Federal judge says DOD can't fund Boy Scout outing

[evmori]

Ah now you're toying with me, Merlyn. Go ahead, explain it!

[mmhardy]

How is a little funding for the Jamboree different then funding being given to other faith based organizations for various public good causes?

 

I think Bork is right. This will be overturned upon appeal.

[Merlyn_LeRoy]

mmhardy writes:

How is a little funding for the Jamboree different then funding being given to other faith based organizations for various public good causes?

 

Which faith-based organizations refuse to serve segments of the population due to their religious views?

 

http://www.hhs.gov/fbci/final.html

 

Department of Health and Human Services

Office of the Secretary

 

45 CFR Parts 74, 92, 96, and 87

RIN 0991-AB32

Participation in Department of Health and Human Services Programs by Religious Organizations; Providing for Equal Treatment of all Department of Health and Human Services Program Participants

 

AGENCY: Office of the Secretary, Department of Health and Human Services (HHS)

 

ACTION: Final rule.

 

SUMMARY: On March 9, 2004, the Department of Health and Human Services (HHS) published a Notice of Proposed Rulemaking (NPRM) to implement executive branch policy that, within the framework of constitutional church-state guidelines, religiously affiliated (or faith-based) organizations should be able to compete on an equal footing with other organizations for the Departments funding without impairing the religious character of such organizations.

...

(5) Nondiscrimination in providing assistance. The rule provides that an organization that receives direct financial assistance from the Department, including Department funds administered by State and local governments or intermediate organizations under Department programs, may not, in providing program assistance supported by such funding, discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief.

...

 

 

So any faith-based organization getting funding for a project can't reject atheists from participation. The Jamboree is for members of the BSA, and atheists can't be members of the BSA. Big difference there.

[mmhardy]

Geez your right...I went and looked up President Bush's Executive Orders on Faith Based funding...it can be found here:

 

http://www.whitehouse.gov/news/releases/2002/12/20021212-6.html

 

The two big points about it are:

 

(d) All organizations that receive Federal financial assistance under social services programs should be prohibited from discriminating against beneficiaries or potential bene-ficiaries of the social services programs on the basis of religion or religious belief. Accordingly, organizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to actively participate in a religious practice;

 

(e) The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment to the Constitution. Therefore, organizations that engage in inherently religious activities, such as worship, religious instruction, and proselytization, must offer those services separately in time or location from any programs or services supported with direct Federal financial assistance, and participation in any such inherently religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance; and

 

However this point left me wondering:

 

(f) Consistent with the Free Exercise Clause and the Free Speech Clause of the Constitution, faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression, or religious character. Accordingly, a faith-based organization that applies for or participates in a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance to support any inherently religious activities, such as worship, religious instruction, or proselyti-zation. Among other things, faith-based organizations that receive Federal financial assistance may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization that applies for or participates in a social service program supported with Federal financial assistance may retain religious terms in its organization's name, select its board members on a religious basis, and include religious references in its organization's mission statements and other chartering or governing documents.

 

I'll still be interested in the appeal.

 

[Hunt]

I haven't read the decision yet, but I think it could go either way on appeal--especially if it doesn't get to the Supreme Court until after one or two current Justices are replaced. If the lower court decision is overturned, my prediction is that the Court would base the decision on a finding that the government action had a "secular purpose" (recruiting, training, perhaps even providing security for a large civilian gathering), and that the entanglement with religion was minimal (BSA is non-sectarian, religion is only a part of the program and not a major focus of the Jamboree, military funding not going directly to religions training, etc.). They could make such a determination without making any changes to established law. (They could also go the other way without making any changes in established law.) My best guess...if the military makes arguments that sponsoring the Jamboree promotes military readiness, the Supreme Court would defer to that position and approve the support.