Case No. 02-9000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

______________________________________________________��

�� )

BOY 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; and MARGARET DIACHENKO, RICHARD�� )

EMONDS, PALUEL FLAGG, CHRISTINE�� FORTUNATO, �� )

BURTON GOLD, CAROL GUILIANO, CAROL HAMILTON, �� )

MARILYN KAIKA, JOAN KELLY-COYLE, D�ANN �� )

MAZZOCA, 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 HUMANRIGHTS AND OPPORTUNITIES�� )�� )

�� Intervenor-Defendant � Appellee,�� )

�� )

CONNECTICUT COALITION FOR LESBIAN, GAY,�� )

BISEXUAL, & TRANSGENDER CIVIL RIGHTS,�� )

CONNECTICUT WOMEN�S EDUCATION AND LEGAL �� )

FUND, INC. and GAY AND LESBIAN ADVOCATES &�� )

DEFENDERS, �� )

�� )

�� Movants,�� )

______________________________________________________)��

APPEAL FROM THE DISTRICT COURT OF CONNECTICUT

____________________________

BRIEF OF AMICUS CURIAE

AMERICAN CIVIL RIGHTS UNION

IN SUPPORT OF PLAINTIFF-APPELLANTS

MOTION FOR REHEARING

�� Peter Ferrara

�� Counsel for American Civil Rights Union

�� 1232 Pine Hill Rd.

�� McLean, VA 22101

�� 703-582-8466

CORPORATE DISCLOSURE STATEMENT

�� The American Civil Rights Union is a non-profit, 501(c)(3) corporation with no stock and no parent corporations.

TABLE OF AUTHORITIES��..ii

INTEREST OF AMICUS CURIAE��.1

ARGUMENT��2

I.� THE STATE CANNOT IMPOSE PENALTIES ON THE EXERCISE OF CONSTITUTIONAL RIGHTS, EVEN IF IT DOES SO ON A VIEWPOINT NEUTRAL BASIS��2

II. THE STATE CANNOT PUNISH, ON A VIEWPOINT DISCRIMINATORY BASIS, THE EXERCISE OF FREEDOM OF EXPRESSIVE ASSOCIATION, EVEN IF SUCH VIEWPOINT DISCRIMINATION WAS NOT THE PURPOSE OF THE PUNISHMENT��6

III.� THE EXCLUSION OF THE BOY SCOUTS FROM THE CONNECTICUT WORKPLACE CHARITABLE CAMPAIGN WAS ADOPTED PRECISELY FOR THE PURPOSE OF OPPOSING AND SUPPRESSING THE MESSAGE AND VIEWPOINT OF THE SCOUTS��..9

CONCLUSION��.10

TABLE OF AUTHORITIES

Cases�� Page

Anderson v. Liberty Lobby, 477 U.S. 242 (1986)��..9

Anderson v. McCotter, 100 F.3d 723 (10^th Cir. 1996)��5

Bd. of Comm�rs, Waubensee County v. Umbehr, 518 U.S. 668 (1996)��.�.4

Boy Scouts of America v. Dale, 530 U.S. 640 (2000)��..2,7

Boy Scouts of America v. Till, 136 F. Supp. 2d 1295 (S.D. Fla. 2001)��8-9

Brooklyn Institute of Arts and Sciences v. City of New York,

64 F. Supp. 2d 184 (E.D.N.Y. 1999)��.6

Cornelius v. NAACP Legal Defense and Educational Fund, Inc.,

473 U.S. 788 (1985)��2,3,4

Cuffley v. Mickes, 208 F.3d 702 (8^th Cir. 2000), cert. denied,

532 U.S. 903 (2001)��5

DeBoer v. Village of Oak Park, 267 F.3d 558, (7th Cir. 2001)��5

FCC v. League of Women Voters, 468 U.S. 364 (1984)��..5

Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996)��..8

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,

515 U.S. 557 (1995)��..7-8

Hyland v. Wonder, 972 F.2d 1129 (9^th Cir. 1992), cert. denied,

508 U.S. 908 (1993)��..5

Kinney v. Weaver,301 F.3d 253, No. 00-40557, 2002 WL 1764145

(5^th Cir. July 31,2002)��5

Knights of the Klu Klux Klan v. East Baton Rouge Parish School Board,

578 F.2d 1122 (5^th Cir. 1978)��.5-6

Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001)��5

NEA v. Finley, 524 U.S. 569 (1998)��.6

Okwedy v. Molinari, No 01-7941, 2003 WL 21448393, *4(2d Cir. June 24, 2003)��5

Perry v. Sinderman, 408 U.S. 593 (1972)��.4,5

Planned Parenthood Federation of America, Inc. v. Agency for Intern. Development,�5

