The Boy Scouts - San Diego Controversy: Additional Comment from A Panel Member

In several posts below I have been following the May 18 panel discussion in San Diego on the litigation there involving the Boy Scouts' access to public land. Just as a reminder, the discussion was a "webcast" and the subject was "The Constitution and the Boy Scouts: Equal Access to Government Land and the First Amendment." Panelists included a number of distinguished attorneys. You can view the webcast here.

One of the panelists was Eric Isaacson, who is a San Diego attorney involved in the San Diego litigation. It's my understanding the case was brought by the ACLU. Mr. Isaacson's involvement is limited to filing an amicus curiae (friend of the court) brief in that litigation. (I earlier wrote, erroneously, that Mr. Isaacson represented the ACLU in the case.)

Mr. Isaacson has won my respect by his exemplary willingness to comment here at length. By doing so he has highlighted the blogosphere's ability to she light on an issue quickly. Here is his comment, which he first posted below. I will respond as soon as I have a little time. (I also get to San Diego often and will see if I can persuadeMr. Isaccson to have lunch with me sometime.)

FULL DISCLOSURE: I Since January 1, 2005, I have served as a member of the Executive Board of the Western Los Angeles County Council of the Boy Scouts of America. I'm just a blogger who happens to be a former Scoutmaster, however. My views here are my own, and I have not consulted with anyone within the BSA about anything I post here.
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Eric Isaacson's Comment:

I do not represent the ACLU or its clients in the Barnes-Wallace case.

With the Rev. Silvio Nardoni, my wife and I wrote an amicus curiae brief that we filed on behalf of the Social Justice Committee, Board of Trustees, ministers, and religious education director of the First Unitarian Universalist Church of San Diego (where my wife and I both teach Sunday school). Joining the brief were the Unitarian Universalist Legislative Ministry California, and the Unitarian Universalist Association of Congregations - - a denomination whose members include North America's oldest Protestant churches.

This URL should take you to the brief, if you wish to read it:

http://firstuusandiego.org/coming_events/amicus_brief.pdf

Please understand that my denomination had a history of working with the BSA, with individual congregations sponsoring dozens of scout troops. Please understand that as a Boy Scout, I used the facilities at Camp Balboa, in the City of San Diego's Balboa Park. Understand too that my own son wants to be a Cub Scout - - and to go camping in Balboa Park, like his daddy did. But the BSA has effectively excluded him, because we are religious people who cannot affirm that any of God's children should be shunned on the basis of theological viewpoint or sexual orientation.

The BSA's current hostility to my denomination is no secret, and it unquestionably is based on our religious traditions of affirming human dignity and opposing oppression and discrmination.

Eagle Scout Jay Mechling recounts in his book "On My Honor: Boy Scouts and the Making of American Youth" (Univ. Chicago Press 2001) (p.227) that because we teach our children that institutionalized discrimination is wrong, the BSA "punished Unitarian Universalist Church and its Scout members by revoking the religious medal boys can earn." The Chicago Tribune (July 24, 1998) observed that the BSA "effectively excommunicated the Unitarians."

Since 1991, the BSA also has repeatedly and publicly condemned homosexuals as unclean. Indeed, citing a 1991 position paper, the BSA told the Supreme Court in Dale that homosexuality "'violates the Scout Law that a Scout be clean in word and deed.'" 530 U.S. at 651. According to the Supreme Court, the BSA insisted "that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values represented by the terms 'morally straight' and 'clean.'" 530 U.S. at 650.

Citing Thomas v. Review Board, 450 U.S. 707, 714 (1981), the Supreme Court ruled that the BSA is entitled to condemn and ostracize homosexuals as spiritually unclean, explaining: "'Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection.'" 530 U.S. at 651 (quoting Thomas).

Let's be clear: The BSA is entitled to say what it likes, to denigrate whomever it wishes, and even to discriminate on the basis of children's religious viewpoint. It can exclude my own child. But it has no right to demand governmental sponsorship of its leadership's outspoken and horribly divisive theology - - sponsorship that I firmly believe our constitutions' religion clauses flatly prohibit.

