Boy Scouts of America v. Wyman

Citation335 F.3d 80
Decision Date09 July 2003
Docket NumberNo. 02-9000.,02-9000.
PartiesBOY SCOUTS OF AMERICA and Connecticut Rivers Council, Boy Scouts of America, Plaintiffs-Appellants, v. Nancy WYMAN, in her capacity as Comptroller of the State of Connecticut and as a member of the Connecticut State Employee Campaign Committee, Carol Carney, in her capacity as Chair of the Connecticut State Employee Campaign Committee, Margaret Diachenko, Richard Edmonds, Paluel Flagg, Christine Fortunato, Burton Gold, Carol Guiliano, Carol Hamilton, Marilyn Kaika, Joan Kelly-Coyle, D'Ann Mazzocca, Bernard McLoughlin, Michael Nichols, William Phillie, Cheryl Swain, Noel Thomas, in their capacities as members of the Connecticut State Employee Campaign Committee, Defendants-Appellees, Commission on Human Rights & Opportunities, Intervenor-Defendant-Appellee, Connecticut Coalition for Lesbian, Gay, Bisexual & Transgender Civil Rights, Connecticut Women's Education and Legal Fund, Inc. and Gay & Lesbian Advocates & Defenders, Movants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

George A. Davidson (Carla A. Kerr, on the brief) Hughes Hubbard & Reed LLP, New York, N.Y. (Daniel L. Schwartz, Day, Berry & Howard LLP, Stamford, Conn., on the brief), for Plaintiffs-Appellants.

Joseph Rubin, Associate Attorney General, for Richard Blumenthal, Attorney General of Connecticut (William J. Prensky, Assistant Attorney General, on the brief), Hartford, Conn., for Defendants-Appellees.

C. Joan Parker, Connecticut Commission on Human Rights & Opportunities, Office of Commission Counsel, Hartford, Conn., for Intervenor-Defendant-Appellee.

Jennifer L. Levi, Gay & Lesbian Advocates & Defenders, Boston, Mass.; Maureen M. Murphy, Murphy, Murphy, Ferrara & Nugent, LLC, New Haven, Conn., for Movants.

Peter Ferrara, American Civil Rights Union, McLean, Va., for Amicus Curiae American Civil Rights Union, in support of Plaintiffs-Appellants.

John H. Findley, Harold E. Johnson, Pacific Legal Foundation, Sacramento, Cal., for Amicus Curiae Pacific Legal Foundation, in support of Plaintiffs-Appellants.

Jamie L. Mills, Hartford, Conn., for Amicus Curiae Connecticut Voices for Children, Connecticut Parents, Families and Friends of Lesbians and Gays, Inc., Connecticut Sexual Assault Crisis Services, Inc., Gay Lesbian and Straight Education Network, Hartford Gay and Lesbian Health Collective, Institute for Community Research, and True Colors, Inc., in support of Defendants-Appellees and Intervenor-Defendant-Appellee.

Before: CALABRESI, F.I. PARKER, and SACK, Circuit Judges.

CALABRESI, Circuit Judge.

In May 2000, the Connecticut State Employee Campaign Committee denied the application of the Connecticut Rivers Council, a local chapter of the Boy Scouts of America, to participate in the state's workplace charitable contribution campaign. That decision was based on a ruling by the Connecticut Commission on Human Rights and Opportunities that the Boy Scouts of America's policy of excluding homosexuals from membership and employment positions meant that the local chapter's participation in the campaign would contravene state law. The Boy Scouts brought suit for violations of their First Amendment right of expressive association, see Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000), and of Connecticut State law. The United States District Court for the District of Connecticut (Eginton, J.) granted the defendants' motion for summary judgment. We hold that the removal of the Boy Scouts from this nonpublic forum did not violate the Boy Scouts' First Amendment right to expressive association. We also hold that there was no violation of Connecticut law. Accordingly, we affirm the judgment of the district court.

BACKGROUND

The Connecticut legislature has established an annual workplace charitable campaign (the "Campaign") to "raise funds from state employees for charitable and public health, welfare, environmental, conservation and service purposes." Conn. Gen.Stat. § 5-262. The Campaign is conducted from September to November each year. State employees make voluntary contributions to charities selected from a list of participating organizations set forth in a booklet that is distributed at the workplace. Gifts are made by payroll deduction. The amount deducted is collected by the Comptroller and transmitted to a principal combined fund-raising organization, usually a United Way, that administers the Campaign for the state.