915 F.2d 59 (2d Cir. 1990) cert. denied 500 U.S. 92 (1991)

Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983)��6

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)��.�.5

Speiser v. Randall, 357 U.S. 513 (1958)��..5

Other Authorities

10A C. Wright et al. Federal Practice and Procedure Sect. 2725, at 93-95 (1983)��..9

iii

INTEREST OF AMICUS CURIAE

�� The American Civil Rights Union (ACRU) is a non-partisan legal policy organization dedicated to defending all the rights enumerated in the Bill of Rights and the 14^th Amendment, not just those that might be politically correct for a time or fit a particular ideology.� Those setting the organization�s policy as members of the Policy Board are former U.S. Attorney General Edwin Meese, former Federal Appeals Court Judge Robert Bork, former Reagan White House Policy Advisor Robert Carleson, who also serves as the organization�s chairman, former Assistant Attorney General for Civil Rights William Bradford Reynolds, former Harvard University Professor James Q. Wilson, former Ambassador to Costa Rica Curtin Winsor, Jr., and nationally syndicated columnist Joseph Perkins.

�� This is precisely the sort of case that is of interest to the ACRU, because we are most concerned about protecting those whose rights and liberties may be overlooked or infringed due to political correctness or other political bias.� In this case, we are particularly concerned that the liberty interests of the Boy Scouts to promote their traditional moral values is properly understood.

�� This brief is filed under the authority of Rule 29 of the Federal Rules of Appellate Procedure, and has been authorized by the corporate officers of the American Civil Rights Union.�

ARGUMENT

�� Amicus curiae ACRU supports the motion of the Plaintiff-Appellants for a panel rehearing or, in the alternative, consideration by this Court en banc of the July 9, 2003 panel decision in this case.� Thorough briefing and consideration of the doctrine of unconstitutional conditions is needed because the July 9 panel opinion confuses that doctrine with the different doctrine of Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985).� Moreover, reconsideration is needed of the law regarding Freedom of Expressive Association, because the state is not free to restrict or penalize the exercise of that freedom on a viewpoint discriminatory basis merely because its purpose was not to suppress expression.� Thirdly, the opinion failed to consider the substantial evidence that the exclusion of the Boy Scouts from the workplace charitable campaign was motivated primarily by opposition to the message and viewpoint of the Scouts, and an intention to suppress that viewpoint.

I.� THE STATE CANNOT IMPOSE PENALTIES ON THE EXERCISE OF CONSTITUTIONAL RIGHTS, EVEN IF IT DOES SO ON A VIEWPOINT NEUTRAL BASIS.

�� The proper analysis of this case is straightforward.� The doctrine of unconstitutional conditions holds that governments may not penalize or punish private actors for exercising their Constitutional rights.� Here the state of Connecticut excluded the Boy Scouts from participating in its workplace charitable campaign precisely because of the exercise of the Scouts of the Constitutional right that the U.S. Supreme held that the Scouts have in Boy Scouts of America v. Dale, 530 U.S. 640 (2000).� Consequently, the exclusion of the Boy Scouts from the charitable campaign is unconstitutional.

�� The July 9 opinion of the Court went awry because it confused the doctrine of unconstitutional conditions with the separate line of cases sprouting from Cornelius.� That case held that a government could exclude a potential participant from a limited public forum if the exclusion was reasonable and not viewpoint discriminatory.� That is a sound rule for management of a limited public forum.� But Cornelius is not an unconstitutional conditions case.� The exclusion there did not involve penalizing a potential participant for the exercise of any constitutional right.

