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Pool & Geller v. BSA Media Resources


Commission hears Boy Scout gay rights case
24 January 1998

The District of Columbia Commission on Human Rights has begun hearing the case of two gay men who were banned from the Boy Scouts of America, adding to the list of several cases across the country aimed at forcing the Scouts to drop its anti-gay policies.

A hearing on the case opened Tuesday (Jan. 20), The Washington Post reported.

The case focuses on whether the 5.6 million-member organization is a private club protected by the constitutional right to freedom of association or whether the Scouting group must adhere to the city's Human Rights Act, which forbids discrimination on the basis of sexual orientation.

In 1992, Michael S. Geller and Roland D. Pool separately told D.C. Scouting officials that they were gay and the organization demanded them to sever their Scouting ties. They filed a complain with the city arguing the ban on gay leaders and members violates the Human Rights Act.

The result of the hearing, expected to last three weeks, could influence Boy Scout activities in Washington, where there are more than 2,000 Scouts.

"We anticipate this to be a huge case," said Chief Hearing Examiner Cornelius R. Alexander Jr., who will preside over the hearing. He said the complaint is the first based solely on sexual orientation to be heard in D.C. in at least seven years.

A written decision is expected in June, at the earliest.

Scouting officials say gay men are not appropriate role models.

"Our right is to set and maintain standards," said Gregg Shields, the Scouts' national spokesman. "Our members expect us to uphold those standards, and we expect the courts will affirm our First Amendment rights."

But said Keith Leishman of the American Civil Liberties Union of Illinois, who represented a homosexual man in that state in a similar case, "We believe individuals have constitutional rights to freedom of association and speech, and if a group wants to exist to express hostility to gays or blacks or women, there are protections for that.

"But the Boy Scouts? You're talking about 4 million kids tying knots," he said.

"It not the same thing."

The question of gays and the Boy Scouts is being considered nationwide, with preliminary victories for gay men and for the Scouts. Almost every case is on appeal. A ruling in a case recently heard before the California Supreme Court was expected within 90 days from its Jan. 5 hearing.

January 27, 1998 -- D.C. Panel to Examine Boy Scouts' Ban on Gays
Washington Post

Michael S. Geller joined the Boy Scouts the first day he was eligible -- May 29, 1973, his 11th birthday. By all accounts, the Washington Post reports, he was a model member, attaining the highest rank of Eagle Scout and renewing his membership annually throughout his twenties.

Roland D. Pool also was a decorated Scout. He joined the Cub Scouts at age 8, progressed to Eagle Scout and assistant scoutmaster, and worked five summers at the Boy Scouts' main wilderness camp. Now in his thirties, he had hoped to volunteer with a D.C. troop.

But in 1992, the Post says, when Geller and Pool separately told local Scouting officials that they are gay, the organization demanded that they sever all ties with Scouting. Instead, the two District residents filed a complaint with the city, arguing that the Boy Scouts of America's ban on gay members and leaders violates the city's Human Rights Act.

After nearly six years of investigation and legal wrangling, the D.C. Commission on Human Rights has opened a hearing on the complaint, one of several filed across the country to force the Boy Scouts to drop anti-gay policies.

The newspaper says that the D.C. case hinges on whether the Scouting organization is subject to the city's Human Rights Act, which bars discrimination on the basis of sexual orientation, or whether the 5.6 million-member group is a private club protected by the constitutional right to freedom of association.

The question, taken up in various legal venues nationwide, has resulted in some preliminary victories for the Scouts and some for gay men, although almost every case is on appeal. The California Supreme Court heard oral arguments in a case similar to the District's this month, and a ruling there is expected within 90 days.

In the District, the case of Pool and Geller against Boy Scouts of America and the National Capital Area Council Boy Scouts of America will be heard by three members of the Human Rights Commission. The Post says the outcome of the hearing, which is expected to last three weeks, could affect all Boy Scout activities in Washington, where there are more than 2,000 youth members.

A written decision probably won't be issued until June, at the earliest, Chief Hearing Examiner Cornelius R. Alexander Jr., who will preside over the hearing, told the newspaper.

Scouting officials don't dispute that the organization discriminated against Pool and Geller, who were acquaintances before initiating legal efforts to stay involved in Scouting. Rather, the officials say, homosexuality is incompatible with Scouting's values, gay men are not acceptable role models, and the Boy Scouts of America has a constitutional right to exclude them.

But those on the other side of the issue say the Scouting organization is improperly invoking the Constitution.

"We believe individuals have constitutional rights to freedom of association and speech, and if a group wants to exist to express hostility to gays or blacks or women, there are protections for that," said Keith Leishman of the American Civil Liberties Union of Illinois, who represented a gay man there in a similar case.

"But the Boy Scouts," Leishman told the Post. "You're talking about 4 million kids tying knots ... It's not the same thing."

SCOUTING AND NEW TERRAIN
by Tracy Thompson
August 2, 1998

He started climbing at 8 a.m., determined to be the first to the 12,000-foot peak, though soon the smaller and wirier of his fellow Boy Scouts were passing him with ease. As the morning went by, he reached the timberline and kept going.

He remembers having a headache and panting in the thin air. A couple of times he had to stop, forced to admit he was pushing his limits. Finally, just after noon, 17-year-old Roland Pool came to the top of Baldy Mountain.

He was standing in the middle of the 200-square-mile Philmont Scout Ranch. To the west rose the peaks of the Sangre de Christo Mountains; to the east lay the New Mexico desert. In that immense landscape of clarity and sharp edges, he recalls, the colors were vivid, extravagant -- the sky changing from dark, rain-soaked clouds to patches of the purest blue, the light shifting across the land as if Creation were still underway. The wind was steady and strong, and he remembers this as a moment of exhilaration and awe. Life would bring the usual burdens of self-doubt and searching, but at that moment he was at peace, in the outdoors with some of the closest friends he would ever know.

"For some people, college is this incredible experience that shapes their life," he would say many years later, nursing a glass of wine at a Dupont Circle restaurant. "That's pretty much what Philmont was for me." The seven summers he spent there -- two as a camper, five as a counselor -- were the pinnacle of his scouting career, and from the Boy Scouts he learned things that would serve him well in life: leadership, self-reliance, an abiding love of the wilderness. Back then, Roland Pool loved the Boy Scouts, and the feeling was entirely mutual.

