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. :

:

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

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

(202) 662-2000

5. THE BOY SCOUTS' POLICY OF EXCLUDING HOMOSEXUALS IS BASED ON STATUS AND IS NOT PART OF THE BOY SCOUTS PROGRAM 23

TABLE OF AUTHORITIES CASES

Rotary Club of Duarte, 481 U.S. 537

(1987) 78,186,188,189,190,

191,196,199,200

Association, 839 F. Supp. 1100 (D.N.J.

1993) 178

Brown v. Dade Christian Schools, Inc., 556

F.2d 310 (5th Cir. 1977), cert. denied,

434 U.S. 1063 (1978) 191,193

Scouts of America, 72 Cal. Rptr. 2d 410

(Cal. 1998) 47,49,74,175,176

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

(N.J. Super. Ct. App. Div. 1998) 174,176,184,185,186,

187,188,191,193,194,

195,197,198,199,203

Dale v. Boy Scouts of America, No.

Ct. App. Div. 1998) 68,128

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

(D.C. 1995) 174,205

Services, No. 89-465-PA (N) 173

EEOC v. G-K-G, Inc., 39 F.3d 740 (7th Cir.

1994) 170,171

University, 536 A.2d 1 (D.C. 1987) 168,174,200

Area 173

Greater Washington Business Center v.

District of Columbia Commission on

Human Rights, 454 A.2d 1333 (D.C. 1982) 169

Green v. Kinney Shoe Corp., 704 F. Supp. 259

(D.D.C. 1988) 177,206

Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982) 205

Hishon v. King & Spalding, 467 U.S. 69 (1984) 185

Bisexual Group of Boston, 515 U.S. 557

(1995) 201,202,203

behalf of Gregory Smith v. Dr. Richard S.

Runckle, COHR Docket No. 92-154-PA

(N) 169

Council of the Boy Scouts of America,

No. 92-E-80 (Chicago Comm'n on Human

Relations) 74, 75, 88,170,187,

196,199,203,205

Invisible Empire of the Knights of the Ku

Klux Klan v. Mayor of Thurmont, 700 F.

Supp. 281 (D. Md. 1988) 188

Irish-American Gay, Lesbian and Bisexual

Group v. City of Boston, 636 N.E.2d

1293 (1994), rev'd sub nom., Hurley v.

Irish-American Gay, Lesbian and

Bisexual Group, 515 U.S. 557 (1995) 201,202

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

1989) 177,206

McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973) 169,170

NAACP v. Alabama, 357 U.S. 449 (1958) 185

Little League Baseball, Inc., 318 A.2d

33 (N.J. Super. App. Div.), aff'd, 338

A.2d 198 (N.J. 1974) 179

New York, 505-N.E.2d 915 (N.Y. 1987),

ff'd, 487 U.S. 1 (1988) 178

New York State Club Association v. New York,

487 U.S. 1 (1988) 188,189,190,191,192,

197

Norwood v. Harrison, 413 U.S. 455 (1973) 185

Price Waterhouse v. Hopkins, 490 U.S. 228

(1989) 170

Rights and-Opportunities, 528 A.2d 352

(Conn. 1987) 175

on Human Rights, 485 A.2d 173 (D.C.

1984) 169

876 F.2d 563 (7th Cir. 1989) 169,170

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

609 (1984) 178,179,183,185,186,

187,188,189,190,191,

193,196,197,198,199,

200

Club, 636 F. Supp. 1476 (E.D. Mich.

1986) 180,181,183

Runyon v. McCrary, 427 U.S. 160 (1975) 185

Schwartz v. The Cosmos Club 173,179

of America, 891 P.2d 385 (Kan. 1995) 175

TWA v. Thurston, 469 U.S. 111 (1985) 170

Timus v. D.C. Department of Human Rights, 633

A.2d 751 (D.C. 1993) 174

Appeal Board, 452 N.E.2d 1199 (N.Y.

1983) 174,178,179,181,182,

183,184

United States Jaycees v. Bloomfield, 434 A.2d

1379 (1981) 174

Welsh v. Boy Scouts of America, 993 F.2d 1267

(7th Cir. 1993), cert. denied, 510 U.S.

1012 (1993) 175,176

STATUTES

10 U.S.C. 2544 109

10 U.S.C. 4682 109

10 U.S.C. 7541 109

10 U.S.C. 9682 (statutes authorizing the

military to sell obsolete or excess

material to the Boy Scouts of America) 109

13 U.S.C. 641 109

36 U.S.C. 23 (1916) 2,106

Civil Rights Act of 1964, 42 U.S.C. 2000e,

et seq 169,175

D.C. Code 1-2501 (1987) (emphasis [in opinion]) 167,168,170,171,176,

178,185,197,198,199,

200,201,204,205,206

D.C. Code 1-2512 (1987) 205

D.C. Code 1-2553(a)(1)(E) and (F) 208

Pub. L. 87-459 109

DCHRA 1-2502(24) 176

DCHP,A 1-2501 168,171,206,207

DCHRA 1-2503(a) 204

DCHRA 1-2519 168

DCHRA 1-2531 172

34 D.C.R. 6887 172

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. :

:

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

Complainants Roland D. Pool and Michael S. Geller, by their attorneys, Ross, Dixon & Masback, L.L.P., hereby propose the following Findings of Fact and Conclusions of Law in this matter.

1. This case is about discrimination and, unfortunately, prejudice. The National Office of the Boy Scouts of America ("BSA") discriminates against gays and lesbians by absolutely excluding them from membership or participation. The National Capital Area Council, Boy Scouts of America ("NCAC") (collectively with the BSA, the "Boy Scouts"), which the BSA charters, carries out that discrimination.

2. The Boy Scouts' discrimination is not based on conduct or expression. It is based upon status. This discrimination does not effectuate any protected expressive purposes of the BSA or the NCAC; rather, it exists in direct contradiction to their expressed purposes. And what purports to be a constitutional defense of this discrimination actually amounts to nothing more than a grab bag of excuses each one more clearly pretextual than the last.

3. The Boy Scouts' conduct is illegal. In this instance, it has hurt not only Complainants Roland Pool and Michael Geller -- two eminently qualified adult Eagle Scouts -- but the numerous scout leaders who were more than happy to make use of their skills and the scouts who could have benefited from them.

4. Respondent BSA is a non-profit corporation. The BSA was originally incorporated in the District of Columbia in 1910. Now, however, it is a Texas corporation, with its national office in Irving, Texas. Jere B. Ratcliffe is the current Chief Scout Executive -- the BSA's Chief Executive Officer. Ex. C1129 at NCAC4925, 4930, 4933.

8. In 1916, the Boy Scouts obtained a charter by Act of Congress:

36 U.S.C. § 23 (1916); Ex. C1300 § 3.

5. In the 1980s, the Boy Scouts issued a mission statement stating:

The values we strive to instill are based on those in the Scout Oath and Law.

Ex. R1; Ex. C1600 at A2552.

6. The BSA is a nationwide organization that, since 1910, has had over 93,000,000 members. Ex. C1122 at NCAC4881. As of December 31, 1996, its membership was approximately 4,400,000 youth and 1,200,000 million adult members, including 3,540 professionals involved in Scouting nationwide. Ex. C1310 at 27.

7. There are a number of Scouting programs. Cub Scouts is for boys ages 7-10, including Tiger Cubs (the program for seven-year-olds) and Webelos (the transition program for 10-year-olds). Boy Scouts is for boys ages 11-18. Explorers is a coeducational program for young people ages 14-20. Ex. C1134 at NCAC4888. Through a subsidiary, the BSA runs Learning for Life -- a coeducational school-based program for youth from kindergarten through high school. Exs. 1000-1004. In February 1998, the BSA's National Executive Board voted, effective August 1, 1998, to separate Exploring into two different programs -- Venture Exploring and Career Exploring -- and to move the latter program to the Learning for Life subsidiary. Tr. 2466-67 (Leet); Ex. C1007.

8. The BSA maintains four regional offices and divides each region into smaller geographical "areas." C1300 at 112-13; Flythe Dep. at 10. The District of Columbia is located in Area VI of the BSA's Northeast Region, which has its regional headquarters in Dayton, New Jersey. Ex. C313 at A1172.

9. Within the areas of each of its geographic regions, the BSA charters councils. Ex. C1300 at NCAC114. As of December 31, 1996, there were 335 councils nationwide. Ex. C1310 at 27.

10. Respondent NCAC is a District of Columbia corporation, chartered by BSA for the purpose of carrying out the BSA's program in the District of Columbia and 16 surrounding counties in Virginia and Maryland. Ex. C313 at NCAC1172; Tr. 567-68 (Press). Ron L. Carroll is the current Scout Executive -- a professional who serves as the Chief Executive Officer -- of the National Capital Area Council. Tr. 1095 (Carroll).

11. The NCAC is divided into districts. The District of Columbia is covered by two such districts. The Benjamin Banneker District ("Banneker District") of the NCAC covers Northwest Washington and Northeast Washington to Maryland Avenue. Tr. 303 (Jones). The Horizon District covers the remaining portions of the city. Id. Each of these districts has a District Committee whose responsibility it is to provide activities for the chartered organizations. Tr. 305-06 (Jones).

12. Each district has at least one professional District Executive, a volunteer District Commissioner, who oversees Assistant District Commissioners and Unit Commissioners, and a Chairman, which is also a volunteer position. Ex. C909 at NCAC378. The Boy Scouts refer to the District Executive, the District Commissioner and the District Chairman as the "Key Three;" collectively, they are the persons in the district responsible for carrying out the BSA program and seeking to achieve its objectives. Tr. 301-05 (Jones).

13. The District Commissioner runs a "Commissioner staff," which typically includes Assistant District Commissioners, who report to the District Commissioner, and Unit Commissioners, who report to the Assistant District Commissioners. Ex. C906; Tr. 299-302 (Jones). Unit Commissioners assist adults in "units" -- Cub Scout packs, Boy Scout troops, or Explorer Posts, Bond Dep. at 47 -- by conveying to them the information they need to run the program and by performing quality control to make sure that the program is being run properly. Ex. C906; Tr. 299-302 (Jones). The Commissioner staff is both a channel of communication through which the BSA and its councils tell adult leaders at the troop level what they need to know to run the Scouting program and is also a source of expertise and guidance on how that program is to be run. Id.

14. The BSA is required by its charter to operate its program through cooperation with other organizations. Ex. C1300 § 3. Organizations such as public schools, government organizations, churches, synagogues, mosques, civic groups or groups of citizens obtain a charter from the Boy Scouts to sponsor an individual Scouting unit. Ex. C1153. Troops and packs also have a troop or pack committee made up of representatives from the sponsoring organization, parents, and others, who pick the troops' Scoutmaster and provide various types of support, including transportation, chaperons and resources to the troop. Tr. 281-82 (Jones).