�� Nevertheless, the July 9 opinion of the Court holds that a government may penalize or punish the exercise of a constitutional right if it was reasonable and not viewpoint discriminatory in doing so.� The opinion states,

�In order to prevail, the BSA must establish two propositions.� First, it must show that it was excluded from the Campaign because of acts protected by the First Amendment�.Second, assuming that the BSA�s removal from the Campaign was a consequence of the BSA�s exercise of its First Amendment right to expressive association, the BSA must establish that that removal violated the Constitution�.[T]he BSA must demonstrate that the Committee�s decision to exclude it from the Campaign was either unreasonable or viewpoint discriminatory.�

Slip Op. at 11-12.�

But the second prong of this test is not part of the doctrine of unconstitutional conditions.� If the Boy Scouts were excluded from the Campaign because of acts protected by the First Amendment, then that alone rightly establishes a violation of law under the doctrine.� That is what the doctrine of unconstitutional conditions is all about.� If �the BSA�s removal from the Campaign was a consequence of the BSA�s exercise of its First Amendment right to expressive association�, the Scouts do not have to go on to establish that this penalty or punishment for exercising their constitutional rights was either unreasonable or viewpoint discriminatory.

�� Those additional requirements are confused imports from the Cornelius case.� The opinion reveals this confusion in saying,

�Rather, this case appears to be governed by two lines of First Amendment cases.� The first deals with nonpublic forums and is exemplified by Cornelius�.

�The second relevant line of cases is often described as the doctrine of unconstitutional conditions, which holds that the government may not condition certain government benefits on the relinquishment of constitutional rights�.

�The case before us lies at the intersection of these two lines of authority and it makes no difference under which line we analyze it.� Whether viewed as denial of access to a nonpublic forum or as the denial of a government benefit, the BSA�s exclusion is constitutional if and only if it was (1) viewpoint neutral and (2) reasonable.�

Slip Op. at 17-18.

�� The doctrine of unconstitutional conditions does not say that a government may penalize or punish the exercise of a constitutional right as long as it does so reasonably and without viewpoint discrimination.� In Perry v. Sinderman, 408 U.S. 593 (1972), a state college refused to renew the contract of a non-tenured professor because he publicly criticized the college�s administration.� There was no suggestion in that case that the violation could be cured by some sort of viewpoint neutral policy, perhaps prohibiting all public commentary, pro and con, from college faculty regarding the administration.

�� Similary, in Bd. of Comm�rs, Waubensee County v. Umbehr, 518 U.S. 668 (1996), a County Board refused to renew the contract of a trash hauler because of the hauler�s public criticism of the Board.� Again, there was no indication that a viewpoint neutral prohibition on the exercise of Free Speech rights regarding the Board, pro and con, would have cured the problem.� Rather, the court said, �our modern �unconstitutional conditions� doctrine holds that the government �may not deny a benefit to a person on a basis that infringes his constitutionally protected� freedom of speech.�� Id. at 674(quoting Perry, 408 U.S. at 597).

�� A viewpoint neutral policy was, in fact, struck down by the Supreme Court in FCC v. League of Women Voters, 468 U.S. 364 (1984).� In that case, the Court held that Federal grants cannot be denied to public broadcasters for refusing to agree not to engage in First Amendment protected editorializing.

�� In a Second Circuit unconstitutional conditions case, Planned Parenthood Federation of America, Inc. v. Agency for Intern. Development, 915 F.2d 59 (2d Cir. 1990) cert. denied 500 U.S. 92 (1991), this very Court held unconstitutional a Federal policy excluding Planned Parenthood from a Federal grant program unless the organization changed its message.� Yet, that is exactly what the state of Connecticut has done here, openly stating that the Boy Scouts can participate in the workplace charitable campaign if they would only change their message.

�� See Speiser v. Randall, 357 U.S. 513 (1958); Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990); Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001); Kinney v. Weaver, 301 F.3d 253, No. 00-40557, 2002 WL 1764145 (5^th Cir. July 31,2002); Cuffley v. Mickes, 208 F.3d 702 (8^th Cir. 2000), cert. denied, 532 U.S. 903 (2001); Anderson v. McCotter, 100 F.3d 723 (10^th Cir. 1996); Hyland v. Wonder, 972 F.2d 1129 (9^th Cir. 1992), cert. denied, 508 U.S. 908 (1993); Okwedy v. Molinari, No 01-7941, 2003 WL 21448393, *4(2d Cir. June 24, 2003); DeBoer v. Village of Oak Park, 267 F.3d 558, (7th Cir. 2001); Knights of the Klu Klux Klan v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5^th Cir. 1978); Brooklyn Institute of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999).[1]

�� Consequently, a panel rehearing or, in the alternative, consideration by this Court en banc of the July 9, 2003 panel opinion is needed so that the doctrine of unconstitutional conditions can be thoroughly briefed and considered and correctly applied to this case.