That was before he told them he was gay, and they told him he wasn't wanted anymore.

Imagine for a moment that you belong to a book club that meets at the local coffee bar. You help organize the meetings, which have become a local institution, and you've made friends there. Then one day you get a letter. "You are no longer a member," it says. "Please don't come to any more meetings."

You've done something that some members of the club find morally objectionable, and it's clear that their opinions are deeply felt. But you don't think you've done anything wrong, and you're outraged. You can't do this! you say. This is America! I can belong to any club I want to!

But can you?

That's the gist of a case now awaiting a decision from the D.C. Human Rights Commission titled Roland D. Pool and Michael S. Geller v. Boy Scouts of America and the National Capital Area Council, Boy Scouts of America. In the complaint, Pool and his co-plaintiff, Michael Geller -- who, like Pool, is an Eagle Scout and a gay man -- charge that the Boy Scouts' refusal to accept them as volunteers violates the D.C. Human Rights Act, which bars discrimination in "places of public accommodation" on the basis of sexual orientation, among other things. The Boy Scouts counter that they are not a public accommodation but a private group -- and, as such, have a First Amendment right to exclude anyone who is not willing or able to abide by their core beliefs, one of which is that homosexuality is immoral.

"We respect other people and other people's beliefs," says Boy Scouts national spokesman Gregg Shields. "We simply ask everyone to respect our rights to hold our own beliefs."

At the heart of the case here -- as in similar cases filed in New Jersey, Illinois and California -- is this question: Can a gay man be a moral authority figure for a group of young boys? As the 20th century heads down the home stretch, the definition of "moral authority figure" is very much in flux, part of a broader turmoil about American cultural values, from how we raise our children, to how we work and worship, to how we accommodate immigrants and minorities. But there is probably no more perplexing issue among these than homosexuality, in which steadfast American beliefs in individuality and freedom of choice run headlong into similarly strong strains of religious and moral certainty. In this social upheaval, the subject of homosexuality is like the San Andreas fault.

There are "two genuinely different moral camps in America," writes Boston University sociologist Alan Wolfe in One Nation, After All, his book on the state of middle-class American morality. One side thinks of homosexuality as an innate trait, no more susceptible to moral judgments than the color of one's skin. The other thinks of it as an immoral lifestyle choice. The tension between those camps has been growing in direct proportion to the visibility of gays in American life, which has been increasing ever since the Stonewall riot of 1969, when gays in New York fought back against police raids on a Greenwich Village bar.

Today, gays and lesbians are demanding equal and open participation in all aspects of American life -- from marriage to the military to starring roles in television sitcoms to membership in the Boy Scouts. For many Americans this is unnerving.

Polls show that a majority of Americans continue to disapprove of homosexuality, a fact not lost on the religious right. At the same time, though, support for the notion of providing equal rights to gays in housing, the military and employment has been steadily rising. The numbers show a kind of uneasy accommodation that Wolfe calls the "soft homophobic position" -- the sense that homosexual acts are immoral, but that the people who commit those acts should still have rights.

These confused and ambivalent times are the context in which Pool and Geller's case against the Boy Scouts was heard over 12 days this spring in a windowless hearing room of the D.C. Human Rights Commission.

In an era when most people would say that blatant discrimination against minorities is wrong, when should government enforce inclusion? When the civil rights of a minority group clash with another group's First Amendment rights to associate only with those who share their moral values, who wins? Those questions are wrapped up in this case, says Cornelius Alexander, the commission's chief hearing examiner, who, with a three-member panel, has pored over 700 exhibits entered as evidence -- everything from internal Boy Scouts of America memoranda to the commemorative badge Michael Geller earned in 1976 as a Boy Scout camper at Cayuga Lake in Upstate New York.

"You have your freedom of association, religion, the fact that homosexuality is becoming increasingly public -- and they're all clashing on this issue," Alexander says. It's an all-American sort of war.

On a misty, gray Saturday in early May, several hundred Boy Scouts standing in front of the Sylvan Theater stage on the Mall raise their hands in the scout salute -- three middle fingers up, thumb holding down the little finger -- and recite the Scout Oath: "On my honor I will do my best to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake and morally straight."

The last two words sound flat and clear in the cool morning air, uttered by these boys and their scoutmasters with a certainty that recalls a day when everybody seemed to agree on what those words meant. But this is now, at a day long event called Scouting on the Mall, and all around the Washington Monument hundreds of boys from the National Capital Area Council of the Boy Scouts of America are test-driving homemade wooden race cars, launching bottle rockets made of plastic Coke jugs, building homemade catapults, setting up tents, making rope bridges, racing through obstacle courses made of logs and twine. In a day when the typical 12-year-old boy pines for high-tech video or computer equipment, it is rare to see so many boys having so much fun with so little.

"Yeah," laughs Roger Brown, when a visitor mentions this. The scoutmaster of Troop 1572, which meets on Wednesday nights at St. Mary's Catholic Church in the southern Prince George's town of Piscataway, Brown is a civilian employee at the Naval Research Laboratory in Chesapeake Beach. A trim, wiry man of 59, wearing wire-rimmed glasses and a full beard, he is watching boys queue up to take a ride on the zip line his troop built that morning. A tower at one end stands about 15 feet high, made of logs lashed together with rope. A pole about 6 feet high stands about 30 feet away. A rope is strung like a clothesline between them. Boys climb the tower, put their hands through straps attached to a pulley on the clothesline and launch themselves into midair for a short but exhilarating ride down the slope. Actually, Brown says, the zip line is a good metaphor.

"What scouting does is it scares you to death without putting you at risk," he says. "And then you think, 'Okay, I can do that.' " In the Boy Scouts, small lessons become big lessons: Give a kid the experience of spending the night in the woods, and somehow he emerges with the self-confidence to survive all kinds of peer pressure.

