Should the national leadership of the Boy Scouts of America not allow the hire to move forward, the man — Pascal Tessier — already is represented by lawyer David Boies of Boies, Schiller & Flexner LLP, who is prepared to challenge any rejection of Tessier’s hire.
Although the national Boy Scouts of America changed its membership policies in 2013 to allow out gay youth members, it has maintained its ban on openly gay adult members.
Boies, speaking to BuzzFeed News, urged the president of the Boy Scouts, former Defense Secretary Robert Gates, to put an end to the ban.
“He knows himself that ending this discrimination is the right thing to do,” Boies said. “He’s always been a leader and part of the function of a leader is to move things along, and I think the Boy Scouts need somebody who is prepared to stand up and say, ‘This is the right thing to do, and this is the right time to do it.’”
Tessier, for his part, was one of the first out gay scouts to receive the highest rank in scouting, Eagle Scout, after the policy change, and he, when he turned 18 this past August, also urged Gates to change the policy in an open letter published at Time. His hire by the Greater New York Councils sets up a potential conflict with the national leadership of the organization.
When asked on Wednesday if there was any change to the national policy regarding out gay adult leaders, Boy Scouts of America spokesman Deron Smith responded, “[T]here isn’t.” Smith did not immediately respond on Thursday to a request for comment regarding Tessier’s hire specifically.
The Greater New York Councils, however, is ready for Tessier to get to work.
“We’ve accepted him, he was put through the normal process,” Richard Mason, a board member of the Greater New York Councils and spokesman for the councils, told BuzzFeed News. “They have not, to my knowledge, rejected him, so, as far as we are concerned, this young man is coming to work, is ready to do so this summer.”
Boies, known for pairing with Ted Olson in challenging marriage bans in California and Virginia, is hopeful about the hire — but ready to take on the national Boy Scouts should they reject Tessier’s employment.
“We’re hopeful that this signals the end of the last vestige of the Scouts’ discrimination,” Boies said of Tessier’s hiring. “While I don’t want to be overly optimistic, I think this signals, at least the end of this type of discrimination on a national level. Whether or not they’re going to allow individual councils to continue to discriminate, I don’t know. I hope not, I hope not.”
Of the formal national BSA policy, he added, “That’s obviously against the law in a number of states, including New York.”
He also added that the Boy Scouts’ argument in a 2000 Supreme Court decision upholding their right to select their members and exclude out gay leaders like James Dale, who had sued the Boy Scouts for excluding him, has been undermined by the actions they’ve taken in recent years.
“It’s very hard for the Boy Scouts to now say that they have an expressive message that being gay is not ‘morally straight’ because they … have Eagle Scouts who are gay and they have councils, including New York, who specifically, expressly, affirmatively take the position that discrimination against people based on sexual orientation is wrong and the national organization itself has things on its website that are quite inconsistent with the message that being gay is not being ‘morally straight,’” Boies said. “So, what you have is this vestige of discrimination that hangs on, in terms of employment, that really doesn’t have even the underpinning that the court relied on in Dale.”
Zach Wahls with Scouts for Equality — whose work on the issue Boies praised as “terrific” — said he was “thrilled” about Tessier’s hiring.
“He’s going to make a fine camp counselor at one of the best Scout camps in America,” Wahls said. “I hope his hiring marks the beginning of the end for the Boy Scouts’ ban on gay adults, and I look forward to the Scouts making clear that gay adults like Pascal are eligible for membership and employment.”
Mason, an Eagle Scout himself, strongly defended the councils’ decision, saying, “From our perspective, it’s really direct. This is a young man, who is also an Eagle Scout, very well qualified, applied for a job with one of the summer camps that the Greater New York Councils runs. On the merits, his applications clearly passes our standards … and we don’t discriminate on the basis of sexual orientation. So, we’ve accepted his application on the merits.”
Boies acknowledged that Tessier’s situation — applying for a paid employment position, as opposed to a volunteer position, with a council that is supportive of sexual orientation nondiscrimination in a state with sexual orientation nondiscrimination protections — is among the most advantageous scenarios for a potential challenge to the national policy.
“You want to start with an easy case, that you have some confidence in winning, and as you saw with marriage equality, that can snowball,” he said. “So, I think what we’re going to do is try to resolve this issue and once that’s behind us, then we’ll see where we go at that point.”
Looking across the national landscape, though, Boies said he believed the issue is one the hits home for many Americans.
“This is an issue that a lot of people are interested in just because the Boy Scouts is such an American institution. It seems particularly wrong to have an institution like that discriminating,” he said. “Florists and cake-makers and the like — I don’t to diminish that at all in terms of importance — but it doesn’t have the sort of tug on the American heartstrings that the scouts have.”