Hunt

I live in the county where this is happening, so I can share some observations about this. The issue started solely because the County did want to discriminate based on viewpoint--they wanted to exclude the Christian evangelical Group. They are now stating that they don't want to overwhelm the staff with flyers but, in my opinion, this is essentially a lie, because they never cared about it before the Christian group wanted in--and the number of flyers never was all that oppressive, anyway. Their first effort to deal with this was a policy that allowed flyers from the PTA and from non-profit sports leagues, and nobody else. This had a real effect on scout recruiting (especially for Cubs), because the "backpack mail" was generally more effective than a table with handouts at a crowded back-to-school night. The Christian group took the new policy back to the court, and won again. Currently, the county has initiated a policy in which there can be no backpack mail except from the school itself or other government groups. The principal can send a newsletter that mentions PTA events, but nothing from the PTA itself can be sent. In addition, the school websites must disable their links to PTA websites, and teachers can't collect materials related to PTA activities (like gift wrap orders, etc.) The School Board will be considering a new policy. Obviously, the PTAs will go bananas over the interim policy--perhaps it's just to soften them up to accept an open policy as the only other alternative. The Scouts are in the middle of this--nobody was really trying to keep us out, but we really are in the same position as the Christian group. I'll report on further developments if you are interested.

To recap a bit--as others have noted, the Congressional Charter as well as copyright/trademark only protect the name, emblems, etc., and other groups are free to use a substantially similar program, ideals, etc. The reality is that it's very difficult to start a competing program when the existing one is so well-known and entrenched. Indeed, that's the reason new competing groups want to use the word "Scouts" in their name--because that word already has positive connotations to Americans--and I think you have to give BSA credit for that, since BSA has been Scouting in this country for many decades. As far as analogies, it isn't really like a company (Ford) or a long-established religion (the Baptist church), but more like something like the American Legion or the Girl Scouts, which also have an interest in protecting their exclusive right to their name. I should note that some newer religions have taken steps to trademark their names and other terms in order to protect their exclusivity. I suppose it may be true that BSA has a monopoly on recognition by international Scouting as the one true representative of the Scouting movement in the USA. However, there is nothing in US law that requires this. If, for example, international scouting wanted to include "US Baden Powell Ourdoorsmen" (or some such) as a recognized element of the scouting movement, I don't think BSA would be able to do anything about it, at least outside the US. My bottom line on this is that it's perfectly reasonable for people to criticize BSA policies and programs, and to urge BSA to change them. But I don't think it's reasonable for them to claim that BSA has some special responsibility to do this because it has a "monopoly." It doesn't.

I think it was in one of the other articles. It's probably an empty threat, unless the city allows other groups with discriminatory membership policies to retain similar leases. The Support Our Scouts Act calls for equal access only.

In another thread, there was a discussion of whether it is unfair for BSA to limit its membership, and the argument was made that it's unfair because BSA is the only place to obtain certain benefits. I'd like to probe this idea a bit. While it is true BSA has a Congressional Charter (like quite a few other groups, see Title 36, U.S. Code), about the only protection given to BSA in that charter is the following: "The corporation has the exclusive right to use emblems, badges, descriptive or designating marks, and words or phrases the corporation adopts." Of course, any group can obtain similar protection through copyright and trademark. So while another group may not be able to call itself "Boy Scouts," they can adopt an essentially identical program with the same elements of outdoor, advancement, etc. Of course, BSA does have many decades of goodwill and experience, and lasting relationships with other organizations. This makes it a challenge for a new group to make inroads--but I would point out that youth soccer has done this despite the previous dominance of youth baseball, basketball, and football. So you can certainly start your own private youth organization, you just can't call it Boy Scouts--just as you can start your own youth baseball league, but you can't call it "Little League."

No new facts. To discuss this case intelligently we need to know: 1. What does the lease actually say? 2. What other organizations have similar leases, and what are their membership/leadership policies? (Do any Roman Catholic churches or charities have such leases, for example?)

