Oaks Rebutted, Chapter Seven

Today we look at “the Boy Scouts’ challenges in various locations” with . . . well, with something Oaks never really specifies, but apparently it has something to do with alleged restrictions on religious freedom.

Oaks: The Catholic Church's difficulties with adoption services and the Boy Scouts' challenges in various locations are too well known to require further comment.

Problem is, the Boy Scouts of American (BSA) is not a religious organization. True, they affirm faith in God in the Scout Oath, which I can still recite: “On my honor, I will do my best to do my duty to God and my country, to obey the Scout law, to help other people at all times, to keep myself physically strong, mentally awake, and morally straight.” And yes, I did type that from memory.

But beyond that affirmation, the BSA is not specific as to any particular religious belief. I remember looking in my Scout manual at pictures of the different medals awarded by various religious organizations for Scouting participation; in addition to the LDS Duty to God award, there were similar ones from the Catholics, Episcopalians, Lutherans, Unitarians, and even the Buddhists. Obviously the Boy Scouts don’t care what particular religion their participants follow, as long as they have some kind of faith in whatever God they choose.

So Oaks’ remark about “challenges” the BSA may have had in a “religious freedom” context is puzzling. In numerous cases which have gone as high as the United States Supreme Court, the BSA's freedom of association as a private organization has been repeatedly recognized and upheld by federal and state courts alike. The case which reached the Supreme Court, Boy Scouts of America v. Dale, confirmed that since they are a private organization, the Boy Scouts can set their own standards for participation. While those standards have been challenged in various cases, so far no court has found that they constitute illegal discrimination. Does Oaks suggest that an organization with the size and influence of the BSA should expect to be free of litigation and controversy? That’s unrealistic at best.

Research suggests that the alleged “challenges” which might have actual legal legitimacy arise from the BSA's active exclusion of homosexuals and atheists while at the same time retaining sometimes preferential arrangements for use of public lands and facilities that are subject to non-discrimination laws. Wikipedia has a good summary of these cases. In many cases the BSA has sought to do the same thing as the New Mexico photographer and the Ocean Grove Camp Meeting Association previously discussed in this series: try to use private religious or ethical opinions as a trump card to escape compliance with non-discrimination laws that apply to everybody else.

Oaks makes an oblique reference to the BSA's “challenges” as if they were a well-known and uniform string of lost battles to preserve religiously-based freedom of association. In fact they are anything but that. The Supreme Court of the United States has upheld the BSA’s right as a private organization to set its own membership standards. Nor is the BSA without success in its efforts to retain sometimes preferential access to public facilities for Scouting activities and events, including public schools for recruiting purposes, U.S. Army bases for jamborees (at public expense), etc.

It is true that the BSA has lost some court battles in this respect. But they have won many others, including what I suspect they would consider the most important ones. The record shows that Oaks’ reference to the BSA’s allegedly well-known “challenges” can be most charitably described as inviting false conclusions. I would expect far more of a former judge, law school professor, and senior authority of a church which regularly quizzes its active members on whether they are “honest in their dealings.”

Tomorrow, a wrap-up.