15. These outside organizations also play a central role in the governance of the Boy Scouts. The "membership" of each local council does not consist of all the members of the Boy Scouts within the Council. Rather, it consists of "a chartered organization representative from each chartered organization and additional members at large from within the territorial boundaries of the local council totalling a minimum of 100 adults." Ex. C1300 at NCAC114 (Art. VI, § 7, cl. 1). These councils, in turn, choose approximately 2,000 adult representatives to the BSA's National Council, which, in turn, chooses all but a small number of the members of the BSA's National Executive Board. Id. at NCAC 108-109 (Arts. I-III); Tr. 2459-61, 2507-13 (Leet).

16. A Scoutmaster is the adult leader of a Scout troop. Assistant Scoutmasters are adults who work with the Scoutmaster. A Junior Assistant Scoutmaster is a senior youth scout in the troop. Ex. C701 at 21-22, 33-49. Boy Scout troops are typically divided into patrols, which are groups of 3-8 boys, led by a youth who acts as patrol leader. A senior patrol leader is an experienced older scout who is elected by all the scouts in the troop. Id.

17. As with all adult leaders, Scoutmasters, Assistant Scoutmasters and troop committee members are required to be members of the BSA. Once registered as members, however, they do not need to complete new applications to remain in their positions. Instead, their names can be submitted on an annual roster when the troop reregisters with the BSA. Hill Dep. at 164. Adult troop leaders are required to receive a "fast-start" training to familiarize them with the program and a more intensive training now called "Scoutmastership Fundamentals." Tr. 293 (Jones).

18. Individual scouts progress through ranks. The scout ranks are scout, tenderfoot, second class, first class, star, life and the highest rank, Eagle Scout. Tr. 55 (Geller). In order to progress, scouts must meet requirements specific to each rank and earn merit badges. Ex. C700 at 589.

19. Becoming an Eagle Scout is Scouting's highest honor. Ex. C1313 at NCAC2059; Bond Dep. at 82. Only about two percent of all Boy Scouts ever attain the rank of eagle. Bond Dep. at 121; Ex. C1122 at NCAC4881.

20. The Order of the Arrow is a national brotherhood of scout campers that recognizes those campers "who best exemplify the Scout Oath and Law in their daily lives and by such recognition cause other campers to conduct themselves in such manner as to warrant recognition." Ex. C115 at 14. Scouts can only become members of the Order of the Arrow by being chosen from the members of their troop. The Order of the Arrow (or "OA") has lodges at the council level and sections at the area level. Tr. 515-18 (Press). Youths can obtain leadership positions in their OA lodge by becoming vice lodge chiefs and lodge chiefs. They can also progress through three advancements - Ordeal, Brotherhood and Vigil Honor. Tr. 520-21 (Press).

21. "The Vigil Honor is the highest honor that the Order of the Arrow can present its members for service to the local lodge and council." Ex. C115 at 23; Bond Dep. at 122. It is for those deemed to have demonstrated the highest level of altruistic service to the Scouting program and to their community, Ex. C115 at 23, 71-72; Tr. 521 (Press), and available only to a limited number of Order of the Arrow members in each council. Ex. C115 at 70.

22. The Scout Oath states:

To do my duty to God and my country

and to obey the Scout Law;

To help other people at all times;

Ex. C700 at 5, 550-551.

23. As set forth in the current Scout Handbook, the Scout Law states:

Ex. C 700 at 7-8, 553-561; Ex. R175 at 9-11 (transcript of Horne eagle ceremony).

24. The Scout Motto is "Be Prepared." Ex. C700 at 562.

25. The Scout Slogan is "Do a Good Turn Daily." Ex. C700 at 563.

26. Roland Pool has been a resident of the District of Columbia since 1987. Tr. 705-06.

27. Mr. Pool attended college at Louisiana State University in Baton Rouge, Louisiana and graduated in 1985. Tr. 707. He attended Dartmouth College on a graduate fellowship to study volcanology. Tr. 708. After working for three years at the Smithsonian Institution as a computer specialist, he became a geologist at the Museum of Natural History at the Smithsonian Institution. Tr. 708-09. He planned and designed a volcano exhibit for the new Rock, Gem and Geology Hall, which opened in 1997, and collaborated on a one-book encyclopedia entitled, "Volcanoes of the World." Tr. 710.

28. In 1997, Mr. Pool entered the Wesley Theological Seminary in the District of Columbia. Tr. 711. He is currently studying pastoral skills and theology, with the goal of becoming a pastor in the Religious Society of Friends. Tr. 711.

29. Mr. Pool is exceptionally well-qualified to be a Unit Commissioner in the Banneker District of the NCAC. In addition to his educational background, his training as a volcanologist, and his current religious studies, Mr. Pool has had extensive experience with the Boy Scouts, both as a youth and an adult. Roland Pool began scouting as a cub scout and progressed through its levels of Bobcat, Wolf, Bear and Webelo. Tr. 716.

30. As a Boy Scout, Roland Pool rose through the levels from Scout, Tenderfoot, Second Class, First Class, Star and Life. In 1979, he became an Eagle Scout -- the first Eagle Scout in Troop 85 in Mandeville, Louisiana. Tr. 722; Exs. C102, C106, C108, C109.

31. Mr. Pool was elected into the Order of the Arrow by the other boys in his Troop. Tr. 740; Ex. 115. After completing the Ordeal, Mr. Pool advanced to the Brotherhood rank and received the Vigil Honor, the highest rank of the Order of the Arrow. Tr. 741. Mr. Pool was elected to the Vigil Honor rank by a committee appointed by the Order of the Arrow Lodge. Tr. 741; Exs. C101A, C101B, C101C, C105. He also served as Vice Lodge Chief and later as Lodge Chief of the Order of the Arrow. Tr. 748-49.

32. Mr. Pool also became an Explorer as well as a Boy Scout, serving as the Vice President of the Aquatics Explorer Post in Mandeville, Louisiana from 1976 through 1977. Tr. 745.

33. On turning 18, Mr. Pool re-registered with the Boy Scouts as an Assistant Scoutmaster with Troop 85. He actively participated as an Assistant Scoutmaster for two years. Tr. 746-47, Ex. C104. In 1977 and 1981, he was selected as an adult leader for the special troops assembled for the Boy Scouts' National Jamborees. Tr. 723-25.

34. Mr. Pool also was actively involved with the Philmont Scout Ranch. Philmont is "the premier high-adventure backpacking destination for Scouts in the United States," and competition for positions at Philmont is "extremely competitive." Tr. 439-440 (Herde). In addition to being a Scout participant at the Philmont Scout Ranch in 1978 and 1979, Mr. Pool was a staff employee at Philmont for five years from 1980 through 1984. Tr. 752-61. He was a Ranger for two summers in 1980 and 1981; a Training Ranger for two summers in 1982 and 1983; and the Assistant Director for Conservation in 1984. Tr. 754-56; Ex. C111. As the Assistant Director for Conservation, Mr. Pool had the responsibility to supervise a $70,000 grant from Tandy Corporation to develop an environmental program. Tr. 756-57. The program that Mr. Pool designed and implemented was used for three years by 17,000 scouts each year. Id. He also wrote the Land chapter of the Philmont Field Guide, published in 1985 by the Boy Scouts of America. Tr. 757-58, Ex. C120. At the end of his summer as Assistant Director of Conservation, Mr. Pool was recommended by his superiors to be Chief Ranger -- the supervisor of 150 Philmont rangers. Tr. 760-61; Ex. C111.

35. When Mr. Pool was a youth member of the Boy Scouts, his understanding was that the term "morally straight" had to do with a person's character, and had nothing to do with a person's sexual orientation. Tr. 763-65. Similarly, Mr. Pool understood that the phrase "clean" in the Scout Law had to do with being physically clean and clean in word and deed, and that there was no sexual component to the term "clean" in the Scout Law. Mr. Pool credibly testified that, during the period that he was a youth member of the Boy Scouts, "there was never a single discussion about sex, period." Tr. 765. Similarly, there was no discussion about homosexuality, and no one ever taught on the subject of the morality of homosexuality. Tr. 766.

36. Mr. Pool became aware that he was gay at the age of 13. At no time did his sexual orientation become a subject of discussion with others in the Boy Scouts, including his five summers at Philmont. Tr. 766-68. Mr. Pool testified that, if a Scout came to him at the time he was an Assistant Scoutmaster to discuss issues regarding sexual orientation, he would listen carefully and would help the Scout find a resource, a counselor, or someone from the religious community with whom he could consult. Tr. 768-79.

37. Between 1985 and 1992, Mr. Pool went to graduate school, began work, and was not an active Scouter. Nonetheless, he retained his interest in Scouting, collecting Boy Scout memorabilia that line the walls of his home, and attending the 1989 National Jamboree. Tr. 778, 942.

38. In February 1992, Mr. Pool read an article in The Blade, which had referenced an article in "The Washington Post" indicating that homosexuals were inappropriate for Scouting. Tr. 773. Prior to reading that article in February 1992, Mr. Pool had no knowledge of any Boy Scout policy excluding homosexuals. Tr. 773. From 1985 to 1992, several of Mr. Pool's friends involved in Scouting became aware of his sexual orientation. None of those individuals advised Mr. Pool that, because he was gay, he could no longer participate in Scouting. Tr. 774-75.

39. In March or April 1992, Mr. Pool ran into an acquaintance, Bart Church, and briefly discussed the Boy Scout's policy excluding homosexuals. When Mr. Pool told Mr. Church that he had been an Eagle Scout, Mr. Church referred him to the ACLU for legal advice. Tr. 775-76.

40. In June 1992 Mr. Pool called the NCAC about obtaining an Assistant Scoutmaster position. He was directed to Banneker District Executive Stuart M. ("Mike") Bond.

41. Mr. Bond suggested that Mr. Pool might be interested in the higher position of Unit Commissioner. Tr. 778 (Pool); Bond Dep. at 114-15.

42. Unit Commissioners do not generally work with youth. Although Unit Commissioners are supposed to attend troop meetings on occasion, it is up to the Scoutmaster if youth in a troop are even introduced to a Unit Commissioner. Tr. 310 (Jones); Ex. C909 at NCAC367. The contact with youth would be so limited that experienced commissioners and youth may well not even know each other by name. Tr. 529 (Press). And volunteer leaders at the district level, such as Unit Commissioners, would "almost never" be in direct supervision of youth. Kay Dep. at 80-81.

