Christianity Today 

Compiled by Ted Olsen | posted 03/10/2004


Supreme Court Turns Down Boy Scouts Case

Compiled by Ted Olsen | posted 03/09/2004

U.S. Supreme Court won't hear case of discrimination against Boy Scouts
It looks like one decision on the Boy Scouts' sexual conduct requirements is enough for the U.S. Supreme Court. At least for now.

In 2000, the justices court ruled that requiring the Boy Scouts of America to admit homosexual scout leaders was an unconstitutional violation of the right of association, and would "significantly burden the organization's right to oppose or disfavor homosexual conduct."

But that same year the state of Connecticut said the Scouts' ban on homosexual leaders violated state antidiscrimination law, and booted it from a list of 900 charities that may receive contributions from a state employee payroll deduction plan. Lower federal courts said Connecticut was within its rights to exclude the Scouts, and yesterday the Supreme Court decided not to hear the case.

"Connecticut has not prevented the BSA from exercising its First Amendment rights," the U.S. 2nd Circuit Court of Appeals ruled in July 2003. "It has instead set up a regulatory scheme to achieve constitutionally valid ends under which, as it happens, the BSA pays a
price for doing so."

In other words, lawyer George Davidson, who represented the Boy Scouts, told the Associated Press, "government is entitled to make an organization that exercises its First Amendment right pay a price for exercising that right." So much for "free" speech, says Davidson. "What if a church softball league wanted to get a permit to use a ballfield in the park for a couple of hours? The religious organizations to which most Americans belong have the same view of the morality of homosexual conduct as the Boy Scouts do. What happens to them?"

(See more coverage of yesterday's Supreme Court denial from USA Today, The Boston Globe, Pittsburgh Post-Gazette, Toledo Blade, and the Reuters and Bloomberg news services. Local reaction is available from the New Haven Register and Salt Lake Tribune.) 

But the Supreme Court may not be avoiding the scouting issue; it may simply be waiting for another one of the many related cases to work their way through the court system. For example, a case in San Diego is really heating up, with the U.S. Department of Justice
last week issuing a brief supporting the Scouts. In that case, San Diego residents sued the city, claiming that Scouts are a religious organization, and therefore scouts' use of public property is a violation of church and state. Unbelievably, the city bought the argument and booted the Scouts.

"Quite simply, the Boy Scouts of America is not a church, and canoeing, kayaking and swimming are not religious activities," R. Alexander Acosta, Assistant Attorney General for the Justice department's Civil Rights Division, said in a press release. "Boy Scouts should not be prohibited from using public lands on an equal basis with other youth groups."

Nor should they be prohibited from inclusion in state employee payroll deduction plans. But for now, they can be.