Harold Johnson- Columnist
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
Johnson represents one of the Sea Scouts challenging Berkeley's
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.
Abandoned by the city...
[Harold Johnson and Mark S. Pulliam] 4/5/04
battles over cultural issues, the Boy Scouts find themselves
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.
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
betrayal of the Scouts followed an ACLU court victory last
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
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.
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."
Department brief is a compelling read -- but, incredibly, Judge
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.
larger context to the San Diego dustup. It is a flashpoint
in a broad-front war being waged by cultural
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
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
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
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
commentary first appeared in American
2004 Pacific Legal Foundation