On Petition for Review of an Order of the District of Columbia Commission on Human Rights
Before Farrell, Reid, and Glickman, Associate Judges.
Argued September 10, 2002
Opinion for the court by Associate Judge FARRELL.
Concurring opinion by Associate Judge REID
This petition for review brings before us a decision of the District of Columbia Commission on Human Rights ("the Commission") holding that petitioners, the Boy Scouts of America and the National Capital Area Council ("NCAC") of the Boy Scouts of America (collectively "the Boy Scouts") violated the District of Columbia Human Rights Act of 1977 *fn1 by denying adult membership to intervenors Roland D. Pool and Michael Geller on the basis of their sexual orientation. As relief, the Commission ordered the Boy Scouts, inter alia, to reinstate Pool and Geller as full active adult members of the organization. The principal issue before us, and the only one we find it necessary to decide, is whether the Commission erred in concluding that application of the statute to bar the Boy Scouts from excluding Pool and Geller from Scout leadership positions does not infringe upon the Boy Scouts' First Amendment freedom of expressive association. We hold that this question is controlled by the Supreme Court's decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), and that on the basis of Dale the Commission's decision and order must be reversed.
Geller and Pool, who are both gay, were 35 and 31 years old respectively when this litigation began in 1992. Each had compiled admirable records in Scouting in their youth, attaining the rank of Eagle Scout. From 1980 through 1992, Geller was continually registered as an adult leader of Troop 37 in the Baden-Powell Council, Oswego, New York. Pool had also occupied adult leadership positions in the Boy Scouts, including that of Chief Ranger, until approximately 1985 and retained his interest in Scouting thereafter, attending the 1989 National Jamboree.
In February 1992, then an employee of the World Bank in Washington, D.C., Geller read an article in the Washington Post quoting Ron Carroll, an NCAC Scout Executive, to the effect that the Boy Scouts nationwide does not accept gays as adult leaders because they do not make good role models for male youth progressing into adulthood. Geller wrote a letter to Carroll condemning this attitude as steeped in prejudice and misconceptions and dangerous to Scouting and the young minds it seeks to educate. Pointing to the shortage of role models for young people in today's world, he stated that "[a]s an Ivy League graduate, law-abiding taxpayer, a community volunteer, a chair of a gay and lesbian employee association, and a steadily employed person with a home life shared by a lover of two years," he was an exceptional candidate to be a Boy Scout leader. He urged Carroll and NCAC to reconsider their stand on the issue, stating that "this issue of gay rights is being played out in your microcosm." Geller sent copies of the letter to reporters or columnists at the Washington Post and the Washington Blade.
On February 27, 1992, the day Carroll received Geller's letter, Geller's membership in the Boy Scouts was deleted from the Boy Scouts' membership database. A letter of March 2 from the Boy Scouts' Northeast Regional Director told him that, "after careful review, we have decided that your registration with the Boy Scouts of America should be denied," and requested that he sever any relations he might have with the Boy Scouts. Geller appealed the decision terminating his registration to higher Boy Scout officials, but was ultimately told that the action of the Regional Review Committee would be upheld. While the appeal was pending, Geller's name was placed in the Boy Scouts' Ineligible Volunteer File as "an admitted gay leader."
Pool similarly had read an article in the Washington Blade that cited the Washington Post article reflecting the Boy Scouts' opposition to gays occupying leadership roles in Scouting. At the suggestion of Bart Church, a member of the organization Queer Nation, he contacted the American Civil Liberties Union for legal advice and in May 1992 was referred to the law firm that eventually brought this complaint. In June 1992, Pool called the NCAC about obtaining an Assistant Scoutmaster position. A local Scouting official suggested the post of Unit Commissioner, and Pool subsequently submitted an application to be a Unit Commissioner in the Banneker district of the NCAC. The letter accompanying the application acknowledged that he was gay. The application itself listed his current employment as a computer specialist with the Smithsonian Institution, and stated that he was a member of the Smithsonian Lesbian and Gay Issues Group. As experience in working with youth, he listed his work as a Youth Group Facilitator, then a Youth Group Coordinator, and most recently a member of the Board of Directors of the Sexual Minority Youth Assistance League; and his work as a Youth Services Task Force Member and Peer Counselor at the Whitman-Walker Clinic, a regional gay men's health clinic.
