by Cliff Walker
August 31, 1999
Portland, Oregon -- An atheist mom has temporarily lost a two-year battle to ban the Boy Scouts of America from recruiting in Portland Public Schools.
Multnomah County Circuit Judge Joseph F. Ceniceros ruled that the Boy Scouts have a right to recruit in public schools, during class time, because it is not primarily a religious organization -- even though members are required to affirm a belief in "God."
The case was being watched nationally because it threatens the close ties between the Scouts and public schools.
Legal costs for the Portland Public Schools was generously paid for by the Boy Scouts of America. This was done to keep costs from being a factor over whether or not to continue fighting.
In his ruling, Ceniceros said: "I conclude that the religious aspect of scouting is a very small part of its programs." He added, "I also conclude that under any criteria or test that I am aware of the Boy Scouts are not a religious organization." He did admit that "the most disturbing aspect of this case is the BSA's denial of membership to boys...who do not acknowledge the existence of GOD. This admitted fact was almost pivotal in my analysis." Almost. Civil Liberties is just a game of horeshoes, then?
The American Civil Liberties Union, which represented the mother, plans to appeal. "I do not relish having to tell [my son] that when he goes back to school next week, he may...be exposed to an organization that condemns what he is," she said. "I don't want them [the Scouts] near my children, yet by law I must send my children to school."
Oregon ACLU's Executive Director David Fidanque said he was disappointed by the ruling: "The Portland district is allowing an organization that discriminates on the basis of religion to have special access to its school buildings," he said. Let's not forget BSA's access to students during class time; this was the whole point of the lawsuit. Nobody ever contested BSA's use of school buildings.
The district's lawyers argued that the Boy Scouts' emphasis on youth leadership is a positive influence on students. ("Leadership," in this sense, means defining certain people out of the picture.) In the district's view, the BSA's religious ties are largely incidental to its central purpose: scouting. (Nevertheless, their religious test prevents many kids from even encountering those "incidental" religious views.)
The ACLU had argued that the Boy Scouts are a religious organization because membership is limited to boys who aYrm a "duty to God," even if its primary purpose is not religious. "Most importantly, it is using a school to discriminate against students based on religion," Fidanque said.
The Boy Scouts routinely pitch their programs to students in public schools, in Oregon and across the nation. In a similar case in Illinois, the Boy Scouts also prevailed, retaining the right to hawk its bigotry to a captive audience of young people in our public schools.
Atheists may have to ride on the public sentiments against homophobia, for now.
To add insult to injury, the Portland school board bars the U.S. armed forces recruiters from high schools because of the military's policy that the board says discriminates against gays and lesbians. In other words, the Board of Education feels it must protect high-schoolers from the military's bigotry, but not elementary kids from the Boy Scouts' bigotry.
Camp Bigotry Spurs BSA Study?
by Cliff Walker
The executive board of the National Council of Boy Scouts of America has proposed a resolution to "establish a representative commission to examine the relevance and appropriateness of the present membership requirements for traditional BSA programs and report its findings to the executive board in the year 2000." The resolution (reportedly) goes on to say that "according to present interpretations, a homosexual person cannot be 'morally straight.' Many others in the Scouting movement have interpreted these terms to refer to proper behavior rather than a definition of a person's sexual orientation." What a concept!
A scoutmaster was removed from Camp Yawgoog (Rhode Island) on August 5, after pinning a picture of James Dale on a target at the Scout camp's riflle range and and encouraging the scouts to fire at it. The day before, the New Jersey Supreme Court ruled unanimously that Dale was wrongly dismissed as a scoutmaster after the scouts discovered he was homosexual.
Don't think the Camp's concern was primarily over James Dale's dignity; Camp officials say that they follow strict National Rifle Association guidelines not to use the image of a person as target practice.
But giving the Camp the benefit of the doubt (for a moment), perhaps the Boy Scouts of America is so utterly lacking in regulations against bigotry of this type that it must fall back on its adherence to NRA guidelines in order to make a case against the unnamed scoutmaster.
Incidents such as this only show bigotry for what it is: un-American, an insult to a tradition that commands respect for the individual and protects personal privacy.
New Jersey Court Lifts
Boy Scout Ban on Gays
by Thomas Martello
Associated Press Writer
August 4, 1999
Trenton, New Jersey (AP) -- The Boy Scouts of America's ban on homosexuals is illegal under New Jersey's anti-discrimination law, the state Supreme Court ruled today.
