In 2000, the U.S. Supreme Court upheld the Boy Scouts' policy of accepting for membership only those who adhere to the values in the Scout Oath and Law, which includes a promise to be "morally straight."
"BSA's consistent adherence to its values as embodied in the Scout Oath and Law were important factors that led to the U.S. Supreme Court ruling in BSA's favor when its membership policy was challenged as a violation of a state public accommodations law," ADF said.
Scout leadership has entertained the idea that changing its policy would protect the organization from discrimination lawsuits, yet ADF said it would have the opposite effect.
"Giving in will not alleviate their demands nor will it avoid legal liability for BSA or its many councils, charters, and troops. It is not legally necessary for BSA to sacrifice its history or its principles in the face of growing threats," the legal organization said.
"The lack of a common, central message among the troops would undermine the protection afforded" by the Supreme Court ruling.
Even a neutral national policy that leaves membership decisions to local councils and troops would endanger the organization, ADF said, because the Boy Scouts "then will have no common message upon which to base their right to freedom of expressive association."
In recent years a handful of councils and troops have defied the Scouts' membership policy and have admitted members who are in defiance of the organization's values, ADF noted. BSA should not let those isolated councils and troops dictate national policy because the existence of such noncompliant groups does not undermine the legal defensibility of BSA's policy, ADF said.
"However, to ensure ongoing protection for its national policy under the First Amendment, BSA should take steps to regulate or disassociate itself from these groups," ADF said. "In sum, consistency is key. Organizations that strive to maintain a consistency of their message by selecting members and participants based on a shared set of values typically have their First Amendment free association rights affirmed."
If the Scouts said troops must adhere to the membership policy but allowed councils and troops to defy that policy, showing an inconsistency between words and deeds, "a court may be inclined to find that the BSA's policy is no longer necessary to BSA's mission and is therefore afforded no constitutional protection."
If membership decisions were left up to local councils and troops, ADF said, "Rather than alleviating concerns of legal liability, this change would exacerbate those concerns for the national organization and for local councils and troops."
Soon after the Supreme Court ruling in 2000, an appeals court ruled in a related case that unless the Boy Scouts changed their "official position," they were not in violation of a public accommodations law.
"This ruling is a stark warning that some courts may stand ready to rule against BSA and its members if there is any change in BSA's 'official position,'" ADF said. "Therefore, such a change, as BSA is contemplating, will not strengthen or protect BSA, but rather could be its undoing."
Maintaining the current policy is the surest way for the Boy Scouts to ensure that state and local public accommodation laws do not interfere with the organization's policies and operations, ADF said.
If the national organization lifts its ban on admitting homosexuals and allows local councils and troops to decide, ADF said, the risk would be even greater for those who choose to maintain the Scouts' values-based policy.
"Any council or troop that argues that the values-based membership policy is fundamental to the group will be undermined by other troops within the same organization who have abandoned it," ADF counseled. "The lack of a common, central message among the troops would undermine the protection afforded" by the Supreme Court ruling.
Local troops and councils that wish to abide by the traditional membership policy if the ban is lifted, ADF said, risk substantial litigation that they cannot afford and that they could lose.
ADF suggested two steps the Boy Scouts should take in order to protect the organization from legal attacks: Reaffirm the longstanding national membership policy and take immediate steps to disassociate or revoke the charters of councils and troops that are in open defiance of the membership policy.
"Boy Scouts are charged 'to do the right thing,' and this is the right moment for Boy Scouts leadership to set the example and do the right thing: defend Scouts' honor," David Cortman, ADF senior counsel, said in a news release.
"For generations, the Boy Scouts have stood firm on certain moral principles that have successfully shaped our nation's boys into leaders. The Constitution protects the Boy Scouts' freedom to promote the values that have defined the organization and to ensure that its leaders and members adhere to those values," Cortman said.
Erik Stanley, an ADF senior counsel who is an Eagle Scout, said the Boy Scouts shouldn't give in to intimidation or abandon its values.
"Its leadership should defend the Scouts' honor and stand strong on the principles that have made the Boy Scouts one of America's most revered institutions," Stanley said.
The New York Times reported March 12 that the Boy Scouts' leadership sent surveys in recent days to 1.1 million Scouts and their families nationwide, asking questions that could help leaders decide whether to change the membership policy.
Among the questions, The Times said, were whether gay and straight Scouts should be allowed to share a tent on a camping trip; what role faith should play in Scouting if a church sponsoring a local Scout troop has taken a position on the inclusion or exclusion of gays and lesbians in its congregation; and whether the Scout Oath declares a value about sexual orientation or just a general, admirable code of conduct.
The surveys also ask whether the respondent would continue to participate in Boy Scouts if the national organization makes a decision on the membership policy that differs from the respondent's opinion.
Several Southern Baptist leaders have been outspoken about the need for the Boy Scouts to maintain their current membership policy, including SBC Executive Committee President Frank Page and SBC President Fred Luter.