135-94, why volunteers like Thornell Jones were not even aware of them, C-FOFs ¶¶ 195-98, or how to make any sense out of the layers upon layers of conflicting explanations about the policy given by the Boy Scouts' witnesses. C-FOFs ¶¶ 228-68.

III. Having a Uniform and Rituals at the Troop Level Does Not Make the "Largest Youth Movement the Free World Has Ever Seen" Distinctly Private.

27. As discussed below C-SUPP COLs ¶¶ 7-13 the relevance of the Boy Scouts' extended discussion of events at troop meetings rests on the mistaken premise that a national organization of over 5 million people can, with impunity, deny benefits and advantages to a protected class so long as local units that had no role in the decision "are small and intimate." Once this error is dispelled, the Boy Scouts have essentially nothing to say on the issue of being "distinctly private."

28. Even putting aside its relevance, however, the Boy Scouts' discussion of uniforms and rituals is more misleading than it is informative. The Boy Scouts are not a secret society. The uniform and patches that the Boy Scouts painstakingly described in testimony are the items they tell Scouts "show that you belong -- that you are a member of the largest youth movement the world has ever seen." Ex. C719 at 2780 (emphasis in original); Ex. C717 at Ex. 1513; C718 at 2206; C719 at 2730-81; Ex. C720 at 56-57. The uniform and the rituals serve this function because the Boy Scouts' aggressive efforts to court public relations, public interaction and public funds have successfully made them part of the common currency of America, if not the world. C-FOFs ¶¶ 269-322.

29. When the Boy Scouts proudly announce that, "more than ever, Scouting is an integral part of the fabric of America," Ex. C1310 (inside cover), they are not only speaking a truth, they are explaining how they are the antithesis of "distinctly private."

IV. The Boy Scouts Are Not a Religious Organization and Are Not Acting To Further Any Views on Religion They Enunciate.

30. Although Respondents' Revised Pre-Hearing Statement asserted that the references to God in the Scouting literature and the views of some religions support their policy of excluding homosexuals, the Boy Scouts' Prehearing Statement did not assert that the Boy Scouts themselves are a "religious organization." In fact, the only legal defenses preserved by the Boy Scouts were the contentions that they were "distinctly private" and that requiring the Boy Scouts to comply with the District of Columbia Human Rights Act would violate their constitutional right of expressive association. Respondents' Prehearing Statement at 4-5.

31. As noted below, C-SUPP COL ¶ 46, the Boy Scouts cannot now argue in their post-hearing proposed Findings and Conclusions that they are a religious organization. It is an affirmative defense and has been waived.

32. In any event, however, even if the "religious organization" defense had been properly raised, it would still have no factual basis in the record. The Boy Scouts are chartered by a Congress that is, of course, bound to follow the First Amendment proscription against intermingling of church and state. Their Congressional charter does not say that the purpose of the Boy Scouts is to foster any religion or religion in general. It says in wholly secular terms: The purpose of this corporation shall be to promote, through organization and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which are now in common use by Boy Scouts. 36 U.S.C. § 23 (1916); Ex. C1300 § 3. The Boy Scouts' Reports to the Nation do not inform Congress that it has been chartered as a religious organization. C1112-1113. The Boy Scouts make the President of the United States their honorary president. C-FOF ¶ 292. They encourage and eagerly accept extraordinary access to public facilities and public largesse. C-FOFs ¶¶ 292-314. They have induced schools to sponsor troops and posts and to present the Learning for Life program. Id. The NCAC specifically represented to the District of Columbia that is a charitable organization -- not a religious organization -- when it obtained its sales tax exemption. C1120 at NCAC5573. The Boy Scouts' own witnesses deny that Scouting is a religion. Tr. 1407-12 (Turner); Mack Dep. at 94-99, 110-11, 116-17; Teare Dep. at 156-57.

33. Nor do the Boy Scouts have any of the attributes of a religious organization. They do not teach their members about what God is, or how God should be worshipped. C-FOFs ¶¶ 369-410. They do not require members to participate in any specific religious function or even to be a member of any organized religion. C-FOFs ¶¶ 365-410. The religious component of Scouting consists of a general belief that "no member can grow into the best kind of citizen without recognizing an obligation to God." Ex. C1300 at NCAC 116, Art. 1X, § 1. In the words of then Chief Scout Executive Ben Love, "I don't care if he worships the Great Turtle; kids have got to worship - you have got to worship something to be in the Scouts." Tr. 2030-31. (Kirkner).

34. Even if the Boy Scouts were a "religious organization," they would still fail to demonstrate that any religious purposes they espouse require the exclusion of homosexuals. At best, the Boy Scouts' assertion that discrimination against homosexuals is required by some "religious" precept of their organization relies on a false logic. Even if it were true (and it is not) that a majority of religions view homosexuality as immoral, and that all of the Boy Scouts' sponsors come from those religions (also untrue), it would still not follow that the Boy Scouts exist to promote that view. Members of various religions hold to a large number of views. Many believe that abortion or contraception is immoral. Some say that working on Sunday, or Saturday, or Friday violates their beliefs. The Boy Scouts, who do not feel that they are under any general obligation to follow these deeply-held views, cannot maintain that they have a specific obligation to discriminate against homosexuals. Such an inconsistency is clear evidence that the excuse is pretextual.

35. In fact, however, as discussed in C-FOFs ¶¶ 369-80, the Boy Scouts' attempt to assert a religious organization justification for excluding homosexuals is wholly contradicted by the fundamental approach to religions the Boy Scouts have articulated myriad times in their literature. The Boy Scouts have determined -- in the Scout Oath, the Scout Law, and in numerous publications -- that Scouting is fully consistent with all religions, defers to each in its religious teachings, and does not pick and choose among religious views, be they majority, minority or otherwise. Ex. C1300 at NCAC 116, Art. 1X § 1; Ex. C731 at 2374; Ex. C313 at A1205; Ex. C700 at 561. The Boy Scouts themselves concede that "`[t]here is a close association between the Boy Scouts of America and virtually all religious bodies and denominations in the United States.'" R-FOF ¶ 102 (quoting Ex. R5 (also Ex. C701) at 227) (emphasis added). The Boy Scouts cannot merely dismiss as "Minority Views" C-FOF ¶ 137 (heading) the strongly-held beliefs of various religious groups (such as the Episcopal Church, the United Church of Christ, the Religious Society of Friends (Quakers), Reform and Reconstructionalist Judaism and the Unitarian Universalist Church) on the appropriateness of excluding homosexuals. The Oath and Law of this "absolutely non-sectarian" organization explicitly requires members to follow their own religion (not necessarily those of the majority) and to respect the religious views of others (even if they are in the minority). C-FOFs ¶¶ 369-79.

36. Moreover, the characterizations by the Boy Scouts of the views of various religions on homosexuality is unfair and selective. For example, when the Boy Scouts state that the United Methodist Church "do[es] not condone the practice of homosexuality and consider[s] this practice incompatible with Christian teaching," C-FOF ¶ 112 (citing Tr. 1277 (Thomas)), they overlook that on cross-examination, Mr. Thomas conceded that: • This sentence fragment was taken out of context from a full statement that, the Book of Discipline reads:

"Although we do not condone the practice of homosexuality and consider this practice incompatible with Christian teaching, we affirm that God's grace is available to all. We commit ourselves to be a ministry for and with all persons." Tr. 1310-11; Ex. C1723 at A2590.

