Conservatives on 9th Circuit Can’t Rescue Boy Scouts From Establishment Clause Claim Dan Levine01-02-2009Conservatives on the 9th U.S. Circuit Court of Appeals couldn’t muster enough votes to rescue the Boy Scouts from the riptide of an Establishment Clause claim. The court denied en banc review Tuesday to a San Diego-based Boy Scouts group in a case that raises tough church-and-state questions (pdf). The appeal drew a wide range of amici: the Justice Department’s Civil Rights Division and a group of states — including Texas and South Dakota — sided with the Scouts, while California filed for the plaintiffs. A pair of couples, one lesb1an and another agnostic, challenged a lease the Scouts signed with the city of San Diego allowing them to operate recreational facilities on park land. They said the deal violated the Establishment Clause because of the Scouts’ professed reverence of God. In addition, they said they were averse to using the facilities because of the Scouts’ stated policy of excluding gays and atheists.
Remember the facts of the case against the Boy Scouts. The Supreme Court ruled they can discriminate on the basis of religion or sexuality, because they are a “private group”. They are the only discriminatory private group that gets government funding and LOTS of publicly-funded/endorsed special privileges (pulling kids out of public school, free meeting space at the firehouse, etc), and THAT’S illegal, unless the same would be available to any other discriminatory private group. It’s a shame, because had they just declared themselves a public group, they would have been entitled to all these privileges, but they would have had to give up being discriminatory. Remember that: They CHOSE this course.
As I remember “reverence” is one of the vows you take as a “scout” at any level. My take is that it’s therefore a religion. As a religion, it is entitled to no public funding. If it violates federal law on employment based on race, creed, color, religion, or sexual preference, and receives federal money, it must not only be denied those funds, but, is subject to lawsuit for damages.
I’ve always seen “boy scouts” as pre-military conditioning. Therefore, I am reminded of the movie, “Full Metal Jacket”, when the drill sargeant says: We give thanks to god for bestowing upon us the ability to kill without hesitation, and in return for this favor, we keep heaven stocked with fresh souls.”
Classic stuff,
NeoWolfe
You’re exactly right, Dave – they can’t have it both ways!
I recently went to a school board sub-committee meeting to argue against the Boy Scouts’ request to have teachers hand out their literature in classrooms. (Fortunately, the board is leaning towards not allowing ANY groups to have their info given out by teachers.)
I find this group particularly annoying, though, because although they ARE a religious group (I did a bunch of research, and the God-related stuff they require the boys to do goes way beyond just pledging to honor him, etc.), they don’t stress that in their appeal to the kids. If a church-related Christian or Jewish organization came into the schools and tried to recruit kids, at least I could tell my 6-year-old son, “That club is only for kids who belong to that religion.” But it’s a lot harder to explain to my son that he wouldn’t be allowed to join a group that claims to be all about camping trips and pinewood derbies.
It would be nice to have a secular organization like this.
It would take: time, money and serious dedication. Sadly I’m just not up to those three things right now.
Perhaps somebody is though.
David defeats his own argument once again.
By definition, private groups discriminate! This is only logical.
David attempts to tag a private group with the definition of “discrimination” used for PUBLIC groups. You know, the one where you can’t discriminate based on race, color, creed.
Therefor, the Boy Scouts cannot be guilty of “discrimination” as Dave and others use the term.
Hey Dave! Ever heard of FREEDOM of association. You might want to look it up – it’s in the Constitution.
Tim,
The problem is this PRIVATE group uses locations paid for with PUBLIC tax dollars. Libraries, fire houses, military bases.
Re-read this paragraph from the post:
They are the only discriminatory private group that gets government funding and LOTS of publicly-funded/endorsed special privileges (pulling kids out of public school, free meeting space at the firehouse, etc), and THAT’S illegal, unless the same would be available to any other discriminatory private group.
In contrast, the klan is a PRIVATE group that receives no PUBLIC funding or use of PUBLIC property for meetings. If they chose to discriminate and prevent people from being members that’s fine because they receive no PUBLIC funding. If tax dollars were used to support that particular group I doubt people would allow them to continue their discriminatory ways.
Freedom of association is not in the wording of the US constitution. Were the Boys Scouts truly a private group, they would not receive any funding from the government (which they do), tax breaks (which they do), or use of government property (they do in spades).
Hey…it’s illegal to smoke in any Federal Building. Tell me…will NObama, who admits to smoking 1/2 a pack a day, honor that law…?
Back on track…
I wonder why past Presidents didn’t know about the “mythical” ban…I guess they never got the memo…
President Clinton
President Carter
As I applaud your past, I also urge you to rededicate yourselves to the ideals of the Scout Oath, and to reaffirm your obligations to your God and to your country. In so doing, you will contribute to the strengthening of America’s heritage and thereby to the realization of our common goals in the Great Society.”
President Johnson
President Kennedy
President Truman
I love this one…I wonder why there was no outcry from even the farthest fringe corner of America claiming a vilolation of the “myth”…?
President Roosevelt
President Wilson
Tim,
Yes, there is FREEDOM of association. Unless the government feels that certain people associating together is a bad thing. At that point they lose that freedom. Ask you local bikers how the feel about brothers that can’t wear the colors anymore because the government thinks it’s “too dangerous” for them to associate. “Oh but those are criminals!” the voices cry out from the dark. Yes, they are. But where does it stop?
Take a good look around you sometime and realize how many of your Constitutional rights you give up every day. By law you can stand on the sidewalk and try to convert people to Christianity or away from it. That is Constitutionally protected speech. When you go on your unpaid lunch break at work stand up in the break room and see if you still have that same freedom.