The Boy Scouts started out teaching another kind of survival skill. Their founder, Robert Baden-Powell, was a British hero of the Boer War who had been so distressed by his troops' inability to handle the harsh conditions of the South African veldt that he wrote a handbook on wilderness survival skills for his troops. After the war, the handbook found an avid audience among English boys, prompting Baden-Powell to set up an experimental camp for boys in 1907. The success of the camp led him to rewrite his manual for a nonmilitary audience and call it Scouting for Boys. That was the beginning of the scouting movement. It quickly found an even more hospitable home in the United States: The first American Boy Scout troop was chartered in 1910. Today, with 92 million boys having taken part, scouts are firmly woven into the American tapestry - a spectacularly successful educational and recreational program for boys based on the simple premise that adolescent males will do almost anything, provided it involves getting dirty and sleeping in a tent.

Camping is the core activity of scouting, and all scouts get plenty of chances to rough it in the great outdoors. To advance through the ranks, however, they are required to earn a certain number of merit badges (there are 121 possibilities, ranging from orienteering to plumbing), to pass certain physical fitness tests, to demonstrate knowledge of first aid, and, most important, to put in a certain number of hours of community service. Boys start out as Tiger Cubs in first grade, advance to Cub Scouts, then to Webelos and after that, at 11, enter Boy Scouts.

In theory, any civic organization can sponsor a troop or Cub Scout pack, but in practice troops tend to be sponsored by some government agency, like the local police department, a parent -teacher organization or a church. (The Church of Jesus Christ of Latter-day Saints -- the Mormon Church -- charters 23 percent of the 130,000 scout troops in the United States.)

Over the years, the Boy Scouts of America has worked to stay abreast of demographic trends. "The misperception that Scouting is only for chubby little middle-class white suburban kids is simply untrue," says the BSA's official literature -- and, in fact, the organization began a major push six years ago to recruit from low-income city neighborhoods and Hispanic communities. Last year, the National Capital Area Council alone - which covers the District and 17 suburban counties in Virginia and Maryland -- saw a 22 percent increase in membership from low-income neighborhoods. In many neighborhoods where fatherless households are common, mothers see scouting as a rare chance to get their sons involved in constructive activities with an appropriate male role model.

And that, says Roger Brown, is one reason he agrees with the policy of excluding gays. "I have noticed, a lot of times, boys get into scouting from single-parent homes, and it's because mom wants them to have male leadership. And that's my objection to gays in scouting -- it's kind of contrary to what a lot of families want."

Brown himself is a walking advertisement for scouting: A 26-year veteran of the Navy, he got involved in scouting when his two sons were in Cub Scouts. When they graduated to Boy Scouts in the early 1980s, Brown became scoutmaster -- "by default," he notes wryly -- after the former scoutmaster moved and he was the only assistant scoutmaster left. His sons are grown now -- his older son, Ben, now a Prince George's County police officer, became an Eagle Scout -- but Troop 1572 is as active as ever.

Brown exudes a fatherly, can-do attitude, and the dozen or so boys in his troop seem genuinely fond of him. That rapport was in evidence several weeks later at a meeting of Troop 1572 in the school hall behind St. Mary's Church, where Brown has been a member since 1977.

It was the end of the school year; a weekend earlier several boys from the local Cub Scout troop had officially joined Brown's troop in a "crossing over" ceremony, in which the boys walk across a symbolic bridge to join the troop and leave behind the parent-run Cub Scout pack. Brown planned to spend some time at this meeting introducing the new boys to some basics -- their first physical fitness test, raising and lowering the American flag, where to get their uniforms.

"I think of these kids as mine," he says, and that protective attitude shapes his thinking -- the belief that it's his job to expose his scouts to some cultural influences and insulate them from others. He and the boys' parents never had to have any detailed conversations about what those are, he says; it's understood. These are carefully considered moral delineations, and Brown does not consider himself a homophobe for arriving at them. "I know gays," he said.

"I wouldn't call them friends, but I wouldn't refuse to associate with them. But I definitely wouldn't allow them in the troop. I wouldn't send my kid off for a week [camping] with somebody who had a lifestyle I didn't approve of."

Because early adolescence is a time when identities, sexual and otherwise, are being formed, many parents do not want an openly gay man as a role model for their children, Brown says. His reference to concerns about a camping trip points out the subtext in this debate: the association of homosexuality with child molestation -- or, at the least, the perception of an increased risk of it. Officially, the Boy Scouts' position is that homosexuality and sexual molestation have nothing to do with each other. "These are two different issues in the minds of the Boy Scouts of America," says spokesman Gregg Shields. "We are not linking them." Unofficially, it's a link that came up repeatedly in interviews with scoutmasters, scouts and their parents.

Child molestation has been a problem for the Boy Scouts of America; like many youth organizations, scouting can provide a great cover for sexual predators.

The organization was hit with a handful of suits around the country in the 1980s filed on behalf of youths who charged they had been molested by their scoutmasters. In 1989, a Fairfax County jury ordered the National Capital Area Council to pay $45,000 in damages to a Reston man who claimed he had been sexually molested as a youth by his former scoutmaster. While the problem hasn't been big in terms of relative numbers (there are more than a million adult volunteers in Boy Scouts in this country), the suits were worrisome enough that in the late 1980s the BSA came up with a detailed program to educate boys about pedophiles, and now has a rule barring any adult volunteer from being alone with a boy -- the so-called two-deep rule.

When it comes to gays, all this is beside the point, says Fred Berlin, an associate professor at Johns Hopkins University and founder of the National Institute for the Study, Prevention and Treatment of Sexual Trauma in Baltimore.

Pedophilia and homosexuality are "quite different issues," he says, much as pedophilia and heterosexuality are. Of the relatively small number of male pedophiles (female pedophiles are extremely rare), most have adult partners who are women. Many of the Boy Scout molestation cases involved scoutmasters who were married or had girlfriends.

For Roger Brown, the issue is how a chosen lifestyle will affect the moral and emotional and sexual development of young charges like his. A man may have no choice about being homosexual, Brown says , but he does have a choice about how to live. "I'm sure they're nice guys," he says of Roland Pool and Michael Geller. But that does not mean they belong in scouting. "They've made a choice in their lifestyle, and all these other people with kids in Boy Scouts have chosen a lifestyle, too," he says. "And those two are not compatible."

At 37, Roland Pool is a stocky, square-faced, dark-haired man who is engaged in a mid-life career change. In a quest for a more spiritual life, he recently quit his job as a volcano tracker at the Museum of Natural History in order to study for the Quaker ministry. He earns money to supplement his student loans by working part time at a Starbucks downtown. His demeanor is earnest, friendly and slightly awkward; he lives in a plain but neatly kept apartment in Northwest Washington that features on its kitchen wall a collection of coffee mugs from various Boy Scout camps. At the moment, he is unattached.