• The same passage from the Book of Discipline also says that:

"We insist that all persons, regardless of age, gender, marital status or sexual orientation, are entitled to have their human and civil rights ensured." Tr. 1312, 1324; Ex. C1723 at A2590.

• The United Methodist Church has no prohibition on sexually active homosexuals participating in the church or in lay leadership positions. Tr. 1314-16. Indeed, the United Methodist Churches that sponsor Scout troops in the District of Columbia, such as the Foundry United Methodist Church and Metropolitan United Methodist Church, have lay leaders who are sexually-active homosexuals. Tr. 1314-15; Tr. 1776, 1782-84, 1797-1807 (Wogaman).

37. Similarly, the Boy Scouts' witnesses from the Mormon Church and the Catholic Church, Elder Ellison and Father Hummel, each conceded that the Boy Scouts' policy -- of excluding even celibate homosexuals, and not automatically taking action against heterosexuals who engage in sex outside of marriage -- are both inconsistent with the views of their respective Churches. Tr. 1892-99 (Ellison); Tr. 1469-71 (Hummell); C-FOFs ¶¶ 389-90. The Boy Scouts' discussion of the "Baptist Church," R-FOF at 38 (Heading), is not only incorrect in the sense that there is no one "Baptist Church," Tr. 1385-86 (Turner), but overlooks the fact that, unlike the Boy Scouts, the Southern Baptist Convention to which Rev. Turner adheres takes an extremely strong view against heterosexual sex outside of marriage. Tr. 1400-1407; Ex. R95. Like the United Methodist Church, the largest Lutheran denomination, the Evangelical Lutheran Church of America, also accepts sexually-active homosexuals as lay leaders. Exs. C1729, C1730. Conservative Judaism strongly believes that homosexuals should not be discriminated against in non-religious matters. Exs. C1721, C1722; Tr. 2321-22 (Saks).

38. The Boy Scouts' attempt to harmonize their exclusion of all homosexuals with the views of religions also depends upon the false premise that the Boy Scouts' exclusion of homosexuals is based on conduct. For the Boy Scouts to assert that excluding a celibate priest is somehow commanded by the strictures of Catholicism is not only contrary to their own witnesses' testimony, Tr. 1470-71 (Hummel), it is contrary to common sense.

PROPOSED SUPPLEMENTAL CONCLUSIONS OF LAW

I. Even if the Boy Scouts Had Proven that Michael Geller and Roland Pool Were Testers (Which They Did Not), Their Attempt to Argue that Testers Cannot Bring Claims Under the DCHRA Would Be Baseless.

1. As noted, C-FOFs ¶ 26-75, 447-50; C-SUPP FOFs ¶ 1-10, the Boy Scouts' assertion that Michael Geller and Roland Pool are "testers" is belied by the evidence. The Boy Scouts' further assertion that testers cannot bring challenges under the DCHRA is so contrary to law as to be frivolous.

2. The Boy Scouts argue that testers lack standing to bring court actions under the DCHRA, because some courts -- most particularly Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 28 F.3d 1268 (D.C. 1994) ("BMC") -- have found that testers lack standing under the employment provisions of Title VII of the federal Civil Rights Act of 1964 as that statute read before it was amended by the 1991 Civil Rights Act. R-COL ¶ 8

3. In Molovinsky v. Fair Employment Council, 683 A.2d 142, 146 (D.C. 1996), however, the District of Columbia Court of Appeals explicitly rejected both the Boy Scouts' argument and the relevance of their primary authority. In Molovinsky, the appellant (Molovinsky) appealed a jury verdict finding him liable for having discriminated in employment against some testers from the Fair Employment Council. 683 A.2d at 145. On appeal, Molovinsky tried to rely, as the Boy Scouts do, upon BMC "for the proposition that individual testers do not have standing to sue under the DCHRA." Id. at 146. The Court rejected this argument emphatically. It concluded: BMC . . . has little persuasive value on the tester standing issue. The BMC court did not address the anti-discrimination provision that most closely resembles the DCHRA ... Title VII of the 1964 Civil Rights Acts, as amended by the 1991 Civil Rights Act. . . .

The DCHRA allows `[a]ny person claiming to be aggrieved' by a discriminatory practice to bring an action in court against the offending party. D.C. Code § 1-2556(a). The Supreme Court has construed the nearly identical language of the Civil Rights Act of 1968 (`any person who claims to have been injured') to confer standing to the full extent that Article III of the Constitution permits . . . . Although this Court is not bound by Article III, the use of the quoted phrase indicates to us that standing under the DCHRA is co-extensive with standing under Article III.

Violation of a plaintiff's statutory rights may itself constitute an `actual or threatened injury' sufficient to confer Article III standing. 683 A.2d at 146 (emphasis added) (footnote omitted) (citing Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209 (1972); Gray v. Greyhound Lines East, 545 F.2d 169, 176 (D.C. Cir. 1976) (language, identical to § 1-2556(a), confers standing to the limits of Article III); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982)).

4. The Boy Scouts, however, do not even have a basis for making the argument the Molovinsky court rejected. This case was not filed in a Court pursuant to § 1-2556(a), it was filed administratively under § 1-2544(a). Where § 1-2556(a) affords a private right of action in Superior Court to "[a]ny person claiming to be aggrieved by an unlawful discriminatory practice," Section 1-2544(a) provides that "[a]ny person or organization, whether or not an aggrieved party, may file" an administrative complaint, such as that filed here. (Emphasis added). Accordingly, the Boy Scouts' standing argument lacks even the slightest merit.

II. The Boy Scouts' Assertion that the Commission Lacks "Jurisdiction" to Rule On Their Discrimination Against Two People In the District of Columbia Also Has No Merit.

5. As noted, C-COL ¶ 18, the Boy Scouts' attempt to argue that the Commission lacks "jurisdiction" is directly contradicted by the case upon which they primarily rely. Matthews v. Automated Business Systems & Services, Inc., 558 A.2d 1175, 1180 (D.C. 1989). Matthews held, consistent with the City Council's broad intent to eradicate any discrimination taking place in the District of Columbia, that "[i]f the events alleged . . . occurred in the District of Columbia, they are subject to scrutiny . . . regardless of whether [the] `actual place of employment' was in Maryland, the District, or both." Id. at 1180. There is no question that "events" of discrimination in this case occurred in the District of Columbia. Both Roland Pool and Michael Geller are citizens and residents of the District of Columbia, who communicated from the District of Columbia with the Boy Scout officers with responsibility over the District of Columbia, and received from the Boy Scouts a letter in the District of Columbia, instructing them to sever all ties they have or ever might have with Scouting in the District of Columbia or anywhere else. Indeed, Roland Pool went to a meeting in the District of Columbia where the Boy Scouts discussed the "three-G's" policy of discrimination, Tr. 571-72 (Press); Tr. 779 (Pool), completed an application in the District of Columbia, and was denied the specific opportunity to become a Unit Commissioner in the District of Columbia.

