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The Time Has Come
Separate Church and Scouting

by Conrad F. Goeringer
July 4, 2020

The Boy Scouts of America may be a private group -- but we
don’t have to support it through our tax money.

The Supreme Court made it official last Tuesday, June 27, 2020. The private interests of the Boy Scouts of America trump any civil rights laws when it comes to the organization’s blatant discrimination against homosexuals in position of leadership. The 5-4 decision in BOY SCOUTS OF AMERICA v. DALE involved the case of a New Jersey man, James Dale, who by all accounts was an exemplary member of the organization. He was an Eagle Scout, then became a scoutmaster for a BSA group.

In 1990, though, a local newspaper ran a story about a workshop Dale was holding on counseling gay teenagers. The BSA revoked his membership, pointing to the requirement that scouts be of good character, “morally straight” and “clean.”

The New Jersey Supreme Court eventually took up the ensuing lawsuit, and in August, 1999 ruled that the Boy Scouts of America policy of exclusion was illegal under state anti-discrimination laws. It was the first court room setback for the BSA, which had argued that they were a private club and thus should be permitted to set its own admissions policies.

Plenty of people agreed with the BSA’s defense of its private status, among them those who insist that gay men and women are “unclean,” morally debauched, and the shock troops of the Antichrist waiting for the first opportunity to prey on innocent youngsters. Some civil libertarians, though, also weighed in. How far should the state go in dictating policies to private groups that no one is compelled to join? The New Jersey Law Against Discrimination (LAD) treated the scouts as a “public accommodation,” similar to motels, restaurants and any other business which opens its doors to serve the public. LAD went beyond those usual boundaries, though, and considered little league teams and private eating clubs in the same category.

The U.S. Supreme Court had already covered much of this legal territory in decisions like HEART OF ATLANTA MOTEL, INC. v. UNITED STATES, where it said that the purpose of any public accommodation law was “to vindicate the deprivation of personal dignity that surely accompanies denial of equal access to public establishments.” Was the BSA a “public accommodation,” though, or a private club?

State Supreme Courts in Kansas and California held that the Boy Scouts was a private group, not a “public accommodation” like a fast-food joint, and thus had the right to deny membership based on its own criteria. The scouts continued to exclude homosexuals from the ranks, as well as atheists and others who would not fulfill the requirement of stating a belief in God. Critics weighed in, though, citing the fact that the BSA was a bit more than a private boy’s club. It was chartered by the U.S. Congress, and every President of the United States since William Howard Taft has served as honorary head. State, county and local governments have been closely involved with the Boy Scouts of America, helping to sponsor troops, providing the BSA special access to schools to facilitate its recruiting goals, even donating facilities, money and equipment. The BSA also spends millions of dollars per year soliciting members through media advertising. Imagine seeing an ad for Wally’s Burger World, walking in with your 10% discount coupon, and being told that because of your bedroom habits or religious beliefs (or the lack of them...), sorry, the buns stay on the grill and you best get yours out the door, pronto!

The U.S. Supreme Court may have finally resolved all, or at least part of this contentious issue last Tuesday. It was a 5-4 split -- the closest the bench comes to a deadlock -- with the majority opining that the Boy Scouts of America were an “expressive association” which had the right to discriminate when choosing scoutmasters. Chief Justice Rhenquist wrote that requiring the BSA to accept gays as leaders “would significantly burden the organization’s right to oppose or disfavor homosexual conduct...”

It remains unclear whether the Court is allowing the BSA to apply its discriminatory litmus tests on sexuality and religion when it comes to admitting members. The scouts now have a powerful legal precedent on their side, though; and opinion polls suggest that the majority of Americans -- for a variety of reasons -- agree with the DALE decision.

Which brings us to the pressing question: what do we do now?

Many atheists have challenged the BSA’s discriminatory policies regarding the “god” oath. This exclusionary practice keeps millions of American youngsters out of an organization that many feel plays an important part in the national culture. It also stigmatizes parents and everyone else who happens not to be believe in a god or god, or has sincere doubts about the issue, or who happens to believe that the oath amounts of a snoopy religious “test” -- and it’s nobody’s damn business what, if any, deity they happen to worship or ignore. It makes at least 10% of the American population -- over 26 million men, women and children -- part of an unwholesome category of “others” who thus are stigmatized as marginal human beings and second-class citizens. An atheist parent can be active in the PTA, organize the neighborhood litter patrol, take in stray animals, even win the coveted State Fair Pie Baking & Chili Cook-Off Contest, and still be considered somewhere down around the moral equivalent of Ted Bundy and the town drunk. Is that fair?

Covering the Supreme Court’s decision in BOY SCOUTS OF AMERICA v. DALE, I interviewed Nancy Powell, a Portland, Oregon atheist and mom who for years has been protesting the fact that her local public schools gladly open their doors to the BSA recruiters in their hunt for fresh, young members. Unlike other litigants, Powell does not question the right of the BSA to discriminate. To her, the Boy Scouts are strictly private, and just as the local freethinker group, the BSA has every legal and moral right to set their own membership requirements -- unenlightened, bigoted and xenophobic as they may be. No one is compelled to join the scouts, Powell points out; what she objects to is the handmaiden role now being played by the schools and other public entities in supporting the BSA.

She has a point -- and an answer to this question: what do we do now? I can think of several things right away...

