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Boy Scouts Vote to Lift Ban on Gay Members

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By Brett Snider, Esq. on May 23, 2013 4:47 PM

In a historic vote Thursday, the Boy Scouts of America (BSA) lifted its ban on openly gay scout members.

More than 60% of Scout leaders at the BSA's National Council meeting in Grapevine, Texas, voted for the change, the Associated Press reports.

Allowing gay Boy Scouts is a move that may motivate other private groups to change their stance on allowing homosexual members, although current law does not require them to do so.

Supreme Court Allowed Ban

Although the Boy Scouts' ban on gay members has now been lifted, the U.S. Supreme Court in 2000 decided that a state's public accommodation laws, which prohibited discrimination, could not prevent the Scouts from kicking out a gay Scout leader.

In Boy Scouts of America v. Dale, the Court affirmed the BSA's right to expressive association, meaning their right to only allow members that support its values or message.

These expressive rights have their limits, however. In 2010, the Supreme Court ruled that a Christian association at a public law school could not exclude gay members -- a policy that clashed with the school's nondiscrimination policy -- if it wished to continue to receive school funds and club status.

Private Club Laws

Most states have some form of public accommodation law that prevents discrimination by government and businesses open to the public. Often, these laws include sexual orientation discrimination.

For example, California's Unruh Act is one such law. But in 2009, a California appellate court decided that it did not violate the law for a private school to expel two gay students for dating because entities like private schools were not business establishments.

The general consensus seems to be that if organizations like the Boy Scouts are private clubs and not acting as businesses, they have the First Amendment freedom to exclude members, unless they are using public funds and run afoul of non-discrimination policies.

Gay Scouts OK, but Not Gay Scout Leaders

While the Boy Scouts' vote allows gay scout members into the group, gay Scout leaders (like the Scout leader in the BSA v. Dale case) will continue to be barred, reports USA Today.

Under current law, the Boy Scouts can still legally prohibit gay adult members from joining as Scout leaders or assistants, until either the policy is challenged again in court or the BSA changes its policy.

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