43. On Tuesday, June 23, 1992, Roland Pool attended the Banneker District Committee meeting at Mr. Bond's request. Tr. 778-779 (Pool); Tr. 371 (Jones). The meeting was held in the Banneker District at St. Paul's Episcopal Church in the District of Columbia. Tr. 352 (Jones); Tr. 779 (Pool); C1105. At the meeting, Mr. Bond introduced Mr. Pool as a new Unit Commissioner. Tr. 371 (Jones).

44. Mr. Pool's skills and experience were particularly well-suited to serving as a Unit Commissioner. To perform well, a Unit Commissioner needs to be personable and tactful; and the more he knows about the Scouting program the better. Tr. 310 (Jones); Ex. C906 at 7.

45. Roland Pool clearly had these qualities. He impressed the people with whom he would have worked -- Thornell Jones, Daniel Press and William Kirkner -- as being "an open person," who was "enthusiastic and also had a tremendous Scouting background," and was "a professional in life." Tr. 371-74 (Jones); Tr. 530 (Press); Tr. 1970-73 (Kirkner). His status as an Eagle Scout, a Vigil Honor member of the Order of the Arrow, his extensive experience at Philmont and his knowledge of conservation were particularly high credentials. Tr. 372-74 (Jones); Tr. 533-34 (Press); Tr. 1971-72 (Kirkner). Someone with his credentials would have been a significant addition to Scouting anywhere, and especially in the Banneker District. Tr. 606-07 (Press); Tr. 1971-73 (Kirkner). As one witness put it, Roland Pool was "a Godsend." Tr. 1973 (Kirkner).

46. At the District Committee meeting, various scouters spoke about the need of the Banneker District to attract new members. Ex. C1105. One also spoke about what the Boy Scouts refer to as the "three G's" -- the Boy Scouts' policies of excluding "gays, girls and the godless [i.e., atheists]." Tr. 779 (Pool).

47. At the District Committee meeting, Mr. Pool was invited to a Unit Commissioner training session that had been scheduled for that Saturday, July 27, 1992. Usually this training is conducted in the Banneker District; however, because of a conflict of schedule, it was conducted at the Council headquarters in Bethesda, Maryland. Tr. 377 (Jones); Tr. 782 (Pool).

48. At the training session, Mr. Pool was handed a notebook identifying him as "Unit Commissioner Roland Pool," Ex. C302; Tr. 405-406 (Jones); Tr. 787-88 (Pool), an organizational chart with his name included as Unit Commissioner, Ex. C300, and program materials concerning the Banneker District assembled by the District Commissioner, Thornell Jones. Ex. C313; Tr. 378-89 (Jones).

49. The training session taught about the job of Unit Commissioner and how to schedule matters and how to rate performance. Tr. 376 (Jones). It was not part of the training to discuss the Boy Scouts' policy concerning homosexuals. Tr. 376 (Jones); Tr. 785-89 (Pool); Bond Dep. at 124.

50. The subject of the Boy Scouts' exclusion of homosexuals, however, arose at lunch. Mr. Press and Mr. Kirkner, who were both lawyers, discussed the policy and expressed the view that the policy was wrong, illegal in the District of Columbia and contrary to the principles of Scouting. Tr. 380-82 (Jones); Tr. 576-77 (Press); Tr. 1973-81 (Kirkner). Mike Bond was present during that conversation. Bond Dep. at 124-25.

51. Roland Pool did not initiate this conversation or take any part in it. Tr. 787 (Pool). He never mentioned his sexual orientation at the meeting and no one was left with any knowledge about his sexual orientation. Tr. 407-08 (Jones); Tr. 787 (Pool).

52. At the end of the training session, Mr. Pool received a patch and certificate signed by Scout Executive Ron Carroll demonstrating Mr. Pool's successful completion of his training as a Unit Commissioner. Ex. C301; Bond Dep. at 117-19.

53. Mr. Bond first signed his approval on Mr. Pool's application and then scratched his signature out. Ex. C305; Tr. 590 (Press). See Bond Dep. at 151-52.^*/

54. By letter dated July 3, 1992, Mr. Pool submitted to Mike Bond his application to become a Unit Commissioner in the Banneker district. Exs. C303, C304. In the cover letter, Mr. Pool advised Mr. Bond that he was gay. Ex. C303. In the attached application, Mr. Pool stated that he was a member of the Smithsonian Lesbian and Gay Issues Group, had previously been affiliated with the Sexual Minority Youth Assistant League ("SMYAL"), and had served as a peer counselor at Whitman-Walker Clinic. The Application Mr. Pool completed did not refer to sexual orientation. In a Section "6" entitled Additional Information, the application asked whether the applicant used drugs, was ever convicted of an offense, was charged with child neglect or abuse or had his driver's license suspended or revoked. Ex. C304. Question 6e asked whether there was "any fact or circumstance involving you or your background that would call into question your being entrusted with the supervision, guidance, and care of young people." Mr. Pool answered "no" to each of the subparts in question 6 of the Application, including Question 6e. Ex. C304, Tr. 791-95.

55. On July 14, 1992, 11 days later, Ron Carroll wrote to Roland Pool stating that, "[a]fter careful review, we have decided that your registration with the Boy Scouts of America must be denied. We are, therefore, compelled to request that you sever any relations that you may have with the Boy Scouts of America." Ex. C309. Mr. Carroll's letter did not state the reason why Mr. Pool's registration with the Boy Scouts of America must be denied.

56. Mr. Carroll's decision to send this letter in the mail, with no explanation, violated the Boy Scouts' own procedures. Under the Boy Scouts' procedures, the Scout Executive was supposed to hand deliver the letter and to provide an explanation for the decision. Ex. C603 at NCAC2581 (Item 6); Mack Dep. at 162-64.

57. On the same day of Mr. Carroll's letter, Steven Montgomery, Associate Scout Executive, sent information to Paul Ernst, Director, Registration Service of the Boy Scouts of America, for the purpose of adding Mr. Pool to the Ineligible Volunteer File maintained by the Boy Scouts of America in Irving, Texas. Ex. C307. The BSA developed this "Ineligible Volunteer File" "in the early days of Scouting to record and bar from membership those people seeking to register in Scouting who were known to be unfit for membership." Ex. 604 at NCAC4285. It includes people who have engaged in all manner of crimes and financial misdealing, theft, child abuse, as well as homosexuals. Ex. C1505 ¶ 4. Mr. Carroll's letter to Mr. Pool, however, did not inform him that the Ineligible Volunteer File existed or that he was being placed in it. Ex. C309.

58. On July 29, 1992, Mr. Pool wrote Mr. Carroll expressing his disappointment over the Boy Scouts' decision and requesting a reason why he had to sever his relations with the Boy Scouts. Tr. 798-99, Ex. C310. In response, Mr. Carroll wrote Mr. Pool on August 6, 1992:

I'm sorry, Roland . . .

Ex. C311. Mr. Carroll concluded "I would share with you that this is a policy of our National organization which this council is bound to comply with and one that our council leadership supports." Id.

59. The Boy Scouts have not produced anyone on the Commissioner staff with whom Roland Pool would have worked who would have had the slightest problem working with a homosexual, in general, or Roland Pool in particular. Thornell Jones testified that he was "very upset" when he learned that Mr. Pool's application had been rejected, and that Mr. Pool's homosexuality would not have had anything to do with his performance as a Unit Commissioner. Tr. 408 (Jones). Daniel Press and William Kirkner both had similar reactions. Tr. 591-94 (Press); Tr. 1970-73 (Kirkner).

60. Indeed, after he learned of Roland Pool's rejection, Mr. Jones raised the issue of whether anyone would have a problem with a homosexual Unit Commissioner both at a meeting of his commissioner staff and at a round table attended by 20 to 40 Scoutmasters, Assistant Scoutmasters and other adult leaders in the Banneker District. Tr. 409-10 (Jones). Not one of them expressed any view that it was appropriate to exclude Roland Pool from Scouting. Id.; Tr. 593 (Press). Mr. Jones expressed no doubt that the Banneker District had been made worse by excluding Roland Pool from Scouting. Tr. 411-12 (Jones). Mr. Press put it "[w]e needed him. We needed people, and particularly we needed people like him to be able to . . . serve the Scouts that we were charged with serving." Tr. 594.

61. Michael Geller has been a resident of the District of Columbia since 1987. Tr. 28. He is currently employed at The World Bank. Tr. 40. After growing up in Owego, New York, he attended Cornell University in Ithaca, New York, graduating in 1984. Tr. 27-29. He has worked at The World Bank since late 1992 or early 1993. Tr. 38.

62. Mr. Geller comes from a family steeped in Scouting tradition. Two of his uncles were Eagle Scouts. His father is a Life Scout who in 1997 celebrated 55 years in Scouting. His father received the Silver Beaver Award from the Boy Scouts for his dedicated years of service. Michael Geller's brother, David, is also an Eagle Scout, as are his three cousins. Tr. 43.

63. Michael Geller was a member of Troop 37 in Owego, New York, sponsored by St. Paul's Episcopal Church. Tr. 46. His troop was located in the Baden-Powell Council, named after the founder of the scouting movement in England in 1907. Tr. 47. Mr. Geller became a Boy Scout on his eleventh birthday, the first day he was eligible. He became an Eagle Scout in 1979 after six years of scouting. Tr. 55-56, Ex. C202. Upon attaining the rank of Eagle, he received congratulatory letters from President Carter, Ex. C204, and Congressman Matthew McHugh. Ex. C205.

64. In 1977, Mr. Geller was elected to the Order of the Arrow, the National Brotherhood of Scout Honor Campers. Tr. 67, Ex. C209. The election signified that Mr. Geller was "one who lives according to the Scout Oath or promise and Law." Ex. C209a.

65. During the time that Mr. Geller was a youth member of the Boy Scouts, he understood the term "morally straight" in the Scout Oath to require that one conduct oneself in an upright manner. Tr. 74-75. During that time, he never had an occasion in which a Scoutmaster or other adult leader gave instructions or comments on sexual conduct, the morality of any particular sexual conduct, or sexual orientation. Tr. 76-77. Mr. Geller understood the term "clean" in the Scout Law to mean literally to keep oneself clean and to have a clean body and mind. Tr. 77-78. Other than certain health issues related to sexual conduct, there was never any discussion regarding sexual conduct or sexual orientation in the context of the term "clean" in the Scout Law. Tr. 77-78. No one ever told Mr. Geller, and he never formed the understanding, that homosexuality was inconsistent with the Scout Oath or the Scout Law. Tr. 79.

66. From 1980 through 1992, Michael Geller was continually registered as an adult leader of Troop 37 in the Baden-Powell Council. Tr. 93-98, Exs. C210, C211.

67. Mr. Geller became aware that he was gay in 1983. Tr. 94. Shortly thereafter, he told both his parents and his brother that he was gay. Tr. 95. At no time did his father tell him or believe that his sexual orientation would require him to withdraw his registration from the Boy Scouts. Tr. 96; Tr. 479 (D. Geller).

