Re: Benefits of Federal Charter
Randy Finder (NARAHT@DRYCAS.CLUB.CC.CMU.EDU)
Thu, 1 Sep 1994 09:48:00 EDT
>Regarding your suggestion of an achilles heel - its probably better
>described as a possible sprained ankle - potentially painful, but not fatal.
You're right Achilles heel is certainly a term used for Fatal things,
which this is probably not.
>The Act incorporating the BSA does state that BSA shall have the power "to
>make and adopt bylaws, rules, and regulations not inconsistent with the
>law of the United States of America, or any State thereof, . . ." Your
>argument is that single state could enact a law that prohibited
>organizations from limiting membership with a anti-discrimination type
>statute. On its face that gives the impression that a single state could
>alter the rules of the BSA regarding membership. However, there is
>another side to the law that you should be aware of in this situation:
I think you missed something in my original letter. I'm not sure that
California (for example) would be able to pass a law that had as its
effect requiring BSA to admit gay scouts. However, they might be able
to pass a law passing constitutional muster that would require BSA not
to descriminate according to sexual orientation for HIRING... I'm not
quite sure how BSA would react to this. (would it be worth fighting?)
>1. BSA as a Federal Corporation is entitled to all of the protections of
>the Constitution including the freedoms of assembly, religion and speech.
>Any State statute attempting to abridge any Constitutional protection
>would be found void and invalid.
Again this only really effects membership as far as I can tell, unless
BSA tries to get itself redesignated as a religious organization. (Which
I think is how the Roman Catholic Church uses the law)
>2. Federal law takes precedence over State law as a general rule.
>3. Even if a State Statute passed Constitutional muster, its
>effectiveness would be limited to the bounds of the state enacting the
>statute; e.g. a law passed in California would have no effect on BSA
>programs in Nevada, similar to health and safety laws. A law purporting
>to control a national organization beyond the boundaries of the state
>would run into Constitutional and Federal Law problems and not have much
>chance of surviving a Court challenge.
Agreed. However the way I read the federal charter, a problem in one state
is enough to pull down a lot more. However given BSA's standing in this
country, I could easily see federal legislation helping BSA with the challange
while the case was still in court.
>It would seem to me that it would be very difficult for a State to pass a
>statute that would attempt to address membership in private organizations
>without running afowl of the Constitution. And if a statute could pass
>that hurdle, its effect would be limited.
membership, difficult. Hiring perhaps not so difficult.
I am neither a lawyer, nor play one on TV.
Terry Howerton Sakima Group, Inc. SCOUTER Magazine Kansas City