By Nell Gluckman, From The Am Law Daily

David Boies is stepping into the gay rights movement once again.

The chairman of Boies, Schiller & Flexner—famous for his fight against California’s same-sex marriage ban—has advocated for the hire of 18-year-old Pascal Tessier as a leader in the New York City chapter of the Boy Scouts, positioning him to become the first openly gay adult and employee of the storied organization.

The New York chapter brought on Tessier despite a policy held by the national organization, Boy Scouts of America, against allowing openly gay adult members into the organization. Boies credits his late friend John Whitehead, who served as board chair of the Greater New York Councils of the Boy Scouts of America, with initiating the effort to challenge the national organization’s policy.

“We talked about how important private institutions, civil institutions, like the Boy Scouts are,” Boies says, describing a dinner he had with Whitehead last fall.

“He expressed concern both that the Boy Scouts were being perceived as being discriminatory and in fact that they are being discriminatory,” Boies says of his friend, who passed away in February.

Boies asked Joshua Schiller, a newly-minted litigation partner who is also the son of co-founder Jonathan Schiller, to handle the Boy Scouts matter given his experience with civil rights litigation. Schiller was part of a team that brought an injunction against the State of Virginia in 2014, forcing the state to recognize the marriages of same-sex couples. He was also on the team that overturned Proposition 8, which banned same sex marriage in California, in 2010.

“This is an obvious case for us,” Schiller says of his latest efforts involving the Boy Scouts.

Rather than pursue litigation right way, Boies says he and his team decided to try to find another way of subverting the national policy by encouraging Tessier to apply as a camp leader in the New York chapter.

“We wanted to make this not a confrontational exercise,” he says. “We wanted to make this an opportunity for the Boy Scouts to move beyond discrimination.”

Last fall, Schiller and Boies met with Tessier, Whitehead and Zach Wahls, the executive director of Scouts for Equality, a nonprofit that seeks to end Boy Scouts of America’s ban on gay leaders. The lawyers then analyzed the policy of the national organization.

Though Boy Scouts of America amended its policy in 2013 by removing a restriction that denied membership to openly gay youth, the organization left in place the part of the policy that prohibits openly gay adult members.

“While the BSA does not proactively inquire about the sexual orientation of employees, volunteers, or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA,” the policy states.

Tessier had already become the first openly gay Eagle Scout last year at age 17. That August, on his 18th birthday when he became ineligible to be a member under the national policy, he penned an open letter in Time magazine to Robert Gates, who is now the president of Boy Scouts of America. In the letter, he called for the former U.S. Secretary of Defense to end the ban against adult gay Boy Scouts.

“In allowing the Boy Scouts’ ban on gay adults to continue—not because he believes it is the right thing to do, but because he is afraid of the possible consequences of enacting a fair policy—Mr. Gates is knowingly sacrificing thousands of devoted Scouts who happen to be gay,” he wrote. “Scouts like me.”

Tessier indicated in his letter that he wanted to continue with the Scouts. Boies encouraged him to apply and promised to represent him pro bono should litigation ensue. With the blessing of the Greater New York Council’s board of directors, Tessier applied and was accepted.

In a statement, a board member of the New York City chapter said Tessier was an exemplary candidate for employment with the Boy Scouts and welcomed him into his new position as a leader at a summer camp in the Catskills.

“GNYC has a long-standing policy of non-discrimination and supports the rights of gay adults to work for the Boy Scouts,” the statement by Richard Mason said, using the acronym for Greater New York Councils. “We do not want our policy of non-discrimination to be affected by the national policy. New York City and New York State law clearly prohibit employers from excluding qualified men and women from employment based on sexual orientation.”

So far, the national organization has not made an effort to bar Tessier’s employment as a camp leader. In March, the New York chapter had to submit Tessier’s application to the national organization, giving it the opportunity to deny him membership. The national organization did not do so, Boies says.

In a statement, Boy Scouts of American director of communications Deron Smith said the organization’s policies for adults and employees have not changed.

“While we were only recently made aware of this issue, we are looking into the matter,” the statement said.

Last year, the national organization ousted a scoutmaster in Seattle, Geoffrey McGrath, who is gay. When the Methodist church that ran McGrath’s unit refused to fire him, Boy Scouts of America revoked the church’s charter.

Boies says he’s cautiously optimistic that his client is in the clear.

The Greater New York Councils serve 45,614 members in New York City. Tessier has been hired as a leader at the chapter’s consortium of summer camps, called Ten Mile River Scout Camps. He would have had to pass a background check and be highly proficient in numerous out door skills to get the job, according to Schiller.

“We’d like to see the Boy Scouts take this as an opportunity to say, ‘If you’re a council who has discriminated, we don’t want you do that anymore,’” Schiller says.

Adds Boies: “I think this is the beginning of the end of the discrimination policy.”

IMAGE: Evelyn Hockstein for the Washington Post/Getty

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