Today’s Supreme Court ruling in City of Arlington v. FCC reveals a sharp divide—not along the usual ideological lines—among the justices over when an agency’s interpretation of a statutory ambiguity is entitled to deference under the Chevron framework that the Court adopted in 1984. A quick overview:

In his majority opinion for five justices (himself, Thomas, Ginsburg, Sotomayor, and Kagan), Justice Scalia holds that “an agency’s interpretation of a statutory ambiguity that concerns the scope of its regulatory authority (that is, its jurisdiction)” is entitled to Chevron deference. Among other things, Scalia rejects as a “mirage” the “distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations.” (Slip op. at 5.) Rather, “the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.” (Slip op. at 9.)

In dissent, the Chief Justice, joined by Justices Kennedy and Alito, sets as backdrop the “danger posed by the growing power of the administrative state” and the role of Chevron deference as “a powerful weapon in an agency’s regulatory arsenal.” (Dissent at 4.) The Chief doesn’t posit a line between jurisdictional and nonjurisdictional interpretations, but instead maintains that an agency interpretation warrants Chevron deference “only if Congress has delegated authority to definitively interpret a particular ambiguity in a particular manner.” (Dissent at 11.) Whereas the Chief Justice defends his approach as consistent with the Court’s precedents (“We have never faltered in our understanding of this straightforward principle”), Scalia says that the Chief’s approach “proposes … a massive revision of our Chevron jurisprudence.”

On a first skim, Justice Breyer’s separate opinion concurring in the judgment seems to me more consistent with the Chief’s general approach. So that would mean that there is a 5-to-4 divide on the Court.

There will surely be vigorous discussion and debate among administrative-law experts over this ruling.

Here’s more data, this time from the Pew Reseach Center, bolstering the claim that the discrimination problems that originally justified the extraordinary measures of Section 5 of the Voting Rights Act just don’t exist anymore.

For example: ”In its Nov. 8-12 poll in 2012, just 4% of whites answered yes to the question: ‘Did you have any problems or difficulties voting this year, or not.’ Only 2% of African-Americans responded affirmatively.”

And: ”Further, the findings of Pew’s Elections Performance Index show that while problems in American voting — such as waiting times at polling places, or rejected voter registrations – are widespread, they are not particular to poorer states or Southern states. This lends further credence to the absence of a race gap in the incidence of voting problems.”

Also discussed is recent Census data on elections (see also this earlier post): ”The Census survey found on average slightly higher reports of voting among African-American voters than among whites in former Confederate states, 67% to 62%. Notably, in Mississippi and North Carolina, more blacks reported voting than whites by 10 and 15 percentage points, respectively. The racial gap in voting was more modest in non-Confederate states (67% among blacks versus 65% among whites).”

1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does. In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing special protections upon those engaged in homosexual conduct. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.) Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.

1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.

The Wall Street Journal has a great summary of the Third Circuit’s opinion invalidating one of President Obama’s NLRB recess appointments:

In a 2-1 decision, Judge D. Brooks Smith ruled in National Labor Relations Board v. New Vista Nursing and Rehabilitation that Mr. Obama’s recess appointment of Craig Becker in March 2010 was illegal because the Senate was not between sessions. To allow such appointees, Judge Smith wrote, “would eviscerate the divided-powers framework the two Appointments Clauses establish.

“If the Senate refused to confirm a president’s nominees, then the president could circumvent the Senate’s constitutional role simply by waiting until senators go home for the evening. The exception of the Recess Appointments Clause would swallow the rule of the Appointments Clause.”

The decision is significant because the Third Circuit panel adopted the reasoning of the D.C. Circuit in January’s Noel Canning decision. But the implications go further. Mr. Becker’s term began earlier than the other recess appointees, thus invalidating hundreds of other decisions that the labor board made without a legal quorum. The number of NLRB decisions jeopardized by the three illegal recess appointments now stand at some 1,200. Yet the Obama NLRB keeps issuing rulings as if it operates in its own legal universe.

Notably, the president’s recess-appointment power, as interpreted by the D.C. Circuit and the Third Circuit’s, is significantly narrower than the power exercised by President Obama’s January 2012 non-recess appointments. Accordingly, even the most modest interpretation of this power by the Supreme Court will likely yield a defeat for Obama. Keep that in mind if the Court invalidates the president’s January non-recess appointments and the Left somehow blames Republicans – it was President Obama’s appointments that, as the D.C. Circuit put it, “eviscerate[d] the Constitution’s separation of powers.”