68. On February 25, 1992, Michael Geller read an article in The Washington Post that included a statement by Ron Carroll to the effect that he did not believe that homosexuals made good role models for youth as they progress into manhood and, therefore, the Boy Scouts did not accept homosexuals as adult leaders. Tr. 100-01, Ex. C400. Prior to that time, Mr. Geller was unaware of any Boy Scout policy excluding homosexuals. Tr. 102.

69. In response to this article, Mr. Geller wrote Ron Carroll on February 26, 1992 to express his disagreement with Mr. Carroll's view that homosexuals were inappropriate role models within the Boy Scouts. Tr. 100, Ex. C400.

70. On February 27, 1992, the very same day that Mr. Carroll received Mr. Geller's letter of February 26, 1992, Mr. Geller's membership in the Boy Scouts was deleted from the Boy Scouts' membership database. Ex. C401.

71. On March 2, 1992, Rudy Flythe wrote Mr. Geller that, "[a]fter careful review, we have decided that your registration with the Boy Scouts of America should be denied," and requested that Mr. Geller sever any relations that he may have with the Boy Scouts of America. Tr. 118-19, Ex. C402. Mr. Flythe did not give any reason for the Boy Scouts' decision to require Mr. Geller to sever all relations with them.

72. Mr. Flythe's decision to send this letter in the mail violated several Boy Scout procedures. First, as noted above, such letters are supposed to be hand-delivered and should contain an explanation. Ex. C603 at NCAC2581 (Item 6); Mack Dep. at 162-64.

73. More importantly, "[t]he Scout Executive or his delegate should be the only individuals engaged in implementing" the Boy Scout procedures for removing someone from membership. Ex. C603. It is the responsibility of the Scout Executive to make decisions on excluding people from Scouting. Id.; Fullman Dep. at 27; Carroll Dep. at 137. Even Mr. Flythe, himself, testified that his office had no involvement in the revocation of membership. Flythe Dep. at 37.

74. In fact, the Boy Scouts did contact the Scout Executive for Mr. Geller's council -- Del Newquist of the Baden-Powell Council. Tr. 482-485 (D. Geller). On May 5, 1992, the Baden-Powell Council, however, wrote a letter to the National Board of the BSA objecting to Mr. Geller's severance from the Boy Scouts and urging that the BSA allow local troops to decide whether they want homosexuals as adult leaders. Tr. 142, Ex. C1210. Although Mr. Newquist did not testify, it is a fair inference from the evidence in the record that Mr. Newquist declined to demand that Mr. Geller sever his ties with the Boy Scouts, thus necessitating that Mr. Flythe, as Director of the Northeast Region, write the letter instead of Mr. Newquist.

75. In response to Mr. Flythe's letter of March 2, 1992, Mr. Geller wrote several letters to the Boy Scouts requesting them to state the reason for their decision requiring him to sever all ties with the Boy Scouts. See, e.g., Exs. C403, C406. The Boy Scouts never advised Mr. Geller of the reasons for their decision. On April 6, 1992, while Mr. Geller's appeal of their decision was pending, the Boy Scouts placed Mr. Geller in the Ineligible Volunteer File as "an admitted gay leader." Ex. C407. On April 21, 1992, David K. Park, the Boy Scouts' National Legal Counsel, advised Mr. Geller that there would be a national review of the revocation of his registration, and that he would be advised accordingly. Ex. C408. On September 11, 1992, Ben Love, Chief Scout Executive, advised Mr. Geller that on September 9, 1992, a review committee of the Boy Scouts of America conducted a review of the denial of his registration and upheld the action of the Regional Review Committee in denying that registration. Ex. C409. Mr. Geller was not given the opportunity to appear before the committee in his own defense. Tr. 135-36.

76. Roland Pool and Michael Geller were told to sever their ties with Scouting because of a BSA national policy of excluding homosexuals. This policy is strict and status-based. It cannot be found in the Boy Scouts' program or in their message to Scouts, it is in public relations documents to be used to respond to press inquiries. And its specifics and justification lies in almost total incoherence.

77. "The Boy Scouts of America Does Not Accept Homosexuals as Members or Leaders." Ex. C508 at 1023. This exclusion is purely based upon status. The Boy Scouts exclude anyone whom they learn is a homosexual, irrespective of whether the homosexual has ever engaged in sex or ever intends to do so. Tr. 1201-1202 (Carroll); Tr. 1900-1901 (Ellison); Teare Dep. at 76; Mack Dep. at 54-55; Hill Dep. at 18-19, 145-46; Fullman Dep. at 31-33. They exclude homosexuals irrespective of whether the homosexual ever intends to mention his/her sexual orientation to anyone else. Hill Dep. at 19. Indeed, once an individual is identified as a homosexual, there is no information that person could give the Boy Scouts that would allow his/her application to be accepted. Hill Dep. at 19; Kay Dep. at 99; Fullman Dep. at 31-31. "There should be no ifs, ands or buts." Teare Dep. at 161.

78. Although the Boy Scouts have sought to recast the policy as one limited to "known or avowed" homosexuals, even by the Boy Scouts' formulation, the knowledge or avowal has nothing to do with conduct. The Boy Scouts maintain that someone who is required to reveal his/her sexual orientation by being compelled in a legal proceeding to testify under oath is an "avowed homosexual" and will therefore be excluded from Scouting. Tr. 1197 (Carroll); Carroll Dep. at 161. As Marcus Mack, one of the witnesses named by the BSA to testify as its representative, stated, "[i]f a homosexual rabbi wants to join the Boy Scouts, he would not qualify as a member based [o]n that he does not live a morally straight life." Mack Dep. at 54.

79. No unit, sponsor, district, council, area or region is authorized to permit a homosexual to be a scout or scout leader. Tr. 1135-36 (Carroll); Mack Dep. at 237-38. In words provided to professional Scout Executives as guidance on how to articulate the "national position statement on homosexuality," "[t]he BSA's position is unyielding." Ex. C508 at 1023. "[E]xceptions to the national policies of the BSA [on this issue] are not granted." Ex. C512 at 1029. Indeed, former BSA President Richard Leet had initially sought to emphasize the extent of local control in the Boy Scouts generally, see Tr. 2463-65; but, when asked about a resolution of a troop that opposed the Boy Scouts' policy, he stated flatly, "[y]ou know, a Troop is not an organization that is part of a policymaking chain." Tr. 2548.

80. The Boy Scouts have no general policy of excluding persons who engage in adultery or premarital sex and the Boy Scouts do not generally police the sexual conduct of heterosexuals. Teare Dep. at 82-84; Tr. 341 (Jones); Hill Dep. at 67-69; Carroll Dep. at 150-155. As James Kay, a scout executive who had over 27 years of experience as a professional in several councils in the Northeast Region, Kay Dep. at 4-6, testified at deposition:

* * * *

A: I'm not aware of that.

Kay Dep. at 121; accord Hill Dep. at 67.

81. There is no one who recalls any adult being denied membership in the NCAC on the grounds of adultery or premarital sex. Carroll Dep. at 172-73; Bond Dep. at 142. Heterosexuals have routinely been permitted to stay in Scouting even though they openly engage in sex outside of marriage, and without regard to whether they engage in sexual practices that might violate a sodomy statute. Tr. 342-43 (Jones); Tr. 588-90 (Press). The Boy Scouts have active outreach programs to encourage participation in Scouting by single parents, irrespective of the circumstances under which their children were born. Tr. 342 (Jones). The Boy Scouts do not kick out boys who have experience with sex; it is not part of the program. Tr. 400-01 (Jones).

82. The Boy Scouts do not have a general policy of excluding heterosexuals who believe that homosexuality is moral -- even if they publicly avow such a belief or, for example, march in a gay and lesbian parade. Tr. 1306-09 (Thomas); Teare Dep. at 85-86; Mack Dep. at 241-45; Kay Dep. at 126-27; Fullman Dep. at 36-37. See also Tr. 1718-20 (Wolfe); Cahn Testimony at 85-86, 88-89; Ex. C506 at NCAC5460 (discussing Boy Scouts' reaction to a troop that passed a resolution denying that homosexuality is immoral or relevant to Scouting); Rice Testimony at 248-52 and Exs. C1230-C1232. See also Tr. 2470 (Leet) (heterosexual adults only removed if they make the Boy Scouts' policy on homosexuality an issue with youth).

83. If a youth comes to a Scoutmaster and admits to doing wrong, like stealing, lying, cheating or vandalizing, the normal procedure is to counsel the youth privately and sympathetically. Ex. C727 at 6927-6932. If the youth admits to being a homosexual, the Boy Scouts' policy is to instantly terminate his association with Scouting. Teare Dep. at 88-89; Mack Dep. at 231-32.

84. As Mr. Bond, the District Executive who terminated Roland Pool's association with Scouting, testified:

Bond Dep. at 138.

85. The contrast between the Boy Scouts' treatment of homosexuals and heterosexuals is amply illustrated by the files maintained by the NCAC involving the possible removal of individuals from Scouting. Of the ninety-nine (99) files maintained by the NCAC and produced to complainants in discovery, seven (7) files involved individuals identified as or alleged to be homosexuals. (NCAC File Nos. 19, 25, 33, 58, 74, 77, and 89). All seven (7) of these individuals (including Mr. Pool and Mr. Geller) were told to sever all of their ties with the Boy Scouts. Id. The NCAC forwarded the files on all seven (7) of these individuals to Irving, Texas for inclusion in the Ineligible Volunteer File. Id. In most instances, the NCAC took action to sever these individuals from the Boy Scouts within one or two days of learning of their homosexuality. Id.

86. In contrast, none of the ninety-nine (99) individuals in the NCAC files were terminated from the Boy Scouts for adultery or pre-marital sex. For example, NCAC File No. 38 involves a letter dated March 8, 1993 to Steven Montgomery, alleging that an adult leader was openly engaged in an adulterous affair and had confessed to several other affairs with a number of women over the past several years. NCAC File No. 38. A number of Boy Scouts in his troop had seen him with other women. Id. The NCAC took no action in response to this letter until June 15, 1993, more than three months later, at which time Mr. Montgomery forwarded the letter to Carl Gell, the Head of the Membership Committee, for discussion. Id. The file reflects that, following a discussion between Mr. Montgomery and Mr. Gell, the NCAC decided that no action was required. Id. The person who had openly engaged in an adulterous affair did not receive any correspondence asking him to sever all ties with the Boy Scouts, and his file was not forwarded to Irving, Texas to be placed in the Ineligible Volunteer File. Id.

