Hunt

Take another look at the Seventh Circuit's opinion: http://www.bsalegal.org/downloads/Seventh%20Circuit%20opinion%2005-3451.pdf. Look at page 16, where it says: "Even assuming that it is correct to characterize the BSA as a 'religious' organization, this statute is for the purpose of assisting the military in persuading a new generation to join its ranks and in building good will. This is a secular and valid purpose." Despite the fact that they end up deciding on standing grounds, the opinion nevertheless trashes every other argument ACLU (and the district court) made. I would also add that the Seventh Circuit opinion was written by Diane Wood, a Clinton Appointee. The Seventh Circuit has 11 Republican appointees, and 4 Democratic appointees (of whom Wood is one). There is no chance the full panel would reverse this decision--ACLU would be nuts to even try. Their chances at the Supreme Court aren't much better--and they'd be taking the risk that the Supremes would take up the concurring judge's opinion, and severely restrict taxpayer standing. If ACLU is smart, they'll declare victory in getting BSA out of the public schools, and go on to something else.

I just read the ACLU's brief to the Seventh Circuit (http://www.aclu-il.org/news/archives/winkler.pdf), and they had a problem when talking about the expenditures. To get the relief they wanted (having the Jamboree Act declared unconstitutional), they had to argue that all or the vast majority of the expenditures had no military purpose. Although they pointed out some specific expenditures (including the cookie dough), their real argument was that the whole thing lacked a military purpose. This part of the brief, however, is extremely weak. It's certainly inadequate to counter the military's own claims that it sees training and recruitment purposes for supporting the Jamboree. For example, the cookie dough (plus $65,000 for mementoes) went to an area of the Jamboree called "Army Adventure." Gee, do you think that might have had a recruiting purpose?

Also, ACLU's brief grossly overstates the role BSA's religious elements play in the program, further hurting the credibility of their argument.

"For the record, the scout did not show any sign of remorse, regret, contrition or repentance. His attitude was "hey, stuff happens." In fact, he was proud of the fact that he was living the baby's mother with and "supporting my child" (as much as you can with a part-time minimum wage). He was an "avowed" fornicator, and proud of it."

What if he had said the following: "I really regret what happened, and I truly wish we had waited until we got married. I also wish we had been more careful. But I didn't think it was right to ask her to get an abortion, or to give up her baby, I'm living with her and her family until we can save up enough money to get married. I'm not earning much money, but whatever I can earn is going to support my child."

Would that change your mind about what the result should be?

Another question: What if the recommendation letter had said: "Although Scout is in most ways a fine boy, I happen to know that he has been having sex with his girlfriend, because I walked in on them during a outing of our youth group." Do you ask him about it? Eagle or no Eagle?

Sometimes there's a problem if the first couple of events are (or seem) too challenging for new scouts. For example, if the first outing is a backpacker or a canoe trip, Mom may not want the new boy to go. The campout at the church sounds like a good beginning event. My son's troop generally has an "advancement" campout (car camping) when there are a number of new scouts.

"What culture can possibly think it is ok to for a 17 year old boy and girl to make a child without being married?"

After thinking this over, I would agree to your proposed rule, as long as we first ask all adult Scouters if any of them have ever had sexual relations outside of marriage, and expel all the ones who admit to having done so. Then those who are left can begin casting stones at the boys.

"Develop a more attractive program and those non-attending boys will suddenly chose Scouts over some boring baseball game, band practice, or video game."

I think there are (at least) two kinds of boys that show this problem, and the statement above applies strongly to one group, but not so much the other. The first group are what you might call "slacker" kids who need motivation to do much beyond playing video games--to get them to attend, you need an exciting program, and you probably also need to have the PL call them before every meeting to remind them to show up. You hope that a kid like that will eventually catch the vision, and some of them do.