II. THE STATE CANNOT PUNISH, ON A VIEWPOINT DISCRIMINATORY BASIS, THE EXERCISE OF FREEDOM OF EXPRESSIVE ASSOCIATION, EVEN IF SUCH VIEWPOINT DISCRIMINATION WAS NOT THE PURPOSE OF THE PUNISHMENT�..

As the July 9 opinion continues, it turns out that the exclusion of the Boy Scouts from the workplace charitable campaign was not, in fact, viewpoint neutral after all.� The Opinion states,

�[A]ll anti-discrimination laws that govern organizations� membership or employment policies have a differential and adverse impact on those groups that desire to express through their membership or employment policies viewpoints that favor discrimination against protected groups�.Connecticut�s Gay Rights Law has a foreseeably adverse impact on the expressive abilities of organizations that seek through their membership and employment policies to voice their view that homosexuality is immoral.�

Slip Op. at 20-21.� But the opinion goes on to say that before this restrictive impact on freedom of expressive association becomes unconstitutional, it must be shown that the repression of such expression was actually the purpose of the policy at question.� The opinion continues that in this case the purpose of the Connecticut law was to prohibit discriminatory conduct, not to suppress expressive association, so applying the law to exclude the Boy Scouts from the workplace charitable campaign was not unconstitutional.� Slip Op. at 21-23.� This is not remotely in accord with the applicable law.

Whether the government has infringed on the right of expressive association does not turn on whether the government intended to do so, but whether the government has done so.� The New Jersey anti-discrimination law was no more adopted for the purpose of repressing the expressive association and message of the Boy Scouts than the Connecticut Gay Rights Law was.� But the purpose of the New Jersey law was never an issue in Dale.� The issue was whether applying the law to require the Scouts to hire a gay scoutmaster contrary to the expressed values and teachings of the Scouts had the effect of restricting the freedom of expressive association of the Scouts.� The Supreme Court held that it did.

�� The same is true of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995).� The Massachusetts anti-discrimination law in that case was again no more adopted for the purpose of repressing expression than the Connecticut law at issue here.� Just like the Connecticut law and the New Jersey law its purpose was to restrict discriminatory conduct, not expression.� But, again, the purpose of the Massachusetts law was not at issue in Hurley.� The question was whether applying the law to require the organizers of the parade in that case to include a homosexual group expressing its own message had the effect of violating the freedom of expressive association of the parade organizers.� The Supreme Court again held that it did.

�� This is how the law must be if constitutional rights are to be protected.� Surely government policies cannot be allowed to infringe on our rights to freedom of speech, or of the press, or of religion, merely because the government did not intend such infringement.� Under the July 9 opinion, freedom of expressive association could never be protected from the impact of anti-discrimination laws because the purpose of all those laws is to restrict discriminatory conduct not expression.� But the Supreme Court has already held to the contrary, as have all other courts that have upheld the freedom of expressive association.

�� The Second Circuit followed precisely this view in Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996).� In that case, a school district sought to deny recognition and access to school facilities to a student Christian club on the grounds that the club�s policy of allowing only Christians to serve as club officers violated the school�s anti-discrimination policy.� This Court reversed the denial because the club had a right of expressive association to choose officers that would best send the club�s message, which was protected by both the Constitution and the Federal Equal Access Act.

�� Similary, in the closely analogous case of Boy Scouts of America v. Till, 136 F. Supp. 2d 1295 (S.D. Fla. 2001) a school district terminated its contract with the local Boy Scouts for use of the school�s facilities.� The district claimed that the Boy Scouts policy on homosexuals violated the district�s policy prohibiting the use of school facilities by those that discriminate.

�� The court recognized that the Boy Scout organization has �a right to freedom of expressive association, which includes the right to exclude homosexuals as members or leaders in the organization.�� Id. at 1308.� The court found that �it is because of the exercise of this right�that the school board seeks to ban the Boy Scouts from use of school facilities.�� Id.� As a result, the court found that the exclusion of the Boy Scouts from school facilities was unconstitutional because �the School Board cannot punish another group for its own message� protected under the First Amendment.� Id.��

�� Consequently, a panel rehearing or, in the alternative, consideration by this Court en banc of the July 9, 2003 panel opinion is needed so that the law regarding the freedom of expressive association can be fully considered and correctly applied.