In some ways, Michael Geller is his temperamental opposite: At 36, he is a gregarious man with a ready laugh, sandy blond hair and a sly sense of humor. He works at the World Bank, where he helps produce a newsletter on Eastern European affairs. The fashionably furnished Dupont Circle apartment he shares with his longtime partner, a Washington attorney, has a wooden block sign in the living room that proclaims: "Sex is not a crime."

Geller and Pool knew each other only slightly before becoming co-plaintiffs in this lawsuit; they are not, as some have assumed, lovers or even fellow activists on gay issues.

Yet in some ways, they have arrived at this intersection in their lives via the same route -- one that begins with a happy boyhood in a small town, followed by a frenetic adolescence in which the Boy Scouts played a starring role.

Geller grew up in Owego in Upstate New York, the youngest of three children. His father was an IBM engineer; his mother was a homemaker. His family is steeped in scouting: Two uncles, one brother and three cousins are Eagle Scouts, and Geller's father has been a scoutmaster for 55 years. Geller became a scout on his 11th birthday, the first day he was eligible, and became an Eagle Scout the same year Pool did, 1979, before graduating from scouts and leaving home for college at Cornell University.

Pool grew up in Mandeville, La., across Lake Pontchartrain from New Orleans. His father, a psychiatrist, and his mother, a retired vocational school guidance counselor, divorced when he was 11; both parents remarried, and Pool acquired an extended family of step-siblings. In 1969, he joined a Cub Scout pack that met on the grounds of the Louisiana state mental hospital. He dropped out of scouting for a time after older boys in the troop began harassing the younger ones, he says, but later rejoined with a different troop and went on to earn his Eagle, a rank attained by only about 2 percent of Boy Scouts. Pool first saw the American West on a family vacation when he was 6, and the experience made such an impression that years later, when his local Boy Scout council offered a 12-day camping trip to Philmont, he seized the chance. His Philmont experiences were what drew him to study geology as an undergraduate at Louisiana State University and later as a graduate student at Dartmouth.

Both men say they were sexually attracted to other males from puberty. It was nothing dramatic, just the realization that, for them, girls did not prompt sexual stirrings but other boys did. Still, it would be years before either applied the word "homosexual" to himself, each says, and neither had any sexual relationships while in the Boy Scouts. That was true even when Pool was old enough to be a counselor at Philmont, he says, and he was taking scout troops on wilderness camping expeditions -- long before there was any such thing as the two-deep rule. He just didn't think in those terms when it came to scouting.

Occasionally, he says, he'd even ask a fellow camp counselor who was female to go camping with him. "It was just, you know, a 'Let's climb this mountain and spend the night up there' sort of thing," Pool recalls. He never went camping to have sex; he just liked camping.

Geller, an academic whiz kid in high school who was class president one year, found many things to do besides dating. "I was too busy in high school," he says. "I was very busy . . . I don't want to say [I was] overachieving, but God forbid I should sit and be alone and contemplate myself." Pool says he had girlfriends, but these were non-sexual relationships, and he spent a lot of time in traditional male pursuits. "Boy Scouts and sports were my way of having camaraderie with other guys and being socially acceptable," he says. He wasn't avoiding girls, he says. He just preferred being with guys.

It was in college that Geller and Pool each came to terms with his sexuality, and for each it was, at least at first, an unwelcome realization. The day of reckoning for Geller came in the spring of his junior year at Cornell - and then, suddenly, this topic he had managed to not think about for so long simply would not leave his mind. He quit the cross-country team and holed up in his apartment, paralyzed by the realization that he was something he had never planned on being.

"I kind of vanished," he recalls. The semester ended, and Geller, then 21, went home to Owego, where he had a summer job at IBM that year. It was a grim and claustrophobic period, and finally, in desperation, he began seeing a counselor.

When his parents found out and asked him what was going on, he told them he was gay. "There was a big eruption," he says -- tears and angry recriminations -- followed by a long period of estrangement. The breach has been mended. "We support Michael," his mother says. His father testified on his behalf before the D.C. Human Rights Commission. But at some basic level, Geller says, he thinks his family is still baffled.

"To this day, when my mother visits, she says sometimes, 'You were such an easy child,' " he says, and grimaces, hearing in his head the unspoken words: "What went wrong?"

Pool recalls this period of his life as one of crisis tinged with comedy. At LSU, he decided that he had to come out of the closet -- he had discovered he was gay, and he was not willing to lie about it. After several sleepless nights thinking about how to do this, Pool went to see a school counselor. "He cut me off after three sentences. He said, 'Look at you, look at the way you walk, the way you're holding yourself. You're not gay.' " It was enough to throw Pool into further confusion. He said nothing - but finally, when he was in graduate school at Dartmouth, he told his parents. It may have been the hardest thing he has ever done, he says, but there was never a question of not telling them: "To me, that was fundamental."

"My father was in training at the time to be a psychoanalyst, and he told me I was lazy, that I wasn't working my way through all my psychosexual developmental stages," Pool recalls. Then his father told him that anybody who decided he was gay in the AIDS era must have a death wish, and that was why Roland enjoyed all that risky outdoor stuff like rock climbing, too. "We didn't talk after that for a year."

His father, Douglas Pool, looks back on that as being a particularly painful time. "His mom and I were slower than we should've been in coming around to being supportive," he says. But, also, Roland himself seemed unhappy with the realization that he was gay. "He wasn't crazy about the idea that he was stuck with this. Now I don't think he feels that way at all," Douglas Pool says.

Like Geller, Pool eventually negotiated a truce with his parents. In a pile of newspaper clippings that he keeps about the Boy Scouts is a cartoon his mother sent him recently from the Mandeville News-Banner. The cartoon shows a Neanderthal type in a Boy Scout uniform explaining his merit badges. "And this one's for lighting fires ," he is saying, "and this one's for tying knots and this one's for ostracizing godless homos!" Scrawled across the top is his mother's handwriting: "I thought this was a scream!! Love you, Mom."

Pool and Geller took on the Boy Scouts with different degrees of willingness.