The Boy Scouts vowed to appeal the court's ruling, which upheld a state appellate court decision, to the U.S. Supreme Court.
The court, in a unanimous decision, sided with James Dale, a Matawan assistant scoutmaster who was kicked out of the Boy Scouts nine years ago when leaders found out he is gay.
The court said the Boy Scouts organization constitutes a "place of public accommodation" because it has a broad-based membership and forms partnerships with public entities and public service organizations.
Thus, the court said the Boy Scouts fall under New Jersey's anti-discrimination law and cannot deny any person "accommodations, advantages, facilities and privileges" because of sexual orientation.
The court also rejected the Boy Scouts' contention that striking down their ban on homosexuals violates the group's First Amendment rights.
"To recognize the Boy Scouts' First Amendment claim would be tantamount to tolerating the expulsion of an individual solely because of his status as a homosexual -- an act of discrimination unprotected by the First Amendment freedom of speech," the decision reads.
Dale, now 29, earned 30 merit badges and various other awards and was an Eagle Scout during his 12 years in the organization. He was expelled in 1990.
A lower court judge ruled in the Scouts' favor in 1995, calling homosexuality "a serious moral wrong" and agreeing with the Boy Scouts that the group is a private organization and has a constitutional right to decide who can belong.
In overturning that decision last year, an appeals court said Dale's "exemplary journey through the Boy Scouts of America ranks as testament enough that these stereotypical notions about homosexuals must be rejected."
George Davidson, an attorney for the Boy Scouts, said this is the first time the group had lost such a case in a state's highest court. He had argued the group has a right to pick its own leaders without interference from "an all-powerful state."
"It's a sad day when the state dictates to parents what role models they must provide for their children," Davidson said.
"To us, the silver lining is it gives Boy Scouts the first opportunity to go the U.S. Supreme Court and get a definitive ruling to put an end to these lawsuits," he said
The court decision rejected "the notion that Dale's presence in the organization is symbolic of Boy Scouts' endorsement of homosexuality.... Dale has never used his leadership position or membership to promote homosexuality, or any message inconsistent with Boy Scouts' policies."
Dale scheduled an afternoon news conference at the New York offices of the Lambda Legal Defense and Education Fund, which represented him in court.
"It's a great day for our client, but also for both lesbian and gay people who want to join the Boy Scouts," said Beatrice Dohrn, legal director for the group. "It's also a great day for other people in the Boy Scouts who got a message today of inclusion rather than one of discrimination."
ACLU Demands San Diego End
Public Subsidy of Boy Scouts
August 4, 1999
San Diego -- The American Civil Liberties Union of San Diego & Imperial Counties and the Tom Homann Law Association today demanded that the City of San Diego stop subsidizing the activities of the Boy Scouts as long as it persists in discriminating on the basis of religion and sexual orientation.
In a letter delivered this morning, the two organizations demanded that the City Council and Mayor terminate the City's leases, under which the Boy Scouts operate their headquarters in city-owned Balboa Park for $1 per year and receive rent-free use of facilities on city-owned property on Fiesta Island.
After a long series of court battles, the California Supreme Court last year ruled that the Boy Scouts are a completely private religious organization, making them exempt from non-discrimination laws and permitting them to exclude boys and adult leaders who are agnostic, atheist or gay. The City of San Diego has stated that it would wait for the outcome of these court cases before deciding what to do about its subsidy of the Boy Scouts. With those cases complete, the organizations said the time has arrived for the City to address the Boy Scouts' discrimination.
"The Boy Scouts can't have it both ways," said Linda Hills, Executive Director of the ACLU of San Diego and Imperial Counties. "If they truly are a private religious organization, free to engage in any form of discrimination they choose, then they are not entitled to a government subsidy. Tax dollars should not be spent to promote intolerance."
In their letter, the ACLU and THLA point out that both Boy Scout leases bar discrimination based on religion and provide that the Boy Scouts must abide by all laws and regulations of the City of San Diego. The City's Human Dignity Ordinance bans discrimination based on sexual orientation.
The letter asks the City to enforce those contracts by requiring the Boy Scouts either to end their discrimination or to move their operations to facilities not owned by the City. The letter also details the City's constitutional obligation to avoid preference for, or support of, religious activity.
