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Supreme Court Says Scouts Can Exclude Scouts over Duty to God

By Joan Biskupic
The Washington Post

WASHINGTON

The Supreme Court Monday permitted the Boy Scouts of America to exclude boys who refuse to express a belief in God. The justices rejected an appeal by a 10-year-old who was barred from a suburban Chicago Cub Scout pack after he said he was agnostic.

The justices, in a one-sentence order, left intact a lower court ruling that said the Boy Scouts are not subject to a federal law prohibiting discrimination in public accommodations based on race, color, religion or national origin. No justices publicly dissented from the order.

The 7th U.S. Circuit Court of Appeals, based in Chicago, had ruled that the Scouts are not a "place" of public accommodation and even if the nationwide organization were, it still would be excluded from the federal anti-discrimination law because it is a private club.

"It's dispiriting," said Richard Grossman, the lawyer for Mark Welsh, who was rejected three years ago for the Tiger Cubs. "He got solicited in his public school classroom. They said, `Come and join the Boy Scouts. It's lots of fun.' "

Monday's high court order was the latest action in the Boy Scouts' effort to control its membership and defend the Boy Scout oath that requires Scouts "to do my duty to God and my country." In each Scout program a boy recites a pledge appropriate to his age. The Tiger Cub promise begins, "I promise to love God."

In addition to complaints from atheists and agnostics about the oath, the Scouts have been attacked in court for excluding girls from membership and homosexuals from leadership positions. So far, the Scouts have not been forced to abandon any membership restrictions in a final court ruling.

Few federal laws cover clubs such as the Boy Scouts, and, therefore, most challenges to the organization's rules have been brought under state laws, which would not be affected by Monday's order letting the 7th Circuit's ruling stand.

Even so, the ruling from the circuit that covers Illinois, Wisconsin and Indiana, now is likely to be cited by the Scouts nationwide when anyone alleges race or religious bias under federal public-accommodations law. That statute does not apply to unlawful sex discrimination.

Some state courts have intepreted broadly written state public-accommodation laws to cover the Boy Scouts. In California, for example, the Scouts are appealing a ruling won by two would-be Cub Scouts who do not believe in God.

The Boy Scouts say that the "duty to God" is central to the organization's mission: "If some members of a Cub Scout Den did not recognize a duty to God or other parts of the promise, it would destroy the group's unity," the Scouts' brief said.

In an unusual move for a winning party, the Boy Scouts had urged the Supreme Court to take Monday's case of Welsh vs. Boy Scouts of America and to use it to speak definitively about the Scouts' First Amendment rights "to form an association for the purpose of expressing, transmitting and reinforcing certain values and beliefs, including religious ones, and to limit membership to those who share those values and beliefs."

Lawyer George A. Davidson told the justices, "There are limits on the financial and administrative capacity of any volunteer organization to litigate these cases in forum after forum."

The 7th Circuit majority did not address any constitutional concerns after concluding that the Boy Scouts did not have to comply with anti-discrimination section of the 1964 Civil Rights Act on public accommodations. The court said the Scouts are not an "establishment" or a "place" of entertainment within the meaning of the act.