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Harold Johnson- Columnist

Harold Johnson is an attorney with Pacific Legal Foundation. A Sacramento-based public-interest law firm, PLF has a long history of litigating for tax restraint, including in support of Proposition 13 following its enactment in 1978.

Harold Johnson represents one of the Sea Scouts challenging Berkeley's anti-Scout policy before the California Supreme Court. Mark S. Pulliam, a Pacific Legal Foundation trustee, is an attorney in San Diego with sons in the Boy Scouts.

Scoutophobic San Diego
Abandoned by the city...
[Harold Johnson and Mark S. Pulliam] 4/5/04

As America battles over cultural issues, the Boy Scouts find themselves in the crossfire of the 2004 election season. In a number of communities where intolerant "progressives" hold sway, the Scouts are under siege because they won't drop their commitment to God, country and traditional morality. Several of these skirmishes have grabbed headlines recently, and in one engagement -- an attack on the Scouts by the American Civil Liberties Union in San Diego -- the Bush Administration has stepped forward to defend the Scouts, raising the stakes in the case and prompting some reporters to look for the hand of Karl Rove.

The ACLU is on a crusade to expel the Scouts from public property in San Diego, and the city council recently chipped in (with taxpayer money) to help that drive. The council voted to extricate the city from the lawsuit by promising to abandon any defense of the Scouts and to pay the ACLU $900,000 for various "legal fees."

The city's betrayal of the Scouts followed an ACLU court victory last summer. Federal District Judge Napoleon Jones voided the Scouts' longtime lease of 18 acres at the city's Balboa Park. Contradicting the findings of many other federal and state courts, he announced that Scouting is a "religion"; therefore, he ruled, the lease violates church-state separation. He threw in a gratuitous insult, denouncing the Scouts as a group "at odds with values requiring tolerance and inclusion in the public realm."

This coming Monday, the second act in the case unfolds as Judge Jones hears arguments over the Scouts' other lease of city property - - at Fiesta Island, where they run an aquatics center that they make available to the public on a nondiscriminatory basis.

Enter the Bush Administration. In early March, the Justice Department's Civil Rights Division submitted a friend-of-the-court brief countering the ACLU's claim that the Scouts should be kicked off the island because they're "religious" and they "discriminate" against gays. The DOJ brief points out that the Scouts don't have a theology, just an acknowledgment of a nonsectarian, common-denominator deity. As for Scout membership policies, they are constitutionally protected expressions of core Scout beliefs, as the U.S. Supreme Court declared in the 2000 case of Boy Scouts v. Dale. To single out the Scouts for expulsion from public property -- especially when dozens of other San Diego nonprofits continue to enjoy leases on identical terms to the Scouts' lease -- penalizes the Scouts for their exercise of First Amendment freedoms. Discriminating against the Scouts because they're not PC enough for the ACLU isn't exactly "tolerance and inclusion in the public realm."

The Justice Department brief is a compelling read -- but, incredibly, Judge Jones won't be bothering with it. He announced in mid-March that the department doesn't have an "interest" in the case, so he would not accept its filing. The cogent 20-page brief from the United States Government was not just ignored, it was discarded, a highly unusual example of impudence and disrespect by a district court. A long appellate process awaits the San Diego Scout litigation -- perhaps culminating in U.S. Supreme Court review -- so the Justice Department will have more opportunities to weigh in. But Judge Jones' astonishing refusal to hear the perspective of the nation's principal civil-rights enforcement authority will live long in courtroom lore.

There's a larger context to the San Diego dustup. It is a flashpoint in a broad-front war being waged by cultural imperialists of the Left to make the Scouts pay a price for their principles. After the Dale decision, which said government can't order the Scouts to exchange their convictions on sexual morality for a set of state-scripted beliefs, anti-Scout activists and bureaucrats shifted strategy: The aim now is to arm-twist the Scouts into submission by penalizing them (with loss of park leases, for instance) if they don't fall in line.

The approach can be seen in San Francisco, where local judges have been banned from participating in Scouting. In Connecticut, the Scouts have been dropped from the list of charities that state employees can support through payroll deduction (the U.S. Supreme Court recently declined to hear the Scouts' appeal). In Berkeley, California, the city excludes the Sea Scouts, a Boy Scout affiliate, from the free use of the Berkeley Marina that is available to other nonprofits (the California Supreme Court has agreed to hear a lawsuit targeting this policy).

It's hard to miss the partisan dynamic in many of these cases -- reflecting the fault line between Republicans and Democrats in the larger culture war of which the Scouts are a symbol and a victim.

In San Diego, all of the city council's Democrats, and none of the Republicans, voted for the cave-in to the ACLU. And Judge Jones, who has given the ACLU all they wanted so far, was appointed by Bill Clinton.

In Connecticut, Democratic state Comptroller Nancy Wyman vocally supports the exclusion of the Scouts from the state charity program. She was the main defendant in the Scouts' unsuccessful legal challenge.

In Berkeley, the city's second-class treatment of the Sea Scouts has won backing from California's attorney general, Democrat Bill Lockyer, who has filed a brief urging the state Supreme Court to rule against the Scouts.

And at the national level, Congress responded to cases of anti-Scout animus in 2001 by voting to withhold federal education dollars from public schools that bar the doors to the Scouts while allowing other groups to use their facilities. Forty-two Senate Democrats voted against this effort to ensure equal treatment for the Scouts -- including John Kerry.

Because the wrangling over the Scouts so often reflects Red versus Blue America in microcosm, the issue of Scout-bashing could prove as combustible on the campaign trail as in the courtroom. It would be understandable if, as some political journalists suspect, Karl Rove sees campaign issues here. From the presidential level down, do the candidates think government should punish a venerable youth-service organization for not being in lockstep with liberals on matters of sex and secularism? Inquiring voters may want to know. CRO

This commentary first appeared in American Spectator

copyright 2004 Pacific Legal Foundation



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