Essay:Boy Scouts Rout ACLU

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The Boy Scouts just won a stunning victory against the ACLU, in defense of the Scouts’ honoring of God. A 3-0 ruling of the Court of Appeals for the Seventh Circuit held that the federal government can continue to sponsor the national Jamboree event of the Scouts. Winkler v. Gates, 2007 U.S. App. LEXIS 7677 (7th Cir. Apr. 4, 2007).

Every four years for 70 years, the United States government has sponsored on military property a Jamboree for tens of thousands of Boy Scouts. The Boy Scouts are perhaps the largest voluntary youth group in America, and many future Scouts serve our nation in the military and in public office.

Seven Presidents have attended the Jamboree since 1937, beginning with President Franklin D. Roosevelt. This event lasts ten days and attracts over 40,000 Boy Scouts and about 300,000 visitors. The 2010 Jamboree will commemorate the Boy Scouts' 100th anniversary in America.

But the ACLU demanded that a court prohibit this. An ACLU group in Chicago argued that the Boy Scouts is a religious organization, and that the federal government violates the Establishment Clause by sponsoring an event for a religious organization. A few months before the scheduled 2005 Jamboree, the ACLU persuaded a federal judge to prohibit the government sponsorship, though the judge did make an exception to allow the Jamboree to go forward in Virginia that year.

The government appealed this decision to the Seventh Circuit, where there have been numerous other Establishment Clause cases. This time the Seventh Circuit ruled in favor of government and the Boy Scouts, and ordered that the ACLU's lawsuit be dismissed.

The Seventh Circuit panel consisted of Clinton-appointed Judge Diane Wood, the conservative Judge Diane Sykes, and Nixon-appointed Judge William Bauer. Judge Sykes did not give an inch to the ACLU in this case, and her strongly conservative concurrence may have helped pull the entire panel to the right.

Judge Wood, writing for herself and the third Judge, ruled in favor of the government and the Boy Scouts without ever reaching the issue of religion. She found that the ACLU plaintiffs lacked legal standing to challenge the government-supported Jamboree. The Jamboree does not hurt the ACLU plaintiffs in any meaningful way, so there was no legitimate injury for the court to address.

"Today's decision allows everyone to get back to planning the centennial Jamboree celebrating Boy Scouts' 100th birthday," declared the Scouts' attorney, George A. Davidson.

This victory makes one wonder if other ACLU lawsuits can be defeated using similar arguments. This Court relied on how the Jamboree can be defended using the Military and Property Clauses of the Constitution, rather than the Taxing and Spending Clause. This Court concluded that when government action is based on the Military or Property Clauses, ordinary taxpayers have no legal standing to challenge an endorsement of religion.

There were virtually no reported federal lawsuits by the ACLU against the Boy Scouts before 1999. But after the Boy Scouts began asserting their right to exclude openly homosexual Scout leaders, there have been numerous efforts by the ACLU to deny access by the Boy Scouts to government property and benefits.

In San Diego, the ACLU persuaded a federal trial judge to invalidate a 25-year lease guaranteeing the Boy Scouts affordable access to local parks. Barnes-Wallace v. BSA, 275 F.Supp.2d 1259 (S.D. Cal. 2003). The ACLU plaintiffs in that case may not have any greater claim to legal standing than the plaintiffs in the Jamboree case. This decision remains on appeal, and perhaps the Scouts can turn their Jamboree victory into a victory here also.

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