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.







