Challenging the discriminatory practices of the Boy Scouts of America

Taking a similar approach, the Minnesota Civil Liberties Union (MCLU) filed a lawsuit in May against the St. Paul School District. The suit is on behalf of David Perry, a second-grade teacher employed at Dayton's Bluff Elementary School in St. Paul. The suit alleges that school officials required Perry to yield classroom instructional time to allow BSA representatives to recruit new members from his class. Perry subsequently complained to the school district, explaining that the BSA is a religious group that discriminates against atheists, gays, and bisexuals. Getting no satisfaction, he turned to the MCLU.

"This lawsuit has nothing to do with whether the Boy Scouts have the right to discriminate or whether they have a right to use school facilities like any other community group," says MCLU Executive Director Chuck Samuelson. "This case is about government sponsorship and promotion of a religious group that conditions membership on a religious oath. Public schools have no business putting their official stamp of approval on such a group."

Meanwhile, an older case in Oregon may finally be moving forward. It began in 1996 when a Boy Scout recruiter, during class time, placed plastic wrist bracelets on public school boys. The bracelets, removable only by being cut off with scissors, read: "Come Join Cub Scout Pack 16! Round-Up for New Cub Scouts for Boys in Grades 1-5 ... Scott Elementary School." Nancy Powell, mother of one of the boys, who is an atheist, complained to school authorities because of BSA religious discrimination policies. When her effort failed, she turned to the ACLU of Oregon, which in 1998 represented her and her son in a complaint filed in the Multnomah County Circuit Court.

The case went to trial and, on August 31, 1999, the court found that the BSA discriminates on the basis of religion and bars membership to boys and Scoutmasters who don't acknowledge the existence of God. But the court paradoxically held that BSA recruitment activities in schools still don't violate Oregon's constitutional requirement of separation of church and state. The ACLU may appeal.

These recent efforts seem to have in common a kind of unhappy resignation--a capitulation to the BSA's position that Scouting is both private and religious. And thus, the only appropriate response under the U.S. Constitution and the various state and federal anti-discrimination laws becomes one of doing everything possible to remove government benefits and privileges formerly granted to Scouting. This, of course, can only hurt the program and, more importantly, hurt a new generation of Scouts who will increasingly be denied many of the wonderful adventures and opportunities that former Scouts had so frequently enjoyed.

Can there still be hope for the position taken by myself and so many others: that Scouting is a program more than worthy of public support--so worthy, in fact, that it should truly be open to all boys? Thankfully, James Dale has answered that question with a resounding "yes."