6. As Matthews also illustrates, no statutory or constitutional limits on the authority of the District of Columbia government prevents the Commission from enforcing the DCHRA in this case. In fact, the reach of District of Columbia jurisdiction is exceptionally broad. See, e.g., D.C. Code § 13-423(a)(1) (permitting District of Columbia courts to "exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's . . . transacting any business in the District of Columbia); AMAF Int'l Corp. v. Ralston Purina Co., 428 A.2d 849, 851 (D.C. 1981) (per curiam) (finding that District of Columbia's general jurisdiction statute, D.C. Code § 13-334(a), applies to any entity doing substantial business in the District of Columbia); accord Guevara v. Reed, 598 A.2d 1157, 1159 (D.C. 1991).

III. The Common Premise of the Boy Scouts' Public Accommodations and Constitutional Arguments -- that Their National Organization and Council Can Escape Enforcement Under the DCHRA Based Upon the Size of Units that Had No Involvement With the Events of this Case -- Is Incorrect.

7. Even at first blush, it is difficult to understand the Boy Scouts' position that the proper unit for determining whether Respondents in this case are public accommodations is some unidentified troop. No Boy Scout troop is a Respondent in this case. No troop has been alleged to have violated the DCHRA. In fact, neither Roland Pool nor Michael Geller was excluded from Scouting by a troop. Michael Geller's troop was more than happy to have him. Roland Pool's application for Unit Commissioner was not directed to any troop; it was directed to and denied by the Respondents. The Boy Scouts' assertion that Complainants cannot challenge the legality of Respondents' demand that Complainants sever all of their ties with Scouting unless Complainants find some Boy Scout troop to which they did not apply, and demonstrate that that troop would be a public accommodation, is a shell game.

8. However, because the Boy Scouts' arguments -- that (1) they have not denied any benefits or advantages of a place of public accommodation; (2) they are "distinctly private," and (3) their constitutional rights have been violated -- all rely heavily on the premise that the legality of conduct by the BSA and the NCAC depends on the size of troops, we will address the premise in some detail. To begin with, the Boy Scouts' attempt to substitute troops for Respondents in this action is not supported by the statute. In D.C. Code § 1-2519, the DCHRA makes it an "unlawful discriminatory practice" for anyone "[t]o deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations." The provision is in no way limited to those "goods, services, facilities, privileges, advantages or accommodations" that happen to be provided by troops Respondents charter, as opposed to those provided by the Respondents themselves. An individual can be a member of the Boy Scouts without being connected to any unit, Tr. 1701-03 (Wolfe), or, as in the case of Roland Pool, seek a Scouter position at levels other than the unit.

9. The Boy Scouts' argument is also contrary to the case law. Although the Boy Scouts cite United States Jaycees v. Bloomfield, 434 A.2d 1379, 1381 (D.C. 1981) (R-COL ¶ 27), to support the proposition that "[t]he proper focus of the place of public accommodations inquiry is the Boy Scout troop, not the national Boy Scouts' organization," the case stands for just the opposite. In Bloomfield, the court focused on the national Jaycees -- "a Missouri corporation with headquarters in Oklahoma" that "functions as the `umbrella organization' by chartering state organizations which in turn have local organizations." Id. at 1381 n.4.

10. Win, lose or draw, all of the Boy Scouts cases the parties have cited also focus on the national organization and the councils. In Dale v. Boy Scouts of America, 706 A.2d 270, 277-83 (N.J. Super. Ct. App. Div. 1998), the court "conclude[d] that the BSA and its local councils are places of public accommodation," because "[t]he BSA invites `the public at large' . . . to join its ranks and is `dependent upon the broad-based participation of members of the general public.'" 706 A.2d at 280 (emphasis added) (citations omitted). In Quinnipiac Council BSA v. Commission on Human Rights and Opportunities, 528 A.2d 352 (Conn. 1987), the court similarly recognized that the issue was whether the "Quinnipiac Council, Boy Scouts of America" -- not some troop -- "was statutorily obligated to offer [a woman] a position as scoutmaster." 528 A.2d at 354. See also Curran v. Mount Diablo Council of the Boy Scouts of America, 72 Cal. Rptr. 2d 410, 420 (Cal. 1998) (examining "the specific issue whether the Boy Scouts is a `business establishment' whose membership decisions are subject to" California's civil rights statute) (emphasis added); Randall v. Orange County Council, Boy Scouts of America, 72 Cal. Rptr. 2d 453, 454 (Cal. 1998) (following Curran); Seabourn v. Coronado Area Council, Boy Scouts of America, 891 P.2d 385, 392 (Kan. 1995) ("`The significant issue to be decided is whether the Boy Scouts is a `place of public accommodation' under Kansas law.'") (citing opinion below); Schwenk v. Boy Scouts of America, 551 P.2d 465, 469 (Or. 1976) (concluding that "the Boy Scouts of America" was not covered under Oregon statute interpreted to apply only to "businesses"); Welsh v. Boy Scouts of America, 993 F.2d 1267, 1268 (7th Cir. 1993) ("[t]he question before the court is whether Title II of the Civil Rights Act of 1964 bars the Boy Scouts of America from denying membership" to atheists) (emphasis added).

11. The cases that the Boy Scouts cite to argue that the troop must be the focus of every inquiry nowhere say that. Contrary to the Boy Scouts' assertion, Kiwanis International v. Ridgewood Kiwanis Club, 806 F.2d 468 (3d Cir. 1986), does not hold that the focus of all public accommodations cases must "necessarily be" on the smallest operative unit of the organization. Id. at 476 n.14. In fact, the very first line of the Kiwanis opinion explains that, unlike this case, in which the Respondents are the BSA and the NCAC, Kiwanis International appealed "from a district court order holding that the local club of Ridgewood, New Jersey (Kiwanis Ridgewood) is a place of public accommodation." Id. at 469. There, a local Kiwanis Club argued that Kiwanis International could not enforce a licensing agreement that authorized it to revoke a license to a club that admitted women, because the club could not lawfully exclude women under New Jersey's Law against Discrimination. The Court found that its "primary task" was "to determine whether the Kiwanis Club of Ridgewood is a `place of public accommodation' within the meaning of [the act," because "[i]f Kiwanis Ridgewood meets the statutory requirement of being a `place of public accommodation,' then of course the provision in Kiwanis International's license agreement would be illegal and therefore unenforceable because of its discriminatory character." 806 F.2d at 472 (emphasis added). Complainants here are not a troop trying to argue that the law prevents it from complying with BSA policy.^***/

12. The other two cases cited by the Boy Scouts -- Roberts v. United States Jaycees, 468 U.S. 609 (1984), and Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987) -- are United States Supreme Court cases that neither address how a court should analyze a national organization for purposes of interpreting a state public accommodations statute, nor stand for the proposition that a national organization can deny registration on a discriminatory basis so long as its units are small. Local clubs were relevant to the organizations involved in those cases (Jaycees and the Rotary Club) because, in those organizations, the local club is the place where members are registered. Unlike the Boy Scouts, where all adult volunteer members must register with the national organization in order to be permitted to participate (whether in or outside a unit), R-FOFs ¶¶ 65, 66; Ex. C1301, Art VI. § 3, "[i]ndividual members belong to a local Rotary Club rather than to International. In turn, each local Rotary Club is a member of International." Rotary Club, 481 U.S. at 539. Similarly, "[n]ew members are recruited to the Jaycees through the local chapters . . . ," Roberts, 468 U.S. at 613, and "[m]embership in a local chapter automatically enrolls the member in the state and national chapter." United States Jaycees v. McClure, 534 F. Supp. 766, 769 (D. Minn. 1982), rev'd on other grounds, 709 F.2d 1560 (8th Cir. 1983), rev'd, 468 U.S. 609 (1984). Yet, even under those facts, the Supreme Court found that clubs of "fewer than 20" can be large enough not to involve an "intimate association." Rotary Club, 481 U.S. at 546-47.