IRS scandal notwithstanding, on Tuesday, the (Republican-dominated) Texas legislature passed S.B. 346, a bill to force non-profit organizations and trade associations to disclose the names of the people who support them financially. The law exempts unions, but covers groups that spend more than $25,000 or more in independent expenditures about political candidates. This applies even if those expenditures are a tiny fraction of the group’s overall spending.

If Texas legislators had first consulted the Constitution, they would have rejected forced disclosure as a violation of the First Amendment. The Constitution protects organizations from forced disclosure of their members (NAACP v. Alabama, 1958), and does not distinguish between an organization’s members, as with NAACP, and its contributors, as here (Buckley v. Valeo, 1976). Although Buckley upheld the forced disclosure for “organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate,” it first excluded disclosure for “groups engaged purely in issue discussion,” saying the law would have otherwise been “impermissibly broad.” This unconstitutional legislation directly targets those issue-based groups — a 501(c)(4)’s primary purpose is explicitly non-political — and I would expect the First Amendment–friendly Roberts court to agree.

Rumor has it that Governor Perry’s advisers want him to sign the law, but he has not yet announced what he plans to do. During his presidential campaign, he thought that campaign contribution limits were unconstitutional, so one would think this would be an easy question for him.  But one would also think that the Republican-led legislature might have thought twice before embracing such a left-wing policy proposal. Stay tuned.

I’m sorry to say that, with recent changes to NRO’s content-management system and a recent revamping of the website of the Ethics and Public Policy Center (the think tank I head), many of the hyperlinks embedded in my past Bench Memos posts and in my essays—especially hyperlinks to my own previous writings—are temporarily not working properly. I hope to get things fixed soon. (In the meantime, I’ve heard from some readers eager to locate material via inoperative hyperlinks, and I’ve been able to help with some work-arounds, so if that’s your situation, please let me know.)  

My RSS feed has changed to http://nationalreview.com/author/1117/feed. (To receive reader-friendly NRO posts of mine from this service, you will need to enter this address into whichever RSS reader you use.)

In 2010, Congress enacted a law, dubbed the Fair Sentencing Act, that made the mandatory- minimum prison sentences for crack-cocaine offenses more lenient than they had been. Specifically, the Fair Sentencing Act reduced the disparity between crack-cocaine minimum sentences and powder-cocaine minimum sentences from 100-to-1 to 18-to-1.  Last year, in Dorsey v. United States, the Supreme Court ruled by a 5-to-4 vote that the more lenient minimum sentences apply not only to offenders who committed a crack-cocaine crime after the effective date of the Fair Sentencing Act but also to offenders who committed the crime before the effective date but who were sentenced after that date.

Today, in an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman.

The majority recognizes that “there is no equal protection violation without discriminatory intent,” and it acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But it contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination. In its words:

A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

Under this illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

My organization, the Judicial Education Project, has filed a Supreme Court amicus curiae brief supporting the cert petition in Bond v. United States. Bond involves a woman’s federal criminal conviction under the 1993 Chemical Weapons Convention treaty for her attempt to poison her (former) best friend with toxic chemicals. While normally this application of federal law would unconstitutionally violate state sovereignty, the government argues that Article II’s treaty-making power overrides any federalism concerns. Our brief argues that “treaty making is not a substantive power,” so constitutional limits on executive and legislative power also limit the treaty power. In other words, the treaty power cannot expand the scope of federal power wholesale. 

Read the whole brief.

Utah Senators  Orrin Hatch and Mike Lee are praising President Obama’s decision to nominate Judge Carolyn McHugh to the U.S. Court of Appeals for the Tenth Circuit. Judge McHugh is currently the presiding judge of the Utah Court of Appeals.  The Salt Lake Tribune reports on the nomination here, but there is (as yet) no announcement on the White House website.

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.” Daughtrey was appointed by President Clinton to the Sixth Circuit later in 1993.

This morning the Senate Judiciary Committee unanimously approved the nomination of principal deputy solicitor general Sri Srinivasan to an open seat on the U.S. Court of Appeals for the D.C. Circuit. All 18 members of the committee voted in favor of his nomination, suggesting Srinivasan will be confirmed relatively quickly. Here is coverage of the vote from the Washington Post and BLT. There are currently four vacancies on the D.C. Circuit, for which Srinivasan is the only pending nominee.

From How Appealing comes news that a divided Third Circuit panel, in NLRB v. New Vista Nursing and Rehabilitation, has ruled that President Obama’s March 2010 recess appointment of Craig Becker to the NLRB was invalid. Specifically, the panel majority holds that the president’s recess-appointment authority is exercisable only during intersession recesses. The panel majority finds it unnecessary to address the separate question whether the word happen in the Recess Appointment Clause (“The President shall have Power to fill up all vacancies that may happen during the Recess of the Senate …”) means that the recess-appointment authority applies only for vacancies that arise during a recess.