Pool leaped into the fray; Geller was drawn in gradually. In 1992, members of the gay activist group known as Queer Nation held a protest at the National Capital Area Council's headquarters in Bethesda to publicize the Boy Scouts' anti-gay policy. The protest was led by Bart Church, an acquaintance of Pool's, and Church's picture in the Washington Blade caught Pool's attention a few days later. He was dumbfounded; in all his years of scouting, he'd never heard anything about the Boy Scouts excluding gays.

"When I saw the article, I knew right away I'd be doing something about it," Pool says. As it happened, the next day he ran into Church on the street and told him he was an Eagle Scout, and though he had not been active in scouting in recent years, he'd always thought of volunteering as a scoutmaster one day.

Talk to the American Civil Liberties Union, Church advised him.

Pool decided to do that, and something else: He called the National Capital Area Council to volunteer as an assistant scoutmaster. His offer was met with such enthusiasm that Mike Bond, then the director of the District of Columbia scouting district, quickly invited Pool to an orientation meeting and suggested that Pool might be interested in being something more than a scoutmaster -- maybe a unit commissioner, which helps coordinate the activities of all the scout troops in a given area. When Pool submitted his formal application, pointedly mentioning that he was gay, he received a form letter from Ron Carroll, head of the National Capital Area Council. The Boy Scouts were withdrawing their offer and did not want him as a volunteer. Pool was further instructed to immediately sever all ties with scouting.

(Ron Carroll and other local scouting officials declined to discuss specific Boy Scout policy.)

Geller also read about the protest and reacted much the way Pool had. He'd never heard of any policy banning gays from scouting, either. Unlike Pool, he had maintained an ongoing relationship with scouting by serving on the fund-raising committee for his old troop, Troop 37, sponsored by St. Paul's Episcopal Church in Owego. Unbelievable, he thought. He wrote Carroll a quick letter of protest in the heat of the moment. But he wasn't thinking about any legal challenges, and, he recalls, "I never expected any action to be taken on it."

What he got was a reply by certified mail from the BSA's Northeast regional director, who had jurisdiction over Troop 37 and to whom Carroll had forwarded Geller's letter. Geller's registration with the Boy Scouts had been revoked, and enclosed was a refund for the $7 he had originally paid to join the Boy Scouts in 1973. "That," Geller says, "was when it got very personal." The reply instructed him that he had the right to file a notice of appeal with the scouts' national review committee. He did.

"On my 11th birthday, I joined the Boy Scouts of America as had all the male members of my family prior to me," Geller wrote. "At this juncture I have been continuously registered with the Boy Scouts of America for 18 years. It is this record, my family name and my character which I now must defend . . . The first line of the Scout Oath is described as follows: A Scout once said that honor was the thing that made you act the same when no one was watching as you did when you knew you were being watched. In revoking my Scouting registration, I am being punished for acting honorably, for living an integrated public and private life. These are the very reasons why I am still a Scout. These are the very reasons why I am now being rejected. The Scouting movement which I joined in 1973 encouraged respect for diversity and moral integrity -- [The current] version of Scouting will accept me only as long as I am morally duplicitous and appear not to stray from an inflexible orthodoxy."

In reply he got a brief notice telling him his appeal had been denied. "Well, duh," Geller says, and laughs. And so he, too, called the ACLU. It put both men in touch with a lawyer named Merril Hirsh, who in October 1992 took their case to the D.C. Human Rights Commission.

"This case," Hirsh wrote in his pretrial brief, "is both simple and unusual" -- simple because it's a clear case of discrimination based on sexual orientation, unusual because the defendants, the Boy Scouts, forthrightly admit it. To which the Boy Scouts respond that this not really a legal case at all, but an attempt to use the legal system to resolve what is essentially a moral question -- and one that they have already answered to their own satisfaction.

"Society will continue to debate whether or not gay is okay," wrote the Boy Scouts' New York attorneys, George Davidson and Carla Kerr, in a filing with the D.C. Human Rights Commission, "and it is a debate this Commission cannot resolve."

The Boy Scouts' sister organization, the Girl Scouts of America, seem to have arrived at a similar conclusion and made the decision several years ago to adopt a policy that essentially avoids the issue. "Our policy is one for all members," says Girl Scouts national spokeswoman Ellen Ach. "It just says we expect people to act appropriately at all times and not display sexual behavior. But we don't have a policy specifically about sexual behavior." To her knowledge, Ach says, the issue of whether lesbians can be members of the Girl Scouts has never come up -- or if it has, it has been handled entirely by local councils, in whatever way they saw fit.

In contrast, the decision by the Boy Scouts to promulgate a specific national policy on homosexuality has wound up in courtrooms around the country, and the results so far are mixed.

In New Jersey, a state appeals court ruled in March that the Boy Scouts' policy of excluding homosexuals violated a state anti-discrimination law. The ruling has been appealed. A California appeals court, on the other hand, found that the Boy Scouts weren't covered by state anti-discrimination law, which regulates "business establishments." In Chicago, where the ACLU sued the city for sponsoring Boy Scout activities that excluded homosexuals, the city recently settled by ending its sponsorship of 28 local scout troops. In another Chicago case, the city Commission on Human Relations sided with a gay man who sued the Boy Scouts for rejecting him for employment because of his homosexuality. The decision is being appealed.

In the District, the case boils down to two questions: Are the Boy Scouts covered by the D.C. Human Rights Act? And if so, do they nevertheless have a constitutional right to discriminate if being forced to include gays would violate some deeply held belief?

The Supreme Court has ruled that organizations have a constitutional right to discriminate on one of two grounds: They truly are private -- such as a small, selective country club -- or their exclusionary policies express some kind of core belief intrinsic to their existence. Without these exceptions, the reasoning goes, there would be no such thing as the freedom of association guaranteed by the First Amendment. This is the reason no one can successfully sue the Ku Klux Klan for barring blacks or Jews, for instance.

For scouts, the policy of excluding homosexuals is a core belief, Ron Carroll told the Human Rights Commission as the hearing against the Boy Scouts opened.

It has been so since the first scout troop was chartered in this country in 1910, he said, so central to its definition of "morally straight" that the organization never saw the need to spell it out until relatively recently. It did so in a 1991 position statement.