87. NCAC File No. 23 further demonstrates that the Boy Scouts treat heterosexual issues far differently than homosexuality. The individual involved in NCAC File No. 23, while working at a Boy Scout camp within the NCAC, allowed scouts to distribute pornographic magazines among themselves and encouraged various sexual pranks. Id. at NCAC9341, NCAC9360-63. The individual had his membership reinstated on appeal. Id. at NCAC9349. The file materials establish that, at various staff meetings, the camp supervisors affirmatively allowed staff people over age 18 to have pornographic magazines in their possession while at camp. Id. at NCAC9360.

88. Because the Boy Scouts refused to produce in discovery any materials from the Ineligible Volunteer File (other than those of complainants and the witnesses at the hearing, whose files were produced following a specific order of the Commission), the Boy Scouts were not allowed to produce any Ineligible Volunteer Files into evidence at the hearing. The Boy Scouts proffered two Ineligible Volunteer Files purportedly demonstrating instances of suspension for heterosexual sexual immorality. Exhibit R179 (not introduced into evidence). The Boy Scouts' proffer does not support any conclusion that the Boy Scouts require individuals who commit adultery or pre-marital sex to sever their ties with the Boy Scouts. One of the two proffered files involves an individual who had engaged in group sexual encounters and had published a group-sex magazine known as "The Swinging Star," in which his picture appeared. Id. The second file involved an attorney who was suspended from the practice of law for two years for violation of ethical standards by initiating or attempting to initiate sexual relationships with eight (8) female clients and by filing false instruments in a divorce case. Exhibit R179 at NCAC0012414 (not introduced into evidence). Thus, the Boy Scouts' proffer only highlights the contrast between the extraordinary conduct required before the Boy Scouts will exclude heterosexuals from Scouting and the automatic, status-based exclusion of homosexuals without regarding to conduct.

89. The uncontradicted evidence of record is that Roland Pool and Michael Geller were eminently qualified to continue their involvement in Scouting, and that those who would have worked with them -- Michael Geller's troop and council and the Commissioner staff of the Banneker District for which Roland Pool was trained -- were more than happy to have these individuals participate in Scouting. Tr. 142 (Geller); Tr. 371-74, 408 (Jones); Tr. 533-34, 591-94 (Press); Tr. 1973 (Kirkner). The Boy Scouts have not provided any evidence to contradict the clear evidence that the only reason these individuals were excluded from Scouting was because they are homosexual.

90. The Boy Scouts' policy of excluding homosexuals is as extraordinary in its implementation as it is extreme in its terms. Unlike scores of other policies implemented by the Boy Scouts on matters large and small, the exclusion of homosexuals from Scouting cannot be found, or even fairly inferred, from the thousands of pages of program materials, training materials, manuals, brochures, pamphlets, volunteer recruitment materials, or financial solicitation materials routinely given to Scouts, Scouters, prospective members or parents as an expression of the aims or methods of Scouting. To the contrary, these materials contradict the inference that such a policy would exist.

91. Instead, the policy can be found in public relations statements, distributed primarily to professionals for their use if called by the press. Because it is not part of the program to discuss homosexuality or the Boy Scouts' policy excluding homosexuals, and because these public relations statements were not distributed to volunteers, Scouters with scores of years of Scouting experience had no clue for years that the Boy Scouts excluded homosexuals and, to this day, only know of the policy through what they read in the press.

92. What they read, however, is hopelessly confused. The various policy statements the Boy Scouts have issued cannot be reconciled either with each other, or with the Boy Scouts' practices, or with their own professionals' understanding of the policy or practice. Indeed, even the Boy Scouts' chosen representatives do not articulate the policy either consistently or coherently.

93. It is no part of the program of the Boy Scouts to discuss homosexuality or sexual practices or their morality. Teare Dep. at 86; Tr. 322-23, 390 (Jones); Tr. 1712, 1760-61 (Wolfe); Tr. 538-40 (Press); Hayes Dep. at 80; Kay Dep. at 125.

94. The Boy Scouts do not discuss their policy of excluding homosexuals when they recruit either youth or adults to become members, Hill Dep. at 85, 88, Tr. 322, 399-400 (Jones); Carroll Dep. at 87-88, 113-114; Mack Dep. at 145-47; Kay Dep. at 100, or generally when they speak to prospective sponsors. Mack Dep. at 51-52; Kay Dep. at 100. As stated by Azzie Mae Hill, a former District Executive Multiple Persons in the Banneker District, when asked whether parents of prospective scouts are told about the exclusion of homosexuals when they attend "Join Scouting Night" recruitment activities, "we don't ever bring that out." Hill Dep. at 85. Applicants are not told anything about this policy, unless they ask. Hill Dep. at 143-50.

95. The Boy Scouts do not discuss homosexuality or its morality at the Boards of Review -- the reviews for possible advancement in the ranks of Scouting, where Scout leaders meet with Scouts to discuss "very thoroughly" the Scout Oath, the Scout law, and the Scout's efforts to live up to these ideals. Tr. 1709-10 (Wolfe).

96. The Boy Scouts do not mention the policy of excluding homosexuals when they provide training for adult volunteers or youth. Tr. 322, 425-26, 431-33 (Jones); Tr. 539-540 (Press); Fullman Dep. at 20, 23; Rice Testimony at 240-42; Cahn Testimony at 79, and, if it does come up, it is in the context of telling Scout leaders not to mention homosexuality unless someone else brings it up. Hill Dep. at 27, 85-87, 140-41.

97. The policy of excluding homosexuals is not articulated at various Boy Scout events where Scouting values are discussed. Tr. 152-154 (Carroll); Carroll Dep. at 102-07, 113-114.

98. The Boy Scouts have monthly round tables at which adult scout leaders discuss matters of importance to their operation; but it is not a part of these meetings to discuss the role of homosexuals in Scouting. Hill Dep. at 137, 139.

99. The Boy Scouts' policy of excluding homosexuals is never mentioned as part of fundraising efforts. Tr. 1157-1158 (Carroll); Carroll Dep. at 102-107, 113-114. Tr. 1704 (Wolfe); Tr. 393-94 (Jones).

100. The Boy Scouts run a Learning for Life program in public schools, in which they bring "`Scouting values to an otherwise hard-to-reach population." Ex. C1312 at NCAC2060. See also, e.g., Mack Dep. at 57 ("[Learning for Life] is an educational program that was designed for school participants so that they might enjoy the benefits of the Boy Scout program of values and ethical decisionmaking"); id. at 76-78; Ex. C1134 at NCAC4889. For some five years they required adult leaders in that program to promise to uphold the Scout Oath and Scout Law without ever telling them, or the school districts, that they were making any statement about their sexual orientation or the morality of homosexuality. Tr. 1118-19 (Carroll).

101. The Boy Scouts' program is as careful and conscious about articulating the principles the Boy Scouts seek to instill as any organizational program imaginable. "Few organizations have such an abundant reservoir of manuals, guidebooks, pamphlets and training tools available for their leaders as does the Boy Scouts of America." Ex. C909 at NCAC360. The Boy Scouts routinely provide volunteer scout leaders with policies on matters such as "two-deep leadership," aquatic safety, use of alcohol and tobacco, first aid, accommodating religious practices, themes for scouts meetings, national and council initiatives, recruitment, fundraising, program activities, camping procedures and facilities, merit badge requirements, scouting awards, proper wearing of uniforms, ceremonies and scores of others, and have detailed the aims, principles and methods of Scouting in tens of thousands of pages of material. Tr. 534-71 (Press). See, e.g., Exs. C313; C900, and generally, Exs. C1400-1420 (fundraising materials).

102. The Scout Oath, the Scout Law, the Scout Motto and Scout Slogan do not mention homosexuality. Ex. C700 at 5-9; Hill Dep. at 27. Although the Boy Scouts provide extensive explanations of these principles of Scouting in the Scout Handbook, and inform Scouts that these explanations are to help them understand what they are promising to uphold, Ex. C700 at 550; Mack Dep. at 43-44, there is nothing in these explanations, Ex. C700 at 550-63, or anywhere in the entire Scout Handbook, id., or in previous versions of the Scout Handbook, Ex. C714 at 14-16; Ex. C716 at 7824-7826; Ex. C717 at 1560-1562; Ex. C718 at 2182, 2189, 2194-2195; Ex. C719 at 2802-2803, 2809-2810; Ex. C720 at 38-39, 43, 50-51; Ex. C212 at 38-51; Ex. C119 at 30-41, that mentions homosexuality or its morality. Indeed, the Scout Handbook has a section on sexual responsibility, Ex. C700 at 527-28, which does not address homosexuality. Tr. 1947-54 (Kirkner); Bond Dep. at 141-42.

103. When the Boy Scouts excluded women from leadership positions, they told Scoutmasters and troop committees about it in the training materials. Ex. C900 at A1066-67. When the Boy Scouts speak of the requirement that individuals swear to uphold a duty to God, they speak of it "proudly" and cite their bylaws and editions of the Boy Scout Handbook, old and new, to reflect that policy. Ex. C607 at NCAC8133.

104. Yet, the Boy Scouts cannot point to anything among these materials that discusses the general exclusion of homosexuals from Scouting, much less explains any reason why excluding homosexuals would be basic to Scouting. See Tr. 538-40 (Press). Unlike the exclusion of atheists, the exclusion of homosexuals is, to the Boy Scouts, an embarrassing negative that does not affirmatively promote Scouting. Teare Dep. at 81; Carroll Dep. at 88.

105. Indeed, despite being in litigation over the exclusion of homosexuals since 1981, the Boy Scouts' publications issued as part of their program both before 1981, and in the 17 years since, belie the notion that excluding homosexuals is an aim or method of Scouting. The Boy Scouts' program materials articulate, over and over again, principles of tolerance. In the Scout Oath, a Scout promises to do his best "[t]o do my duty to God." This duty, however, specifically means following one's own conscience on religion, and it is as important to respect the religious beliefs of others as to be true to one's own religion. As the Scout Handbook explains:

Ex. C700 at 550; Tr. 1976-78 (Kirkner); Tr. 328 (Jones). See also, e.g., Ex. 112 at 67; Ex. 113 at 70, 72; Ex. 118 at 36, 51.

106. When the Scout Oath refers to doing a duty to "my country," it refers to obeying its laws. Scouts are advised to "[h]elp keep the United States strong by obeying its laws." C700 at 550. As far back as 1915, the Boy Scouts told youth that obeying laws meant standing for "equal opportunity and justice":

Ex. C715 at 737 (Handbook for Boys, 2d ed.); Tr. 1978 (Kirkner). The Boy Scouts have repeated that message countless times since. See, e.g., Ex. C716 at 7814, 7818-20, 8071, 1974; Ex. C717 at 1480; Ex. C718 at 2189; Ex. 719 at 2736; Ex. 727 at 6905; Ex. C1136 at NCAC2930.

