Religious-freedom
lawyers defending Boy Scouts against ACLU
Nearly
four years ago, the ACLU’s San Diego affiliate and a homosexual legal
group demanded that the city kick the Boy Scouts off the public park land
they’ve occupied since World War II.
The
lawsuit was filed on behalf of two San Diego couples — the Breens, who
are agnostics, and the Barnes-Wallaces, homosexuals — who claim their
children should be able to join the Scouts without having to espouse its
principles.
That claim flies in the face of the U.S. Supreme
Court’s 2000 Dale v. Boy Scouts ruling, which upheld the
organization’s “freedom of association” right to set its own
membership standards. The ruling confirmed a New Jersey Scout Council’s
decision to ban an openly homosexual man.
Not
even a high court mandate, however, has stopped pro-homosexual groups from
trying to push the Scouts out of the public marketplace.
On
July 30, 2003, a U.S. district judge ruled that the Scouts lease at a public
San Diego park “violates the Establishment Clause of the federal
constitution.”
“The
Boy Scouts of America’s strongly held private, discriminatory beliefs are
at odds with values requiring tolerance and inclusion in the public
realm,” the judge wrote, “and lawsuits like this one are
predictable fallout from the Boy Scouts’ victory before the Supreme
Court.”
The
judge’s words and the timing of the ACLU’s lawsuit — filed
just two months after the Scouts’ high court win — believe the true
agenda behind the legal attack, said Jordan Lorence, senior counsel for the
Arizona-based Alliance Defense Fund:
“This
is about punishing the Boy Scouts — and anybody who associates with them
— for winning [the right to maintain moral values].”
In
short, the ACLU is trying to use the Scouts’ victory against them by
arguing that their court-won right to preserve moral standards makes them
“religious” — and therefore, they don’t have the right
to exist in the secular realm.
“The
Boy Scouts cannot have it both ways,” the San Diego ACLU said in a press
statement. “Having established their right to discriminate they
disqualified themselves from government support.”
That
rationale was used to attack other Scout properties across the nation. In
Philadelphia, for instance, Cradle of Liberty-the nation’s third largest
Scout Council-has been threatened with the loss of facilities it’s rented
since 1928.
The
good news is the Scouts are fighting back. “We’re going to take it
all the way to the Supreme Court if necessary,” Scout Executive Terry
Trout said. “We’re not going to bail out.”
But
so far, the battle hasn’t been easy. The harshest blow came this January,
when the San Diego City Council announced it would pay the ACLU nearly $1
million to settle out of court and pledged to void the Scouts’ lease and
stop defending them in court. The announcement marked a complete reversal from
the council’s 2001 vote to extend the lease.
According
to Roger Hedgecock — former San Diego mayor and radio talk-show host
— the reversal came about
because of clandestine arm-twisting.
Unlike the 2001 vote, which occurred in public, this vote
was taken behind closed doors Dec. 9 and wasn’t announced until a month
later. It was done in secret, Hedgecock said, because homosexual activists know
that “in private, the money and the radical organizations can prevail,
but in public they cannot.”
On
Feb. 5, the Boy Scouts filed a lawsuit against San Diego and its city council.
“[T]he City’s refusal to lease to the Scouts on the same terms
available to other community groups violates the Scouts’ First Amendment
rights of freedom of speech and ... association,” said the Scouts in a
press statement.
And
in their lawsuit, the Scouts made no apologies for the values they’re trying
to protect: “Boy Scouts of America believes that no member can grow into
the best kind of citizen without recognizing an obligation to God. ...
Scouting’s moral position with respect to homosexual conduct accords with
the moral position of many millions of Americans and with religious
denominations.”
Meanwhile,
the U.S. Justice Department weighed in, announcing that it’s
investigating the case and cautioning that “singling out the Scouts for
exclusion ... based on their viewpoint would raise serious First Amendment
concerns.” Religious-freedom lawyers also are planning a counterattack.
One
point of vulnerability is the fact that the city of San Diego leases land to
123 nonprofits beside the Scouts, including The Salvation Army, the Jewish
Community Center and a couple of Protestant churches.
And
one of the city’s oldest pro-homosexual organizations — The San
Diego Lesbian, Gay and Transgender Community Center — announces plans on
its Web site to use “$825,000 in Community Development Block Grant (CDBG)
funds managed by The City of San Diego” to renovate its own facilities.
The Boy Scouts are being treated differently “because of the message they
espouse,” Lorence said. “And that’s classic viewpoint
discrimination.”
Judge
Jones made no secret of the fact that he ruled against the Scouts because of
their beliefs. As evidence the city was illegally “advancing
religion,” the judge cited the Scouts’ practice of saying
“grace before meals” and having “quiet time before taps for
campers accustomed to saying prayers.”
Jones also lambasted the Scouts’ “religious
emblem” program, which allows boys to voluntarily earn badges for
everything from Islam to Baha’i. Interestingly, the judge ignored the
fact that the Girls Scouts, which leases an equal amount of land from San
Diego, also makes religious emblems available to its members.
The
most dangerous thing about Jones’ ruling is that “it could easily
be applied to churches,” Lorence warned, “because most churches
require their members, and their pastors, to be Christians [in addition to
opposing homosexuality].”
So
religious-freedom lawyers are planning to file viewpoint-discrimination
lawsuits on behalf of religious groups whose leases are threatened by the
ruling. That’s a potent weapon, Lorence said, because the Supreme Court
has repeatedly ruled that viewpoint discrimination violates religious
groups’ “equal access” rights to public property. Even the
9th Circuit, infamous for declaring the “under God” reference in
the Pledge of Allegiance unconstitutional, has upheld equal access.
“So
if San Diego thinks it’s ended a lawsuit by this horrible decision
betraying the Boy Scouts,” Lorence said, “it may be
surprised.”
Candi
Cushman writes for “Citizen” magazine, where this article first
appeared. It is published through EP News with permission.