Don’t want to take that risk? Ok, start a MySpace or Facebook page where you make very negative posts about your employer and ensure your co-workers know about it. See how long you keep your job. I watched the termination process happen at my job today for a lady that said very profane things about her supervisor and the company on her MySpace page. She didn’t work on it using a company computer or while she was on the clock. As part of the IT dept I was responsible for verifying this. So why did they fire her? Part of the job agreement was that she would not reveal corporate information in a public manner without prior approval. She gave her supervisor’s name, her employer’s name, her job description and additional duties on her MySpace without receiving prior approval. So much for the 1st Amendment. I know, I know…she can sue! No, Florida is a “work at will” state. Legally she can be fired with no reason given beyond “She’s not a good fit for us.”
Comment from: gamingwithbaby
Neither is the phrase “Separation of Church and State”…
And your point is…?
Phreedm,
If Obama does light up in a federal building I hope he is fined/punished as any other federal employee would be.
What about this group, the American Atheists? Would you support this group receiving tax breaks and being allowed to meet at no cost in tax funded government buildings? Even if people were required to denounce their religion if they wanted to attend the meeting?
What about others? What if an Islamic group (as that’s the popular religion in the media these days) wanted to hold meetings in your local government funded buildings? Would that be ok?
If you say yes to either, why?
If you say no to either, why?
My curiosity is “Does one group deserve differential treatment over others?”
Phreedm,
You’re right, that exact phrase does not appear in the First Amendment.
The first sentence of the description below does a good job of explaining though.
From wikipedia:
The Establishment Clause of the First Amendment prohibits the establishment of a national religion by the Congress or the preference of one religion over another, or religion over non-religion. Originally, the First Amendment only applied to the federal government. Subsequently, under the incorporation doctrine, certain selected provisions were applied to states. It was not, however, until the middle and later years of the twentieth century that the Supreme Court began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by state governments. For example, in the Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), Justice David Souter, writing for the majority, concluded that “government should not prefer one religion to another, or religion to irreligion”.
The government should not give you special consideration because of your religious beliefs and it should not give me special consideration because of my non-beliefs.
This seems very simple to me. If a government organization operates with government funding, taxes that is, it ought not discriminate on the basis of religion.
If a private organization wants to discriminate on the basis of religion, they shouldn’t receive any government funding, nor should they be related to the government at all. They especially shouldn’t have the President of the United States as their group leader.
Free association is fine for non-government groups that take no government funding. That includes discrimination on the basis of religion or whatever else they want. Such a group is free to discriminate, as a non-government group that also takes no tax funding.
The Boy Scouts of America wants to be both public and private, to enjoy the benefits of both, while ignoring the responsibility of being fair to the general public, on the basis of their religion.
Like Ron Barrier said, come clean. Which is it? Public or private? By continuing to play both sides in that respect, they’re displaying a lack of integrity.
Most of all, no taxpayer should have to spill out a single dollar to support religion if they don’t want to. Also any religion that relies on a government to artificially prop it up somehow, is a weak religion indeed. Not weak in size or wealth or influence. I mean weak in integrity and compassion for the average human being.
Besides, I don’t remember reading in the Bible about God ever learning to make a campfire, or teaching children …anything. Religion rides piggy-back again.
Joe Zamecki
Austin, Texas
Comment from: tony miller
Yes I do. And yes AA already does receive tax breaks and meets in government owned buildings. (Debates in Libraries).
Comment from: Joe Zamecki
You must be talking about President Roosevelt…
http://post369.columbus.oh.us/scouting.d/fact.sheets.d/02-531.html
Odd that no one made a connection between Roosevelt and the “myth”…
Thank you.
phreedm – No I was talking about the President of the United States, whoever it is at the time in question. Right now it’s Bush Jr.
Tim, did you read the article at all or just start typing random words that you thought looked pretty together. The boyscouts as a private organization can discriminate, that is outright stated. The problem is that they get all sorts of public group privileges, and want the benefits of a public group.
Forgot the question mark.
Wow, that was one of the most coherent and logical debates I have ever read by Phreedumb. I’m giving him credit whether you do or not. And, I would back the Scouts as tax exempt organization if it did not include religion and prejududice against gays. Remember Phreedumb, in case you haven’t been watching the news, the pediphiles are in your church, not in the Scouts. Just a little qualifier.
NeoWolfe
Here’s the bottom line – the charge of “discrimination” just doesn’t wash. It is a figment of peoples’ imagination or wishful thinking on the part of people who would LIKE the Boy Scouts to be labeled in this manner!
I also think some of you here and others elsewhere (particularly the ACLU) are making way too much of a distinction between “public” and “private”. The truth is there are untold THOUSANDS of so-called “private” groups that have the benefit of using public facilities, etc.!
It just so happens that a small minority of people who don’t like the Boy Scouts want to make an issue out of it. A mountain out of a molehill, that’s all this is.
Tim
You are right. I hope you have a nice guest room because I want the master bedroom.
Tim said this:
“A mountain out of a molehill, that’s all this is.”
I think I’m with you on that. As I previously stated I don’t think that any organization that has religious ties should get public money. I stand by that. But, what you said is very true, about private groups using public facilities. When I was a teenager my motorcycle club met in the basement of the courthouse. Company picnics are held in parks and intra-company softball teams play on municipal baseball fields. There is no relevent point to be found against the Scouts on that issue.
And let me add, the kids I went to school with who were involved in Scouting had a lot of fun. It’s not a malevalent, insidious organization. It’s just another imperfect human institution run by people who think that a spiritual awareness is healthy. They’re dead wrong, but it’s not on par with a “faith based initiative” as a cause for concern. There ARE bigger fish to fry.
NeoWolfe