The decision by the New York branch of the Boy Scouts of America (BSA) to break national bylaws and hire an openly gay scout leader will tee up a bitter legal fight within the organization to maintain its ban on gay leaders or result in a quiet end to the divisive policy.
The Greater New York Councils of the BSA hired Pascal Tessier, an openly gay 18-year-old college student and Eagle Scout, to work as a camp counselor this summer.
"GNYC has a long-standing policy of non-discrimination and supports the rights of gay adults to work for the Boy Scouts," the chapter said in a statement. "We believe that this young man, who achieved his Eagle Scout designation in 2014, is an exemplary candidate for employment as a camp leader. We welcome him and look forward to his participation in our camp program.We do not want our policy of non-discrimination to be affected by the national policy."
Tessier has been a Boy Scout since the age of six, and became involved in the pro-gay advocacy group Scouts for Equality when he was 16, according to Zach Wahls, the group's founder.
Scouts for Equality worked to successfully push the BSA to vote to eliminate the ban on openly gay scouts in 2013, and has since been advocating that the organization eliminate its ban on gay leaders. Tessier was the first openly gay Eagle Scout.
'They now have gay scouts, and the world is not falling — puppy dogs are still cute and cows are still giving milk.'
New York State prohibits discrimination on the basis of sexual orientation, and the Scouts' Greater New York Councils is one of 29 affiliates around the country that have publicly stated they do not support the national ban on gay leaders.
"Part of why the situation in New York is so tough is that the council said, 'It's our policy not to discriminate, in part because it's illegal and in part because inclusion is important to us,' " Wahls told VICE News. "So now there's this gray area in which we find ourselves."
After the New York Councils announced his hiring, LGBT rights advocacy group the Human Rights Campaign said that Tessier would be represented by high-profile attorneys David Boies and Joshua Schiller, who both fought to overturn Proposition 8 in California, in the event of a legal challenge to the national policy.
"We're hopeful the Boy Scouts will look at this as an opportunity to do one thing — to come out and take a position that is, we're glad the New York council has decided to comply with New York law to hire this man who's qualified and give him a job," Schiller told VICE News. "It's 2015, and it's important to respect the rights of all Americans, including gay, lesbian, and transgender individuals."
Schiller said that he and Boies have been working with Tessier since the fall of 2014. They were pleasantly surprised when the Greater New York Councils hired him.
"It's a huge crack in the wall that the New York council was willing to hire a scout leader who they knew to be openly gay," Fred Sainz, vice president of communications for the Human Rights Campaign, told VICE News. "They are positively complicit in trying to remove this barrier to gay scout leaders, which is the only barrier that remains in scouting, and I think the next move is obviously up to the BSA organization as to how to they are going to play this, and that will say a lot about how they view the future of scouting and this issue."
Sainz outlined four possible ways the BSA could respond to the hiring decision. It could embrace it as a policy change; look the other way and publicly ignore the hiring; attempt to sidestep the issue of Tessier's sexuality and the likelihood of a lawsuit by arguing that the New York affiliate did not follow proper hiring processes; or uphold the ban on gay leaders and prepare to defend the policy in court.
"The Boy Scouts' policies for adult leaders and employees have not changed," the BSA said in a statement, though it has not yet indicated how it will respond to the hiring decision. "While we were only recently made aware of this issue, we are looking into the matter."
Interestingly, the organization elected former defense secretary and CIA director Robert Gates as its president last year. Gates oversaw the repeal of the US military's "Don't Ask, Don't Tell" policy on gays in the service, and was the target of an open letter Tessier wrote last year calling for the repeal of the BSA's ban on gay adults.
Following his election, Gates delivered a speech in which he said, "A year ago, this meeting saw a respectful and civil debate over membership policy. In a democratic process, a strong majority of the volunteer leadership of this movement from all across the nation voted to welcome gay youth into scouting. In all candor, I would have supported going further, as I did in opening the way for gays to serve in CIA and in the military."
The BSA famously went to the Supreme Court to maintain its ban on gay scouts in 2000, after it expelled openly gay college student and scoutmaster James Dale, flouting New Jersey's anti-discrimination laws. The Supreme Court ruled 5-4 in favor of the Boy Scouts.
"It's a pretty gutsy case in that it takes on an existing Supreme Court precedent, but David Boies clearly believes the time is right to take that on," Sainz said. "Times have changed considerably, and the Supreme Court might be in a different place now in consideration of allowing gays to serve as leaders, given that the Boy Scouts have changed their policies with scouts. Obviously we are very hopeful it won't take a lawsuit to do that."
Schiller said that the BSA would be in violation of New York's anti-discrimination employment law if the organization blocks Tessier's hiring. The anti-discrimination ordinance is different from New Jersey's public accommodation law, which was the focus of the Supreme Court case.
"That case was long time ago, and LGBT rights have gained a lot of traction in intervening time. What's important is these employment protections have risen in last 15 years and lot of people have taken cases successfully through the courts," Schiller said. "When you're a big commercial enterprise, I don't think you can get away with it in 2015."
If a dispute over Tessier's hiring were to go to court, it could result in a decision that forces the BSA to allow gay leaders in states and cities that have employment protections for LGBT people, but would still allow them to ban gays in places that don't.
A coalition of Christian churches and groups fought to keep the ban on gay scouts in 2013 but lost that battle; some splintered off after the decision and created Trail Life, a Christian scouting organization that continues to ban openly gay members. The Church of Jesus Christ of Latter-day Saints, which threatened to leave the Boy Scouts during the 2000 Supreme Court case if gays were admitted, expressed support for the BSA's acceptance of gay scouts in 2013.
"They now have gay scouts, and the world is not falling — puppy dogs are still cute and cows are still giving milk," Sainz remarked. "For me, when I hear Pascal's story…I hear a person who wants to give back to an organization like the Boy Scouts, and I see a quintessential American institution that has been a part of this nation's moral bedrock for a century engaging in discrimination on the basis of sexual orientation, and that's not acceptable."