The BSA policy applied only to "known" or "avowed" homosexuals; there was no way the organization could keep out men who kept their homosexuality a secret, Carroll testified, "so we could have people that are homosexuals and I would believe that we do have people that are homosexuals that are [scout] leaders today."

Would you welcome those people as long as they kept that secret? he was asked.

"I don't know who they are to welcome them," Carroll replied. But, he said, if Roland Pool, for instance, had kept his sexual orientation a secret, "we probably would have" accepted him as a volunteer.

Four days later, the Boy Scouts called as an expert witness George A . Rekers, a UCLA-educated clinical child psychologist who specializes in the development of sexual orientation in children and adolescents.

Rekers told the commission that he spends much of his time treating youngsters with "gender identity disorder," mostly boys whose peers consider them "sissy" and "effeminate." The goal of the intensive therapy he gives his patients, he said, is to reverse those tendencies and "help these children to become better adapted to themselves and to their environment." This is a therapeutic goal the American Psychological Association considers inappropriate, which is why Rekers resigned from the APA several years ago.

In the ongoing debate about whether homosexuality is innate or learned, Rekers said he believes that adolescent sexuality can easily be affected by external influences. Allowing openly gay men to be scoutmasters, he testified, "would legitimize the value of homosexual behavior in the eyes of many of the Boy Scouts . . . There would be more homosexual conduct or behavior by the boys in such troops." And some of them could be setting off down the road toward a homosexual adulthood, he said. Whatever biological component there is to having homosexual urges, homosexual behavior is a "preference," not an "orientation," he said -- in short, a matter of choice. It's a choice Rekers clearly considers deeply wrong: As a Southern Baptist, he told the commission, he believes that God destroyed the city of Sodom for allowing homosexuality, as an example to mankind, and that active homosexuals face "eternal separation from God" - in Southern Baptist parlance, the fires of hell.

Outside the hearing room, the issue centers not on constitutional questions, but on the uncertainties that accompany social change. On the Mall, three parents of boys in Troop 26, sponsored by Mount Ararat Baptist Church in Stafford, Va., were asked to consider the Boy Scouts' policy on gays. All men, fathers of young boys, they paused in the middle of showing off a life-size airplane the troop had made. There was a moment of uneasy silence. "We all agree not to come out of the closet," one said, and everyone laughed, a little nervously.

One of the men, Mark Crooks, who volunteers as chairman of the adult advisory committee of Troop 26, somewhat reluctantly gave a more serious answer.

"Personally, I have mixed feelings. But, if we define being 'morally straight' as traditional lines of morality, then I feel that the gay issue is out of synch with the rest of society."

And if a boy or scout leader came forward and announced he was gay? "I'd have to very seriously review it." But, he said, the Boy Scouts, as a private organization, have the right to draw a line where they choose. If homosexuals want to go camping and work with youth, they can pursue other ways of doing that. "If the Boy Scouts were the only game in town, it might be a different story," he said. The other men nodded.

By telephone, the mother of a boy in another troop found the topic equally difficult. "I'm not really either for or against," she said. "We have friends who are gay and they've been around our children and we don't have any problems about that. I know some people are really opinionated. I have not encountered it through scouting, where it's probably much more controversial." She asked that her name not be used.

A few weeks later, the question of the Boy Scouts' policy toward gays was put to two young men who had just finished a boyhood of scouting. After this summer, they are off to college.

Geoffrey Gaines and James Pritchett are both 18, members of Troop 1688 in Bowie and recent inductees to the rank of Eagle Scout. Parents and scout leaders may obsess on the subject of homosexuality and scouting, but Gaines and Pritchett -- like many of their peers -- do not. They both have gay friends and acquaintances from Bowie High School and do not find the idea of homosexuality particularly threatening. "If I don't see it, I don't care," said James, sitting on a couch in his parents' house.

Yet they could see the complications when it comes to scouting, to camping out as a group of young boys and men. It is a hypothetical, though; neither has ever run into anyone in scouting who was openly gay. "I wouldn't put an 11-year-old kid who's just starting out in life" on a camping trip with a gay scoutmaster, said Geoff. "I mean, the boy definitely doesn't understand what homosexuality is," which could make him a target for exploitation. The adult isn't safe, either, he said. The boy might accuse him of something he didn't do, knowing that many people would be ready to believe it. James agreed with his friend's second point, but not the first. "I really don't think that putting a boy with a homosexual male puts the boy at any greater risk, because there are heterosexual guys who pose just as great a threat," he said.

Neither had heard of the Boy Scouts' anti-gay policy until a couple of years ago when it hit the news. Geoff considers it "very narrow-minded," but he understands the sentiment behind it. But James disagrees. "If you're saying that homosexuals can't be morally straight, then you're saying homosexuality is immoral. I think that's wrong. I think that's a bad interpretation of 'morally straight.' "

Geoff considered this. "I think it has to be interpreted by each new generation," he said.

On the last day of testimony before the D.C. Human Rights Commission, Michael Geller and Roland Pool sat next to each other on folding chairs behind their lawyers on one side of the cramped room, while lawyers for the Boy Scouts sat directly across from them. Between the two sides sat the three-member hearing panel, plus Cornelius Alexander, who has functioned throughout as the presiding judge. Boxes of documents were piled against the wall, and others were stacked in an anteroom, and after an afternoon of fiercely fought objections over points so small they could be seen only by the lawyers, it was over: Everybody went home to await a decision, probably sometime next month.

Some weeks before, at the end of yet another day of long and detailed testimony, Pool found himself on the Metro with Ron Carroll, who had just that afternoon testified that the Boy Scouts probably would have welcomed Pool as a volunteer if he had just kept his homosexuality a secret. Carroll was heading back to Bethesda, Pool to Woodley Park, and so for a few stops the two men made awkward small talk. Then, just as Pool was getting to his stop, he says, Carroll surprised him by asking him if, given all his scouting experience, he had ever thought about joining the Boy Scouts as a professional staff member. Carroll doesn't remember asking that, but Pool does, vividly, though he was so surprised that he doesn't remember his reply.

It was only months later, recalling this encounter over a glass of wine at the Dupont Circle restaurant, that Pool realized what his answer to Carroll should have been: "I'm not an outsider trying to get into an organization. I spent 15 years in it." Roland Pool still loves the Boy Scouts, and in his heart he has always been, and still is, one of them.