On the other hand, there are "achiever" kids. They aren't just in the band, they are in the All-State Band and the Regional Youth Symphony. They aren't going to skip a boring rehearsal, at all. They're not just playing touch football in the backyard, they're on the varsity team in high school. They're Mathletes, or debaters, or members of the Greek Dance Troop. With these guys, you are going to have to figure out how to get the most out of them in the chunks of time you can get them. It will probably be worth it, because they will probably bring their achiever attitude to scouting, as long as you let them. If you make it too hard for them to achieve (ie, advance) however, they won't stick around. If you force them to choose between Scouting and one of their other intense activities, most of them will choose the other activity unless their parents have a strong tie to Scouting. This is a challenge, a some troops may reasonably decide that it's too disruptive to the program to accommodate this kind of person.

"Small, floundering units should be routinely shutdown by their Council."

I think these units should be encouraged and assisted to merge with other units--the emphasis should be changed from the number of units to the strength of units. This change alone would enhance the Scouting experience for large numbers of boys.

It seems to me that in trying to get a good read on an issue like this, you should ask who is most likely to have an opinion worth listening to. It's probably not a politician or pundit of any stripe. It's probably a scientist who studies the climate. The inescapable fact is that the overwhelming majority of such climate scientists believe that climate change is a serious problem and that human activities are a major cause. There are a few scientists who disagree, as there generally are with any broad scientific consensus. Personally, I don't have any basis for thinking that I know better than the majority of people who study the climate for a living, as much as I'd prefer to believe the small minority. What can and should be done about it is a much more difficult decision, and there the politicians have to get involved, because it's going to cost a lot of money to make a signficant impact, and there are several ways of doing it that place the financial burden on different parts of the economy.

"Unfortunately, in a case like this, you can't "undo" the deed and make it go away."

That's true of all immoral acts, and everybody has committed his share. To me, there are only two elements of this one that make it different: (1) the results of the act are apparent to everybody, and (2) at least arguably, immoral behavior is continuing.

To me, the first of these is not that important. Thus, for example, I make no moral distinction between a person who is arrested for driving drunk and a person who drives drunk and kills somebody. The sin is the same; the consequences are tragically worse for the second. In all these cases, it's the response of the person to the wrongful act that is important.

I suppose I think there are crimes that should permanently disqualify a boy from becoming an Eagle Scout. Dealing drugs, armed robbery, etc. Drunk driving, for me, would be close to the line and would require a lot to overcome. Sleeping with your girlfriend (in most cases) isn't a crime at all. I'm not saying it's OK, but it's in the realm of personal morality, and that makes in much more difficult for us to draw lines for other people. Would you disqualify a boy from Eagle if you learned that he was gambling? Would it matter how much money he lost?

Don't get me wrong--the idea of making an unwed father who is living with the mother an Eagle Scout gives me tremendous heartburn, but the whole problem of judging the overall morality of a young man gives me even more heartburn.

I never meant to suggest that a First Amendment violation is petty. Rather, I meant to say that people who perseverate about a minor detail in a much broader context appear petty to most reasonable observers. But people with extreme views can't seem to understand how they undermine their own credibility by focusing on those details and not the big picture. People like that are never satisfied, even if they get the vast majority of what they want.

"I also don't know why folks think that a trip to the Doctor for Suzy would make it all better and Johnny could still get his Eagle. That is the furthest thing from my mind."

Unless you plan to ask every Eagle candidate whether he has impregnated anybody, this will be the effect. I guarantee you that pregnancies that end in abortions will often not be common knowledge.

"Hunt, the amount isn't relevant; it was cited as one example of military spending that was unrelated to military readiness. You seem to think that constitutional violations that are small enough are somehow OK."

Don't put words in my mouth. What I said, and what I meant, is that if there were small improper expenditures, that would not require the entire event to be prohibited. Furthermore, what I said and meant, which you just don't seem to get, is that in the context of $8,000,000 of appropriate expenditures, an improper expenditure of $6,000 is insignificant. That doesn't make the expenditure OK--but it is such a minor detail in the overall context that no reasonable person would spend much time worrying about it. It would be like somebody driving 55.001 mph in a 55 mph zone. Wrong? Yes. Worth engaging the majestic machinery of the law? Not so much.

What I also said is that the plaintiffs made a tactical error in highlighting this particular example, because it made them appear petty. I notice you don't highlight any other improper expenditures--was this the largest one?

"And the circuit court didn't rule on the case on its merits, they said the plaintiffs didn't have standing. They did not reverse the original ruling."

