Boy Scout controversy pits ACLU against God, mom, apple pie

Monday, May 3, 1999

Stripped of its context, one of the latest church-state controversies seems amazingly uncontroversial.

In this case, the program under attack is sponsored by a wide range of publicly funded organizations. Although publicly sponsored, the program denies access to children and parents who refuse to take a religious oath. If the First Amendment’s required separation between church and state means anything, a publicly sponsored program that favors certain religious believers cannot be constitutional.

The present controversy, however, isn’t about a complicated school voucher program or a hidden tax break. This controversy has a name and a face. Thousands of faces, actually—thousands of clean-cut, apple-pie-loving, smiling faces. And when the Boy Scouts of America are challenged by the American Civil Liberties Union, there’s little doubt where public sympathies lie.

The ongoing ACLU-Boy Scout dispute garnered national attention recently when the ACLU sued the Boy Scouts in the federal district court in Chicago. In the lawsuit, the ACLU seeks to stop public sponsorship of scout troops as long as the Boy Scouts require a religious oath. Although the public sponsorship often does not involve significant direct financial assistance, the Boy Scouts’ national charter requires that local troops affiliate with local sponsors.

The ACLU already has one significant victory over the Boy Scouts. In February 1998, the city of Chicago settled an ACLU lawsuit by ceasing sponsorship of Boy Scout programs until the organization dropped its religious oath requirement and its ban against homosexuals.

So far, the Boy Scouts’ public response to the lawsuit has been a weak counterattack, claiming that the ACLU is attempting to deny boys access to the benefits of scouting merely because the boys “promise to do their duty to God.”

The boys’ promise, of course, isn’t the problem. The problem is the adults’ refusal to include boys who won’t make that promise. That refusal alone doesn’t violate the First Amendment, but coupling it with public sponsorship almost certainly does.

The ACLU’s position and others like it undoubtedly will be attacked in upcoming weeks as commentators, teachers and parents react to the Littleton, Colo., tragedy. We need more God in schools, not less, they’ll say. We’ve created an amoral society, they’ll lament. It’s time to bring religious values back into every school, they’ll proclaim. To hell with the ACLU.

Fortunately for the First Amendment, the ACLU does not bow to public pressure when constitutional ideals are at stake. The ACLU recognizes that when commentators, teachers and parents demand that God, morals and religious values be taught in school, they want only their God, morals and religious values taught. Atheists, agnostics and other religious minorities have no place—or at least no rights—in the public school system envisioned by those who desire to make the Ten Commandments part of the curriculum.

Religious minorities face the same discrimination in the Boy Scouts. The city of Chicago realized as much when it pulled its sponsorship of the group. This discrimination is the ACLU’s only target, as the ACLU already has agreed to dismiss the pending lawsuit if the Boy Scouts drop the religious oath requirement.

Unless the Boy Scouts can convince a federal judge to twist the Establishment Clause beyond recognition, it appears as though they have a simple choice: they can either drop their affiliation with public organizations or adopt non-discriminatory eligibility policies.

As badly as boys in our society need role models and meaningful after-school activities, we all should hope that the Boy Scouts choose the latter.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.