Scouts-L Mail Archive for August of 1999: Will the case be appealed?
Will the case be appealed?
Wed, 4 Aug 1999 17:05:13 -0400
James Miller of Kearny New Jersey said:
> The US Constitution fares as well as usual here in the People's Republic
> of New Jersey...
I would like to point out that a majority of the unanimous New Jersey
Supreme Court were Republican appointees. This case has little to do with
the United States Constitution and much more to do with whether the BSA is a
place of public accommodation under New Jersey's Law against discrimination.
> Actually, from reading the decision, this case is primed for an appeal
> to the federal courts. The findings of the NJ Supreme Court that the BSA
> is "not selective" in its membership conflicts with the existing
> precedent from the Seventh Circuit United States Court of Appeals. Also,
> the finding of no grounds for the BSA's First Amendment protection claim
> will be a basis for appeal.
With all due respect, I disagree. The finding of the New Jersey Supreme
Court that the BSA are not selective in its membership may conflict with the
7th Circuit opinion but a factual finding is not likely to be reviewed by a
federal court. Although it is possible that the United States Supreme
Court could grant cert to review the New Jersey Supreme Court's finding of
no grounds for the BSA's First Amendment protection claim, it is unlikely.
> This thing will still go on for a while, and will most likely end up
> before the US Supreme Court if another Federal Appeals Court disagrees
> with the 7th Circuit decision in Welsh v. Boy Scouts of America.
This is correct.
> Federal Appeals Court could still find that New Jersey has violated the
> BSA's First Amendment rights through this decision.
The only Federal Court that has jurisdiction is the United States Supreme
Court. While they could theoretically take the case, it is, IMHO, unlikely.
Rob Blau, Cubmaster and
An Attorney at Law
State of New Jersey.