13. In truth, not even the Boy Scouts want the Commission to consider the relevant unit to be the "troop" for all purposes. When it comes time to consider what supposed expressive purpose would be violated by permitting any homosexual to be in Scouting, the Boy Scouts move quickly away from the expressive purposes understood by Michael Geller's troop, or the many adult leaders at Thornell Jones' roundtable who voiced no problem whatever with having a homosexual leader. C-FOF ¶ 60; Tr. 409-10 (Jones); Tr. 593 (Press). Having represented that "[y]ou know, a Troop is not an organization that is part of a policymaking chain," Tr. 2548 (Leet), it is absurd for the Boy Scouts to maintain that some unknown troop is the unit that has denied Mr. Pool and Mr. Geller the benefits of a public accommodation.

IV. The Boy Scouts Have Denied Complainants "the Full and Equal Enjoyment of the Goods, Services, Facilities, Privileges, Advantages, and Accommodations" of a Place of Public Accommodation.

14. Once the focus is properly placed upon whether Respondents have denied "directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation," D.C. Code § 1-2519, the Boy Scouts have very little to say.

15. Even if the Boy Scouts had not admitted that they are "each institutions, clubs or places of accommodation," C-COL ¶ 12, Ex. C1500, Answer at 4, ¶ 2; see Memorandum of District of Columbia Corporation Counsel, Charles Ruff, February 5, 1996 (hereafter "Ruff Memorandum") (Att. B); their attempt now to argue otherwise would still be unpersuasive. The Boy Scouts cannot justify their reading of the statute on its face. The Boy Scouts urge that "[e]ach provision of the statute should be construed so as to give effect to all of the statute's provisions, not rendering any provision superfluous." R-COL ¶ 25. Yet, to support their reading of the DCHRA, the Boy Scouts simply read out the words "establishments dealing with goods and services of any kind, including, but not limited to . . . " § 1-2502(24) (emphasis added), and substitute ellipses for the portion of the statute that specifically references "institutions," and "clubs," see R-COLs ¶¶ 16, 25 -- including the entire "Cosmos Club" amendment added to the statute in 1987. See C-COL ¶ 11.

16. If the City Council really wanted to limit the otherwise broad phrase "establishments for dealing with goods and services of any kind" to physical locations, it would not have announced that it was trying to protect people against loss of intangibles like "services," "advantages" or "privileges." In James v. Team Washington, Inc., No. CIV.A. 97-00378 TAF, 1997 WL 633323, *2 (D.D.C. Oct. 7. 1997) (Att. C), for example, the court found that alleged discrimination in home pizza delivery is covered under the public accommodations provision. The court reasoned that "[t]he conduct prohibited by the D.C. Human Rights Act is the improper denial of the full and equal enjoyment of a place of ... public accommodation. Thus, it is not essential that the challenged conduct take place in a particular physical structure." Id.

17. Because the words of the DCHRA do not help the Boy Scouts, the cases from other jurisdictions upon which they place primary reliance, R-COL ¶ 2, also do not help them. To begin with, Quinnipiac Council, one of the cases the Boy Scouts cite for the proposition that "public accommodations laws do not apply to membership in Scouting," R-COL ¶ 2, in fact, held just the opposite. Quinnipiac Council ruled that: physical situs is not today an essential element of our public accommodation law. Like Minnesota's similarly broadly drafted public accommodation statute, whose comprehensive applicability [to membership organizations like the Jaycees] was recognized in United States Jaycees v. McClure, 305 N.W.2d 764 (Minn. 1981), and held to be constitutional in Roberts v. United States Jaycees, [468 U.S. 609 (1984,)] our statute now regulates the discriminatory conduct and not the discriminatory situs of an enterprise which offers its services to the general public. 528 A.2d at 358. See also id. at 356 n.5 (commenting that the Boy Scouts' freedom of association arguments "have little merit in light of the United States Supreme Court's recent decisions in [Roberts and Rotary Club]").^****/

18. Moreover, as Complainants have explained, the language of the statute matters. The remaining cases that the Boy Scouts cite from other jurisdictions interpret statutes that are materially more narrow than the DCHRA. See C-COL ¶ 16; see also Schwenk v. Boy Scouts of America, 551 P.2d at 469 (statute applying to "businesses"). But the courts that have interpreted statutory language similar to the DCHRA, such as Quinnipiac Council, McClure/Roberts and Dale, or identical to it, U.S. Power Squadrons v. State Human Rights Appeal Bd., 452 N.E.2d 1199, 1203-04 (N.Y. 1983), have all agreed on readings that would include the Boy Scouts. See C-COL ¶¶ 15-17.

19. In fact, the difference in statutory language makes especially unpersuasive the case upon which the Boy Scouts place greatest reliance -- the Welsh decision under Title II of the federal Civil Rights Act of 1964. See R-COL ¶ 20. As James points out, cases interpreting Title II and specifically Welsh "do not help [defendant's] argument." Id. 1997 WL 633323, at *2: Title II defines places of public accommodation much more narrowly than does the D.C. Human Rights Act. Specifically, Title II applies primarily to establishments that provide lodging, to facilities that provide food for consumption on the premises, and to places of entertainment. See 42 U.S.C. § 2000a. Most importantly, Title II does not include a provision nearly as comprehensive as the one in the D.C. Human Rights Act that defines places of public accommodation as `establishments dealing with goods or services of any kind.' Given Title II's limited definition of a place of public accommodation, it is not surprising that courts interpreting Title II have held that . . . the Boy Scouts, see Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir. 1993), . . . [are not] a place of public accommodation for purposes of that statute. However, the cases cited by the defendant do not support the conclusion that the defendant is not a place of public accommodation under the D.C. Human Rights Act. Id.

20. The Boy Scouts' contention that the City Council wanted the Commission to disregard the fact that the DCHRA has broader statutory language and instead limit its scope to the narrower provisions of Title II, R-COL ¶ 20, is both illogical and, in fact, unsupportable. As the District of Columbia Court of Appeals explained in Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1 (D.C. 1987) (en banc), although there are some passages of the legislative history of the DCHRA indicating that the statute was intended, in some respects, to parallel the federal civil rights laws, those passages did not limit the DCHRA or have anything to do with the scope of the public accommodations provisions. To the contrary, the City Council was seeking to ensure that the effects clause of the Act, D.C. Code § 1-2532 (1987), would be read broadly to encompass both intentional and unintentional discrimination: As the legislative history demonstrates, the Council imported into the Human Rights Act, by way of the effects clause [D.C. Code § 1-2532 (1987)] the concept of disparate impact discrimination developed by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 . . . (1971).

