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The BSA and Civil Rights

September 8, 1999

By MG

Imagine you are a judge. The issue to be decided is whether a school district can assemble a captive audience of male students for the purpose of being targeted for recruitment by invited local adult Boy Scouts of America (BSA) leaders on school property during school hours without violating the non-establishment clause. Both the plaintiff, an atheist, and the defendant, the school district, agree that the BSA excludes nonbelievers who do not want to say they have a "duty to God".

The school district argues convincingly that the BSA provides a valuable service to the community. They also argue that BSA is not a religious organization since it is open to all boys regardless of religious denomination and the religious aspect of scouting is a very small part of its programs. The plaintiff points out that BSA has a record of successfully arguing that it is legally exempt from public accommodation laws because it is a religious organization and that a duty to God presumes a religious belief which plaintiff does not hold.

As the judge you prefer to avoid reaching the radical conclusion that public schools cannot sponsor BSA recruitment on premises during school hours. BSA has been recruiting in public schools since time immemorial not only in your state but almost certainly in all states and no court has ever stopped this ongoing practice. Your neighbors would disagree with you and how would you explain your decision to your fellow worshipers at church? Both BSA and the school district benefit from the recruitment and there are very few people who share the plaintiff's unwillingness to pledge to a duty to God. On balance, the greater good seems to be served by allowing the BSA to recruit. So how, as the judge, can you justify ruling in BSA's favor and pass this hot potato over to someone else?

You agree, of course, with BSA's arguments that the religious aspect of scouting is a very small part of its programs and you conclude that BSA is not a religious organization. After all, BSA is not church affiliated and scouting is a non-sectarian activity for boys who have little or nothing in common from a religious perspective. But what about those precedents that ruled the BSA is a religious organization and what about the discrimination?

You need to create a justification for BSA being a religious organization so that it can escape public accommodation status while not being a religious organization so it can recruit in public schools and so public schools can charter BSA units without violating the non-establishment clause. The solution is obvious now. You will declare that there are two different legal definitions of religious organization! You will say that the different definitions apply to the different laws. Public accommodation law applies a looser definition to qualify as a religious organization thereby giving judges maximum discretion to declare "non-sectarian" theistic organizations strictly private and therefore free from the unwanted non-discrimination standards. Non-establishment applies a more stringent definition to qualify as a religious organization thus giving judges maximum discretion to declare non-sectarian "theistic" organizations free to entangle with government. You have created a custom designed hole in the civil rights umbrella located precisely where the nonbelievers stand. Everyone else is still covered so the nonbelievers remain isolated and vulnerable as before. And the price? Well, the law is not quite as unified and consistent as it ideally should be, but isn't that a small price to pay for the desired results?

Oh, and the discrimination. Well, you will just say that such discrimination is illegal when the public accommodations law applies but that it has no relevance to the applicability of the establishment clause! And you will call the discrimination 'disturbing' to avoid sounding too cold and give the defendant a hint that you think they are needlessly complicating the lives of judges such as yourself.

And if you are an one of those nonconformist atheist inciters living in a theistic society take heed: Shutup or stay out!

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