I haven’t had time yet to do more than glance at the ruling, so I’ll just note that the D.C. Circuit in its recent Noel Canning ruling against the NLRB ruled both that the recess-appointment authority is limited to intersession recesses and that it is limited to vacancies that arise during those recesses.

On Monday, President Obama made a legal claim that managed to unite writers for The Federalist Society, the Wall Street Journal, and the New York Times. Eileen O’Connor, former assistant attorney general for DOJ’s tax division, summarized the case on the Federalist Society’s blog:

On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.”  Not so, unless they are redefining the term.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate.  Within the Departments are agencies that carry out the various responsibilities of the Department.  They, too, are headed by Senate-confirmed Presidential appointees.  An “independent agency” is an agency of the federal government that is not part of an Executive Branch department.   These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury.  As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee.  Neither of these is an “independent agency.”

Teresa Tritch of the New York Times agrees, and goes on:

One distinction between an executive agency and an independent agency is that the president, typically, cannot dismiss the head of the latter without serious cause. Independent agencies include the Securities and Exchange Commission, the National Labor Relations Board, the Federal Communications Commission and the Federal Trade Commission.

By contrast, the law governing the I.R.S. states that the president can remove the commissioner at will. The commissioner reports to the secretary of the treasury through the deputy secretary.

Since the president’s ability to hire and fire the IRS commissioner is pretty straightforward, the administration has also taken steps to make sure everyone knows that the guy in charge during the scandal was appointed by President Bush. But the Wall Street Journal pushes back:

The White House has also been at pains to stress that former Commissioner Douglas Shulman, who told Congress in 2012 that there had been no targeting of political groups, was appointed by George W. Bush. So the Commissioner is accountable to the President, as long as he’s the former President? Or what?

This attempt to distance Mr. Obama from any control of the IRS is especially rich in light of the Administration’s recent attempts to bend other genuinely independent agencies like the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) to its will via non-recess recess appointments. The Administration is currently petitioning the Supreme Court to hear its appeal of the D.C. Circuit’s decision declaring its NLRB recess appointments unconstitutional.

So let’s look at how the U.S. legal code describes the varying standards of Presidential “accountability”: The IRS Commissioner “may be removed at the will of the President.” A labor board member “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” At the CFPB, the President “may remove the Director for inefficiency, neglect of duty, or malfeasance in office.” The IRS job is not like the other two.

This scandal is getting uglier for the Obama team by the hour. So I am not surprised that they are doing what they can to distance themselves from the wrongdoing. But in this case, as in the AP reporter-monitoring case, President Obama doesn’t need to look very far to find someone who can be held accountable.

The National Catholic Committee on Scouting has issued a statement that, if properly applied, ought to require faithful Catholic scout leaders to vote against the Boy Scouts of America’s proposed resolution to allow openly gay youth members. The NCCS statement reads in part (emphasis added):

The Catholic Church teaches that those who experience same-sex attraction are always to be treated with dignity and respect. The Church also teaches that sexual acts belong within marriage, and that everyone – young or old, married or single – is called to chastity, through which we grow in our understanding of love. These teachings are especially important for those who serve as role models for young people. Because of this, the Church reserves the right to seek to place those who live by its teachings in leadership positions that serve our youth, as well as the right to continue to call our young people to live by the teachings of our faith and by moral truth which can be known by all.

As I have explained, although the proposed resolution purports to retain the BSA’s prohibition of adult leaders who are “open or avowed homosexuals,” its adoption would fatally undermine the BSA’s legal basis, under the Supreme Court ruling in Boy Scouts of America v. Dale, for maintaining that prohibition. In other words, the entirely foreseeable effect of the resolution would be to compel Catholic-sponsored troops to allow openly gay adult leaders who don’t “live by [the Church’s] teachings.”

The NCCS statement is far too generous in crediting the BSA “for the seriousness with which it has approached the inclusion of adult leaders and youth who experience same-sex attraction.” In fact, the BSA within the space of three months has floated two dramatically different proposals that have in common only the feature that in practice each would lead readily to a wholesale repeal of the BSA’s policy against openly gay adult leaders. What the BSA leadership seems to have been most intent on is finding a way to snooker local scout leaders and parents into supporting a revision that is unworkable and unsustainable.

