By Kent Willis, Executive Director, ACLU of Virginia
Shortly before Christmas last year, a group of Boy Scouts gathered near my office in Richmond . They had assembled to protest the ACLU’s lawsuit against the Department of Defense for funding the Boy Scout Jamboree. They were also doing a little fundraising, selling caramel-covered popcorn to passersby.
Dutifully, the Scouts sent emissaries up to the ACLU office bearing a complimentary tin of popcorn. We thanked them for the gift and told them to contact us if anyone interfered with their demonstration. We let them know that we would be the first group to defend their constitutional right to protest against us.
At the time, I didn’t know much about the lawsuit that had caused the Scouts to take to the streets. It had been filed by the Illinois ACLU, not the ACLU of Virginia where I work. But I knew the issue: government funding of a religious organization.
It is important to keep in mind that the ACLU lawsuit does not question the value of the Boy Scouts, a highly regarded organization that works world wide with teens to mold them into good citizens. Neither is the lawsuit seeking to break new legal ground regarding the well-established constitutional prohibition against government funding of religious groups.
The sole issue here is whether or not the Boy Scouts of American is a religious organization. If it is, then it can’t receive government support. If it isn’t, then it can.
Of course, nothing involving the knotty legalities of church and state is ever quite that simple.
The Scouts celebrated oath begins, “On my honor I will do my best to do my duty to God.” If the oath were the start and finish of religion for Scouts, I doubt there would be much of a controversy, much less a lawsuit.
Despite our nation’s firm resolve to maintain separation of church and state, we allow nominal, generalized government-supported references to religion. Government meetings, for example, may open with a non-sectarian prayer. Congress inserted the phrase “under God” into the Pledge of Allegiance in 1954. For most of our nation’s history, it was common for witnesses in court to swear on the Bible, and there are still many other official government oaths that refer to God.
The Boy Scouts, however, don’t stop with an oath that nominally refers to God. The Scouts Declaration of Religious Principles provides that “the recognition of God as the ruling and leading power in the universe and the grateful acknowledgement of His favors and blessing are necessary to the best type of citizenship...” The Scouts describe themselves variously as a “religious organization,” as “advocating a devout belief in deity” and as having a “true and sincere religious purpose.”
The Boy Scout literature list includes 16 official publications on religion, with such titles as “God and Church,” “God and Family,” and “Light of Christ Activity Book.”
I don’t know how much religion actually gets practiced in the Boy Scouts, but it is obviously an integral part of the organization’s mission, something far more than a token gesture.
In addition to being nominal and general, government-supported expressions of faith must also be voluntary. No person can be compelled to pray at a government meeting, recite the Pledge, swear on the Bible, or repeat any of the various government oaths that mention God, including those taken by military officers.
But religion in the Boy Scouts does not appear to be voluntary. There’s the oath, of course, which all Scouts are required to recite. Also, according to court papers, advancement through the Scouts requires a demonstration that one is performing a duty to God. To achieve a First Class rank, for example, a scout must lead his troop in prayer before a meal.
The Jamboree itself is very much part of the Boy Scouts’ religious mission. The 2001 Jamboree Troop Leader Guide states that a prayer book is “required personal camping equipment,” and the “Duty to God” booklet from the same year contains prayers for each day of the Jamboree.
If the Boy Scouts practice what they preach, religion is mandatory.
That, of course, is the Boy Scout’s constitutional right. As a private organization, it may be as faith-oriented as it wishes. The issue here, however, is not the right of the Boy Scouts to be religious, but the prohibition against government funding for a religious organization.
The Boy Scouts have a choice. They can take the government’s money but drop the religion, or they can keep the religion and drop the government support.
The Boy Scouts should probably stay true to their religious principles and tell the government to keep its money. They certainly don’t need the support. Government funding is not even listed among their top 10 sources of funds, and a press release from January claims that the government supplies “a very small source of income.”
Besides, there are always strings attached to government support. If not now, then at sometime in the future the government is going to ask the Scouts to do something it shouldn’t. By that time, they may actually have grown dependant on government support and will have real dilemma on their hands.
That is one of the reasons that many religious groups advocate so ardently for separation of church and state. It’s not that they want religion out of government, but that they want government -- and its immense power to control -- to stay out of religion.
That hardly seems to matter to Rep. JoAnn Davis, who believes she is helping the Boy Scouts with her newly introduced “Support Our Scouts” legislation.
According to Davis , the new bill will “ensure that the Boy Scouts are treated fairly by guaranteeing their right to equal access to public facilities, forums and programs.” Truth be told, the First Amendment and federal law already provide this protection for the Boy Scouts and other non-profit organizations, and there is no evidence that the Scouts have been the victims of discrimination in this regard. (If the government did deny equal access to the Scouts, the group most likely to offer assistance would be the ACLU.)
But equal treatment is not Davis ’s goal. The real purpose of the Support Our Scouts bill, found under all the verbiage about equality, is to guarantee Department of Defense support for the Boy Scouts in perpetuity and at no less than the current level.
In the end, the courts will decide if the Constitution allows the government to fund the Boy Scouts. If it can, then Davis ’s bill may forever cement the relationship between the U.S. military and the Boy Scouts. If it can’t, then it won’t matter if the bill becomes law. It will be unenforceable.
The Boy Scouts who protested outside my office were a sincere lot, I’m sure. They withstood the cold of a typical December day to demonstrate their desire receive government support. I only wish they were a little more aware of exactly what that means.
