State lawmakers in California, unhappy at the Boy Scouts of America’s prohibition against gay membership, are considering legislation that would remove the organization’s tax-exempt status if it doesn’t change its ways.
Although state Senate Bill 323, introduced in February, is most certainly aimed at the Boy Scouts and their ban on gays, the legislation names 22 youth groups that “shall not discriminate on the basis of gender identity, race, sexual orientation, nationality, religion, or religious affiliation.”
That wasn’t enough to dissuade the Los Angeles Times editorial board from chastising state Senator Richard Lara, who sponsored the Youth Equality Act, for singling out the nonprofit organization in what the newspaper deems an unconstitutional assault on the Scouts’ “expressive message.”
The U.S. Supreme Court used the phrase “expressive message” in 2000 to justify the Scouts’ deplorable ban on gays by saying it was inseparable from the organization’s mission. Supreme Court Chief Justice William Rehnquist wrote the majority decision after a 5-4 vote and defended the Scouts’ gay ban as a First Amendment free speech right.
MediaMatters, a nonprofit progressive research and advocacy center, argues that the 2000 decision is not an absolute shield for discriminatory behavior and that a subsequent decision in 2010, made it clear that government could still deny special tax benefits if the legislation is broadly written. The state can withhold a special tax break, MediaMatters argues, it just can’t ban the organization or force it to accept gay members.
The Boy Scouts have made it clear that the matter will be hashed out in court if the legislation is approved. For now, the Senate Governance and Finance Committee has passed the bill, but it must win approval from two-thirds of the full Senate before advancing to the Assembly.