107. The Scout Oath says that a Scout is supposed "to help other people at all times." The Scout Handbook explains these words as follows:

Ex. C700 at 551; Ex. C722 at 7230. "Helping others" is the antithesis of putting people down. Tr. 335-36 (Jones).

108. The Scout Handbook informs Scouts in discussing the term "mentally awake" that "with an open attitude and the willingness to ask questions, you will get the most out of your life." Ex. C700 at 551.

109. The Scout Handbook defines the words "morally straight" in the Scout Oath as follows:

Ex. C700 at 551. See Tr. at 336-37 (Jones). See also, e.g., Ex. 118 at 37; Ex. C720 at 3610 ("your conscience speaks to you about your relationships to other people -- respecting their rights, treating them justly, giving them a fair chance.").

110. The first point of the Scout Law, that "A Scout is Trustworthy," makes honesty part of a Scouts' "code of conduct," and requires a Scout to be true to himself. Ex. C700 at 553-54; Tr. 324 (Jones).

111. The third point of the Scout Law, "A Scout is Helpful," includes being concerned about other people and doing a good turn. Ex. C700 at 554; Tr. 324-25 (Jones).

112. The Boy Scouts describe the fourth point of the Scout law, "A Scout is Friendly," as follows:

Ex. C700 at 555 (underlining added; italics in original); Tr. 325-28 (Jones); Tr. 1382-84 (Turner). See also, e.g., Ex. 113 at 9-11 (fairness and friendliness part of Cub Scout promise); Ex. 114 at 297 (same); C115 at 7 (spirit of Order of Arrow is one of "brotherhood"); Ex. C118 at 42; Ex. 718 at 2189; Ex. 719 at 2803; Ex. 720 at 43.

113. In describing the sixth point of the Scout Law, "A Scout is Kind," the Boy Scouts tell Scouts to "[t]ake time to listen to the thoughts of other people," to "[i]magine what it would be like if you were in someone else's place," to be "kind to people you don't know or don't understand, and to people with whom you disagree," and that "compassion for all people is a good antidote to the poisons of hatred and violence." Ex. C700 at 555-56; Tr. 328-29 (Jones). See Tr. 1978-81 (Kirkner).

114. In discussing the seventh point of the Scout Law, "A Scout is Obedient," the Boy Scouts say that a Scout "obeys the laws of his community" and city, Ex. C700 at 557 -- laws that in this city includes the District of Columbia Human Rights Act. The Boy Scouts also teach boys that "you must also trust your own beliefs and obey your conscience when you know you are right." Id.

115. The Boy Scouts' discussion of the tenth point of the Scout Law, "A Scout is Brave," tells Scouts "[y]ou are brave every time you do what is right in spite of what others might say." Ex. C700 at 561; Tr. 331-32 (Jones).

116. The eleventh point of the Scout Law is "A Scout is Clean." The Boy Scouts' discussion of this point explains:

Ex. C700 at 561 (emphasis added).

117. The final point of the Scout Law, "A Scout is Reverent," reiterates the basic philosophy of being true to one's own religion and respectful of others. Again, in the Boy Scouts' words:

C700 at 561.

118. The Scout Slogan, "Do a Good Turn Daily," Ex. C700 at 9, is "the essence of Scouting." Ex. C722 at 219 (Bates 7412); Tr. 315-16 (Jones); Ex. C709 at 8222; Ex. C714 at 10; Ex. C715 at 744; Ex. C716 at 7818-20; Ex. C717 at 1481; Ex. C726 at 6056. The BSA traces its origin to a "good turn" done by a Scout in England who assisted William Dixon Boyce through a fog and refused to accept any money for it. Ex. C700 at 579-80; Tr. 314-16.

119. The Boy Scout uniform is intended as a way of showing that scouts are "equals in the spirit of brotherhood." C700 at 566.

120. The Boy Scouts proudly quote Lord Baden-Powell in saying that, "[o]ur aim is to give equal chances to all and to give the most help to the least fortunate." Ex. C910 at NCAC486. They tell Scouts to understand and to explore the meaning of the words of Reverend Martin Luther King, Jr., when he said that "[i]njustice anywhere is a threat to justice everywhere," Ex. C700 at 465, of Abraham Lincoln when he said that "[a]s I would not be a slave, so I would not be a master," id., of Susan B. Anthony when she said, "[m]en, their rights and nothing more. Women, their rights and nothing less," id., and Henry David Thoreau when he said that "[i]f a man does not keep pace with his companions, perhaps it is because he hears a different drummer." Id. See also, e.g., Ex. C1136 at NCAC2930 ("The BSA endeavors to develop American citizens who . . . have a keen respect for the basic rights of all people. . . ."). See also Ex. C703 at 1 (Boy Scout Fieldbook citing Walt Whitman with approval).

121. The Explorer Code requires that each youth pledge that, "I will recognize the dignity and worth of all humanity and will use fair play and goodwill in my daily life." Ex. C919 at 9810. Explorer materials similarly advise adult leaders to treat "[e]ach young man and woman as an individual -- different, unique, special. Young people are not a class you can put quick labels on or classify into stereotypes." Id. at 9815.

122. "Ethics in Action" uses intensive exercises designed to teach cub scouts that it is wrong to discriminate against people, that people must be treated as individuals and that differences among people should be celebrated. Ex. C709, esp. 8216-20, 8242-44; Tr. 1955-65 (Kirkner). Among the definitions the Boy Scouts provide for use in that program are:

C709 at 8244 (Page 11-30); Tr. 1958-61 (Kirkner); Hill Dep. at 153-54.

123. The BSA touts Ethics in Action as having "brought Scouting's ideals to life in den and home settings," Ex. C1305 at NCAC5528, as "directly respond[ing]" to Boy Scouts' mission statement, Ex. C710 at A1548, and as "teaching today's young people how to apply the[] abstract ideas [of the Scout Oath and Scout Law] in everyday situations." Ex.C710 at A1549. The Boy Scouts include Ethics in Action as part of Cub Scout Leader Basic Training, Ex. C1306 at NCAC1903, and advise leaders that "Ethics in Action activities may be the most important thing you do for the boys in your pack." Ex. C313 at A1257.

124. Boy Scouting's version of Ethics in Action is called "Youth's Frontier." It, too, teaches principles of honesty, fairness and respect for others with messages like "[i]f you punish a child for being honest, the child learns quickly not to do that again," and "[t]o treat someone unfairly is to say, `You don't have the same rights as others.'" Ex. C707 at NCAC3468-69; Tr. 1964-65 (Kirkner). The Boy Scouts use Youth's Frontier as part of its Scoutmastership Fundamentals training, Ex. C900 at A993, and its wood badge training, Ex. C912 at NCAC3330, and instructs Scoutmasters to give new Tenderfoot Scouts a copy of "Youth's Frontier" and to look through these program materials with them. Ex. C701 at 103.

125. Explorer leaders are also taught to use "ethics in action" and to have youth "formulate their own value systems." Ex. C919 at 9817.

126. The Learning for Life program similarly teaches "moral and character development," Ex. C1002 at 15668, with lessons on "race, religion and culture," "respecting differences," and "respecting my peers." Id. at 15774-15781. "Through Learning for Life, [the Boy Scouts] plan to instill in youth the importance of respecting the rights of all people. . . ." Id. at 15669 (emphasis in original). For example, the Boy Scouts teach that, if students "are surrounded by people who are prejudiced against others or intolerant of persons with differences, students will tend to reflect those prejudices." Id. at 15774. Tr. 2536 (Leet).

127. The Seventh Edition of the Scoutmaster Handbook in use between 1980 and 1989, immediately before the Boy Scouts began publishing the current version, recognizes that the question of what is "moral" is one that must be addressed to a boy, his parents and his religious leaders, not something that the Boy Scouts dictates

Ex. C727 at 6907-08. See also, e.g., C919 at 9817, 9855-59, 9901 (Explorer Leader Handbook recognizing the need for explorers to "formulate their own value systems," and to have "constructive controversies" in order to appreciate the perspectives of others).^**/

128. Consistent with this definition of "moral fitness," the Boy Scouts both historically and repeatedly have avoided dictating to Scouts what "moral" views Scouts should take on issues on which reasonable people differ -- and in particular on sexual morality. As the witnesses attested, even in conversations between a Scout and Scoutmaster, the Boy Scout approach to counseling is to "refrain[] absolutely from giving advice," and instead "to listen, and to support and encourage the boy being counseled to think out his needs and goals and solve his own problems." Ex. C727 at 6941; Ex. C912 at 3356-61. Tr. 338 (Jones); Tr. 768-769 (Pool); Tr. 1058-1060 (Horne).

129. The Boy Scouts tell Scoutmasters, "[y]ou do not undertake to instruct Scouts, in any formalized matter in the subject of sex and family life. The reasons are that it is not construed to be Scouting's responsibility, and you may not be qualified to do this." Ex. C727 at 6934. Because "Scouting believes that boys should learn of sex and family life from their parents, consistent with their spiritual beliefs," Ex. C900 at 994-95, Scoutmasters are to "respect the right of parents to teach their sons about life," and to "refer boys with sexual problems to persons qualified to handle them." Ex. C727 at 6934.

130. In the seventh edition of the Scoutmaster Handbook, the Boy Scouts made it clear that, even in the situation where a Scout of 15 or older is attempting to make sexual contact with other boys in the troop, the Scoutmaster is not supposed to tell the Scout that homosexuality is immoral, or to remove the Scout permanently from Scouting; rather, the Scoutmaster is supposed to "[a]ssist [the scout] in securing professional help." Id. at 6935.

131. The "sexual curiosity" discussion of the current eighth edition of the Scoutmaster Handbook dispenses with even this discussion in favor of a general instruction that Scoutmasters are to "[a]ccept all youth as they are. Your acceptance will reassure them that they are normal." Ex. C701 at 164.

132. These excerpts are fully consistent with dozens of references in the Boy Scout literature that reiterate the longstanding view of Scouting that Scouting should be open to all and that issues of personal, religious, and, in particular, sexual morality are matters to be addressed by parents and religious leaders and not dictated by the Boy Scouts. See, e.g., Ex. C714 at 9, 250; Ex. 715 at 737-38, 742-43, 1002-03; Ex. C716 at 530 (Third ed., 1927, referring to the "five basic moral laws of standards" as "The Law of Truth (no falseness)", "The Law of Honor (consciousness of living in truth)", "The Law of Justice (Fairness -- truth in action)", "The Law of Duty (The return ticket from privilege)" and "The Law of Love (Brotherhood, courtesy -- good will to all)."