In Griggs, decided shortly before the Human Rights Act was passed in its original form as a municipal regulation, the Supreme Court interpreted the federal Civil Rights Act of 1964 as prohibiting not only intentional discrimination, but also practices which prejudice protected groups and are not supported by some independent nondiscriminatory justification. Griggs was expressly relied upon by the drafters of the Human Rights Act when the original regulation was adopted. Dr. Marjorie Parker, chairwoman of one of the committees that proposed the law to the pre-Home rule City Council, explained to Council members that because the District regulation "parallels the Civil Rights Act," the public could look to the federal model to answer many of their questions concerning the administration and enforcement of the Human Rights Act. District of Columbia City Council, Committee Report on Title 34, "The Human Rights Law," 1 (Oct. 15, 1973) . . .; see also District of Columbia City Council, Committee Report on Title 34, "The Human Rights Law," 2 (Aug. 7, 1973) . . .  [Dr. Parker's Report] specifically cited Griggs and noted that it `upheld the applicability of the Civil Rights Act in cases of unintentional discrimination.' . . . (emphasis in original). Gay Rights Coalition, 536 A.2d at 29.

21. The Boy Scouts' attempt to rely on portions of the above passage for the proposition that the City Council intended all provisions of the DCHRA (notwithstanding their wording) to be limited to the scope of the already existing federal protections is not only misleading, it is clearly incorrect. A majority of the Gay Rights Coalition court joined in a concurrence that rejected the premise that the scope of "national policy" was even "relevan[t]" to interpreting the compelling interests served by the DCHRA, and explained, "[t]he District of Columbia Human Rights Act and those of the various states `provide[] the primary means for protecting the civil rights of the historically disadvantaged' when the federal government fails to offer such protection." Gay Rights Coalition, 536 A.2d at 46 (Newman, J., concurring, joined in this portion by Judges Mack, Ferren and Terry).

22. Indeed, the City Council viewed the DCHRA as "a law which is widely hailed as the most comprehensive of its kind in the nation." District of Columbia City Council, Committee Report of Bill 2-179, "The Human Rights Act," at 2 (July 5, 1977) ("1977 Report") (Att D). See also, e.g., Kirk Scharfenberg, City Council Passes Bias Ban, Wash. Post, Aug. 8, 1973, at A1 (Att. E) (quoting then Council Chair John Nevius). The Chair of the City Council that enacted the regulation upon which it was based noted that he was "not aware of any federal or local act anywhere as far-reaching as [the District of Columbia Act] in protecting the rights of individuals."). See also Cynthia Gorney, Gay Rights Didn't Alter D.C., Wash. Post, May 22, 1977 (Att. F), at B1 (District of Columbia Act "[b]elieved to be the nation's most sweeping anti-discrimination ordinance").

23. Nor does District of Columbia authority assist the Boy Scouts. As explained, C-COL ¶¶ 13-15, the Boy Scouts' attempt to rely on Bloomfield for the view that the Act requires a physical place in the District is misplaced. In Gould v. Big Brothers of the Nat'l Capital Area, DN 89-026-P(CN) (Department (Office) of Human Rights, 1989) (Att. G); Dickerson v. D.C. Department of Human Services, DN 89-465-PA (Department of Human Rights, 1989) (Att. H); and Schwartz v. The Cosmos Club, DN 86-PA-428 (Department (Office) of Human Rights, 1987) (Att. I) -- two of which the Boy Scouts do not even discuss -- the Department of Human Rights explicitly rejected the Boy Scouts' reading.

24. The Bloomfield panel itself established that the administrative interpretation is entitled to deference. 434 A.2d at 1382 n.6. And the Court's longstanding rule is explicit that it is the reasonable administrative interpretation that governs: As we stated in Smith [v. Department of Employment Servs., 548 A.2d 95 (D.C. 1988),] and have said repeatedly elsewhere, `[w]e must sustain the agency's interpretation even if a petitioner advances another reasonable interpretation of the statute or if we might have been persuaded by the alternate interpretation had we been construing the statute in the first instance.' Timus v. D.C. Dept. of Human Rights, 633 A.2d 751, 759 n.9 (D.C. 1993).

25. In this case, however, the relevant interpretation of the Act was not merely administrative. On September 29, 1987, while the Cosmos Club case was pending before the Department of Human Rights, the City Council amended the definition of public accommodation to clarify that the Act would apply to organizations like the Cosmos Club. See C-FOFs ¶¶ 11, 15; D.C. Law 7-50 § 2, 34 DCR 6887 (enacted Sept. 29, 1987, signed Oct. 16, 1987, effective Dec. 10, 1987).

26. Moreover, the en banc decision in Gay Rights Coalition -- upon which the Boy Scouts place great reliance -- demonstrates that the full District of Columbia Court of Appeals would not accept the Boy Scouts' narrow reading of the statute, even in the first instance. In Gay Rights Coalition, two lesbian and gay student groups alleged that Georgetown University's refusal to afford them formal "University Recognition" violated the DCHRA's prohibitions against discrimination in educational institutions. The court -- through five of its seven judges -- concluded that Georgetown was required by the DCHRA to afford these groups the tangible benefits associated with "University Recognition." 536 A.2d at 5; id. at 46-47 (Ferren, J., concurring in the result in part, dissenting in part).

27. The Gay Rights Coalition court reached this conclusion even though the statutory provision involved was more narrowly drafted than the provision at issue here. Gay Rights Coalition was brought under the educational institution provision of the DCHRA, D.C. Code § 1-2520. Section 1-2520 does not apply, as the public accommodations provision does, to "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation." § 1-2519 (emphasis added). The relevant portion of Section 1-2520 makes it: an unlawful discriminatory practice for . . . an educational institution, (1) To deny, restrict, or to abridge or condition the use of, or access to, any of its facilities and services to any person otherwise qualified, wholly or partially, for a discriminatory reason, based upon the . . . sexual orientation . . . of any individual. . . . In quoting this language, the Court emphasized several words, including the words "facilities and services." Gay Rights Coalition, 536 A.2d at 4 n.1. And it went on to hold that the tangible benefits associated with "University Recognition" -- such as mail and computer services -- constitute "facilities and services" within the meaning of the Act. Id. at 17.

28. In Part VI of Judge Newman's concurrence, in which Judges Mack, Ferren and Terry joined, four of the seven judges of the court specifically used the broad reach of the public accommodations provision to membership organizations to justify their conclusion about the DCHRA's broad reach to cases involving sexual orientation in education: Our statute, like the Minnesota public accommodations act scrutinized by the Supreme Court in Roberts [v. United States Jaycees, 468 U.S. 609 (1984)], `reflects th[is jurisdiction's] strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services.' 468 U.S. at 624. . . .  The District of Columbia Human Rights Act and those of the various states `provide[] the primary means for protecting the civil rights of the historically disadvantaged' when the federal government fails to offer such protection, id. (noting the role of states in protecting civil rights in the period before 1957). The District of Columbia Council, determining to pioneer where the federal government, and indeed many state governments, have not, has chosen to include sexual orientation discrimination within the ambit of those forms of discrimination that it deems anathema in this jurisdiction. See generally id. (evolution of anti-discrimination legislation has involved progressive broadening of the scope of facilities covered and groups protected). This provision, not less than the Act's more traditional prohibitions, deserves the deference of this court. Id. at 46 (Newman, J., concurring) (emphasis added). The "strong historical commitment" and "progressive broadening of the scope of facilities covered" to which Judge Newman referred was Minnesota's interpretation of its public accommodations law to apply to discrimination by membership organizations like the Jaycees. See Roberts, 468 U.S. at 624.