- - Eric Isaacson

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Responses:

I am unfamiliar with the Unitarian Universalist Association of Congregations (UUA). I will not criticize a religion or its adherents on this blog, but I do want to provide information. A web site called Religious Tolerance offers some useful information about the conflict between the Boy Scouts and the UUA:

[I]ndividual UU youth might have difficulty with the Boy Scout oath which pledges duty to God. Many UUs are Agnostics (undecided whether God exists) or Atheists (do not believe that God exists). Pledging duty to God implies an acceptance that God exists. The UUA does not require its members to hold specific beliefs about the nature or existence of any deity or deities. A 1997 survey of almost 10,000 adult UUs showed that about half were either Humanists or Buddists, and thus had no believe in God.

Religous Tolerance's summary of the UUA-Boy Scouts conflict seems even-handed to me; you can read it here. It seems to me that Mr. Isaacson's claim that the Scouts severed their relationship with the UUC because the UUA "teach [their] children that institutionalized discrimination is wrong" is a little simplistic.

Mr. Isaacson continues to claim that the Boy Scouts have "shunned" certain individuals "on the basis of theological viewpoint or sexual orientation." I don't think this is a fair characterization of what the Scouts have done. The Scouts have formed an association and have set standards for membership, including that members must be willing to live the Scout Oath and Law. The Scout Oath states:

On my honor I will do my best to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake, and morally straight.

The Scout law:

A Scout is:

Trustworthy
Loyal
Helpful
Friendly
Courteous
Kind
Obedient
Cheerful
Thrifty
Brave
Clean and
Reverent.

The Scouts have interpreted "morally straight" to encompass many things, including obedience to the civil law and moral behavior generally. The BSA's official web site on these matters, BSALegal.org, states the organization's position:

In the Scout Oath, a Scout promises to be “morally straight,” and in the Scout Law he promises to be “clean.”

The Boy Scout Handbook (11th ed.) explains “morally straight” as “To be a person of strong character, your relationships with others should be honest and open. You should respect and defend the rights of all people. Be clean in your speech and actions, and remain faithful in your religious beliefs. The values you practice as a Scout will help you shape a life of virtue and self-reliance.”

The Handbook explains “clean” as “A Scout keeps his body and mind fit and clean. He chooses the company of those who live by high standards. He helps keep his home and community clean.”

The Scouts do not consider homosexual behavior to be "morally straight." Regarding adult leaders, for example:

Boy Scouts of America believes that homosexual conduct is inconsistent with the obligations in the Scout Oath and Law to be morally straight and clean in thought, word, and deed. Scouting’s moral position with respect to homosexual conduct accords with the moral positions of many millions of Americans and with religious denominations to which a majority of Americans belong. Because of these views concerning the morality of homosexual conduct, Boy Scouts of America believes that a known or avowed homosexual is not an appropriate role model of the Scout Oath and Law for adolescent boys.

Regarding youth leaders:

The conduct of youth members must be in compliance with the Scout Oath and Law, and membership in Boy Scouts of America is contingent upon the willingness to accept Scouting’s values and beliefs. Most boys join Scouting when they are 10 or 11 years old. As they continue in the program, all Scouts are expected to take leadership positions. In the unlikely event that an older boy were to hold himself out as homosexual, he would not be able to continue in a youth leadership position.

I don't think most people consider setting standards for membership to be "shunning;" it is unfair at best for Mr. Isaacson to use that term to describe what the Scouts are doing. I also think it is a gross distortion of BSA policy to claim the Scouts are calling anyone "spiritually unclean."

You'll find a treasure trove of information and news about Scout efforts on this issue here.

As for what Mr. Isaacson calls the Boy Scouts' "outspoken and horribly divisive theology," I guess that's a matter for the courts to decide. The Scouts are not a church-- no one can reasonably say they are, and I don't believe any court has so held -- and so it seems to me the Scouts cannot have a "theology." I understand from the webcast that the Scouts have actually subsidized the San Diego city property, rather than the other way around, and that the facilities the Scouts run there are open to numerous youth organizations, perhaps all comers. I wonder whether the lawsuit, Barnes-Wallace v. City of San Diego, is really directed at correcting a perceived unconstitutional behavior by the City of San Diego, or at forcing the Boy Scouts to change?

The Barnes-Wallace case is before the infamously left-leaning U.S. Court of Appeals for the Ninth Circuit. It is a fair bet that the Ninth Circuit will uphold the decision of Judge Napolean Jones. (Read Judge Jones' biographical summary here; he's a Clinton appointee.) The matter will very likely end up before the U.S. Supreme Court.

All of which raises a very timely question: Does is matter who appoints federal judges? Yes, it does.