"Doesn't the 1st Ammendment give us the freedom of religion? Doesn't this help enforce that?" No, it doesn't, because it only limits the ability to sue public entities for violations of the Establishment Clause. It has no impact on any private citizen's practice of his religion. It's all a farce anyway, because the lawyers in Congress must realize that the proposed law itself is unconstitutional and will get struck down, even by a conservative Supreme Court. Courts really hate laws that limit their jurisdiction or powers, anyway.

Uh huh...very interesting. Again, are you aware of an SE who's doing a great job?

This law, if it ever passes, will probably be found unconstitutional under the Establishment Clause.

"Fred, perhaps back in 1928, the city did not anticipate that the local council would be forced by the national organization to continue a discrimination policy found to be unethical by so many members of not only the local council (who voted UNANIMOUSLY in 2003 to buck the national policy) but also by the local populace in general?" Well, I suspect that if you could go back in time and talk to the city fathers in 1928, they would have been horrified at the suggestion that the Boy Scouts would ever allow atheists or homosexuals to be members or leaders. I don't think they would have anticipated that later city leaders would invalidate the lease for this reason. Has anybody seen the actual lease language? My understanding is that it was leased to BSA for as long as the property was used for scouting purposes. But really, unless we see that actual lease language, it's hard to judge whether it really helps one side or the other in the dispute.

Jkhy, can you tell us about a SE who is doing a good job?

"What if Intervarsity Christian Fellowship, which meets on my college campus, is the only place where I can learn orienteering, a skill I am highly interested in, and which has nothing to do with being a Christian (i.e. scout skills and activities do not inherently require religious belief)? What if participation in ICF is the only thing that will ensure I get a better GPA when I gradutate (i.e. Eagle scouts getting higher pay grade in the military)? Is it still fair to limit participation to Christians only?" I have a few reactions to your questions. As to the orienteering example, yes, I think it's fair. If the ICF wants to teach orienteering to its members, how is that unfair to you? You can start your own orienteering group if you want to. The Veterans of Foreign Wars may have the nicest pool table in town, but I can't play there unless I'm a veteran of a foreign war--that's not unfair. As to your second question, I think your beef is not with ICF, but with the school. I don't think the fact that the military likes Eagle Scoutsmakes it unfair for BSA to have membership limits--it is arguably unfair for the military to give special consideration. But let me go back to the first example for a second, and imagine a scenario in which I would agree with you. Imagine that in a particular town Little League is disbanded, and a new Christian Youth Baseball League is started to take its place--and only Christian boys are allowed to join. I would consider this unfair, especially if it was done to get rid of the nonbelievers. But even there, would I consider it "unfair" if somebody started a Christian Youth Baseball League to compete with Little League for members? There are reasons I wouldn't like such an idea, but it's not really "unfair." I would add that I think it's a mistake to think that BSA was more populist in the past and that the religion and sexual orientation "litmus tests" are new. What is new is a measurable number of people willing to self-identify as atheists or openly gay. It hasn't been all that long since a time when people would have been shocked by the very idea of atheist Boy Scouts or gay scout leaders.

Reading between the lines, it seems to me that the city and the council reached a "wink, wink" deal in 2005 in which the council would state that it doesn't practice "unlawful" discrimination. Perhaps they took into consideration the fact that the council had been there since 1928, and the nondiscrimination policy was enacted only in 2003. For some reason which is not clear, the mayor decided to throw out that deal, and so we get the silly situation of the city solicitor "asking" the council if it discriminates against gays, when obviously he knows the answer. I do think it will be instructive to see whether the city makes similar moves against other organizations with similar leases--I think there are churches on the list, for example.

Trevorum, I think the issue of whether a private group is practicing unjust discrimination is a very difficult one. If we were talking about the United Methodist Youth Fellowship that met only at Methodist churches, I doubt if anybody would say it was unjust to limit membership to Christians, or even just to Methodists. I think probably the same would be true if you extend it to something like the Intervarsity Christian Fellowship, which meets on lots of college campuses--while you might not have to belong to a particular denomination, it wouldn't be unreasonable for such a group to limit its membership to Christians. Or imagine that somebody started a group dedicated to "sharing the understanding of religious faith, open to all persons with faith in God, no matter what tradition." If that group excluded atheists, I don't think it would be unjust. So is BSA different? I think the apparent difference is that religion does not appear to be all that central to Scouting as it is experienced by the typical Scout. This varies from unit to unit, of course, but BSA is decidedly non-sectarian, so what it has to say about religion is by definition quite general, and is not a large portion of what BSA has to say. To me there is no question that religion is a small part of BSA--the trouble is whether it is a small but crucial part, or a small and dispensable part. Your perception of that distinction will determine whether you think it is unjust to maintain the religious membership requirement or not.

