Boy Scouts and Non-Believers

The other two children were Michael and William Randall, twins, who moved with their family to Anaheim,

California, and joined a new Cub Scout pack. The first requirement for the Bear badge, the third level in Cub Scouting, is, "Practice your religion as you are taught in your home, church, synagogue, mosque, or other religious community. " The language of this requirement is purposefully inclusive. Many faiths have specific religious emblems from the Ad Altare Dei of the Roman Catholic Church to the Sangha of the Buddhist Churches of America, and any creed will do so long as it professes faith in some higher being or beings. When the twins were asked to furfill this requirement, they answered that they couldn't because "They believed in themselves." They later testified that the word "atheist" was not in their vocabulary. The issue at hand was once again whether the Scouts could constitutionally exclude non-believers from their membership. The Court of Appeals for California, in its 1994 decision, Randall v. Boy Scouts of America. ("Randall"), ruled that the Boy Scouts may not "discriminate on the basis of religious beliefs or lack of religious beliefs." California is the only state in the Union where atheists are allowed to become members of the Boy Scouts of America. The Scouts have not, however, changed their official requirements. They are merely

waiving them temporarily while they appeal the case. As of yet, a writ of certiorari to a higher court has not been granted.

The introduction to the religious requirements for the Bear Rank, the highest rank in Cub Scouting, reads, "We are lucky. The people who wrote and signed our Constitution were very wise. They understood the need of Americans to worship God as they choose." Individual Americans have a robust freedom of religious exercise, but the extent to which this freedom of choice applies to the Boy Scouts of America as an organization is unclear.

To take a position on such an issue of constitutional law, it is necessary to establish what the relevant sections of the Constitution are, what our Founding Fathers meant when they wrote them (for textual and originalist arguments), and what the courts have ruled in relation to these sections (for precedential and doctrinal arguments). The question of whether a group of believers can exclude nonbelievers from a civic organization can be partly answered by looking to the first amendment's two religious clauses: "Congress shall make no law respecting an establishment of religion," and "Congress shall make no law... prohibiting the free exercise [of religeon.]" The Supreme Court has interpreted

the First Amendment in vastly divergent ways over the past 206 years, and in Court doctrine these two clauses even occasionally seem to be in direct opposition to each other.

But in each of the cases having to do with the exclusion of non-believers from the Boy Scouts of America, the courts have chosen not to rely simply on "free exercise" or "establishment" in their reasoning. Each court has instead identified an alternate way, based in Supreme Court doctrine, to look at the issue and has chosen to examine it in light of a concept called the "freedom of expressive association."

The freedom of association, like the right to privacy and many other liberties that we take for granted today, is not explicitly mentioned in the Constitution. As with the right to privacy, the right to association has been held by the Supreme Court to be necessary to secure the free exercise of other rights. It makes sense that rights to speech, religious practice and assembly necessitate or imply a right to associate with other citizens for these purposes, or, in the inspired words of Justice Brennan, "An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from inter

ference by the State unless a correlative freedom to engage in group effort towards those ends were not also guaranteed." The political process would be impossible without the right of the political parties to freely associate; religious activity would be equally pointless without the right of congregations not only to assemble in their churches on Sunday but to freely associate during the entire week. The Supreme Court has used the right of association to overrule state action "to impose penalties or withhold benefits from individuals because of their membership in a disfavored group, ... to interfere with the internal organization or affairs of the group," or to interfere with the right of parents to educate their children.

In 1984 came a decision which cod)fied the different developing doctrines of freedom of association. This decision, Roberts ~. Jaycees ("Roberts"), is also very important to a discussion of the exclusion of non-believers from the Scouts because it deals with another situation in which the courts had to decide whether the state can force private associations to accept certain members. At issue in Roberts was a Minnesota law requiring the Jaycees to admit women. Writing for a unanimous Supreme Court, Justice Brennan states, "There can be no clearer intrusion into the internal structures of affairs of an association than a regulation that forces the

group in question to accept members it does not desire." However, Brennan's opinion goes on to support just such an intrusion, since the Court ruled that the Jaycees were no longer allowed to exclude women. This case marks the first time that a civic membership organization was forced to integrate against its will for purposes other than ending racial discrimination. It is also the first and most thorough articulation of the "right of expressive association."

The freedom of expressive association, as outlined in Justice Brennan's opinion, is reserved for organizations devoted to the advancement of "political, social, economic, educational, religious, and cultural ends," and is characterized by criteria that are vague and open to interpretation. According to the standard set in Roberts, "Infringements on this right may be just)fied by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means sign)ficantly less restrictive of associational freedoms." Although it may be a compelling state interest to squelch racism, for example, the State cannot pass a law abolishing the Ku Klux Klan. As revolting as their ideas of racial supremacy may seem to most people, their speech is just as protected as other less offensive expression. Their correlative right to associate is therefore

also protected. A law ending their association, even for the purposes of discouraging racism, would trample on these rights and therefore be unconstitutional.