Indeed, the BSA leadership appears to have given more careful thought to the theatrics of its upcoming meeting than to the substance of its resolution. Minutes that I have obtained of a recent conference call of the BSA’s Membership Standards Policy Committee set forth an elaborate script for next week’s meeting, including:

As participants enter the ballroom, a small live band will be playing pop tunes. We are creating a light mood/atmosphere for the meeting. As the start of the meeting approaches (9:30 a.m.) we will instruct everyone to take their seats. We will have the lights go down and a single spot light will be on the stage to create a dramatic effect. We will have one of our volunteers start off singing God Bless America and then we’ll ask everyone else to join in after a few moments. As the song concludes, the lights will come up.

A couple of pieces worth reading:

1. In this New York Post op-ed, Scott Walter of the Capital Research Center explores “a flip side to the scandal” over the “IRS’s targeting of conservatives trying to start tax-exempt groups”: “the agency possibly going easy on tax-exemption applications by groups doing the administration’s political work.” From his opening paragraphs:

This is linked to another breaking scandal, Health and Human Services Secretary Kathleen Sebelius’ apparent fund-raising for two pet nonprofits. The Washington Post broke the news last week that Sebelius had asked health industry firms “to make large financial donations” to groups helping the administration sell ObamaCare.

The Post specifically mentioned Enroll America, a nonprofit run by Anne Filipic, who previously was White House deputy director for public engagement. Its managing director, Chris Wyant, led Obama’s 2012 “ground game” in Ohio.

Earlier press reports revealed the administration’s other nonprofit for promoting ObamaCare is Organizing for Action, which is simply the president’s re-election campaign morphed into precisely the kind of nonprofit entity that Tea Party activists hoped to set up when they were targeted by the IRS. (How close are the group’s ties to the president? Find out at its Web site: BarackObama.com.)

2. In the Wall Street Journal, James Bovard provides “A Brief History of IRS Political Targeting” going back to FDR, and he draws from that history the lesson that IRS audits “will remain irresistible political weapons.” All the more reason, of course, to identify, and inflict a high cost on, those who don’t resist the temptation.

2008—The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them.

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage.

That is the question that Kermit Gosnell forces on our attention.  Two years ago I wrote about the Gosnell case here, at NRO, when he was indicted.  Today at Public Discourse I review what we have learned from the case as it was prosecuted to its successful conclusion, with three murder convictions and 21 late-term abortion convictions yesterday in Philadelphia.  A sample:

Gosnell, whose clinic was shut down by the Philadelphia authorities who charged him with murder, is the ne plus ultra of the abortion trade. Not because of the filth, the squalor, the jars of amputated keepsake baby feet, the employment of unlicensed incompetents, the promiscuous use of narcotics on unwitting patients, or the poisonous racism of a physician who preyed upon women and babies of his own race—although all of these are no surprise at all in America’s most unregulated branch of medicine.

No, Gosnell is the “slave-dealer” par excellence because, even if he had run the cleanest, brightest, most professional clinic in the country, he was simply following out the remorseless logic of the abortion regime installed forty years ago by the Supreme Court.

Women came to him for the very latest of late-term abortions, and he made sure their children were dead. Whether he accomplished their deaths in utero or ex utero—before or after their births—didn’t really matter to Gosnell. And, as we have heard from Planned Parenthood officials, from then-Illinois state senator Barack Obama, and from “pro-choice” politicians like Senator Barbara Boxer, it doesn’t matter to them, either.

Read the rest here.

1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.   

2009—Ramona Ripston, executive director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8.

But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case.

Within the space of three months, the top leadership of the Boy Scouts of America floated two dramatically different revisions of the BSA’s policy against youth members and adult leaders who are “open or avowed homosexuals.” In late January, the BSA announced that it was considering a policy change under which “there would no longer be any national policy regarding sexual orientation” and the matter would instead be left to each of the various organizations that sponsor troops “to determine how to address this issue.” In late April, the BSA proposed its resolution that would allow openly gay youth members while supposedly retaining the prohibition on adult leaders who are “open or avowed homosexuals.”

Different as these two proposals are, they share one fundamental feature: While purporting to allow (in the case of the first) or require (in the case of the second) troops to bar openly gay adult leaders, they threaten to fatally undercut the legal basis for maintaining that bar. (See my fuller discussion of this point on the first proposal here and on the second proposal here.) Indeed, they do so without offering any sign that they’ve even given the matter an iota of attention.

What this demonstrates is that the BSA’s top leaders aren’t serious about finding some middle ground. Instead, they’re trying to snooker and bamboozle local scout leaders and parents to embrace a proposal that isn’t sustainable and that will lead in short order to a wholesale abandonment of the existing policy against openly gay adult leaders. Whether or not one supports that abandonment, the dissembling way that the BSA’s top leaders are pursuing it is a shameful violation of their duty to be trustworthy.