The groups said that the Boy Scouts convinced the Supreme Court that instilling religious values was their primary organizational purpose and that the recreational aspect of scouting was secondary. Subsidizing discrimination against gays also puts the City in violation of the Equal Protection Clause of the United States Constitution.
"The City cannot lease away people's rights, including the rights of gays, and atheists to be free from discrimination and to enjoy the use of unique public assets like Balboa Park and Fiesta Island," said M.E. Stephens, Co-President of the Tom Homann Law Association, San Diego's gay, lesbian, and bisexual bar association. "It is time for City leaders to earn their merit badge in diversity by ending their sponsorship of the Boy Scouts."
A number of government entities have recently cut their ties with the Boy Scouts because of their intolerance. In 1993, the San Diego Unified School District banned Boy Scout activities from its campuses. Last year, following the California court decision, the City of Berkeley terminated free berthing space at a city marina for two Boy Scout training ships. And recently, the City of Chicago ended its thirty-year sponsorship of the Boy Scouts rather than be forced to defend the Scouts' exclusion of gays and atheists in court in response to a federal lawsuit filed by the ACLU.
Both the City and County of San Diego Human Relations Commissions have condemned the Boy Scouts' discriminatory policies and have called on the City to ask the Scouts to vacate parkland.
The Scout Oath
© 1998 The Wichita Eagle
Boy Scouts Maintains
a Firm Hold on
at its Heart
by Mark O'Keefe
Sunday, July 4, 1999
Mormons are a Driving Force
in the Program
Camp Baldwin -- Justin Hall and Miles McFarland learned how to rescue a drowning swimmer last week, taking turns throwing a lifesaving ring into Lake Hanel.
Miles, dripping and shivering after an encounter with 67-degree water in the chilly altitude of the Mount Hood National Forest, didn't seem to mind. For the 12-year-old, the Boy Scouts of America is about "a lot of boys having fun."
Scouting is also about something that has put the organization into hot water: a requirement to believe in God.
Such belief is OK for a private religious organization, argues the American Civil Liberties Union in separate lawsuits filed in Portland and Chicago, but it's unconstitutional when the Boy Scouts are allowed to recruit in public schools.
Win or lose, the cases could damage the friendly relationship Scouting has with schools, potentially reducing membership, now at 170,000 in Oregon and Washington and 4.8 million nationally. At a time when moral absolutes are not as popular as they once were, the lawsuits could also alter public perception of an 89-year-old institution that's as American as fireworks on the Fourth of July.
For many, the Boy Scouts conjure up images of uniformed boys helping elderly women cross the street or of young men in the wilderness learning to start a fire without matches. Scouting's core values are so traditional it's as if Norman Rockwell painted them on a canvas.
According to the Scout Law, "A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent."
It's that last one that has landed the Boy Scouts, and school districts that support them, in court.
Multnomah County Circuit Judge Joseph Ceniceros will decide the ACLU case against Portland schools later this summer.
But much is clear already. Unlike the Girl Scouts, the Boy Scouts aren't about to make duty to God optional in their oath. Religion will continue to be a fundamental part of Scouting, whether a boy is Christian, Muslim, Hindu or Jewish.
A line has been drawn in the dirt around the campfire.
"Will we change?" said Larry Otto, executive director of the Cascade Pacific Council, who is in charge of Scouting in Northwest Oregon and Southwest Washington. "I think we'd self-destruct if we changed. That would be like taking Jesus out of the church. It's at the core of who we are."
In some cases where the Scouts have been sued for not allowing gays and atheists, the organization has argued it can do so because it is a private, religious organization. The Scouts have won most of those.
But the cases in Portland and Chicago are different because they target schools, not the Scouts. In Portland, Nancy Powell, an atheist, says school officials made a big mistake when they allowed Cub Scout recruiters into Harvey Scott Elementary School, which her son attends.
Powell cites the Oregon Constitution, which restricts religion in public
schools more stringently than the federal Constitution. She isn't seeking
monetary damages, just to keep the Boy Scouts from recruiting boys during
Churches at the backbone
That could be devastating to Scouting, Otto said. Schools in Oregon and across the country have routinely allowed recruiting pitches, which typically invite young boys to give Cub Scouts a try.