D.C. Panel Reinstates Two Gay Adult Scouts - Group Ordered to Pay $100,000 to Men
Washington Post, June 22, 2001
By Sewell Chan, Washington Post Staff Writer

The D.C. Commission on Human Rights has ruled that the Boy Scouts of America violated the city's anti-discrimination law by expelling two adult Eagle Scouts in 1992 for being gay.

In a long-awaited ruling issued Wednesday night, a panel of three commissioners found that the two men "were subjected to humiliation, embarrassment and indignity" when the Boy Scouts revoked their membership in 1992. They ordered the Boy Scouts and the National Capital Area Council to admit both men -- Michael Geller, 39, and Roland Pool, 40 -- as adult members, to pay each $50,000 in compensatory damages and to pay the men's attorney fees.

Legal experts said it was the first time such a judgment has been rendered against the Boy Scouts since the Supreme Court ruled 5 to 4 last year that the organization had a First Amendment right to "expressive association" that would be violated if it were forced to admit a gay man, James Dale, as an assistant scoutmaster.

The D.C. panel maintained that several distinctions made the Supreme Court ruling inapplicable in the cases of Geller and Pool. But the two sides in the dispute disagreed yesterday on whether the 73-page D.C. ruling was a potential precedent for future cases or an instance of legal chutzpah that will soon be overturned.

"Everyone will wonder, 'How can the D.C. Human Rights Commission do this when the US. Supreme Court just seemed to say the opposite?'" said commission Chairman Frank H. Wu, a law professor at Howard University. "The answer is that these are different cases."

A lawyer for the Boy Scouts said the organization will almost certainly appeal to the D.C. Court of Appeals.

"It's astounding that a commission located only a few blocks from the United States Supreme Court would so blatantly depart from controlling Supreme Court precedent," said George A. Davidson, who argued the case before the high court and represented the Boy Scouts before the commission.

Geller, who was an adult leader of his troop in Owego, NY., had his membership revoked after writing a letter to the Boy Scouts in response to a Washington Post article that quoted the National Capital Area Council's top official as saying that gay men were inappropriate role models.

Pool, a Louisiana native and former computer specialist and geologist at the Smithsonian Institution, was expelled after he indicated on an application to be a scout unit commissioner that he was gay.

"I'm thrilled, because it's been a long time in waiting for this.

I'm a little stunned, too," said Geller, who now works for the World Bank and lives in Shaw. "I had never sought compensatory damages. The highlight of the document for me is that it says I am reinstated as an active adult leader."

The commission agreed that the Boy Scouts have a right to advocate their point of view. But it said the Scouts "did not have a firm exclusionary policy [against gays] based on a long historical philosophy."

Davidson said the Supreme Court ruled that judges should defer to current Scout leaders' statement of the group's position.

The commission also contended that Dale was a public gay activist, unlike Geller and Pool, "who would not send messages about homosexuality or its lifestyle." Finally, the commission argued that because Geller and Pool "are not advocating any particular message ," the District's interest in eradicating discrimination outweighs the Boy Scouts' right of expression.

Davidson said the commission advanced no new arguments. "It just flies right into the teeth of Dale," he said. "They're essentially the same case."

The Office of Human Rights dismissed the complaint in 1995. But the office reversed itself in 1997, and the commission held 12 days of public hearings in early 1998. Both sides have since waited, filing additional briefs after last year's Supreme Court decision.

The Boy Scouts challenged the commission's jurisdiction over the matter. But the commission noted that the city's 1977 Human Rights Act had been expanded to include larger clubs and institutions that had been considered private. The panel also noted the organization's congressional charter and its list of District-based sponsors, which have included the D.C. police, the US. Park Police, Banneker Senior High School and Malcolm X Elementary School.

Ruth Harlow, legal director for the Lambda Legal Defense and Education Fund, said the ruling is a sign "that the Boy Scouts will continue to be plagued with litigation, and more importantly, be subjected to many of their members and supporters resigning and cutting off support if the Boy Scouts continue to try and enforce their discriminatory policy."

But Greg Shields, a spokesman for Boy Scouts of America, said that "public support has remained strong."

A Gay Scouts' Victory in D.C.
Washington Post
Saturday, June 23, 2001; Page A24

TO BE realistic, the ruling by the D.C. Commission on Human Rights reinstating two adult Eagle Scouts as members of the Boy Scouts and the National Capital Area Council may not survive the almost-certain appeal to the D.C. Court of Appeals. But plaintiffs Michael Geller and Roland Pool have reason to be heartened by the decision, and for more than the award of $50,000 in compensatory damage and payment of their attorney fees. The 73-page commission ruling is a bold legal challenge to a retrograde policy made no less offensive by the Supreme Court's decision last year upholding discrimination against gays.

The commission argues that Mr. Pool's and Mr. Geller's cases are distinguishable from the case of New Jersey assistant scoutmaster James Dale on which the Supreme Court ruled 5 to 4. Unlike Mr. Dale, neither Mr. Pool nor Mr. Geller was a public gay activist, the commission noted. There was no indication that either individual would "advocate homosexuality as a [Boy Scout] leader" or "send messages about homosexuality or its lifestyle," commissioners said. The two men, they said, were non-messengers who merely happen to be gay: "Their inclusion within the [Boy Scouts of America] will not infringe on any message the BSA has about instilling values into youth." And in an argument sure to encounter stiff resistance upon appellate review, the commission found that the District has a compelling interest, over the Boy Scouts' First Amendment rights, in eliminating discrimination in a membership organization such as the Boy Scouts, which is subject to the public accommodation provision of District law.

The city's Human Rights Commission has issued a strong call for anti-discrimination principles. It says to the Boy Scouts that the District will not defend indefensible prejudices and that if there is a legal way to promote the city's morally right position, the commission will pursue it. The next judgment will likely come from the D.C. Court of Appeals. We hope it sides with the District.

