By Justin Sink
"We believe that any decision that strikes at the core of our 103-year history merits full input from all stakeholders in deliberation and discussion," the Scouts’ Great Salt Lake Council said in a statement earlier this week, adding the issue had been a source of "emotional distress" for leaders in the organization.
The issue is a particularly contentious one, with the majority of scout troops — 70 percent — in some way affiliated with church or religious groups. Just last year, the organization voted to uphold the ban, a decision that drew heavy fire from gay rights groups.
White House press secretary Jay Carney said Wednesday that the administration did not "have a response to [the Boy Scouts'] process" but that the president "opposes discrimination in all forms."
On Sunday, President Obama voice his support for the initiative, saying "nobody should be barred" from the opportunities and experiences provided by scouting.
“My attitude is that gays and lesbians should have access and opportunity the same way everybody else does in every institution and walk of life,” Obama said in a CBS News interview. “The Scouts are a great institution that are promoting young people and exposing them to opportunities and leadership that will serve people for the rest of their lives.”
But prominent Republican lawmakers, including former presidential candidate and Texas Gov. Rick Perry, have argued the organization should not be influenced by changes in "popular culture."
“Hopefully the board will follow their historic position of keeping the Scouts strongly supportive of the values that make scouting this very important and impactful organization," Perry, a former Eagle Scout, told The New York Times.
Once concern voiced by some opponents of the Wednesday vote was that a decision to allow the individual chapters to vote on whether to admit homosexuals could undermine the 2000 Boy Scouts of America v. Dale case that protected the organization's ability to exclude gays. That 5-4 ruiling found that the organization could exclude gays because of as part of their right to association, noting that as a group, the organization had made disapproval of homosexuality part of its value system.
Conservative legal analyst Ed Whelan argued in the New York Post that if the national scouting organization abandoned "teaching against homosexual conduct, it paves the way for activists to sue troops that adhere to the traditional policy and to threaten troop leaders with personal liability."
But legal scholars — including those who opposed the court's initial decision — disagreed. Andrew Koppelman, a law professor at Northwestern University who wrote a book critical of the Supreme Court decision, said that even without the umbrella protections afforded by the national organization, individual groups would still be able to exclude gays.
"They can no longer invoke national policy, but if they still want to exclude they can invoke their own policies, and that would likely stand up in court," Koppelman said. "On the other hand, they would now be open to pressure and protest within their own communities."
Marc Poirier, a law professor at Seton Hall University, said it was likely that troops — especially those that maintained religious affiliations — would be allowed "to hang on to" the expressive association protection found in the Dale case. While Poirier said it's possible a legal challenge could "get judges who are essentially hostile to the 2000 decision," that there were legal alternatives for groups that wanted to maintain exclusionary policies.
"They could do what they did with the Girl Scouts and form a separate organization, and call it a traditionalist alternative and make it clear that part of the credo is not having openly gay people," Poirier said.
Darren Hutichison, a professor at American University who worked as a lawyer on the original case, said a challenge could split either way. He believes a decision by the national organization to allow troops to admit gays could "basically nullify" the protections granted by the Supreme Court, but acknowledged local chapters could argue their own "discretion to set local values."
This post was updated at 2:53 p.m.