Well, in fact the Seventh Circuit reversed the lower court's ruling and remanded the case for dismissal--that means the lower court's ruling has no precedential effect. But the Seventh Circuit also made it clear how it would have ruled on the merits--it would have reversed on those grounds too. It just didn't have to.

"We are constantly asking our POR people questions as to how things are going. This is not a nice little fire-side chat, it is a flat out question relative to their POR."

It seems to me that this approach, along with the idea that the boy is "in trouble" if his answers are "not acceptable," reflects too much adult involvement in the operation of boy leadership. I don't understand, for example, why an adult leader would be asking the QM where the dutch oven is. Perhaps I don't really understand the context.

"So I finished reading the e-mail from a Star Scout Mom that started "**** has completed his six months of service its time to arrange for a Board of Review...." Third, she copied the whole troop, second, if I'm not mistaken there is the question of a Scoutmasters Conference, and FIRST... why isn't her son making this request! He is the Senior Patrol Leader, is suposed to set the weekly agenda and does routinely ask if anyone needs a SM confernce or BoR."

Respond: "It's great that Johnny is progressing so well! He can talk to the SM about scheduling." Repeat as necessary.

"Well Hunt, you don't seem to understand what a "not-exhaustive" list is; just for future reference, the ACLU lawsuit didn't attempt to list every improper expenditure, just a few typical examples."

I understand what a "not-exhaustive" list is, but I also understand that if the example you choose to emphasize is only $6,000 out of $8,000,000, the whole list probably doesn't amount to much. Do you know what the total cost of consumable items like cookie dough was? I guess the plaintiffs' lawyers thought that people would be outraged tht our military was giving cookie dough to the Boy Scouts, but really, that was a stupid example to use, because it makes them seem petty. Maybe it was the best example they had.

"The current legislation ONLY supports the BSA; any legislation that legitimately supported military goals like training and recruitment would apply to ANY large gathering that would offer similar training and recruitment oppertunities. But there is no such legislation, because it's really just a public subsidy to a private religious organization."

Sez you, but the Seventh Circuit obviously doesn't agree. Since the courts say what the law is, you are simply left to disagree with the law, as is your right as an American.

"You know, the Girl Scouts might hold a jamboree if the government would subsidise 1/3 of the cost."

Who says the government wouldn't do that?

Of course principles are important, but if the only improper expenditure out of $8,000,000 is $6,000 for cookie dough, it's such a small detail that it's certainly not worth all the legal machinery. But the plaintiffs don't really care about the cookie dough per se--that's just a colorful example they used to try to get the courts to rule that all the DOD expenditures were improper--and it's clear that this argument is a failure, because DOD made a strong argument that they had good reasons to support the Jamboree. Note that it's not just training and readiness, but also PR and recruiting that are among the aims of the military's involvement. Of course, one can quibble about just what expenditures fit into the policy and justification and which don't, and that's fine. DOD should follow its own policies, obviously. But do you think ACLU would fund a challenge if the only potential relief was that some small portion of the overall expenditures would have to be reimbursed by BSA?

"Part of the lawsuit against the DoD cited expenditures that obviously only benefited the boy scouts without any sort of "training" rationale, like $5000 worth of cookie dough."

Even if it were true that providing the cookie dough only benefits BSA (which is debatable), it still wouldn't mean that the overall support of the Jamboree was unlawful. In fact, DOD policy requires that any expenditures must not solely benefit BSA. DOD's brief does a good job of defending $8,000,000 of expenditures on the basis of training, PR, and dual-use improvements to Fort A.P. Hill. I think BSA would gladly give up the cookie dough, if that's the only problematic expenditure. But hey, if a plaintiffs' lawyer wants to go up and tell Justice Scalia about the cookie dough, more power to him.

The question of whether BSA is a "religious organization" is not really relevant, since everyone recognizes that BSA imposes a religious requirement for membership. This is something that a government entity cannot do, and thus, a unit owned by a government entity cannot legally do this. It's really that simple.

"The BSA is a private youth group that has religious requirements for membership."

That's right, Ed, and that's why a public school can't sponsor a BSA unit.

