Defend Scouting Newsletter
February / March, 2006
In this issue:
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| Scouts Once Again Bearing the Brunt of the Culture War Dear Friend of Scouting, The unanimous ruling several weeks ago by the California Supreme Court against the Berkeley Sea Scouts is merely further evidence that the Scouts are still bearing much of the brunt of the ongoing “culture war.” The essence of this case is whether the City of Berkeley can discriminate against nonprofit organizations depending upon whether the city agrees with the group’s standards or policies. In this case, the city demanded that the Sea Scouts disavow the national Scouts’ positions on homosexuals and atheists or lose the free berthing privileges that the Sea Scouts had enjoyed for five decades. Berkeley claimed the Sea Scouts were required to comply with the city’s “non-discrimination” policy. The Sea Scouts refused and the city started charging them berthing fees, even though other nonprofit organizations continued to receive free berthing. The Sea Scouts sued the city and the Scouting Legal Defense Fund filed an amicus brief supporting them. This is clearly an effort by the city to punish the Scouts because the city disagrees with the way the Scouts are exercising their First Amendment right to free association, a right of the Scouts specifically upheld by the United States Supreme Court in the Dale decision in 2000. In our opinion, what Berkeley has done violates both the California and the United States Constitutions. Cities or other governmental entities cannot decide which expressions of First Amendment rights are acceptable and which will be subsidized or not. This is the fundamental principle at stake here. As is the case with so many of the other recent attacks on the Scouts, while they may be the specific target, the constitutional rights of thousands of similar groups and individuals in this country are also under assault. One of the reasons that the American Civil Rights Union established the Scouting Legal Defense Fund was because of this broader threat. It is serious enough that the Scouts are being hurt, but the broader precedents these attacks could set is even more disturbing. This is why we are urging the Berkeley Sea Scouts to appeal their case to the U. S. Supreme Court. We must stop these discriminatory actions against groups exercising their constitutional rights and a U.S. Supreme Court decision would do that. Berkeley’s actions are so blatantly discriminatory that we are confident that we would get a favorable ruling from the high court. One problem with an appeal is that the national Scouts are not themselves a party to this suit. The local Sea Scouts are the plaintiffs. Appealing a case to the U.S. Supreme Court is an expensive and difficult task, especially for a local organization. As we explain in more detail below, we have pledged whatever support we can give them if they decide to appeal. This case is yet another example of why we must be constantly on guard and involved, not just to defend Scouting but to defend our basic rights and freedoms as well. Thank you for what so many of you are doing in this effort! Sincerely, Robert B. Carleson P.S. You can help even more by making a generous
contribution to the Scouting Legal Defense Fund to help us in our
efforts to defend Scouting. You can do this securely on line
here or print out a form at this same link
to mail in a contribution. Because the American Civil Rights Union,
which sponsors the SLDF, is a 501 (c)(3) organization, your contribution
is tax-deductible. |
In a letter to the attornies representing plaintiffs in the Berkeley Sea Scouts case, Eric Carleson, American Civil Rights Union (ACRU) Executive Vice President and General Counsel, urged them to appeal to the U.S. Supreme Court the adverse ruling by the California Supreme Court on their discrimination lawsuit against the City of Berkeley. The Scouting Legal Defense Fund is a project of the ACRU. The ACRU/SLDF filed an amicus brief in behalf of the Sea Scouts. In his letter, Carleson pledged whatever support for the appeal that the SLDF could provide. “Berkeley’s action discriminating against the Sea Scouts was a clear and blatant attempt to punish them for exercising their First Amendment rights to freedom of association,” Carleson wrote. “In our opinion, the fact that the Scouts’ constitutional rights had been specifically upheld by the United States Supreme Court in the Dale decision in 2000 makes the California Supreme Court’s decision all the more outrageous.” Carleson also noted in his letter that “there is overwhelming federal case law that firmly establishes this prohibition and lays down clear guidance and limitations for governmental entities. We are convinced that if this case is appealed to the United States Supreme Court, especially as it is currently constituted, this decision would be reversed.” The text of the letter is posted here. “This is a decision that has broad implications far beyond the Scouts,” Carleson said. “It potentially impacts literally thousands of similar groups and individuals and their ability to exercise their constitutional rights without being punished or discriminated against by state and local governmental units such as the City of Berkeley. We must get this decision by the California Supreme Court reversed and we are committed to doing everything we can to accomplish that.” Oral arguments were presented recently to a three judge panel of the 7th Circuit Court of Appeals in the case of Winkler v Rumsfeld. The government is appealing an injunction issued by the District Court barring the Department of Defense from providing any future support to the Scouts’ National Jamboree held every four years at Fort A.P. Hill in Virginia. About $7 million was provided by the Department to support the 2005 Jamboree which was attended by some 40,000 Scouts and leaders. The Scouts are not a party to the case. The suit against the government was brought by the American Civil Liberties Union and the SLDF filed an amicus brief in the case supporting the government. |