29. Gay Rights Coalition also left no doubt about the breadth of the City Council's commitment (and that of the D.C. Court of Appeals) to the eradication of discrimination based upon sexual orientation. As Judge Mack wrote: The council determined that a person's sexual orientation, like a person's race and sex, for example, tells nothing of value about his or her attitudes, characteristics, abilities or limitations. It is a false measure of individual worth, one unfair and oppressive to the person concerned, one harmful to others because discrimination inflicts a grave and recurring injury upon society as a whole. To put an end to this evil [of discrimination based upon sexual orientation], the Council outlawed sexual orientation discrimination in  . . . public accommodations, [D.C. Code] § 1-2519. . . . Such comprehensive measures were necessary to ensure that `[e]very individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District, and to have an equal opportunity to participate in all aspects of life.' Gay Rights Coalition, 536 A.2d at 32 (citation omitted).

30. As Judge Mack's opinion explains, when the City Council passed the DCHRA in 1977, it "reaffirmed its belief that enforcement of the Human Rights Act is a matter of vital importance to the District." Id. at 33. The Council sought "`affirmatively and forcefully [to] convey to the executive and administrative agencies of the District of Columbia Government the importance which the Council places on vigorous enforcement of its provisions.'" Id. (quoting 1977 Report at 3). "Enactment of the Human Rights Act was intended to `underscore the Council's intent that the elimination of discrimination within the District of Columbia should have "the highest priority."'" Id. (quoting 1977 Report at 3). "Among the statute's basic purposes is `reinforcement of the Council's view that the Human Rights Act is among our most important laws and is to be vigorously enforced by all agencies and officials of the District Government. . . .'" Id. (quoting 1977 Report at 1). She concluded that the City Council viewed the end of discrimination based on sexual orientation as not merely a "compelling governmental interest," but an "interest[] of the highest order." Id. at 32.

31. Other opinions of the Court echoed Judge Mack's strong language. See, e.g., id. at 40 (Pryor, C.J., concurring) (joining in Judge Mack's opinion and agreeing that "our Human Rights Act is broad and comprehensive. It covers a wide range of possible discriminatory practices"); id. at 41 (Newman, J., concurring) ("[t]he legislature of the District of Columbia has spoken with unmistakable clarity of the importance with which it regards the eradication of discrimination on the basis of sexual orientation and other inappropriate criteria"); id. at 46 ("[t]he legislature of the District of Columbia regarded as one of its first priorities after attaining home rule to enact an anti-discrimination statute that includes sexual orientation as a co-equal prohibited ground of discrimination"); id. at 49-50, 62 (Ferren, J.) (concurring in part, dissenting in part) (criticizing Judge Mack's reading of the DCHRA as too narrow, and agreeing on the strength of the City Council's interest as reflected in the Act).^*****/

32. There is no reason to think that this majority of the en banc Court -- if it were interpreting the statute in the first instance -- would hold that the DCHRA is to be read more narrowly than the similar statutes in Minnesota (McClure), New York (Power Squadrons), New Jersey (Dale) or Connecticut (Quinnipiac Council).

33. To the extent that the other District of Columbia authority upon which the Boy Scouts rely is relevant, it further reinforces this conclusion. The three cases the Boy Scouts cite, Evans v. United States, 682 A.2d 644, 648-49 (D.C. 1996); Dean v. District of Columbia, 653 A.2d 307, 319 (D.C. 1995), and National Organization for Women v. Mutual of Omaha Ins. Co., 531 A.2d 274 (D.C. 1987) (see R-COL ¶ 23), all deal with the completely different question of whether the DCHRA can be extended by inference to regulate activity that is explicitly regulated in other statutes. None of these cases holds, as the Boy Scouts suggest, that the public accommodations provisions are somehow limited in a way that excludes the Boy Scouts.

34. To the contrary, in Dean, the D.C. Court of Appeals explicitly assumed, based upon the amicus brief filed by members of this Commission, that the Marriage License Bureau was a place of public accommodation. 653 A.2d at 319. And it noted "[t]he Council undoubtedly intended the Human Rights Act to be a powerful, flexible, and far-reaching prohibition against discrimination of many kinds, including sex and sexual orientation." Id.

35. Mutual of Omaha ruled that gender-based insurance rate-setting was not covered under the DCHRA because the City Council had specifically regulated insurance rates in another statute. 531 A.2d at 277-78. The case recognized that "the Council intended the Act to prohibit denial of `full and equal enjoyment' of the goods, services, and privileges provided by insurance companies generally." Evans, 682 A.2d at 648 (citing Mutual of Omaha, 531 A.2d at 277). It merely ruled that "because the DCHRA has no specific language expressing an intent to overcome actuarial distinctions elsewhere specifically permitted by statute, the Council did not intend to effect such changes." Id. (citing Mutual of Omaha, 531 A.2d at 276).

36. In Evans, the Court similarly ruled that "without any specific mention or reference in the language of the DCHRA or legislative history to the specific act claimed to be prohibited by the DCHRA, we cannot assume that the Council intended to cut back on the previously-existing, statutorily permitted practice of exercising preemptory challenges on the basis of age." 682 A.2d at 648-49. As the Court explained, the preemptory challenge right in D.C. Code § 23-105(a) is "a specific grant of a well-understood right of long standing," whereas the DCHRA is "general because of its broad language." Id. at 648.

37. This conclusion that, when a court needs to harmonize the language of two statutes, the more specific statute governs the more general, certainly does not help the Boy Scouts. There is no issue in this case whether the DCHRA is supposed to "trump" some other statute.

38. Rather, these cases cut against the Boy Scouts' position. They indicate that, where, as here, there is no specific statutory language to the contrary, the DCHRA would be broad enough to apply even to situations like the setting of insurance rates, marriage licenses or peremptory challenges. As these cases reiterate, "[t]he DCHRA was passed to 'underscore the Council's intent that the elimination of discrimination within the District of Columbia should have the highest priority and that the Human Rights Act should therefore be read in harmony with and as supplementing other laws of the District.'" Evans, 682 A.2d at 648 (quoting Dean, 653 A.2d at 319, and citing 1977 Report at 3).

39. In any event, however, even if all of this legal analysis were incorrect; even if, during the 17 years since Bloomfield discussed the Jaycees, the DCHRA had not been interpreted by both the Department of Human Rights and this Commission to apply to organizations much smaller and less public than the Boy Scouts; even if the City Council had not chosen to confirm this reading in the Cosmos Club Amendment; even if much of the statutory language were ignored, the Boy Scouts would still be unable to show that their organization is as narrow as the Jaycees. The Jaycees were not shown to have run a day camp in the District of Columbia, to have run regular programs in District of Columbia schools and dozens of other locations around the District, or to control access to camping facilities they own all over the country. The Jaycees did not use a store in the District of Columbia to sell "Jaycee" equipment, with an ostensible requirement that only members of the Jaycees could buy there. Tr. 784 (Pool); Tr. 1160-61 (Carroll). And they did not control who could participate in programs at Bolling Air Force Base or Fort McNair. Tr. 568 (Press); Ex. C313 at 1160, Ex. C1100 at NCAC 6280. The Boy Scouts do, and so are a public accommodation under any definition.