As in the case of Geller, Pool received a letter from the NCAC in July 1992 denying him registration in the Boy Scouts and asking him to sever any relations with the organization. On the same day, his name was added to the Boy Scouts' Ineligible Volunteer File as in the case of Geller. A memorandum to Steven Montgomery, Associate Scout Executive, from S. Michael Bond, District Executive, stated that Geller's application had been rejected "because in his own letter [he] indicated that he is gay." *fn2
On October 16, 1992, Geller and Pool each filed complaints with the District of Columbia Department of Human Rights and Minority Business Development (now known as the Office of Human Rights) alleging that the Boy Scouts had engaged in unlawful discriminatory practices by revoking their scout membership because of their sexual orientation. Eventually the combined cases came before the Commission for an evidentiary hearing, after which the Commission made findings of fact and conclusions of law. It concluded that the exclusion of Geller and Pool was "an unlawful discriminatory practice" within the meaning of the Human Rights Act. As relevant here, D.C. Code § 2-1402.31 (a) states that when done "wholly or partly for a discriminatory reason based on the . . . sexual orientation . . . of any individual," it is "an unlawful discriminatory practice . . . [t]o deny . . . any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodations." The Commission determined first, contrary to the Boy Scouts' threshold argument, that it had jurisdiction over the exclusion of Geller because the Boy Scouts' policy of excluding homosexuals "was developed outside the District [but] applied in the District of Columbia" both to District residents generally and to Geller, who "received [the] letter in the District of Columbia, where he is a resident," telling him his adult membership had been revoked.
The Commission also rejected the Boy Scouts' argument that Pool lacked standing to bring a claim under the Act because he "had no intention of becoming a Unit Commissioner but rather [stood only] as a plaintiff to challenge the exclusionary policy." The Commission relied on previous authority from this court holding "that 'testers' who challenge discriminatory practices under the Human Rights Act have standing to bring the claim" (citing Molovinsky v. Fair Employment Council of Greater Washington, 683 A.2d 142 (D.C. 1996)).
The Commission then turned to whether the Boy Scouts constitutes a "place of public accommodation" within the meaning of the Act, as defined by D.C. Code § 2-1401.02 (24). The Commission concluded that references in that definition to "establishments dealing with goods or services of any kind," and to "institutions" and "clubs," encompassed membership organizations such as the Boy Scouts. It further concluded from the Act's legislative history that "the Commission . . . has the authority to determine which membership organization is . . . a public accommodation using guidelines set out in Supreme Court decisions such as" Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987), and that under those guidelines the Boy Scouts "is a public accommodation" in view of "the large size of the organization, its purpose[,] and [the] non-selectivity of its membership."
Having thus concluded that the Boy Scouts violated the Act by denying Geller and Pool the "privileges [and] advantages" of adult membership based on their sexual orientation, the Commission considered finally whether application of the Act would violate the Boy Scouts' freedom of expressive association under the First Amendment, see generally Roberts v. United States Jaycees, 468 U.S. 609, 622-23 (1984), particularly in light of Boy Scouts of America v. Dale, supra, decided after the hearing in this case. The Commission found no such infringement. First, it said that admitting Geller and Pool as adult leaders "would not significantly affect the Boy Scout[s'] ability to advocate its public or private viewpoint," because the Boy Scouts' exclusionary policy regarding gays appeared in part "to be no more than a private statement of a few BSA executives, a view that is not actual expression the BSA engages in." The Commission dismissed as evidence of the Boy Scouts' viewpoint various position statements the Scouts had issued over the years. These were, in the Commission's view, either "generated for media relations" or "a mere attempt" as part of state litigation in California "to document a policy for which no evidence exists." *fn3 Furthermore, even if a desire "not to promote 'homosexual conduct'" were part of the "expression" for which the Boy Scouts associates, the Commission concluded that admitting Geller and Pool as leaders would not significantly burden that expression because -- unlike the respondent in Dale -- neither Geller nor Pool was "a gay ...