A federal court of appeals sitting in Chicago has reversed a trial judge's decision that the Pentagon's support for the Boy Scout Jamboree is a violation of 'the establishment clause' of the First Amendment, also known as the separation of church and state.
The April 5 ruling by the three-member appeals panel was on technical grounds surrounding the issue of 'standing,' or whether the persons involved even had a right to file the lawsuit in the first place. The judges said that the plaintiffs did not, without ruling on the constitutional merits of the case.
The ruling means that the Pentagon can continue to donate millions of dollars worth of equipment and manpower to the quadrennial Jamboree held at Fort A.P. Hood, an Army base an hour's drive south of Washington, DC.
The legal trail began with the landmark 2000 decision Boy Scouts of America v. Dale in which the United States Supreme Court agreed with the Scouts that it was in fact a private organization with a strong religious component. Some 63 percent of troop charters ere held by churches. Hence they could interpret the 'morally straight' clause of the Scout Oath as grounds for excluding gays.
The oath also contains the phrase 'duty to God,' which the Scouts have used as grounds for excluding atheists and agnostics from the organization.
However, while private organizations may in some instances discriminate, government agencies cannot; nor can they support private organizations that discriminate.
In March 2005, Judge Blanche Manning ruled that the Scouts are a religious group for purposes of establishment clause analysis. Applying a standard articulated in a Supreme Court decision written by Justice Clarence Thomas that allows the government to support religious groups if it offers that same support to all groups, she found that in fact the Scouts received special treatment, as mandated by Congress, which is not offered to others. That is unconstitutional.
She finalized her ruling that July 7, imposing an injunction to prohibit federal agencies from supporting the Scouts, but she stayed the injunction so as not to disrupt the Jamboree that was about to take place, pending appeal.
The three-judge panel of the U.S. 7th Circuit Court of Appeals did not agree with Manning. It dismissed the Dale case, and other suits that went against the Scouts in other circuit courts, as 'matters that are not important to our decision here.'
Instead it focused on questions of why Congress acted to allow the Pentagon to help the Scouts, and thus whether the plaintiffs had grounds in which to challenge the law. It concluded that Congress did so primarily to help the Pentagon's recruitment activities; the fact that it was supporting a religious group was incidental.
The American Civil Liberties Union of Illinois brought the suit on behalf of the plaintiffs. Senior staff counsel Adam Schwartz said, 'We continue to believe that government funding to support private activities which exclude persons on the basis of their beliefs is unconstitutional.' It is consulting with its clients about a further appeal of the case.