V. The Boy Scouts are not "distinctly private."

40. The fact that it is the Boy Scouts, not a troop, that has discriminated in this case also dooms the Boy Scouts' attempt to rely on the words "distinctly private." In fact, as explained in C-FOFs ¶¶ 269-322 and C-COLs ¶¶ 19-37, there is not a single indicium of being "distinctly private" that properly applies to the Boy Scouts. The Boy Scouts are, of course, vastly larger and more public than the Cosmos Club, and that Club was not "distinctly private." Cosmos Club, at 13-22.

VI. The Boy Scouts' Argument that They Did Not Deny Any Goods, Services, Facilities, Privileges, [or] Advantages" When They Excluded Roland Pool and Michael Geller From Participation in Scouting Is Also Insupportable.

41. In this case, the uncontested evidence established that Michael Geller and Roland Pool were denied substantial "privileges" and "advantages," § 1-2519, including exceptional training opportunities, experience sufficient to put on a resume, business contacts, and the opportunity to use exceptional camping and other facilities. C-FOFs ¶¶ 14-75, 269-322.

42. The only case the Boy Scouts cite that addresses the proposition that Roland Pool and Michael Geller were denied no "privilege" or "advantage" when they were asked to sever their ties from Scouting for the rest of their lives is the portion of Quinnipiac Council that concluded that denying a woman "the specific position of scoutmaster" did not constitute denying her a "service," "facility" or "good" as required by Connecticut's statute. 528 A.2d at 360.

43. The case, however, does not help the Boy Scouts here. First, the Boy Scouts did not merely deny Roland Pool and Michael Geller "the specific position of scoutmaster." The Boy Scouts demanded that these individuals sever all ties with Scouting. In Quinnipiac Council, the complainant could have registered with the Boy Scouts generally and receive all the other benefits of membership Mr. Pool and Mr. Geller were denied.

44. Second, unlike the Connecticut statute, the DCHRA does not require that Complainants be denied a "service," "facility" or "good." The DCHRA also applies to "privileges" or "advantages." § 1-2519. And the Boy Scouts have no argument for why receiving training, contacts, experience or camping opportunities would not be a "privilege" or "advantage."

45. Finally, the District of Columbia Court of Appeals interprets the words "service" or "facility" more broadly than the Connecticut Supreme Court did. In Gay Rights Coalition the Court held that benefits as limited as mail and computer services constitute "facilities and services" within the meaning of the educational institution provision of the DCHRA, D.C. Code § 1-2520. 536 A.2d at 17. Being denied access to camping or patches or ranks would clearly fall within this interpretation.

VII. The Boy Scouts New Claim That They Are Not a Religious Organization Has Been Waived And Would be Unavailing in Any Event.

46. If the Boy Scouts wished at hearing to assert the affirmative defense that they were a "religious organization" under D.C. Code § 1-2503(b), they needed to so state in their Prehearing Statement. 4 D.C.M.R. § 413.3(a). Complainants were entitled to know that the Boy Scouts intended to proceed on this defense and to present evidence accordingly. The fact that the parties discussed how religions view homosexuality is not the same as discussing whether the Boy Scouts are, themselves, a religious organization. Accordingly, the defense is waived.

47. Even if this defense had not been waived, however, it would still be meritless. D.C. Code § 1-2503(b) states: (b) Nothing contained in the provisions of this chapter shall be construed to bar any religious or political organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious or political organization, from limiting employment, or sales, or rental of housing accommodations, or admission to or giving preference to persons of the same religion or political persuasion as is calculated by such organization to promote the religious or political principles for which it is established or maintained. As found above, C-SUPP FOFs ¶¶ 31-39, the Boy Scouts are not a religious organization.

48. Even if the Boy Scouts were a religious organization, however, they could not show that excluding homosexuals "is calculated by such organization to promote the religious . . .  principles for which it is established or maintained." § 1-2503(b). Even the allegedly "religious" principles of the Boy Scouts are simply to require a belief in some kind of a God and otherwise to be "absolutely non-sectarian," and not to choose from among differing views of various religions. The Boy Scouts' decision, for purposes of their defense in this case, to pick and choose among religions to enunciate a policy against discrimination exists only in derogation of the Boy Scouts' ostensible "religious" principles, not in furtherance of them.

49. In any event, the Boy Scouts certainly would not be able to justify the exclusion of all homosexuals. After all, Georgetown University -- which is undeniably a religious organization -- was not even able to justify the denial of facilities to gay and lesbian organizations. Gay Rights Coalition.

VIII. The Boy Scouts cannot use a "slippery slope" argument to exempt themselves from the DCHRA.

50. The Boy Scouts' remaining contentions about the DCHRA take the form of a classic slippery slope argument. The Boy Scouts maintain that, because there might be some readings of the DCHRA that could produce unconstitutional or irrational results, the Commission should not interpret the statute in this case in a way that is both constitutional and rational. R-COLs ¶¶ 32-44.

51. As with many such arguments, the Boy Scouts' argument proves too much. Cosmos Club, Big Brothers, Department of Human Rights, Power Squadrons,McClure, Quinnipiac Council; National Organization for Women, Essex Ch. v. Little League Baseball, Inc., 318 A.2d 33 (N.J. Super. App. Div.), aff'd, 338 A.2d 198 (N.J. 1974), and many other cases all applied anti-discrimination statutes to various organizations. If the Boy Scouts' theory were true, all of these cases -- many of which were decided ten or more years ago -- would have already led to the irrational and unconstitutional decisions the Boy Scouts say would follow from a decision against them here.

52. In any event, the Boy Scouts' own argument illustrates the fact that there is no slippery slope. As discussed, C-COLs ¶¶ 38-86, the Constitution poses no insuperable barrier to governments' efforts to protect the compelling interests reflected in civil rights statutes such as the DCHRA, and certainly does not prevent application of the Act to the Boy Scouts. Gay Rights Coalition, the case upon which the Boy Scouts rely for the proposition that the DCHRA should be interpreted in a way that is constitutional, held that even Georgetown University's desire to carry out its undeniably religious-based position had to give way to the requirement in the DCHRA to provide equal facilities to gay and lesbian organizations. There is no support in that opinion for the notion that the Boy Scouts -- whose claim to having an expressive purpose of speaking to the morality of homosexuality is pretextual -- would have a constitutional license vastly beyond the one Georgetown received to exclude all homosexuals altogether.