The Campaign is governed by a State Employee Campaign Committee (the "Committee") whose voting members include: the Comptroller or her designee, the Commissioner of Administrative Services or his designee, the executive director of the Joint Committee on Legislative Management or his designee, ten state employees and two retired state employees. Conn. Gen.Stat. § 5-262(b). Committee members who are current state employees continue to be paid their state salaries while they work on the Campaign during normal business hours. Similarly, state agencies are encouraged to loan employees to the Committee to work on the Campaign. Conn. Agencies Regs. § 5262-2(d). But the State does not contribute to the Committee's budget or fund the operations of the Campaign. Operating costs are furnished by the participating charities.

Member organizations participate through federations. A member organization files its Campaign application with its parent federation, which maintains the application. The parent federation then files an annual application with the Committee attesting to its member organizations' compliance with all of the Committee's requirements. The application requires, inter alia:

a document signed by an officer or the executive director of a federation, certifying... that the federation maintains on file the following documents for itself and for each member agency .... (vii) a written policy of non-discrimination.

Conn. Agencies Regs. § 5-262-4(a)(4). The Committee, acting through a subcommittee, reviews all applications for completeness and for compliance with eligibility standards. The Committee's regulations also provide for the removal of a federation or one of its member organizations from a campaign if that federation or member organization fails to adhere to the eligibility requirements or the policies and procedures of the Campaign. Conn. Agencies Regs. § 5-262-5(a). If a member organization's eligibility to participate in the Campaign is withdrawn by the Committee, the federation may not distribute any funds raised in the Campaign to that organization. Conn. Agencies Regs. § 5-262-5(c).

The Connecticut Rivers Council, Boy Scouts of America, is a private, nonprofit organization chartered by the Boy Scouts of America to support scouting in the Connecticut counties of Litchfield, Hartford, Windham, New London, and Middlesex. (The Connecticut Rivers Council and Boy Scouts of America have submitted a joint brief to this court and will be referred to collectively as the "BSA.") The Connecticut Rivers Council and three other Connecticut councils are member agencies of local chapters of the United Way. The BSA has participated in the Campaign for 30 years. In its applications, the BSA affirmatively answered that it had a written policy of nondiscrimination. In 1999, some state employees earmarked their Campaign donations for the BSA and, upon application to its local United Way, the BSA received corresponding disbursements.

The Connecticut Commission on Human Rights and Opportunities ("CHRO") is the independent state agency that is "charged with the primary responsibility of determining whether discriminatory practices have occurred and what the appropriate remedy for such discrimination must be." Dep't of Health Servs. v. Comm'n on Human Rights & Opportunities ex rel. Mason, 198 Conn. 479, 503 A.2d 1151, 1156 (1986).

On October 6, 1999, Cynthia Watts Elder, the Executive Director of the CHRO, wrote an unsolicited memorandum to the Committee indicating her concern that, by allowing the BSA to participate in the Campaign and to benefit from a fundraiser that used state resources, the Committee potentially made the state a party to discrimination in violation of Connecticut's Gay Rights Law, Conn. Gen.Stat. §§ 46a-81a — 46a-81r. The impetus for the letter was the New Jersey Supreme Court's decision in Dale v. Boy Scouts of America, 160 N.J. 562, 734 A.2d 1196 (N.J.1999), which, as described by Watts Elder in her memorandum, had "decided that it is discriminatory for the Boy Scouts of America to expel an Assistant Scoutmaster who publicly declared that he was gay."

In reaction to the October 6, 1999 letter from the CHRO, the Committee sought an immediate clarification from the BSA. On October 12, 1999, Harry Pokorny, Scout Executive of the Connecticut Rivers Council, sent a letter in response that expressed the BSA's national position on homosexuality, which was that "[i]f an individual does indicate that they are homosexual we can not register them." In the BSA's Local Rule 9(c)(2) Statement in Response to Defendant-Intervenor's Local Rule 9(c)(1) Statement, the BSA stated its policy as follows:

In the exercise of its constitutional rights, Boy Scouts does not employ known or avowed homosexuals as commissioned professional Scouters or in other capacities in which such employment would interfere with Scouting's mission of transmitting values to youth. However, other jobs within Scouting are open to known or avowed homosexuals..... In the exercise of its constitutional rights, Boy Scouts does not register known or avowed homosexuals as adult volunteer leaders or youth members.

The Boy Scouts of America's position on sexual orientation was memorialized in its writings as long as twelve years ago. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 651-53, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).

Because of the apparent conflict between the BSA's...

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