"My question on SSScout's hypothetical open membership policy: would that be sufficient? Anyone could be a member, but it's still a religious organization. Would that meet the non-discrimination requirements of govenment organizations?"

Again, you have to be clear what you're talking about. If you're talking about actually having the government organization charter and own the unit, I think the answer would still be no, because it would be seen as promoting the religious views of the organization, in violation of the Establishment Clause. But, there would be a counterargument, which I suppose might be persuasive to the current Supreme Court. Here it is: As long as the school allows other groups with religious or anti-religious views to obtain the same level of school access and use of facilities, it might decide that the school can even charter or sponsor such groups. In other words, it might find that the technical nature of the relationship is not what is important, but rather the degree to which the "forum" is open to all groups. Since many charter organizations don't provide any money or services to units other than a place to meet, this argument could work. It simply wouldn't work, though, for an organization that actually discriminates on religious grounds for membership, because the ownership of the unit would put the school in the position of discriminating.

"BSA is a private group, BSA can decide who joins, who doesn't.

Schools can have clubs like Fellowship of Christian Athletes, Gay, BI Straight Homo alliance groups, chess club, glee club, band, baseball teams, Spanish club, German club, etc. It now seems the only club schools can't have is BSA units."

I wish you guys would stop arguing with Merlyn about something he's actually right about. A public school simply cannot sponsor an organization that discriminates in its membership based on religious belief. It can, however, ALLOW such a group to meet on school grounds, and it MUST do so if it allows other groups to meet there. Thus, for example, the school could not sponsor a Fellowship of Christian Athletes group, particularly if it restricted membership to Christians, but it could allow that group to meet on campus. Please understand the distinction: BSA units are OWNED by their chartering organization. A public school cannot own a group that discriminates on religious grounds. You also cannot compare religious discrimination with other kinds of membership restrictions ("tallness" is a silly one, but schools really do have groups that discriminate on the basis of talent, or gender), because religion is a special category recognized in the Constitution. The Establishment Clause applies to state (and local governments), and well-established legal precedent indicates that the federal courts, including the Supreme Court, would rule that public schools cannot sponsor organizations that discriminate on the basis of religion. This is why BSA decided to move units from school COs--they realized that it was highly likely that they would lose the case if it went to the Supreme Court. In such a case, there would be standing on the part of an atheist boy who wanted to join (although perhaps not for a mere taxpayer). BSA wisely decided not to spend a lot of money on a case it would probably lose, when it could move to new COs without much real disruptions to units--most of which continue to meet in the same schools, just with different COs. To bring this back on topic, the Jamboree opponents will likely make the same decision, and choose not to appeal, when the likelihood is that they would lose on appeal and perhaps even create a worse precedent for their point of view.

It's my observation that on average, mothers are more protective of their children, fearful of risks, concerned about eating properly, concerned about cleanliness, etc. In fact, I would say that the averages are strongly skewed in this direction. As a result, it is not really unreasonable for boys to have an expectation that a mom on a campout will exhibit these kinds of concerns. However, it's also my observation that a mother who doesn't fit this stereotype will be accepted and respected by the boys--and that a dad who is too overprotective will be criticized.

Well, it's a non-sectarian religious organization. But my point is: What will Justice Scalia say it is?

I don't know about other places, but I notice that my kids have much more homework than I ever did--it has a real impact on the amount of time they have for other activities. Plus, kids around here (including mine) tend to have a lot of scheduled activities, like music lessons. I think you can add that to the factors that others have mentioned, like more electronic entertainment at home and a reluctance to allow kids much freedome of movement.

"And three judges of the 7th circuit are not the same as the supreme court, so they can hardly preview what the supreme court "would" do."

So maybe the plaintiffs will roll the dice. If they do, they shouldn't complain if the current Supreme Court does some wide-ranging thinking on just how beneficial Scouting is to various government operations, and just how non-sectarian BSA is, etc. Be careful what you ask for.

I would just like to add that if you approach the dad to discuss this, you should use discretion and not do so where others can hear--especially boys. There may be a reason for this sleeping arrangement that they prefer not to broadcast, such as bedwetting or a health issue that they prefer to keep private.