ACRU Senior Fellow Robert Knight wrote this column appearing on WashingtonTimes.com on May 7, 2010.
Which of America’s Founders could have foreseen a federal judge in 2003 kicking the Boy Scouts out of San Diego’s Balboa Park, where the Scouts had a lease on a campground for 25 years?
The judge, Clinton appointee Napoleon Jones, ruled that the Scouts are “religious” and cannot lease city land. The American Civil Liberties Union (ACLU) had filed the suit for a lesbian couple and an agnostic couple over the Scouts’ oath to honor God and be “morally straight.”
First, the Scouts are not a religious group simply because they recognize the Creator. By that reasoning, the Declaration of Independence is a religious document, not to mention the Constitution, which is dated “in the Year of Our Lord, one thousand, seven hundred and eighty-seven.” No, it’s not Lord Krishna.
And even if the Scouts are a religious group, so what? Do only secular groups have a right to lease public property? The San Diego ruling violates the First Amendment’s religious freedom guarantee and establishes a de facto atheist religion. Surely, this is so wrong that the Supreme Court will set things right, right? No.
On May 3, the court declined to hear Boy Scouts of America v. Barnes-Wallace, leaving intact the abuse. This is not the first time the Supreme Court has seen the Scouts mugged and bleeding and hurried on by. In 2004, the court let stand a ruling by the 2nd Circuit Court upholding Connecticut’s ejection of the Scouts from the state employees charitable donation program. Prodded by the usual suspects—gay activists and the ACLU (pretty much interchangeable)—Connecticut officials said the Scouts’ policy of barring homosexual Scoutmasters violated the sexual-orientation portion of the state’s anti-discrimination law.
In 2006, in Evans v. Berkeley, the court let stand a ruling against the Scouts and for the city of Berkeley, Calif., whose city officials had ended a 50-year-long arrangement that had allowed the Sea Scouts to use a public marina’s dock at no charge. Citing a local law barring discrimination based on sexual orientation, the city had upped the Scouts’ rent to $500 a month, prompting the Scouts to sue the city for violating their freedoms of speech and association.
Much of the media, which has been bashing the Catholic Church over the scandal of homosexual priests molesting boys and young men, which constitutes 80 percent of the abuse cases, can’t find a single reason why the Scouts would want to bar gay men from taking boys camping.
The Scouts are caught between a rock and a hard place. Either they drop their moral standard and put boys and their own legal survival at risk, or they face endless harassment designed to bankrupt them.
Since 2000, when the Scouts won in Boy Scouts of America v. Dale, they’ve been under constant assault. It’s as if they lost the case. More than 50 United Way chapters dropped them, as did many public school districts. Philadelphia is still trying to eject the Cradle of Liberty Council from its headquarters, which the Scouts built in 1928 in a city park.
The current Supreme Court’s unwillingness to take this slam-dunk First Amendment case from San Diego indicates that the justices don’t understand the ramifications of turning the Scouts into the equivalent of the Ku Klux Klan. Or they understand it and some of them don’t mind. It takes just four justices to decide to hear a case. What did they think was more important?
Maybe they simply don’t trust Justice Anthony Kennedy for the fifth vote. He wrote the Lawrence v. Texas decision in 2003 that overturned sodomy laws partly because international elite opinions rated higher than that of elected representatives from the Lone Star State.
Perhaps the justices are waiting for conflicts among cases at the circuit level in order to intercede. However, given the stakes here for the freedoms of religion and free assembly, one might think the ongoing attacks on the Scouts would warrant the court’s attention.