As I've mentioned recently, there is a case going on right now in the 7th Circuit Court of Appeals, Winkler v. Rumsfeld, involving the question of whether the Federal government can fund events and activities of the Boy Scouts of America in light of their discrimination against atheists and agnostics. I've been doing a little research on it, including reading several of the briefs filed on both sides. One of the interesting things about the case that I did not know is that there is an actual act of Congress from 1972, called the Jamboree Statute, that authorizes the Secretary of Defense to provide support for the annual Boy Scout Jamboree. And the cost of that support, according to the ACLU brief in the case, has averaged more than $7 million for the last three Jamborees.
There are two primary legal questions in the case:
1. Are the Boy Scouts a religious organization that discriminates on the basis of religion?
2. Does the special support of the Boy Scouts amount to an establishment of religion under prior precedent?
On the first question, there is no doubt that the Boy Scouts do discriminate on the basis of religion. Indeed, they admit doing so and have defended their right to do so all the way to the Supreme Court (and won). In Boy Scouts of America v Dale, the Court ruled that anti-discrimination laws could not be applied to the Boy Scouts because, as a private organization, they had a right to expressive association that included the right to control the criteria for their own membership. I agree with that ruling, incidentally.
It must be noted, however, that there are two sides of that coin. Yes, the Boy Scouts have a right to discriminate as any private organization does in determining their own membership criteria. But the other side of that coin is that, by doing so, they may well give up any claim to government funding as well. Many states and localities, for example, have statutes that forbid the government from providing any funding or aid to groups that discriminate. And the Constitution, of course, forbids government funding of religious organizations through the establishment clause.
In March of last year, the Federal district court in Illinois issued a summary judgement ruling that the Jamboree Statute violated the establishment clause because it provided funding for an explicitly religious organization to the exclusion of others. Interestingly, the plaintiffs in the case are both religious. Reverend Eugene Winkler is a United Methodist minister and Rabbi Gary Gerson is the rabbi of the Oak Park Temple. The appeal will be treated as de novo because the district court issued a summary judgement.
It's also important to note that the case here involves special and specific support of a religious organizations, not general support. When it comes to ordinary circumstances involving, for example, equal access to government facilities, the Boy Scouts have the same legal standing as any other group. If a school district or military base allows community groups to use or rent their facilities for meetings, then they are treated like any other community group and are allowed such access on an equal basis. But this case involves a special and distinct financial grant that goes exclusively to the Boy Scouts. No other private organization is given a special grant of government funding in the military budget.
I'll have more on this issue as I continue to work my way through the briefs.
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Thanks for taking the time to blog on this. As a youth I was a member of the cub scouts & webelos but never went on to the boy scouts, though I had no thoughts about the discriminatory nature of the organization at the time (this was in the late 70's). My nephew is a very active scout and I hate to think of the lack of diversity and perspective that he and other boys are missing out on because of the narrow worldview of the organization's leadership.
I'll not deny that the scouts offer productive and positive experiences for their members, but that's the whole point isn't it? If they didn't, it wouldn't be such a travesty that in order for an atheist or homosexual to obtain membership, they have to keep their beliefs and orientations secret and fail to speak out in defense of them if they are ever derided by others.
Penn & Teller's Bullsh!t show on the subject was dead on the mark, and their experiment implied that even if a kid was straight and a believer of their sky-god, the kid would probably be excluded if his *parents* were atheist or homosexual.
The non-religious in this country are a far larger demographic than politicians would like to admit. Add to that the number of gays and lesbians and there is potentially enough people who could write a lot of letters to their representatives, voicing their discontent with the current practice of allowing this "private" organization to spend their money as it discriminates them from participating Scout activities.
Let them exclude whomever they choose. But if they spend my money, *my* kid had better have a shot at being a member if he chooses, regardless of his beliefs and sexual orientation. Otherwise, I want my money back.
cfeagans
It seems to me that the most reasonable result will ultimately be a decision that the Dale case had some problems. Boy Scouting functions under a federal charter. The federal charter does not urge religion as a purpose of the organization. Moreover, the religious diversity in Scouting is broad enough -- including almost all Christian sects and nominally Christian related sects, Jews, Moslems, Hindus, Unitarians, Buddhists, Zoroastrians, etc., etc., that Scouting in essence dictates religious beliefs when it takes a stand one way or the other on homosexuality -- and Scouting simply should not be in that position. Better that Scouting take a strong stand, a zero-tolerance stand, against child molesetation, stick with its "no sex" rules (even for married couples who are Scout leaders), and not dictate that Mormons must accept homosexuals nor that Episcopalians or Unitarians must NOT accept them. The current policy is simply unfair to way too many groups (maybe Scouting should use the Rotarians Four-Way test . . .).
As a pragmatic matter, no kid is going to be grilled on sexual orientation when signing up as a Cub. I would argue that such a query, in addition to being awfully odd and not asked under Scout rules, is illegal in most states. Religion isn't queried either, though there is a statement that by joining, the kid is presumed to stand by the Scout interpretation of "duty to God," which is belief in a deity (how Buddhists get around that I'm not sure).
It is my hope that people who think the policy in error will not use that as an excuse to stay out of the organization. Scouting will change when there is a strong contingent for a policy change inside the organization. While I am not excluded on either sexual orientation or religion, my Christian sect teaches differently than the current Scout rules. It is possible that many Christian sects could be in the odd position of having a pastor who could not qualify to be a Scout leader, or another executive, who is required to sign the papers. There are some who argue that under the current rules, Scouting's founder, Lord Baden-Powell, would not be eligible to be a member. That's a sign that the policy is grossly in error and needs to be changed. I think the policy suffers under lesser stress, too: It makes Thomas Jefferson, Abraham Linncoln, and George Washington ineligible or questionable for membership.
Scouting is not a religious organization. Whatever legal fiction gets close to that claim is in error, and I hope the courts will ignore it. I hope that someone will look at the actual charter of the organization this time, since the Dale case, inexplicably, didn't.
I think this has as much to do with discrimination as with religion. As Ed states, rules about adhering to religious tenets, and discrimination on the basis of gender and sexual orientation, have already been deemed acceptable since the Scouts are a private membership organization.
Which means, however, that it will be mighty difficult for them to argue that they should still be afforded exclusive government support or concessions not generally available to equivalent organizations. I don't think they stand a chance, legally.
In Boy Scouts of America v Dale, the Court ruled that anti-discrimination laws could not be applied to the Boy Scouts because, as a private organization, they had a right to expressive association that included the right to control the criteria for their own membership.
Merely because an organization purports to be private, does not mean that the organization has the right to control the criteria for its own membership. I'll merely cite Roberts v. United States Jaycees, http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0468_0609_ZS…
Unless the criterion for "its own membership" is anti-gay bigotry, of course.
Aside from that, I agree that government should not be permitted to give aid or comfort to the Bigoted Scouts of America.
Its funny, because when I was in scouts, our troop was almost entirely made up of atheists.
This does seem a little wierd. Churches can discriminate because they are essentially private organizations; although they do get a government subsidy in the form of a tax break.
Meanwhile, Toronto has the first and, as far as we know, only explicitly gay-friendly scout troop. Their scarves are, of course, rainbow-coloured.
http://www.washingtonpost.com/wp-srv/aponline/19991103/aponline161126_0…
Sorry, meant to add that an organization funded by public money probably should not be allowed to discriminate... but don't think you got "sexual orientation" into the Constitution yet.
If you want to read more about the controversies in the U.S. about scouting at the community level vs. the B.S.A. (Boy Scouts of America?), there's a whole web site devoted to "inclusive scouting" issues: http://www.inclusivescouting.org/ .