The Washington
Times
In defense of the
Scouts
Published December 2, 2004
First the Pentagon plans to send away the Boy Scouts. Then Defense Secretary (and Eagle Scout) Donald Rumsfeld promises he won't allow that. Now Congress is making noises about backing up the Scouts with legislative protection. A growing number of legal scholars think the arguments against the Boy Scouts of America no longer stand scrutiny, and we're heartened to hear it.
Trouble for the Boy Scouts began with a lawsuit filed in
1999 by the American Civil Liberties Union. The ACLU argues that the Pentagon
is wrong to allow military sponsorship of Scout troops because Scouts are
required to pledge belief in God. To the ACLU, that's religious discrimination.
The ACLU argues further that since military bases sponsor about 400 Boy Scout
units and spend $2 million annually to support Boy Scout jamborees, the
government is guilty, too. The ACLU
wants to evict the Boy Scouts from military bases. This would constitute
discrimination against the Boy Scouts of America, not by them, but this does
not impress the ACLU.
Things took a turn for the worse in mid-November, when a group of Pentagon lawyers reached a settlement that would have prevented military bases from sponsorship. Congress cried foul. That's when Mr. Rumsfeld stepped in. "The Department of Defense takes great pride in its longstanding and rich tradition of support to the Boy Scouts of America," he wrote to a group of congressmen, and vowed that Boy Scouts would be allowed to stay on the bases. Now Republican leaders in the Senate plan to codify these ties.
The best news of
all is that the ACLU's interpretation of the First Amendment provision
"that Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof' - sometimes characterized as the
"separation of church and state," and the basis for the ACLU's
argument is eroding in legal circles. There's growing belief that the framers
of the Constitution never intended this clause to compel absolute separation of
church and state. Philip Hamburger, a legal historian at the University of
Chicago, argues that the separation doctrine was actually a
late-nineteenth-century fabrication of anti-Catholic nativists.
The clause itself says nothing about separation. Read it again: "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." That implies
neutrality toward religion, not absolute separation. Neutrality means
that the Boy Scouts, like any civilian group that uses the bases, is only
subject to law and to the approval of appropriate military authorities.
Nevertheless, we urge the Senate to follow through to shore up the Boy Scouts' ties with military bases. The House should promptly follow. The ACLU lawyers should not be allowed to dispose of wholly constitutional associations like those between the Boy Scouts and the military.
http://www.washingtontimes.comlfunctionslprint.php?StoryID=20041201-090801-9832r
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