Discrimination based on race, sex, or religion can be discouraged in many ways which are "sign)ficantly less restrictive" than the abolition of a particular group. In Roberts, the Supreme Court did not abolish the Jaycees, but instead forced the organization to accept members that it did not desire. In his analysis, Brennan found that "members of the Jaycees regularly engage in a variety of civic, charitable, lobbying, fund raising and other activities worthy of constitutional protection under the First Amendment," but that there was nothing important about the Jaycees that required that the organization be sex exclusive. There is, "no basis in the record for concluding that admission of women as full voting members will impede the organization's ability to engage in these protected activities or to disseminate its preferred views."

Each judge who has ruled on the issue of exclusion of non-believers from the Scouts seems to have a separate idea of the nature of the Boy Scouts. Before any of the conceptions of the judges deciding the relevant cases can be addressed, though, we should examine the BSA's own offcial statements about the role of religion and spirituality in its organization. The Boy Scout make a strong case that it is necessary to exclude non-believers to preserve the fundamental characteristics of their expressive association.

When looking for such fundamental characteristics, it is useful if the association has a stated oath or creed delineating them. In the case of the Boy Scouts, such an oath exists. As already mentioned, it contains the sentence "On my honor, I will do my best to do my duty to God." This is not a precise statement pledging allegiance to a specific church or denomination but merely an assertion of the central role of religion in Scouting. In the oath, duty to God comes first, before duty to country and before promises to obey the scout law and help other people at all times. There are

also many requirements that affrm this commitment to God. The reaffirmation of this oath is required for promotion to all ranks from the enrollment in Tiger Cubs to the achievement of the coveted Eagle Scout badge.

In addition to the sp ken oath, the Bov Scouts of America has issued a policy statement concernin, religion. This statement can be found in the Boy Scout Handbook and has also remained unchanged in the entire ninety year history of the American Scouting movement. It states that "The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God.... The recognition of God as the ruling and leading power in the universe and the grateful acknowledgment of His favors and blessings are necessary to the best type of citizenship and are wholesome precepts in the education of the growing members."

Except for the gender specific language, the statement tactfully does not define God. The Boy Scouts are a very ecumenical orgamzat~on. The brief that the BSA prepared for Randall states that the "Boy Scouts' national Religious Relationships Committee, which approves religious awards and develops non-denominational prayers and benedictions, is perhaps the broadest based ecumenical group in the country."

(emphasis added) All Scout functions end with the benediction "May the Great Master of all Scouts be with us until we meet again." Chapel services at council wide venues such as yearly camporees or summer camps are required to be non-sectarian, although they can incorporate elements from any religious tradition. If there is a Christian prayer at the end of a service, a Muslim Scout is allowed to stand respectfully off to the side. Scoutmasters can require their troops to attend these chapel services and are encouraged to do so since "reverence," the final point in the Scout Law, is so important to the Boy Scouts.

The BSA states that the forced inclusion of nonbelievers would compromise the religious element they feel is an important part of their expressive association. The Scout Promise (another name for the Oath) is a pledge that each Scout makes. He reflects on it and tries to live by its maxims everyday. Pledging this oath binds the Scouts in the troop to a similar set of priorities and to common ends. It has the same character and purpose as a marriage vow or an oath of office. Scouting is committed to the encouragement of religion and this commitment is reflected in an oath which is taken very seriously by its members. It was the refusal to take this oath that lead to the ejection of the welshes from their troop

ction of the welshes from their troop

The opposing viewpoint, that the development of good character is not necessarily linked to a belief in God, is legitimate. However, this is not the opinion of the BSA as an organization. For a court to impose a vision of character development which does not include God on the BSA would be a clear example of "suppression of ideas. " It would essentially be equivalent to telling the Scouts that they are incorrect about the development of character and that they should rather adopt a God-optional standard. In his article on the Randall decision, Donald Roberts, points out that "Scouting would have to either vary requirements for individual members, causing Scouting to adjust its publications, practices, training, and schedules, or it would have to abandon the duty to God requirement with the same result."

pinion.

There are many different definitions of goodness, many different viewpoints and opinions on how to raise children, many different methods of inculcating preferred values in our next generation of leaders. The boy Scouts of

America has one definition, one opinion, one viewpoint and one method. The spiritual element of the expressive association of the Scouts is ecumenical, but it is strongly theistic. A court examining a case about the exclusion of

non-believers from the Scouts need not agree with the belief that this spiritual element is necessary, but the court has no right to impose a different belief system on the BSA.

In many ways, the question of whether the BSA has the right to exclude non-believers from their membership is an incredibly complex issue that implicates almost every First Amendment question possible. The Scouts, as a civic organization with five million

members, many physical facilities, and several businesslike qualities, treads the line between public and private in many ways. In order to admit atheists, the Scouts would have to change many aspects of their organization, and each of the details of the religious nature of their association is very important.