July 10, 2001

Rep. John Hostettler
1507 Longworth House Office Building
U.S. House of Representatives
Washington DC 20515

Dear Representative Hostettler:

As a Republican member of the Council of the District of Columbia, you can understand how outraged I was to learn that you have introduced legislation in the United States Congress to prohibit the D.C. government from implementing a policy with which you disagree. I find it rather hypocritical that some Republicans argue that local control over their government is best while at the same time they seek to micromanage a local entity composed of citizens that they do not even represent. The citizens of the District of Columbia have elected their own officials, who are accountable to the people, to make policy for the District. We are perfectly capable of doing so without Congressional intervention.

While you may not agree with the District of Columbia Human Rights Act, which prohibits discrimination based on a number of characteristics, or the decision of the D.C. Commission on Human Rights, we have a process, just like any other jurisdiction in the country, to change the law or appeal the process through the judicial system. Congressional intrusion into the process would be extremely heavy handed and would make a mockery of our democratic system of government with all of its laws and judicial system.

The recent decision by the D.C. Commission on Human Rights regarding two individuals and the Boy Scouts of America is only one step in the process. If the Boy Scouts do not agree with the decision , they can appeal it to the D.C. Court of Appeals. I implore you to allow this process to proceed as if it were occurring in any other jurisdiction in the United States, such as Evansville, Indiana. There is absolutely no need for Congressional action.

I hope when you consider taking punitive actions against the District of Columbia, such as you propose in the bill H.R. 2390, you keep in mind that there are over 500,000 residents reacting to your actions. D.C. citizens unnecessarily will judge all Republicans as being mean-spirited. I know, like me, you want to expand the Republican Party. Regrettably, actions such as yours seek to drive people away from the Party.

I urge you to respect the citizens, the elected officials, and the court system of the District of Columbia and to withdraw your legislation.

Sincerely,

David A. Catania
Councilmember (At Large)

cc: Chairwoman Connie Morella
Chairman Joe Knollenberg
Rep. Eleanor Holmes Norton

House Defends Boy Scouts
D.C. Commission Sought Damages for Scouts' Stand on Homosexuality
September 26, 2001
Concerned Women for America

The House voted 262-152 Tuesday in favor of a measure offered by Rep. John Hostettler (R-Indiana) to ban the D.C. government from spending any money to enforce a D.C. Human Rights Commission ruling punishing the Boy Scouts of America for violating the city's "sexual orientation" anti-discrimination law.

The commission had issued a 75-page ruling that says the Scouts' policy of prohibiting homosexuals from serving as Scoutmasters violates the city's "sexual orientation" anti-discrimination law. The commission ordered the Boy Scout Council to reinstate two homosexual leaders, Roland Pool and Michael Geller, and pay the two men $50,000 each in damages.

The Scouts are appealing the ruling, which many conservatives said was especially extreme since the U.S. Supreme Court had already upheld the Scouts' right to set their own moral and membership standards.

Hostettler described the D.C. commission ruling as "arrogant" and "intrusive."

Rejection of Gay Scout Leaders Is Upheld
D.C. Appeals Court Overturns Ruling by Rights Panel Ordering Reinstatement

By Arthur Santana
Washington Post
Friday, November 8, 2002; Page B03

The Boy Scouts of America did not act illegally in rejecting two gay men as scout leaders, a D.C. appellate court ruled yesterday, overturning a ruling issued last year by the D.C. Commission on Human Rights ordering that the men be reinstated.

Besides losing their bid to return to scouting, Michael S. Geller and Roland D. Pool will not be able to collect the $50,000 each they were awarded by the commission in damages from the Boy Scouts and National Capital Area Council.

The D.C. Court of Appeals found that the commission's ruling was flawed because of a June 2000 Supreme Court ruling declaring that the Boy Scouts of America was within its rights when the organization expelled another adult scout leader because he is gay.

The Supreme Court overruled the New Jersey Supreme Court in ruling 5 to 4 that the Boy Scouts had a First Amendment right to "expressive association" that would be violated if it was forced to admit a gay man, James Dale, as an assistant scoutmaster. But one year later, the D.C. commission relied on the D.C. Human Rights Act of 1977 and found that Geller and Pool were illegally subjected by the Boy Scouts to "humiliation, embarrassment and indignity."

In yesterday's ruling, Appellate Judges Stephen H. Glickman, Michael W. Farrell and Inez Smith Reid said they were compelled to abide by the Supreme Court decision because they could find no significant difference between the two cases.

The commission contended that Dale was a public gay activist but that Geller and Pool gave no indication they would advocate homosexuality as Boy Scout leaders. As a result, the commission declared last year, "the District's interest in eradicating discrimination outweighs the Boy Scouts' right of expression."

But the appellate court disagreed, saying Geller and Pool had indeed been vocal about their homosexuality.

George A. Davidson, a New York-based lawyer who represented the Boy Scouts, said he was pleased with the court's decision.

The Boy Scout code mandates that scouts must be "morally straight," and Davidson said that "homosexual conduct is not morally straight." Dale, Geller and Pool did not belong in leadership roles in the Boy Scouts because they would likely "advocate a lifestyle contrary to the dictates of the scout oath," he said.

Geller, 40, who lives in Washington, maintained that the appellate court "misread the whole thing." In 12 years as a scout leader, he said, he never shared his homosexuality with youths.

"It's a bitter disappointment after 10 years of fighting this," Geller said.

Pool, 41, who now resides in New Mexico, also took issue with the court's determination that he and Geller were vocal about their homosexuality.

"We never went around carrying a flag that we had this case against the Boy Scouts, and other than being involved in many community gay organizations, that's about as public as we were," Pool said.

Cornelius Alexander, the chief hearing examiner for the D.C. Commission on Human Rights, expressed disappointment with the court decision. Merril Hirsh, the lawyer who represented Pool and Geller, declined to say yesterday whether he will seek another review of the case.

Geller was an adult leader of his troop in Oswego, N.Y., before moving to Washington. His membership was revoked in 1992 after he wrote a letter to the Boy Scouts in response to a Washington Post article that quoted the National Capital Area Council's top official as saying that gay men were inappropriate role models.

Pool, a Louisiana native and former computer specialist and geologist at the Smithsonian Institution, was rejected by the scouts after he indicated that he was gay on an application to be a scout unit commissioner.

"It feels like I lost my best friend," Pool said yesterday. "I feel like it was one of the most important organizations influencing me as I grew up. I gave all that up to stand up for what I thought was right, and now it looks like I will have given that up for life."
 

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