53. Moreover, the DCHRA contains a number of specific exceptions designed to deal with real situations to which the statute should not apply. As discussed elsewhere, § 1-2502(24) contains the "distinctly private" exception, and § 1-2503(b) limits the terms under which the statute applies to genuine religious or political associations. Section 1-2503(a) creates a "business necessity" exception to the Act, stating: (a) Any practice which has a discriminatory effect and which would otherwise be prohibited by this chapter shall not be deemed unlawful if it can be established that such practice is not intentionally devised or operated to contravene the prohibitions of this chapter and can be justified by business necessity. Under this chapter, a `business necessity' exception is applicable only in each individual case where it can be proved by a respondent that, without such exception, such business cannot be conducted; a `business necessity' exception cannot be justified by the facts of increased cost to business, business efficiency, the comparative characteristics of 1 group as opposed to another, the stereotyped characterization of 1 group as opposed to another, and the preferences of co-workers, employers, customers or any other person. 54. The fact that these provisions are of no avail to the Boy Scouts in this case -- that the "largest youth movement the world has ever seen", Ex. C719 at 2780, cannot show that it is "distinctly private" under § 1-2502(24); that a Congressionally-chartered organization that avails itself of public largesse and does not purport to teach religion does not a qualify as a "religious organization" under § 1-2503(b); and that the Boy Scouts do not attempt to rely on § 1-2503(a) and could not in any event make out a claim of "business necessity" -- does not make the DCHRA irrational. There are organizations that are "distinctly private" or are truly "religious" or "political" organizations. Unlike the Boy Scouts here, the Girl Scouts would have a substantial argument that "business necessity" justifies focusing their attention on young girls rather than old men.

55. In a footnote, R-COL ¶ 37 n.2, the Boy Scouts state that "Citizens of [sic] District of Columbia are members of and benefit from such organizations as the NAACP [and others]." It is difficult to assess this statement as there is no evidence of record about these other organizations. However, we can take administrative notice of the fact that the comparison is inapt. The NAACP could easily prove that it does stand for the promotion of civil rights, and it does not exclude all white people from its organization, or stereotype every member of a group with an irrebuttable presumption that each will pursue an alternate agenda that is contrary to its actual purposes.

IX. The Boy Scouts' Constitutional Arguments Are Equally Unavailing.

56. As discussed in C-COL ¶¶ 42-43, the Boy Scouts have no intimate association claim. At best, the Boy Scouts' argument for an "intimate association" hinges on the mistaken premise that a national organization can deny registration and then hide behind the small size of units with which the victim would have not have even been registered. There is no troop that even had occasion to consider, much less to reject, Roland Pool's application to become a Unit Commissioner.

57. Moreover, the Boy Scouts have a far weaker intimate association claim than the claims the Supreme Court rejected in Roberts and Rotary Club. In those cases, organizations could not make out an intimate association claim even though every one of their members registered with a local club knowing that the club was supposed to be all male. See Rotary Club, 481 U.S. at 546-47; Roberts, 468 U.S. at 619-22. The Boy Scouts do not contend that people do not join Scouting in order to associate with heterosexuals, see Exs. C512, C514, C515, and do not generally tell people about the exclusion of homosexuals when they seek to apply. C-FOFs ¶¶ 93-100. And even if every single member had known about national's policy (which is not even close to being true, C-FOFs ¶¶ 195-227), granting Complainants' relief would merely permit the people in local units to decide with whom they would like to associate -- a remedy that does not infringe upon anyone's right of intimate association.

58. The Boy Scouts' expressive association claim depends upon the assertion made without record citation and supported by none, that: Complainants are not being excluded because of their status as homosexuals, but because of their expression. R-COL ¶ 69. The record and common sense say just the opposite.

59. As set forth in C-COL ¶¶ 44-81, the Boy Scouts' expressive association claim fails for the three independent reasons that (1) the Boy Scouts' unsupported assertions do not overcome the evidence that making a statement concerning the morality of homosexuality is not part of an expressive message that led people to join the organization; (2) the Boy Scouts have utterly failed to show that neutral enforcement of this statute would have any effect on its expressive message; and (3) the interest in enforcing the facially neutral provisions of the DCHRA is compelling.

60. In so holding, we note in particular that "[w]e are not bound by [the Boy Scouts'] subjective perception of the `purposes and activities' to which it objected. [The Boy Scouts] must view the `purposes and activities' of [homosexuals] in a way which is free from impermissible reliance upon factors unrelated to individual merit." Gay Rights Coalition, 526 A.2d at 27. Although the Boy Scouts urge in this lawsuit that all homosexuals have an alternate agenda making their mere presence into a message, there is nothing but stereotype to support that conclusion either generally or specifically with respect to Mr. Pool and Mr. Geller.

X. The Boy Scouts' Threat to Leave the District if Required to Submit to Law is Not a Reason to Exempt Them From It.

61. As a final point, the Boy Scouts have urged the Commission to conclude that: Given the relatively small number of Scouts in the District of Columbia, the only likely result of subjecting the Boy Scouts to the Act would be the withdrawal of Boy Scouts, and all of the positive effects it has on youth, from the District of Columbia. R-COL ¶ 84. 62. It is difficult to assess the validity of this threat. It would apparently mean that the Boy Scouts would also withdraw from New Jersey and Illinois if the persuasive decisions entered in Dale and Richardson continue to be the law.

63. It is not, however, difficult to assess the significance of this threat to this case. The Commission finds that this threat further undermines the credibility of many of the arguments the Boy Scouts have put forth in this proceeding. If the threat is real, it means that the Boy Scouts actively sought to mislead both the Commission and the public about its dedication to Scouting in the District of Columbia when it put on testimony from Mr. Carroll and led Mr. Horne and Mr. Ingram to speak so eloquently about their personal work for the Scouts with whom they deal. See R-FOFs ¶¶ 88-91.

64. This threat also confirms beyond any doubt that the Boy Scouts' perpetuation of this policy cannot be reconciled with the principles the Boy Scouts have espoused across their history. It is difficult to think of anything more incongruous than having the Boy Scouts of America seek to place itself in the tradition of intolerance of people who closed schools and swimming pools rather than integrate them. It is a fair judgment, and one certainly established by the evidence, that nothing in the words "morally straight" contemplate employing tactics that history has condemned as morally bankrupt.

65. The one thing this threat is not, however, is a defense to discrimination. The District of Columbia is not required to honor outright discrimination with an exemption from law. Cf. Bob Jones University v. United States, 461 U.S. 574, 593-605 (1983) (affirming determination that school that segregated races was not "charitable" within the meaning of the Internal Revenue Code).

Dated: May 18, 1998 Respectfully submitted, ROSS, DIXON & MASBACK, L.L.P.

By:__________________________ David M. Gische

Merril Hirsh

Julie P. Glass 601 Pennsylvania Avenue, N.W.

North Building

Washington, D.C. 20004-2688

(202) 662-2000 AMERICAN CIVIL LIBERTIES UNION

OF THE NATIONAL CAPITAL AREA

1400 - 20TH St. N.W.

Washington, D.C. 20036

(202) 457-0800

CERTIFICATE OF SERVICE
 
 

The undersigned counsel hereby certifies that, on May 18, 1998, copies of Complainants' Reply to Respondents' Proposed Findings of Fact and Conclusions of Law were served by hand-delivery to: Mr. Gerald Draper, Director

District of Columbia Department of Human Rights

and Minority Business Development

441 4th Street, N.W.

Suite 970

Washington, D.C. 20001
 
  and by hand-delivery and/or overnight mail to: George A. Davidson, Esquire

Carla A. Kerr, Esquire

Hughes Hubbard & Reed

One Battery Park Plaza

New York, New York 10004

Dennis S. Klein, Esquire

William A. Barrett, Esquire

Hughes Hubbard & Reed, LLP

1300 I Street

Washington, D.C. 20005-3306
 
 
 
  ______________________________________

David M. Gische

Unitarian Universalist Association
25 Beacon St. | Boston, MA 02108 | 617-742-2100