In a unanimous ruling, the California Supreme Court ruled on March 9th that the City of Berkeley can discriminate against the Berkeley Sea Scouts based on the Scouts’ national policy on homosexuals and atheists. The case involves the revocation by the city of free berthing privileges for the Berkeley Sea Scouts because the Scouts’ national policy is not in compliance with the city’s “non-discrimination” ordinance. The court held that "To require a group operating as part of an organization with an official policy of discrimination that it agree in advance not to discriminate in the use of the city's free marina berths is a reasonable and narrowly tailored step to implement the diversity and nondiscrimination provisions." The Sea Scouts argued that the decision violated their constitutionally protected right to freely associate that was upheld by the United States Supreme Court in the Dale decision in 2000. The national Scouts were not a party to the case, but filed an amicus brief, as did the Scouting Legal Defense Fund. No decision has yet been made on an appeal. Article here. Statement of Pacific Legal Foundation, representing one of the plaintiffs, here. Read the court’s decision here. A three judge panel of the 7th Circuit Court of Appeals heard oral arguments on April 6th in the government’s appeal of a lower court ruling in the case of Winkler v Rumsfeld. That decision barred future Defense Department support of the Scouts’ National Jamboree. The American Civil Liberties Union (ACLU) filed the lawsuit claiming that because the Scouts require participants in Scouting to affirm a belief in God the support of the Jamboree amounted to an unconstitutional government subsidy of religion. In fact, the government attorney argued, the government receives substantial benefits from supporting the Jamboree. These include giving troops valuable training in handling large numbers of people that could be applied in military actions abroad or in responding to natural disasters in the U.S. and aiding in future recruitment. The government’s support has nothing to do with supporting any religion and he pointed out that such assistance would be made available to any group that could demonstrate similar benefits to the government. Articles here and here. In mid February, a three judge panel of the U.S. Ninth Circuit Court of Appeals heard oral arguments on the Scouts’ appeal of the federal district court decision that the City of San Diego’s leases of land in Balboa Park for a camp and an aquatic center on Fiesta Island were unconstitutional. The district court ruling found that the Scouts were a religious organization and that therefore the city could not support the Scouts. To the appeals court the Scouts argued that they were not a religious organization and that since the city had similar arrangements with nearly 100 other non-profit organizations, some clearly religious, the action by the city was discriminatory. Article here. To hear an audio recording of the oral arguments click here, then enter the case number, 04-55732, and click on “submit.” The three million member American Legion has thrown its support behind H.R. 2679, The Public Expression of Religion Act, introduced by Indiana Congressman John Hostettler. This bill would bar the payment of tax dollars for attorney fees to the American Civil Liberties Union (ACLU) and similar groups when they win lawsuits involving Establishment Clause cases against public entities. These awards can be substantial. For example, a judge awarded the ACLU over $800,000 in attorneys and legal fees in the case it brought against the City of San Diego over the Balboa Park Scout Camp. City taxpayers paid for the award. The American Legion launched the effort at its annual meeting in Washington in February to involve its 15,000 posts around the country in a grassroots campaign to pass the bill. Articles here and here. A policy decision nearly ten years ago by the Janesville, Wisconsin school board to prohibit the scouts from making recruiting presentations in the elementary schools has been largely blamed by local Scouting officials for a precipitous decline in the numbers of Cub Scouts. The local council is asking the school district to rescind the ban. A district executive of the Wisconsin-based Glaciers Edge Council has written a letter to each of the school board members suggesting alternatives to the current ban. The number of Cubs in the Janesville district declined from 477 in 1998 to 300 in 2005. Such prohibitions are becoming increasingly common around the country. Article here. The California Pacific Skyline Council is typical of Scout councils around the country that are trying new approaches to reverse the decline in the number of boys involved in Scouting, a decline partially attributed to publicity over the position of the Scouts on some controversial issues. One part of the mission of the Scouting Legal Defense Fund is to help the public and the media better understand the reasons why the Scouts must take the positions they do and to help ensure that their positions are accurately reported. The council is targeting ethnic and inner city boys, modifying some attendance requirements to allow boys to participate in school sports and emphasizing some popular activities such as soccer for Latino boys. Article here. A delegation of Scouts from around the country delivered the Scouts’ Annual Report to President Bush and Congress in early March. The Scouts are a nationally-chartered organization and the President serves as the honorary head of the Scouts. Article here. |
Some Thoughtful Commentary on ScoutingNational Columnist and Scouting Legal Defense Fund National Spokesman
Hans Zeiger notes in his column, “A Partnership With the Boy
Scouts,” that other countries are now starting to experiment
with the public-private relationships that the Scouts and San Diego
have had for over 50 years. The agreement to lease a part of Balboa
Park for a Scout camp has been a great benefit to the public and
to the Scouts, he points out,“To be effective, government
at the city, state and federal levels must build and nurture partnerships
with the private sector. Government cannot limit its range of partnerships
to morally “value-neutral” organizations,” and
still provide the maximum benefit to the public. Read the column
here.
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