ACLU strategy will backfire

[dsteele]

Ding! Both a use guys -- back to your corners!

 

We're tired of your back and forth getting nowhere fast theft of the bandwidth!

 

Ed -- Merlyn is an atheist activist on a mission. Accept it. You can not change it. While I agree with the BSA, it isn't going to change Merlyn's mind a bit. That doesn't mean I'm his buddy and I will say something when I see name-calling. However, the man has a right to his opinions and to write what he's willing to defend. He seems willing to defend his views, although I often don't agree with the defense.

 

Merlyn -- Ed is a man of faith and you're not going to change that any more than he's going to change your opinion of the BSA. You remind me of a fellow volunteer from our district who used to push the buttons of the council chair of the committee he was part of. The council chair would get mad at him and yell and scream. I asked him why he put up with it one day. The man looked at me and smiled. "It takes a whole lot more energy for her to yell at me than it does for me to take it."

 

Guys -- please knock of the "Rock 'em, Sock 'em Robot" routine and make your points in an adult manner.

 

Unc.

[NJCubScouter]

I find all the bickering to be kind of amusing, because I actually would give a much simpler response to the statement by Ed that started all this. (I, for the record, being a non-atheist and an active Scouter, and I have taken some heat from Merlyn in the past, but that doesn't change the fact he is right about the constitution at least 90 percent of the time; not about the PTA thing I don't think, but I'll have to leave that for another thread.)

 

Ed's statement was this:

 

Yet Merlyn wants to say a public school chartering a BSA unit is the same as a public school having a rule of "No atheists allowed". Not even close to being the same!

 

It is the same -- legally and constitutionally speaking, which I think is what we are doing in this thread, although the subject of the ACLU's letter to the BSA, and the BSA's response, was raised in a different thread. A public school cannot exclude atheists because that would constitute a government establishment of religion. (The First Amendment prohibits a governmental establishment of religion, not just the establishment of "a" religion, so nobody needs to ask me "what religion is being established" because that has nothing to do with it.) When a public school is the CO of a BSA unit, it is often said that the school "owns" the unit but actually the relationship is even closer than that. The BSA unit is not, legally, a separate entity. Instead, it represents the CO's "use" of the BSA program, according to the methods and rules of the BSA, which the CO is bound to follow by contract with the BSA. Since the rules of the BSA require the exclusion of atheists, the CO is required to exlude atheists from its BSA unit. That is fine if the CO is the type of entity that is permitted to exclude atheists. But if the CO is part of the government, following the BSA's rules requires the CO to do something unconstitutional. A public school is part of the government, and therefore if the public school were a CO, excluding atheists from the BSA unit would violate the constitutional rights of those excluded, the same as if they were denied enrollment in the school itself on the same basis.

 

It sure seems the same to me. I don't know why some people need to make it so complicated.

[evmori]

NJ,

Excellent post. I disagree on one point. By excluding atheists, a public school would not be establishing a religion. They would be discriminating based on religion.

 

But it seems to me that if a public school shouldn't be able to charter a BSA unit, they shouldn't be able to sponsor any group that discriminates and they do.

 

Ed Mori

Troop 1

1 Peter 4:10

[OldGreyEagle]

NJ, good post, as succint an explanation as I have seen. An addition I would offer is the definition of what constitutes legal versus illegal "discrimination" as that seems to be crux of the matter. Doubtless you all have seen the disclaimer on multiple want ads that so and so compnay is an equal opportunity employer and does not discriminate based on Race, Creed, Sex, Age, physical disability, etc. Having listed Creed means you cant say no Catholics or only Jews and it also protects those with an abscence of religion, this means you can't require someone to "Have a religion, any religion" to be hired. These are the protected factors.

