The Boy Scouts: A Threat to Religious Liberty?

February 1, 2013


Mr. Wayne Brock
Chief Scout Executive

Mr. Wayne Perry

Mr. Tico Perez
National Commissioner

Mr. Richard Mathews
General Counsel


We write to bring to your attention serious issues regarding the Boy Scouts of America’s proposed policy change on openly-gay scouts and scout leaders. As several of the nation’s foremost religious-liberty law firms—litigating hundreds of First Amendment lawsuits throughout the United States, from county courts all the way to the Supreme Court of the United States—we wish to urgently inform you of the severity of the unintended consequences that could ensue if you adopt the proposed change at your February meeting. We have long supported and defended BSA in court on this very issue—including at the Supreme Court in 2000—at considerable cost of manpower and resources, and hope you will give serious consideration to our concerns.

You are of course aware of the number of Boy Scout troops and Cub Scout packs sponsored by churches—whether Protestant, Catholic, or Mormon—and that hold their meetings in those church facilities. Both those sponsorships and the use of those facilities would be jeopardized if the proposed policy change is adopted.

Making the proposed policy change would have profound implications regarding religious liberty and First Amendment rights. Your organization won at the Supreme Court regarding your current policy by a single vote. But the Supreme Court’s majority opinion rested in part on the premise that BSA, as an organization, has a right to define its own mission and its views regarding morality and the values BSA seeks to instill in boys and young men. Delegating that decision to local subsidiaries necessarily means that BSA no longer has a national, organization-wide position on the morality of homosexuality. As such, those local affiliates would be beyond the limits of the Supreme Court’s holding in Boy Scouts of America v. Dale, and each would be subject to new lawsuits under antidiscrimination laws and policies in whatever city and state each troop and pack is situated in.

While it is possible many of those local units would prevail in their lawsuits, many others might not, and the costs of litigation in either event would be nothing short of crippling for BSA. The legal safe harbor you currently enjoy could only be restored by a second victory at the Supreme Court, if this matter reaches the justices a second time and if the Court again sides with you, during which process you will again incur very significant legal costs.

There are other implications that could entail a tremendous financial impact, far exceeding the threatened loss of financial support BSA is currently facing from organizations that support the gay agenda. As one example, hundreds of churches that currently sponsor scouting units and permit those troops and packs to meet in their facilities would be compelled to withdraw their sponsorship and rescind the privilege of allowing your scouts to meet in those churches. This would displace countless troops and packs.

We also want to assure you—based on our decades of experience on dealing with this issue—that if you adopt the proposed change it will not buy you peace. Those organizing the campaign against BSA on this issue will not be appeased or satisfied by allowing local councils to decide this issue. They will instead adopt a two-track approach. First, they will next pressure your corporate body to adopt a national policy embracing gay scouts and leaders and imposing that decision upon local councils. And second, as referenced above, those councils that adhere to a traditional view of marriage will now be sued under multiple antidiscrimination and public-accommodation laws.

If you defer this decision to a future meeting, any one of our organizations is happy to provide you with a detailed analysis regarding these issues. We are also happy to provide legal representation to protect your First Amendment rights if you choose to continue respecting and adhering to your longstanding view of what the Scout Oath means when a scout promises to be “morally straight.”


Mathew Staver
Chairman and Founder
Liberty Counsel

Kelly Shackelford
President and Chief Executive Officer
Liberty Institute

Gary McCaleb
Chief Solicitor and Executive Vice President
Alliance Defending Freedom

About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit

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