"The semantics obscure the fact that some people feel it is OK to tell a 8 year old that he can't be a cub scout because his parents do not believe in supernatural beings or magic." You are right; semantics are important. For example, the statement above seems quite different if it is worded as follows: "Some people feel it is reasonable and not unjust discrimination for a private organization to deny membership to those who do not share the religious beliefs of the organization." I would say that is a more neutral way of putting it than suggesting that "some people" are yokels who believe in "magic."

"Hunt, I think a lawsuit could easily succeed against the BSA, as they clearly knew or should have known that they were inducing a public school into practicing religious discrimination. In Minnesota, that's a crime." Sorry, the likelihood of a civil lawsuit succeeding against BSA is virtually nil, and the likelihood that a prosecutor would choose to prosecute BSA for such a "crime" is even more remote. At most, again, BSA and the school would have to change the chartering organization from the school to somebody else. There would be no fines, no attorney's fees for the plaintiffs, nothing. BSA may have agreed to change school COs in order to avoid lawsuits, but it was potential lawsuits against the schools that were involved. Except for the minor inconvenience of changing the charter, few people in scouting really care whether the sponsor is the school itself or the PTA or some other private organization--because it just doesn't matter to the real-world operation of the unit. The only people who care are those who are concerned about the technical legal purity of the situation--and because you're technically in the right, BSA is humoring you. Your only true opposition is people who, for ideological reasons, think that the schools should be allowed to promote religious values. I know it must be annoying to win your great victory and to find that most of the losers aren't too upset about it, and that nothing really changed as a result, but that's the way the cookie crumbles.

"Nope - in the first case, you'd be subject to a lawsuit, and lose. That's quite a difference. You keep ignoring that, and that's the main reason the BSA agreed to move all their charters." First of all, BSA wouldn't be subject to a lawsuit, the school would be--it's the school ACLU would have to sue. But if there WAS such a lawsuit (far from certain) and if the school did lose (likely but not certain with our new Supreme Court), the result would be that one signature would disappear from the Charter and a different one would appear. Nothing else would change. No public funds would be saved (rather, the public funds spent to defend the lawsuit would be the only funds involved). The unit would continue to meet right there in the same locations with the same members, same leaders, same membership requirements--and most people in the school, the unit, and the community would never even know, understand, or care about the difference. So the end result would be that public funds--including your tax dollars--would be spent to defend a lawsuit that, even if you win, would have virtually no impact other than the technical correction of a paper sponsorship problem. As Brent points out, it is completely different from the 10 Commandments case, since in your case there would be no visible change, unless people choose to read your press release.

"What you don't seem to get, Hunt, is that legally, it was the school's youth group." I do get this, Merlyn, really I do, which you would understand if you read my posts. You are right that TECHNICALLY and ON PAPER the chartering organization "owns" the scouting unit. What you don't seem to get is that in the REAL WORLD public schools typically do not "run" scouting units, nor do the actual human beings in the schools and the scouting units think of the unit as the "school's youth group." They think of it as the Cub Scout Pack that meets at the school--which it continues to be after the signature on the charter changes to the PTA or somebody else. Therefore in the REAL WORLD (as opposed to the world of legal theory and ideological purity), the primary impact of BSA's capitulation to ACLU's demands was that a bunch of volunteers had to run around and find somebody else to sign the charter papers. I see that this nevertheless seems important to you, and I guess everybody needs a hobby--but really, all you've done is inconvenience some people, and it's not even that much of an inconvenience.