 

So Schools can't discriminate based on these factors. Since "intelligence" is not listed, the National Honor Society is a go, since sex is listed, boys can, and have, played on field hockey teams (usually as long as they wear the official uniform:: read skirt:: and they do). Now someone will say disability is there, therefore a student with MS has to be allowed on the football team. And actually thats right, at the local high school there is a student with MS who is an equipment manager, he is on the team. OK, what if he wants to play? He has to earn his way on the field just like anyone else. If he wants to be quarterback, he has to prove he is better than any other quarterback on the team, which I dont think will happen, but if his footspeed, throwing accuracy, range etc. rivaled the other players, the coach could not say you have MS, you cant play. The same thing with a blind shortstop, its not his blindness that stops him, its the inability to make the play. In the area of pennsylvania I live wrestling is a dominate sport. There are countless stories of blind wrestlers who do quite well because the rules of the sport dont exclude their participation or put them in physical danger

 

The point of all this? Yes, schools do discriminate, legally, on some factors, but they CANNOT discriminate on those factors as dictated by the government and Creed, (or abscence there of) is always there.

 

 

[scoutingagain]

All inquiries regarding why BSA units are not allowed to be sponsored by any agency of the government, schools, DOD, or whatever, should be refered to the last two posts by NJ and OGE. If folks don't get it after reading those two posts, well... I don't believe it can be explained any better.

 

SA

[berkshirescouter]

There are exceptions to the non discrimination rule. In New York State a community of ultra Orthodox Jews incorporated a school district in order to get state aid for their disabled kids. It is in the courts but if they win its religious discrimination to other groups if the loose they cannot get proper education for there disabled kids. NJ you may know more about this. I read about this several years ago and don't know where it stands now. My point is separation of Gov and religion cannot be absolute but is still needed in some form for minority protection.

[Its Me]

Ed's logic is right on.

 

The floor becomes lost when one starts saying the government if funding a religion. Its preposterous to consider a tax break for a religious youth group as the direct establishment by the government of a religion. For me that is a giant leap. And once the ACLU wins the direct funding they will argue that the BSA cannot use public lands, parks or roads because the said use of these properties is the establishment of religion.

 

BSA is a legal organization and as such has the right to petition i.e. solicit the government for funding. The government has the right to grant funding to any legal entity based the greatest good and use that this funding will bring. A youth group with few paid staffers thousands of volunteers and millions of youths seems like a good use of public fund.

 

[Hunt]

The last post from "It's Me" makes me think one more piece of explanation might help here.

Two kinds of arguments tend to get mixed up: arguments about what the law IS, and arguments about what the law SHOULD BE.

What NJ has explained is what the law IS. Although not stated that way, It's Me is arguing about what the law SHOULD BE. But his or her argument does not reflect what the law currently is. There's nothing wrong with making that kind of argument--even to arguing that the Constitution should be changed--but it has to be pointed out to avoid confusion.

I'd also like to add a bit to what OGE said about permissible and impermissible discrimination. Under the constitution, religion is special--it has its own clauses--as a result, there are MORE restrictions on actions that discriminate on the basis of religion than those that would discriminate on the basis of sex, for example (remember, ERA did not pass). That's why, when you make analogies with other organizations, you should use religious or anti-religious groups, not the National Honor Society, a sports team, or even the Girl Scouts.

[Merlyn_LeRoy]

In reply to Its Trail Day, all the decisions I can find about the Kiryas Joel school district have gone against it, including a 1994 supreme court decision.

There have been quite a few lawsuits over it, so there might still be some pending.

The school didn't exclude anyone on the basis of religion, though. The courts found that the state erred in creating the school district to benefit one religious group.

http://supct.law.cornell.edu/supct/html/93-517.ZS.html

[scoutingagain]

It's Me said, "And once the ACLU wins the direct funding they will argue that the BSA cannot use public lands, parks or roads because the said use of these properties is the establishment of religion. "

 

Very doubtful. The ACLU is smart enough to know they would lose so I don't believe they would make the argument. In fact the ACLU has already successfully represented private religious organizations and their right to access public lands and parks.

 

SA

 

 

 

[packsaddle]

"Wow, that was fun, let's do it again!"