"You tell me how I tell a kid about Scouting," Otto said. "Put an ad in the newspaper? That won't do it. Run an ad on the radio? That won't do it. Direct mail? Do you understand what that would cost?"
While Scouting depends on public schools, it also relies on religious organizations, particularly the Church of Jesus Christ of Latter-day Saints, or Mormon Church. Of the roughly 1,600 Cub Scout packs, Boy Scout troops and Explorer posts in Northwest Oregon and Southwest Washington, 40 percent are sponsored by Mormons. Another 35 percent are sponsored by other religious organizations.
Nationally, the vast majority of support also comes from religious organizations, with the Mormon Church sponsoring almost three times as many Boy Scout groups as the second-ranked religious sponsor, the United Methodist Church.
Scouting is the official youth program for Mormons. Their commitment is so strong that local bishops routinely assign men to become Scout leaders as part of their spiritual calling.
At 658-acre Camp Baldwin, off of Oregon 35, southeast of Hood River and southwest of The Dalles, evidence of religious activity was easy to find last week:
Eric Lovelin, 16, of Portland said he appreciates all this, because "I need to be religious all the time in order to keep my values up and my faith strong."
A Lutheran, Eric recalled a three-day hike near Mount Jefferson during
which he shared a tent with a Catholic friend, Tim Finn, who, like Eric,
is just short of attaining the Eagle Scout rank.
Reverence for all faiths
Heavy snowfall put them on their backs inside their tent, talking. The boys discovered that they disagree on some things but agree on essential Christian principles.
Scouting is nonsectarian, refusing to push a specific belief, but both boys said duty to God, however you define God, is essential.
"No one says you have to join Scouting," Tim said. "It's just an option. Plus, a larger percentage of people believe in God than don't."
Michael Levy is a 13-year-old member of Troop 544 in Gresham, sponsored by Mountainview Christian Church. Michael, who is Jewish, said he has been teased in school about his faith, but never in Boy Scouts.
"Every Boy Scout I know has been courteous and reverent of my beliefs," Levy says.
He includes Frank Johnson, 13, the chaplain's aide in Troop 544, an evangelical Christian who has been instructed to be as generic as possible when he prays before meals.
"We have different religions here," Frank said, "but we all believe in God."
The adult overseeing much of this is Barry LeVon, who doesn't attend church and was forced to examine his own spirituality when he became a Scout volunteer nine years ago.
His faith can be summarized, he said, by an experience of walking into a forest, looking at the trees and saying, "Thank you, Supreme Being, for our playground."
LeVon has concluded that the Scouts "aren't preaching religion,
just acknowledging belief in God."
A little bit religious?
Yet when schools give access to groups espousing even a general belief in a deity, they find themselves in a constitutional mess, said Andrea Meyer, an ACLU lawyer who is arguing the case against the Portland school district.
"When it comes to entanglement of church and state in our public schools, being a little bit religious is like being a little bit pregnant," Meyer said.
Attorneys for Portland schools, whose fees are being paid in part by the Boy Scouts, have admitted the Scouts are religious. But they argue that the words spoken and Scouting materials distributed at Harvey Scott Elementary were not. In addition, the Boy Scouts are primarily about other things, the lawyers argue, pointing out that only four of 231 pages in the Cub Scout handbook refer to religion.
"There is a lot about Scouting other than the duty-to-God portion of the Boy Scout Oath," said attorney James Westwood. "There's also duty to country, duty to family and duty to self."
The main point, Westwood said, is that it should be left for the school board, not the judge, to decide whether Scouts should continue to have access. The board could decide to ban the Scouts, he said, just as it has banned military recruiters because they discriminate against gays and lesbians.
Otto, the regional Scout director, shook his head in befuddlement. In this season of societal soul-searching after school shootings in Springfield and Littleton, Colo., why would an organization with a proven record of forming young men with strong values be under such attack? It's no accident, he said, that several of the student heroes at Springfield and Littleton were Boy Scouts.*
Yet Scouting finds itself on the defensive because those values are entwined with religion, Otto said.
Otto said he knows there is nothing for the Boy Scouts to be ashamed of, but with these lawsuits, "somehow you feel unclean."
[*EDITOR'S NOTE: O'Keefe's article fails to mention that a gunman in the Georgia school shootings, a week after Littleton, was himself a Boy Scout. -- Cliff Walker]