As America battles over cultural issues, the Boy Scouts find
themselves in the crossfire of the 2004 election season. In a
number of communities where intolerant “progressives” hold sway,
the Scouts are under siege because they won’t drop their
commitment to God, country and traditional morality. Several of
these skirmishes have grabbed headlines recently, and in one
engagement — an attack on the Scouts by the American Civil
Liberties Union in San Diego — the Bush Administration has
stepped forward to defend the Scouts, raising the stakes in the
case and prompting some reporters to look for the hand of Karl
Rove.
The ACLU is on a crusade to expel the Scouts from public property
in San Diego, and the city council recently chipped in (with
taxpayer money) to help that drive. The council voted to
extricate the city from the lawsuit by promising to abandon any
defense of the Scouts and to pay the ACLU $900,000 for various
“legal fees.”
The city’s betrayal of the Scouts followed an ACLU court victory
last summer. Federal District Judge Napoleon Jones voided the
Scouts’ longtime lease of 18 acres at the city’s Balboa Park.
Contradicting the findings of many other federal and state
courts, he announced that Scouting is a “religion”; therefore, he
ruled, the lease violates church-state separation. He threw in a
gratuitous insult, denouncing the Scouts as a group “at odds with
values requiring tolerance and inclusion in the public realm.”
This coming Monday, the second act in the case unfolds as Judge
Jones hears arguments over the Scouts’ other lease of city
property - - at Fiesta Island, where they run an aquatics center
that they make available to the public on a nondiscriminatory
basis.
Enter the Bush Administration. In early March, the Justice
Department’s Civil Rights Division submitted a
friend-of-the-court brief countering the ACLU’s claim that the
Scouts should be kicked off the island because they’re
“religious” and they “discriminate” against gays. The DOJ brief
points out that the Scouts don’t have a theology, just an
acknowledgment of a nonsectarian, common-denominator deity. As
for Scout membership policies, they are constitutionally
protected expressions of core Scout beliefs, as the U.S. Supreme
Court declared in the 2000 case of Boy Scouts v. Dale.
To single out the Scouts for expulsion from public property —
especially when dozens of other San Diego nonprofits continue to
enjoy leases on identical terms to the Scouts’ lease — penalizes
the Scouts for their exercise of First Amendment freedoms.
Discriminating against the Scouts because they’re not PC enough
for the ACLU isn’t exactly “tolerance and inclusion in the public
realm.”
The Justice Department brief is a compelling read — but,
incredibly, Judge Jones won’t be bothering with it. He announced
in mid-March that the department doesn’t have an “interest” in
the case, so he would not accept its filing. The cogent 20-page
brief from the United States Government was not just ignored, it
was discarded, a highly unusual example of impudence and
disrespect by a district court. A long appellate process awaits
the San Diego Scout litigation — perhaps culminating in U.S.
Supreme Court review — so the Justice Department will have more
opportunities to weigh in. But Judge Jones’ astonishing refusal
to hear the perspective of the nation’s principal civil-rights
enforcement authority will live long in courtroom lore.
THERE’S A LARGER CONTEXT to the San Diego dustup. It is a
flashpoint in a broad-front war being waged by cultural
imperialists of the Left to make the Scouts pay a price for their
principles. After the Dale decision, which said
government can’t order the Scouts to exchange their convictions
on sexual morality for a set of state-scripted beliefs,
anti-Scout activists and bureaucrats shifted strategy: The aim
now is to arm-twist the Scouts into submission by penalizing them
(with loss of park leases, for instance) if they don’t fall in
line.
The approach can be seen in San Francisco, where local judges
have been banned from participating in Scouting. In Connecticut,
the Scouts have been dropped from the list of charities that
state employees can support through payroll deduction (the U.S.
Supreme Court recently declined to hear the Scouts’ appeal). In
Berkeley, California, the city excludes the Sea Scouts, a Boy
Scout affiliate, from the free use of the Berkeley Marina that is
available to other nonprofits (the California Supreme Court has
agreed to hear a lawsuit targeting this policy).
It’s hard to miss the partisan dynamic in many of these cases —
reflecting the fault line between Republicans and Democrats in
the larger culture war of which the Scouts are a symbol and a
victim.
In San Diego, all of the city council’s Democrats, and none of
the Republicans, voted for the cave-in to the ACLU. And Judge
Jones, who has given the ACLU all they wanted so far, was
appointed by Bill Clinton.
In Connecticut, Democratic state Comptroller Nancy Wyman vocally
supports the exclusion of the Scouts from the state charity
program. She was the main defendant in the Scouts’ unsuccessful
legal challenge.
In Berkeley, the city’s second-class treatment of the Sea Scouts
has won backing from California’s attorney general, Democrat Bill
Lockyer, who has filed a brief urging the state Supreme Court to
rule against the Scouts.
And at the national level, Congress responded to cases of
anti-Scout animus in 2001 by voting to withhold federal education
dollars from public schools that bar the doors to the Scouts
while allowing other groups to use their facilities. Forty-two
Senate Democrats voted against this effort to ensure equal
treatment for the Scouts — including John Kerry.
Because the wrangling over the Scouts so often reflects Red
versus Blue America in microcosm, the issue of Scout-bashing
could prove as combustible on the campaign trail as in the
courtroom. It would be understandable if, as some political
journalists suspect, Karl Rove sees campaign issues here. From
the presidential level down, do the candidates think government
should punish a venerable youth-service organization for not
being in lockstep with liberals on matters of sex and secularism?
Inquiring voters may want to know.