133. Thus, Mr. Carroll testified that, even in a situation where a Scout privately reveals his homosexuality to a Scoutmaster, it is still not the place of the Scoutmaster to inform the Scout that homosexuality or its conduct is immoral. Tr. 1220-21 (Carroll). Whether in private or in public, a Scoutmaster is certainly not expected to discuss his/her own sexual orientation or conduct with a Scout. Tr. 1077-78 (Horne).

134. In short, an extensive study of thousands of pages of Boy Scout literature and the testimony about the implementation of the Scout program leads inexorably to the conclusion that views on the morality of homosexuality are not part of the message Scouting seeks to convey to Scouts. As James Kay, a Scout Executive with 27 years of professional experience, testified:

* * * *

Kay Dep. at 101.

135. Although the Boy Scouts have sought to suggest that at least at some period of time, the members of the Executive Board knew of and supported the Boy Scouts' policy concerning the exclusion of homosexuals, and the Commission will assume that this is correct, the Boy Scouts concede that its Executive Board never adopted a resolution on the policy and that, if there is anything reflected concerning this policy in the minutes of the National Executive Board, it appears in a privileged discussion with attorneys. Ex. C1507 at 42-48; Tr. 2473-74, 2479-80. More importantly, the only written materials reflecting the policy are two 1978 memoranda and "Position Statements" generated for media relations purposes in the 1990s.

136. According to the Boy Scouts' interrogatory responses, the "earliest document of the Boy Scouts which mentions homosexuals specifically is a March 17, 1978 Memorandum." Ex. C1501 at 17 (Resp. to Int. 17). Actually, Ex. C500 is a memorandum dated February 13, 1978 from the BSA's Director of Public Relations to Scout Executives on the subject of "Homosexual Unit Members." A second memorandum is dated March 17, 1978. Ex. C501.

137. The February 13, 1978 and March 17, 1978 memoranda are the first documents that purport to set forth a Boy Scouts' policy concerning homosexuals, to set out procedures for implementing such a policy or to articulate the reasons for such a policy. Neither of these memoranda purported to reaffirm any historic policy. Both state that they were issued in response to inquiries asking that the BSA express "its official position to the field" on, among other things, the appointment of homosexual volunteer and professional leaders. Exs. C500, C501.

138. In these memoranda, the Boy Scouts answered "no" to the question of whether "an individual who openly declares himself to be a homosexual" can be a volunteer Scout leader, Ex. C501 at NCAC2521, and then adopted procedures that went beyond persons who had made open declarations. The Boy Scouts informed professionals that when situations arose involving homosexuals they should use procedures from "Maintaining Standards of Leadership," id. at NCAC2523 -- a document that explains how to investigate and to exclude persons from Scouting when they are alleged to be involved in crimes, child molestation or other offenses, see Exs. C600-01; C603-04; C1505 ¶ 5; C1506 ¶¶ 4, 6. The March 17, 1978 memorandum also explained that, "in the event that an individual involved in Scouting is alleged to be a homosexual":

Ex. C501 at NCAC2523 (emphasis added).

139. The only reasons these memoranda provided for investigating persons alleged to be homosexuals, or excluding them from Scouting, were that the BSA "is a private membership organization and leadership therein is a privilege and not a right"; that "[w]e do not believe that homosexuality and leadership in Scouting are appropriate;" and that "[w]e will continue to select only those who in our judgment meet our standards and qualifications for leadership." Ex. C501 at NCAC2521; see Ex. C500.

140. There is no suggestion in these documents -- or, as it turns out, in any Boy Scout document pre-dating 1991 -- that the reason homosexuals are inappropriate for Scouting is that homosexuality is contrary to the Scout Oath or the Scout Law, or that homosexuals cannot be appropriate role models, or that homosexuality contradicts some concept of "traditional family values" that is supposed to be part of Scouting, or even that the Boy Scouts would take the position that, in the event a law were found to apply to them, they have a constitutional right to discriminate where others do not. To the contrary, the March 17, 1978 memorandum states:

Ex. C501 at C2522 (emphasis added).

141. What little there is on the Boy Scouts' policy between 1978 and 1991 reinforces the conclusion that the various rationales eventually proposed by the Boy Scouts in litigation in an attempt to justify this policy are post hoc. In 1981, as part of Curran v. Mount Diablo Council of Boy Scouts, litigation over the exclusion of a gay Scout leader in California, the BSA's legal counsel, David Park, sent a letter to individuals identified as being registered with the Boy Scouts as of 1916 in an effort to demonstrate that there had always been a BSA policy of excluding homosexuals. Ex. R152. As evidence that such a policy in fact existed, the letter and the affidavits he received are of no value. The letter sought to predetermine the conclusion by informing the affiants, "You may have read in the paper recently that the Boy Scouts of America has been sued by an individual in California to compel the organization to admit homosexuals. As you know, it has always been our policy to exclude homosexuals. You were a registered member of the Boy Scouts of America and undoubtedly are familiar with this policy." And the Boy Scouts have provided no evidence from which to conclude whether the Boy Scouts needed to send letters to tens, hundreds, thousands, or even tens or hundreds of thousands of people before obtaining the handful of form affidavits they filed.

142. The letter and affidavits are, however, instructive in what they do not say about the Boy Scouts' policy. The legal counsel of the Boy Scouts and the form affidavits declared that the policy applied to "homosexuals" -- not known homosexuals, not avowed homosexuals. They make no suggestion that the policy is based on the Scout Oath or Scout Law. They do not suggest that the policy reflects concerns about role models. They make no mention of traditional family values.

143. It is not until at least two years later, according to an unidentified single-page document, that the legal counsel expressed the opinion that "[a]vowed or known" homosexuals are to be excluded from Scouting. Ex. C502. And this statement still contains no rationale for the policy and reaffirms that, although the BSA "does not knowingly employ admitted homosexuals in its professional or clerical staffs," the organization "does comply with all applicable laws." Id.

144. As late as November 1989, the Boy Scouts were indicating, with respect to employees, that it was the policy of the councils to "offer equal employment opportunity . . . on the basis of qualifications and ability without regard to race, color, national origin, sex, age, religion, handicap . . . or any other criterion prohibited by applicable law." Ex. C2000 at A1556 (Emphasis added). The BSA did not even require professional employees to subscribe to the Scout Oath or Scout Law, only to "the Declaration of Religious Principle, a fundamental precept of Scouting." Id. And it cautioned that "[t]otal and continued adherence to this employment policy will guarantee compliance with the various laws against discrimination." Id.

145. In the meantime, the Boy Scouts avoided numerous opportunities to articulate a policy of excluding homosexuals to the Scouts or volunteer Scouters (i.e., adults) who were supposed to be implementing its program. For example, during the 1980s, as part of Scoutmastership Fundamentals, a required training course for adult troop leaders, the Boy Scouts informed leaders of numerous policies, including the Boy Scouts' policy (changed in 1988, see Ex. C607 at A8122) of excluding women from being Scoutmasters, Assistant Scoutmasters, Webelos Den Leaders, Assistant Webelos Den Leaders and certain other leadership positions. Ex. C900, esp. at A1066-67. However, the Boy Scouts sent nothing to its members about a policy of excluding homosexuals and, apparently, prepared no statements for the press about the policy either.

146. In the early 1990s, however, the Curran case went to trial, the policy of excluding homosexuals received large amounts of publicity, see Tr. 828-30 (Church), and the BSA's expressions of its views on homosexuality shifted from an approach of almost total silence to an extensive public relations campaign.

147. The Boy Scouts are an intensely public-relations (and especially media-relations) conscious organization. See Exs. C518, C519, C520, 522, 523; Ex. C607 at NCAC8118; Teare Dep. at 112-14; Lewis Dep. at 119-22 (discussing Ex. C518); id. at 161-62 (discussing Ex. C519); Carroll Dep. at 125. The Boy Scouts consider media relations to be "the art and science of systematically building and maintaining favorable contact with reporters and other members of the news media." Ex. C520 at NCAC5581; C518 at NCAC2812.

148. The BSA looks upon "promoting positive messages about Scouting" as one of the areas that is "critical to growth and a quality Scouting program." Ex. C1307 at NCAC3428, NCAC3438, 3441, and touts its success in obtaining "positive public relations" as a routine section of its annual reports. See, e.g., id.; Ex. C1308 at NCAC1943-45; Ex. C1309 at NCAC1983-85; Ex. C1310 at NCAC at 20-23. The Boy Scouts actively look for opportunities to "shap[e] the public's perception of the Boy Scouts of America," Ex. C520 at NCAC5578, and to "[p]osition the BSA as the credible, leading expert on the subject of youth development." Id. at NCAC5580 (emphasis in original).

149. As part of its public relations efforts, the BSA advises professional Scout Executives that "[e]very favorable news story about Scouting reinforces the BSA's image as a positive force in the lives of young people. So too, then does a negative story hinder the way Scouting is perceived by the public." Ex. C518 at NCAC2812.

150. Accordingly, the Boy Scouts aggressively train their professional staff so that they can "truly `win' in interview situations." Ex. C519 at NCAC2796; Teare Dep. at 58-59. The Boy Scouts advise designated council spokespersons that they have "a crucial role in shaping the image of Scouting; don't forget to BE PREPARED." C520 at NCAC5609; Tr. 672 (similar language transcribed from Ex. C522).

151. According to the BSA, "[l]ack of direction during an interview can spell disaster for the image of both Scouting and the local council. Thus, it is critical to be clear on what will be said before an interview occurs." Ex. C520 at NCAC5580. The Boy Scouts consider "[t]he most important lesson you can learn from this training is that interviewing is not a passive experience. YOU MUST SET AN AGENDA FOR THE INTERVIEW AND COMMUNICATE IT EFFECTIVELY TO THE REPORTER." Ex. C519 at 2796 (emphasis in original). Designated Boy Scouts spokespersons are supposed to "[c]ontrol the interview," id. at 2797; Ex. C520 at NCAC5586, and to use "bridging," defined as "making your point no matter what the question." Tr. 636 (transcribing Ex. C522). See also, e.g., Ex. C520 at 5586.

152. In order to be confident about the agenda that would be used at such interviews, the BSA developed a series of position statements about "issues" perceived to be national in importance. Ex. C520 at NCAC5586; Teare Dep. at 130-31; Mack Dep. at 191-94, 205-08, 224-25. According to the Boy Scouts, "[a]n issue is a significant focus of attention on a policy, value or standard of Scouting." Ex. C520 at NCAC5580 (emphasis in original). The Boy Scouts distinguished an "issue" from a "crisis," in that an issue "routinely emerges over a relatively long period of time, generally measured in weeks, months, or frequently, even years," whereas as a "crisis is an immediate and intense focus from the media, and ultimately the public, on a particular activity or event," that "develops unexpectedly over a relatively short period of time, generally measured in hours or days." Id. at NCAC5580-81 (emphasis in original).