Fgoodwin, in the spirit of your original post, consider the possibility that the totally private outcome is precisely what BSA has intended from the very beginning. And that, in fact, BSA is cleverly manipulating the ACLU into 'forcing' BSA to that end (against BSA's will of course, heh, heh). Then BSA will have attained its goal and the ACLU will have taken the fall as the bad guy. The guys at BSA must have studied Machiavelli, don't you think? H'mmmmmm?

[fgoodwin]

packsaddle, I don't think the folks in Irving are that smart; but as I said, I don't think ACLU has thought this through, either.

 

I think in their zeal to "punish" BSA, ACLU has lost sight of the best interests of those whom it claims to represent. ACLU is driving BSA to becoming more and more private. Once its done, those private sponsors will (for the most part) want nothing to do with homosexuals or atheists.

 

So ACLU will have won the battle but lost the war.

[Hunt]

As I think about this, I wonder if maybe ACLU made a tactical mistake by using the Dale case as the primary frontal assault on BSA's membership policies. Their legal argument was much weaker than the argument that government sponsorship of BSA units violates the Establishment Clause. I was pretty sure the first time I heard about the case that the current Supreme Court would never rule that a state could require the Boy Scouts to accept gay leaders if they didn't want to. It was a loser case from the beginning.

But a lawsuit against a school district for sponsoring a discriminatory organization--that would have been a winner. What's more, it would have been much more likely to persuade BSA to think about "local option" on its membership requirements to preserve all those sponsorships. But with the Dale case, BSA was forced to draw a line in the sand and fight it out.

So, I don't think this was BSA's plan all along, but I do tend to think that ACLU's strategy was not well thought out.

[Prairie_Scouter]

As with all court rulings, the Supreme Court ruling in favor of BSA only lives as long as this Supreme Court is in existence. Should the Court change to a more liberal group, it's quite possible that the case could be re-initiated and the findings be quite different in the end.

 

The ACLU strategy, as someone else mentioned, could end up having some unanticipated, and very bad, consequences. Carried to it's logical end, the ACLU will force BSA to become a private religious organization, and that is exactly NOT what I think most people in Scouting would want. BSA is already heavily slanted towards Western European religious beliefs. Those of us trying to work from within to enact change aren't helped by the actions of the ACLU. In fact, it only helps to further confirm the beliefs of the ultra conservatives in Scouting that everyone is "out to get them". I'm in a Council in the suburbs outside of Chicago, and we already have people here who refer to anyone who opposes BSA policy as "the enemy". They use prose that sounds an awful lot like what you hear from people who eventually "go postal".

 

From reading Merlyn's posts, I get the impression that he would rather destroy BSA than change it; at least that's my interpretation of his posts. That's unfortunate, because I think the reality is that, although BSA is run by people who I think are more interested in their political self-interest than the health of BSA, BSA at the grass roots level does a great job with the Scouts, and provides excellent programs for them.

 

From my point of view, BSA has gotten away from the true meaning of Scouting, but declaring war on them isn't going to help anything. The organization needs to be saved from those currently in charge, and made more open, and more accomodating. No particular religious belief should hold sway over BSA, but that's what has happened. That needs to change if BSA is going to be able to survive. If ACLU wanted to help BSA, they could figure out a way to go after the head without killing the body; what they're doing right now has no affect on BSA national, and only damages the local units, where the good work of Scouting is being done.

 

For what it's worth, I don't believe that there's anything inherently "unScoutlike" in either a belief in Atheism or a gay lifestyle. There should be room for all in Scouting, and I think there would be if it weren't for a few people at the top of BSA who are more interested in political agenda than BSA itself.

 

 

[OldGreyEagle]

the BSA has recognized the following religions as having religious awards programs that may be worn on the uniform,

 

Armenian

Baha'i

Buddhist

Hindu

Islam

Jewish

Meher Baba

Zoroastrian

 

To me, over 20% of the offered programs are not Western European based relgions so I am not so sure that characterization is accurate(This message has been edited by OldGreyEagle)