In a blow to civil liberties, the court rules that the Boy Scouts is a private organization immune to anti-discrimination laws. Critics say that the BSA enjoys a special relationship with government. Is bigotry against atheists, gays and others a positive value to teach young people?

he California State Supreme Court ruled yesterday that the Boy Scouts of America did not fall under the purview of anti-discrimination laws, and thus may bar gays and applicants who do not believe in a deity. In two unanimous decisions, the justices examined cases filed by twin brothers, Michael and William Randall, who would not swear a religious oath as required by the Scouts for membership, and the case of an 18-year old Eagle Scout who was turned down for a position as a Scout Leader because he was identified as a homosexual.

   Both decisions drew gushing praise from attorney Jay Sekulow, head of the American Center for Law and Justice founded by Rev. Pat Robertson. He applauded the court's decision, saying that "the Boy Scouts can and should set the moral tone of their organization." A Scouting spokesperson agreed. Greg Shields told Newsday, "For 88 years we've taught the moral values of the Scout oath and law to American boys. Those who meet the standards of this membership organization are welcome to belong."

    But Terry Flynn, ACLU attorney who represented the Randalls, said that government and civic entities should withdraw financial and other support for the Scouts, as groups such as Levi Strauss, United Way of San Francisco and the City of Chicago have already done.

    Michael and Terry Randall had joined the Cub Scouts at age 7; they noted that their pack leader had permitted them to omit any religious references in their oath. The twins were rejected from membership later, though, when they tried to participate in a new Scouting group after moving. Court intervention kept them in the program and they advanced up the Scouting ranks; recently, they were accepted as Eagle Scouts by their local troop subject to the approval of the national BSA organization.

   The core issue was whether the Scouts were a private membership group not covered by anti-discrimination laws, or a business enterprise and "public accommodation" which cannot exclude members on criteria such as sexual orientation. Observers from ACLU and other groups noted that the decision was probably "the end of the line" although challenges to the BSA ban against homosexuals are pending in Chicago and District of Columbia.

    In Chicago, the Human Relations Commission ruled that Scout prohibitions against gay members violated municipal anti-discrimination laws.

    Chief Justice Ronald George, writing in the court's lead opinion, maintained that "Scouts meet regularly in small groups (often in private homes) that are intended to foster close friendship, trust and loyalty... The Boy Scouts is an expressive social organization whose primary function is the inculcation of values in its youth members." That picture described a different category than public accommodation, which the California Supreme Court has previously used to cover private country clubs and Boys Clubs which operate buildings and programs for use by the general public.

    James Randall, father of the twins, told a press conference yesterday, "I just hope that the Boy Scouts had the honesty and integrity that my sons have shown."

    Across the country, the "religious litmus test" required by the Scouts has elicited opposition from atheists and other civil libertarians. In Chicago, atheist civil rights activist Rob Sherman has protested government assistance to the Scouts; last June, Sherman objected to sponsorship of an Explorer Post program by the local police department, when his son Richard filled out a registration form but crossed out the references to a god oath. After initially accepting the application, the BSA then rejected Richard as a participant because he would not sign the religious portion of the Explorer Code.

    Mr. Sherman objected to any sponsorship of the BSA program by government, including the local police department. "The Constitutions of the United States and of the State of Illinois unambiguously establish that government agencies are not permitted to discriminate, on religious grounds, in the provision of services," noted Sherman.

    In July, 1997, Mr. Sherman and his son filed suit, citing the relevant passage of the Explorer Code:

    "I believe that America's strength lies in our trust in God and in the courage, strength and traditions of our people..."

    The Shermans then noted that the local police department "is an agency of the Village of Buffalo Grove municipal government," their home town, and that:

   "The United States Constitution, Amendment I, states: 'Congress shall make no law respecting an establishment of religion...'"

    Other arguments in the Sherman suit cited the Equal Protection Clause, and Section 3 of Article 1 of the Illinois Constitution, "Religious Freedom" which states, in part, that "no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions..."

   Sherman won his case, and the Buffalo Grove Police Department does not sponsor any discriminatory Scouting programs.

   Another on-going case has involved Nancy Powell of Portland, Oregon. She has objected to the use of local public schools as recruiting grounds by the Boy Scouts, insisting that the practice violates state-church separation. Powell's son wanted to join Scout activities, but she told the Portland Oregonian newspaper last year that he couldn't since the family accepts "science, not supernatural beings."

    The Scouting program is far more than a private club; it enjoys a special relationship with governments, especially the federal government. BSA formally incorporated on February 8, 1910 and was "Chartered by Congress" in 1916. It is one of several dozen "Patriotic Societies and Observances" listed under the United States Code, Title 36, groups which include The American Legion, Daughters of the American Revolution, Navy Club of the United States of America, Civil Air Patrol, Little League Baseball, Inc., Gold Star Wives of America, and Former Members of Congress. It is this special status -- acting under a Congressional Charter -- which critics of Scout discrimination say should qualify the BSA and its programs for coverage under anti-discrimination statutes. In addition, the President of the United States is consider the honorary head or "Commander-in-Chief" of the Boy Scouts organization.

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