153. By the early 1990s, homosexuality had become one of the "issues" perceived by the BSA as receiving a "significant focus of attention," Ex. C520 at NCAC5580; Teare Dep. at 66, and the potential that a Scout leader might "declare[s] his homosexuality to the media and proceed[s] to publicly condemn the BSA's position on the six o'clock news and the front page of the local newspaper," became the Boy Scouts' example of a "crisis." Id. at NCAC5581.

154. The Boy Scouts issued a series of position statements, Q&As and media training materials designed to inform designated spokespersons at the national and council level what to say about the Boy Scouts' policy on homosexuals in Scouting. Exs. C503-523; Teare Dep. at 130-31. These were updated or reissued when the Boy Scouts determined that its position was not well understood in the media. Lewis Dep. at 139-40.

155. These position statements on excluding homosexuals were not drafted by the program divisions of the BSA -- the Cub Scout Division, the Boy Scout Division or the Exploring Division, who draft the various manuals and guides for their respective programs, Teare Dep. at 23; they were drafted by a public relations firm hired by the Boy Scouts, Edelman Worldwide, with help from the Boy Scouts' office of External Communications -- the internal office that deals with how the Boy Scouts relate to the public. Lewis Dep. at 27, 34-35, 130, 141-42; Teare Dep. at 126, 135-36; Tr. 2543-44 (Leet). For years, the Boy Scouts have designated an Edelman employee as its "national spokesperson" and empowered that spokesperson to speak for its National Board. Teare Dep. at 56-57; Lewis Dep. at 18-20; Ex. C519 at NCAC2806; Tr. 622 (transcribing Ex. C522).

156. The BSA informed Scout Executives or their designated local spokespersons that they should:

Ex. C520 at NCAC5586; id. at NCAC5591 (communicate facts "consistently, in accordance with local and national position statements.").

157. The BSA repeatedly instructed that copies of the various position statements were never to be given to reporters or to other media staff. Tr. 629-30 (transcribing Ex. C522); Ex. C520 at NCAC5587; Ex. 607 at NCAC8118. Council spokespersons were also told that "[i]f the interview centers around a National policy or issue, refer the reporter to BSA Public Relations. Speak on National issues only to the extent of your Council's involvement in that policy or issue." Tr. 634-35 (transcribing Ex. C522). And the BSA added:

C520 at NCAC5590.

158. On "2/15/91" and "6/6/91," the BSA's National Office and its public relations firm issued, in different typeface, otherwise identical documents entitled "POSITION STATEMENT HOMOSEXUALITY AND THE BSA." Exs. C503; Ex. C504. These statements read:

Ex. C503; Ex. C505.

159. In a Questions and Answers document that is dated 2/15/91, the Boy Scouts reiterated the 1978 statement concerning their determination to investigate allegations of homosexuality "in a discreet and responsible fashion," Ex. C504 (Q&A 5). They also avoid any statement about the Boy Scouts' position on the morality of homosexuality:

Ex. C504 at NCAC2596.

160. The words, "the Boy Scouts of America does not accept homosexuals as members or as leaders, whether in volunteer or professional capacities," contain no qualification to the definition of whom the Boy Scouts are excluding. These 1991 position statements explain that the Boy Scouts are excluding all homosexuals, not merely those who are "known" or "avowed" or only those engaged in any conduct.

161. These 1991 position statements also contain a wholly new series of purported reasons for the Boy Scouts' policy. These position statements represent the first time any Boy Scout document that either party has been able to locate, in any context, that (1) asserts that the exclusion of homosexuals is based upon the terms "morally straight" or "clean," or, for that matter, any provision of the Scout Oath or Law; (2) references, at all, a concept called "traditional family values," or suggests the Boy Scouts "also" seek to emphasize those values in addition to the Scout Oath and Scout Law; or (3) states that homosexuals were being excluded based upon a view that "homosexuals do not provide a desirable role model for Scouts" or would promote an "[in]appropriate environment" for Scouting.

162. Unlike the previous statements, these 1991 position statements also make clear that the BSA would not merely agree to follow laws against discrimination, but rather assert a constitutional right not to follow such laws.

163. The additions in these position statements are neither accidental nor trivial. As of 1991, the Boy Scouts had published ten editions of the Boy Scout Handbook and eight editions of the Scoutmaster Handbook. They had devoted thousands of pages to detailing the values and beliefs for which Scouting stood and, in particular, the meaning of the Scout Oath and the Scout Law. The Boy Scouts were sued over their policy of excluding homosexuals as early as 1981. It strains credulity to imagine that it was simply oversight that led the Boy Scouts never to mention any of these rationales in a policy document until 1991.

164. The "morally straight" rationale for excluding homosexuals does not appear to have been entirely thought out. By answering the question, "[a]re you implying by your policy that homosexuals do not have good moral or emotional character?" with the statement "Our position is that they do not present a role model which we seek for our youth members," Ex. C504 at NCAC2596, the BSA's Question and Answer document leaves it entirely unclear whether, as of 1991, they believed that homosexuals were immoral. If the Boy Scouts had actually believed for more than 80 years that a homosexual could not be "morally straight," they would certainly have had no problem saying so. The Boy Scouts expect Scouts to "speak the truth" and "to do what is right in spite of what others might say." Ex. C700 at 561.

165. As of 1991, the Boy Scouts clearly prevented homosexuals from serving as professional employees. See Ex. C501. They did not, however, require professional employees -- even those who had "direct involvement in its program" -- to subscribe to the Scout Oath or Law. Ex. C2000 at A1556. That requirement was added in a December 1, 1992 revision to its professional employment policy. Ex. C2000 at A1557. This revision also changed the Boy Scouts' previous statement that it would refrain from discriminating on any "criterion prohibited by applicable law." Ex. C2000 at A1156. Now, the Boy Scouts said they would only follow "non-discrimination laws to the extent that they may constitutionally be applied to it." Ex. C2000 at A1157.

166. The change in the Boy Scouts' position from following law to claiming a constitutional right not to do so was itself significant. As noted above, the Seventh Point of the Scout Law says that "a Scout is Obedient" and obeys laws, even if he thinks these are unfair. C700 at 557. In its first three decades or more, the Boy Scouts followed laws that required racial segregation, without invoking any argument that they were a "private membership organization" above the necessity of following such laws. Ex. C1600 at A2391, A2430-32, A2473-76.

167. The BSA's national office next discussed its policy of excluding homosexuals in February 1992 in the context of responding to news reports. On February 4, 1992, the San Jose Mercury News published a report that a Scout troop there had issued a resolution stating that being homosexual was not contrary to the words "Morally Straight." C506 at NCAC5460. Later that month, a "Boy Scout Task Force" commissioned by the United Way in the San Francisco Bay Area issued a draft report recommending that the Boy Scouts cease disallowing homosexuals to be members or leaders, or to adopt a local policy that allowed homosexuals to participate in Scouting. Exs. C507 at NCAC5462; C519 at NCAC2804-05.

168. The BSA's National Office responded to these events. First, it issued a memorandum to Scout Executives attaching the San Jose Troop resolution and stating that troops are obligated to follow national BSA policies. Ex. C506. Then, it issued a memorandum to the National Executive Board, Ex. C507 at NCAC5461, a news release, id. at NCAC5462, and a "Media Training Guide," drafted by its public relations firm, Edelman Worldwide, Lewis Dep. at 161-62, that included a "Q&A for United Way of the Bay Area Task Force Issue." Ex. C519 at NCAC2804-09.

169. The response to the San Jose Troop Resolution did not discuss the Boy Scouts' policy itself. However, it did give the San Jose Troop the opportunity to "reaffirm their agreement to uphold national policy," Ex. C506 at NCAC5458. The Boy Scouts took the position that Scouts and Scouters could remain with the BSA even if they did not believe that "homosexuality" was contrary to the requirement to be "Morally Straight," at least so long as they did not actually choose a homosexual leader. Cahn Testimony at 88-89; Ex. C506 at NCAC5460.

170. The BSA's public relations firm reacted to the draft report of the United Way Task Force by characterizing the Task Force as a group commissioned "to examine ways of molding the Boy Scouts into conformation with the [United Way of the Bay Area's] `politically correct' values and standards." Ex. C519 at NCAC2804. The BSA stated that it "has always served to support the values of traditional American families," id.. Now, however, the BSA said that it "define[s] `traditional family values,'" not, as something in addition to the Scout Oath and the Scout Law, but rather as "those values that are inherent in the Scout Oath and Law." Id. (emphasis added).

171. In March or April 1992, the BSA's public relations firm, Edelman Worldwide, produced a video with companion written modules called the "Issues and Crisis Communications Guide." Lewis Dep. at 30-31, 149-51, 159-60; Exs. C520, 522, 523. The BSA created this Guide and distributed it to councils to be used "if the local Scout executive had something come up and needed to have some verbiage or some help in explaining something to the media, or for him to share with local council volunteers when they needed some help in sharing or explaining something with media." Teare Dep. at 66; Lewis Dep. at 32.

172. Although issued in 1992, the Issues and Crisis Communications Guide is still in use. Id. The Guide begins with basic training material on how policies were to be characterized if the press ever inquired. Ex. C520 at NCAC5579-5599; C522. It also contains specific modules on various "issues," including "Module 4 Homosexuality." Ex. C520 at NCAC5605-5609; Ex. C508. The Guide discusses homosexuality, because the BSA's policy on homosexuals and other matters "were the issues of the time that were in the media, both in newspapers and in television." Teare Dep. at 66. The Guide "zeroed in" on what Boy Scouts professionals were supposed to tell the media about this and other policies. Teare Dep. at 64-65.

173. On the videotape, Module 4 begins by referencing the San Jose Mercury News story about the Boy Scout Troop resolution. Tr. 667 (Transcribing Ex. C522). The Guide advises that "gay rights organizations have attacked Scouting to further their own agenda. Scouting isn't changing. Scouting won't change." Ex. C508 at NCAC1023.

174. In bold block letters, the Guide informs Scout Executives that the "BSA's position regarding homosexuality is as follows":

Ex. C508 at A1023.

175. The Guide also says that:

Id.

176. The Guide then provides another set of questions and proposed answers. In explaining how to answer the question, "What Aspects of Scouting are Incompatible with Homosexuality," the Boy Scouts return to the view that "traditional family values" is really something in addition to the Scout Oath, not part of it:

Ex. C508 at NCAC1024. The Boy Scouts do not attempt to defend the policy based upon the Scout Law or the word "clean" at all. Id.

177. Module 4 closes by directing council spokespersons that:

Ex. C508 at NCAC1026.