III.� THE EXCLUSION OF THE BOY SCOUTS FROM THE CONNECTICUT WORKPLACE CHARITABLE CAMPAIGN WAS ADOPTED PRECISELY FOR THE PURPOSE OF OPPOSING AND SUPPRESSING THE MESSAGE AND VIEWPOINT OF THE SCOUTS

�� The record holds extensive evidence indicating that the exclusion of the Scouts from the workplace charitable campaign was, in fact, motivated by a purpose of suppressing the message and viewpoint of the Scouts, rooted in a deep personal opposition to that message and viewpoint among Connecticut state officials.� The brief in support of rehearing submitted by Plaintiff-Appellants references this evidence.

�� Of course, any genuine issue of material fact precludes summary judgement.� Anderson v. Liberty Lobby, 477 U.S. 242 (1986); 10A C. Wright et al. Federal Practice and Procedure Sect. 2725, at 93-95 (1983).� The evidence in the record is more than sufficient to preclude summary judgement against the Scouts in this case.

�� Consequently, a panel rehearing or, in the alternative, consideration by this Court en banc of the July 9, 2003 panel opinion is needed so that this evidence can be fully briefed and reviewed and the law of summary judgement correctly applied.

CONCLUSION

For the foregoing reasons, the ACRU respectfully submits that the Petition for Rehearing, or, in the alternative, the Petition for Hearing En Banc, by Boy Scouts of America and Connecticut Rivers Council, Boy Scouts of America should be granted.

Respectfully Submitted,

�� American Civil Rights Union

�� Amicus Curiae

�� By_______________

�� Peter Ferrara

�� Counsel for

�� American Civil Rights Union

�� 1232 Pine Hill Rd.

�� McLean, VA 22101

�� (703) 582-8466��

Certificate of Service

�� I hereby certify that on this 22^nd day of July, 2003, 2 copies of the foregoing brief amicus curiae was sent first class, postage prepaid, to each of the following:

George A. Davidson

Carla A. Kerr

Hughes Hubbard and Reed

One Battery Park Plaza

12^th floor

New York, New York 10004-1482

Attorney for Plaintiffs

William Prensky

Office of the Attorney General

55 Elm Street

Hartford, CT 06141-0120

Attorney for Defendants

C. Joan Parker

Commission on Human Rights and Opportunities

21 Grand Street

Hartford, CT 06106

Attorney for Defendant-Intervenor

�� ______________________

�� Peter Ferrara

[1]Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983), cited in the July 9 opinion, is not contrary to this analysis, for it is not an unconstitutional conditions case.� That case involved a 501(c)(3) organization, which gets its tax benefit by stating it is a charity and not a political organization, and by committing to comply with that representation in the future.� These organizations consequently do not have an unfettered right to engage in such political activity, and so can be limited to complying with the qualifications for the tax benefit they seek, in order to receive the benefit.� It is the organization�s officers, members and donors that hold the constitutional right as individuals to engage in such political activity.� If the case involved a prohibition on any political activity by these individuals outside the 501(c)(3), with the loss of the organization�s tax benefit as the penalty, then it would have been an unconstitutional conditions case.� Indeed, a blanket prohibition on such political activity by the individuals would, in fact, be viewpoint neutral, but it would still be an unconstitutional condition.

� Similarly, NEA v. Finley, 524 U.S. 569 (1998), is also not an unconstitutional conditions case because applicants do not have a constitutional right to a grant from the National Endowment for Arts.� So there was no unconstitutional right involved in that case that was conditioned.� If the government had sought to prohibit all political activity, or all political speech, for a period for anyone who received an NEA grant, then that would have been a viewpoint neutral unconstitutional condition.

�

APPEAL FROM THE DISTRICT COURT OF CONNECTICUT

AMERICAN CIVIL RIGHTS UNION

IN SUPPORT OF PLAINTIFF-APPELLANTS

����������������������� ����������������������� ����������� Peter Ferrara

CORPORATE DISCLOSURE STATEMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Other Authorities

ARGUMENT

����������������������� ����������������������� ����������������������� ����������� American Civil Rights Union

����������������������� ����������������������� ����������������������� ����������� Peter Ferrara

����������������������� ����������� ����������� ����������������������� ����������� Counsel for

����������������������� ����������������������� ����������������������� ����������� American Civil Rights Union

����������������������� ����������������������� ����������������������� ����������� McLean, VA 22101

�� Peter Ferrara

�� American Civil Rights Union

�� Peter Ferrara

�� Counsel for

�� American Civil Rights Union

�� McLean, VA 22101