• First, we can ask -- no, demand! -- that President Clinton resign as honorary head of the Boy Scouts of America. If he is the president of all Americans, not just those who happen to pass a discriminatory litmus test regarding their private sexuality and thoughts on the possibility of The Almighty, he should not identify his person and Office with such an exclusionary group. Would he serve as both the Commander-In-Chief and head of a group which barred blacks, or women, or Baptists from its ranks?

• While you’re at it, Bill, how about also ending the government’s policy of “socialism for the Boy Scouts” which uses public facilities on behalf of this private, exclusionary group? The BSA hosts their National Jamboree on part of an Army base which they “rent” for $1 per year -- which does not exactly cover the costs of the military vehicles, personnel and other public resources that maintain and service the event.

• Every state, county and local government agency should sever all ties immediately to the BSA. If the Boy Scouts of America wish to hold a meeting in a public hall, they should be permitted to do so only if they pay the same rental fee that other groups -- including the local gay-straight alliance or Chili Cook-Off Winners of America -- pay. No more special privileges, perks, benefits and favors gratis the taxpayer.

• Fire and police departments, as taxpayer-supported public entities, should sever their links to the BSA and refrain from sponsoring, supporting or assisting any scouting group, activity or event. There should be no manner of special City Council or other government resolutions, proclamations, or decrees on behalf of the BSA that would single the scouts out for special favorable treatment. It’s time for the cops and fire companies to deal with the BSA in the same way they might involve themselves with any other private group.

• No public monies, resources or personnel should be used to promote, facilitate, or assist the scouts’ organization in any special way. The BSA should be covered by the same policies and regulations that apply to other private groups, from the local church ladies luncheon club to the Rotary or Kiwanis group and, yep, the neighborhood atheists -- if there are any.

What about going our own way? Some of you reading this column may think, “Well, why not set up our own version of the Boy Scouts? Let’s form some ‘alternative’ scouting group that permits gays and lesbians and atheists and other excluded segments of the society to enjoy the same benefits?”

I’m not sure that’s the answer. We should think very carefully before launching such an ambitious program, or joining in if some other group takes the initiative. Read a letter from Dave Silverman, the American Atheists Youth & Families Director that appeared in the July 3, 2020 issue of USA TODAY...
Scouts In Time Will Accept All

I am content with the Supreme Court decision to allow the Boy Scouts to discriminate against gays and atheists. Don't get me wrong. It would have been better for the court to declare the Boy Scouts a “public accommodation” -- open to all people and therefore able to recruit on school grounds.

Instead, the ruling declares the Boy Scouts “private,” thereby allowing the Boy Scouts to discriminate as they see fit. I have no problem with that. Lots of private organizations discriminate in their membership criteria for various reasons. The key to this ruling is that the Boy Scouts are not a public accommodation that can discriminate as a private organization can.

In the eyes of the Equal Access Law, all private organizations are created equal, so now, other private groups can petition for the same rights as the Boy Scouts. Schools that allow the Boy Scouts to recruit must also allow gays and atheists to do so as well. Since they will likely loathe to do so, schools will have to forbid recruiting by all private groups -- including the Boy Scouts -- thereby pressuring the Boy Scouts to accept everyone and become public, or suffer from reduced membership.

In a perfect world, the Boy Scouts would willingly judge people on the content of their character, not on the deities they worship or the people they love. However, since their leaders are far from perfect, it is up to well-meaning citizens to pressure them to honor this country's diversity, not hide from it.

Dr. David Silverman

National youth and family director
American Atheists, Piscataway, N.J.
Dave has a point and, I think, a good sense of history. Imagine taking a time machine ride back to, say, the turn of the century -- or even the 1950s -- and surveying the cultural landscape. They were not “the good old days.” A lot of behaviors we condemn today and consider unenlightened, obsolete and discriminatory were widely practiced and even encouraged. We still have discrimination against people of color, but at least in most parts of the country, whatever your ethnic background, you can walk into a hotel or motel or restaurant, pay the toll, and likely be accommodated. When a Denny’s Restaurant doesn’t seat a group of blacks and take their order for the Morning Slam with bacon, it’s no longer just another incident that’s brushed off; it becomes front page news, and trial lawyers -- sensing a legal kill and hefty fees -- cause legal nightmares for the offender.

There is still plenty of discrimination against women, including the infamous “glass ceiling” that restricts access to the upper echelons of the business world. That is changing gradually, too. Women still earn only about 76-cents for every dollar a male is paid, but females are now over 50% of students in medical school, law school and other professions.

This is not meant as some rose-colored glasses view of America. Any gains on behalf of equality and fair treatment for blacks, Hispanics, women or any other segment of the society have often been won with a heavy price -- and one we should not forget. Silverman has a point, though, and it is one based on a real sense of history. The Boy Scouts of America, in time, will hopefully -- even likely -- “accept all,” and get past their antiquated litmus tests that judge troop leaders and ten-year-old youngsters on the basis of their sexuality or willingness to acknowledge a deity. You can be “morally straight” in the best sense of that phrase -- the part that requires honesty, being true to yourself and others, a willingness to help -- whatever you do in the privacy of your bedroom, or happen to believe in respect to the ultimate philosophical questions. Millions of us are.

Now, all we have to do is persuade the Boy Scouts of America to admit that fact...

July 4, 2020

See Flash Line story on the Supreme Court Decision

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