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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.

ACLU's Anti-Scouting Witch Hunt
Accept political-correctness or else...
[Harold Johnson] 1/31/05

In 2000, the Orange County Board of Supervisors gave the Boy Scouts of America a 30-year extension on their lease at the popular Sea Base recreation camp in Newport Beach. The Scouts maintain the camp and keep it open for the general public on an equal-access basis. So the supes' decision was financially wise as well as public-spirited.

But the American Civil Liberties Union wasn't pleased because it can't tolerate Scout traditions, particularly the pledge of duty to God and the belief that being "morally straight" includes foreswearing sex outside of marriage (including homosexual activity). An ACLU lawyer made noises about suing, but the Scouts agreed to fund the county's defense if that happens. "The county gets sued every day by somebody," an unruffled Supervisor Todd Spitzer responded.

Anti-Scout pressure groups don't always find public officials so hard to roll. While Orange County remains Scout-friendly territory, elsewhere in California the Scouts have been punished for not being politically correct.

Two lawsuits highlight Scouting's struggle. Evans vs. Berkeley, currently before the state Supreme Court, challenges Berkeley's second-class treatment of the Sea Scouts, a Boy Scout affiliate that focuses on sailing.

Berkeley excludes the local Sea Scouts from a program offering nonprofits free use of the city's marina. As a result, the Sea Scouts have had to cut back activities.

Berkeley calls the larger Boy Scouts organization "discriminatory" - a disparaging term that shows the city's constitutional blind spot. Freedom of association must not be disparaged as "discrimination." The Constitution permits people to organize around shared values, and it protects private organizations from being punished solely because government officials don't like their views.

First Amendment freedoms are also at stake in the San Diego case of Boy Scouts vs. Barnes-Wallace, now before the Ninth U.S. Circuit Court of Appeals. The Scouts are appealing the startling decision by U.S. District Judge Napoleon A. Jones Jr. to void the Scouts' longtime leases at San Diego's Balboa Park and on Fiesta Island in Mission Bay Park.

Siding with the ACLU, Judge Jones labeled Scouting a "religious" organization. This caused a lot of head-scratching because the Scouts don't have a theology, just a broad acknowledgment of a common-denominator deity. In any case, San Diego hasn't been "endorsing" religion by leasing land to the Scouts. Not when the city also leases to many other nonprofits with missions across the spectrum - from the Girl Scouts to a Jewish Community Center; from the Boys and Girls Clubs to the YMCA. Taken as a whole, these leases endorse pluralism and diversity, not religion.

San Diego officials originally stood by the Scouts, but last year, in a move that drew widespread criticism, they bailed out of the litigation and paid the ACLU $950,000 for "attorneys fees" and "court costs."

So the ACLU's battle against the Scout leases is now fueled by a hefty taxpayer subsidy.

Judge Jones topped off his ruling with gratuitous insults. He denounced Scouting as "anti-homosexual," "anti-atheist," and "at odds with values requiring tolerance and inclusion in the public realm."

These abusive terms don't square with the Scout Law and Scout Oath, which pledge respect for all people. Harvard law professor Laurence Tribe has summarized the beliefs on which Scouting's right-to-association claims rest, and they are about positive aspirations, not hate or hostility toward anyone: "The Boy Scouts ... are dedicated to teaching that the good life is one that ... practices sexual abstinence until marriage, respects and protects the young woman ... and looks forward to the ultimate satisfaction of fathering children."

One doesn't have to concur with the Scout creed to applaud Scouting for not abandoning it under pressure. It's the Scouts - not Judge Jones or Berkeley bureaucrats - who are standing for "tolerance and inclusion in the public realm." They're fighting for the right of all private organizations to follow their own convictions without fear of censorship, intimidation or reprisal by the state - or the ACLU. CRO

This piece first appeared in the Orange County Register.

copyright 2005 Pacific Legal Foundation



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