It's true that imposing an attendance requirement will solve this problem, but the solution could be either to spark the problem boy to come to more meetings, or to drop out entirely. As long as you'd be happy with either of these results, an attendance requirement will work.

"I don't agree, Hunt, with public schools being one of the largest chartering partners back in the 1990s, the BSA was obviously acting like a public accommodation. The BSA is now, finally, being forced to act like a real private organization, which does not resemble their actions around the time of the Dale litigation. Real private organizations don't have public schools running their "private" clubs." What you don't seem to get, Merlyn, is that in the real world, virtually none of those schools "ran" the private club. They provided no funds, no oversight, no staffing, and no services other than a place to meet, which they also provided to other groups that they didn't charter. All they really provided was a signature on a piece of paper, and thus for most of those units the only change that is happening is that a different signature will appear on that piece of paper. Virtually nobody in the school or in the scout unit likely even understood the distinction between the school "chartering" the unit and the school allowing some other group to meet there. The Cub Scout pack was no more a public accomodation in any real sense than any other private group that was meeting in the school. Getting schools to stop chartering scout units will save the public very little money, if any. (It may even result in net costs, if scout units stop putting up flagpoles and doing other projects around public schools.) In sum, I can see the point in the abstract that public schools shouldn't charter units, but the practical impact of doing something about it is so minimal that I just can't see why it would be a priority for anybody when there are much greater injustices that actually have an impact. As I said before, it's probably counterproductive if your real goal is to get BSA to change its membership policies, because it sends more units to chartering organizations likely to support those policies.

I don't like O'Reilly because of his mean streak--I've watched him enough to see it, and I don't need to see it any more. For whatever reason, the kind of mean commentary engaged in by Rush Limbaugh and others has been much more successful for commentators on the right than those on the left--Al Franken has struggled to get an audience for is similar, but liberal approach. I think many liberals are listening to NPR and not watching TV news at all. NPR ratings have gone up while most radio listenership has gone down.

My idea is to be able to say, "Oh, no--uniforms aren't required at meetings of this troop--except, of course, everyone wears a complete uniform when.... because....." Maybe we could start a new group: the SUP, or Secret Uniform Police.

In my youth, I was watched quite a bit of wrestling on TV, and it was always clear to me that it was...well, let's just say that the action embodied some clear themes, and that there was a certain predictable flow to the events. But my friend and I attended several live pro wrestling events when they came through my town, and I was surprised to see the level of belief (at least apparent belief) among members of the audience. I remember seeing Brute Bernard, Swede Hansen, and Greg Valentine in person--many more on TV--my favorite was Dusty Rhodes. I will say that those guys were really strong, and the moves and stunts they did required a lot, and could really hurt a person. A couple of years ago I saw Ivan Koloff signing autographs in a Wal-Mart--he could barely walk. Sigh.

"Actually, I never thought the goal of the ACLU was to open the BSA to gays and atheists. I thought their goal was to fight violations of civil liberties." I generally agree with this (are they really representing Phelps?--ugh), but if ACLU really took that approach, it would have been on BSA's side in the Dale case, in which BSA's rights of association were threatened. That case had nothing to do with public schools, but involved an attempt to use a New Jersey law forbidding discrimination in places of public accomodation to force BSA--a private organization--to stop discriminating--this should have been anathema to a civil liberties group, but they took the opposite side.

Hey, guys, I have good news! You're both right! As a technical legal matter, Merlyn is right--public schools can't charter an organization that discriminates on the basis of religion. But on the practical level, Brent is right--the vast majority of units will see absolutely no change in their day-to-day operation, because school and PTA CORs typically have almost nothing to do with the scouting unit--generally they provide no money or support, other than a place to meet--and the school would generally supply the place to meet anyway. A very few units may have to pay a nominal fee for the use of the school. A tiny number may have to move to a new COR, like a church--which will probably be better for them anyway, in my opinion. Merlyn, you may have slain a dragon, but it turned out to be an itty-bitty one--and what's more, you helped strengthen BSA's commitment to its religious requirement.

I've noticed that professional wrestling is more popular than opera. Perhaps if those hefty singers would add some more body slams and eye gouges, they would expand their audience.