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The ACLU's 30 Years War

Will the Boy Scouts ever hold their Jamboree at Fort A.P. Hill again?

12:00 AM, Aug 8, 2005 • By SCOTT W. JOHNSON
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A WEEK AGO YESTERDAY President Bush spoke before the more than 30,000 Boy Scouts attending the 16th National Scout Jamboree. The tragic deaths by electrocution of four adult Scout leaders on July 25 dominated news of the Jamboree, and the coverage of Bush's speech was perfunctory at best. Like many of President Bush's formal speeches, however, his remarks are worth reading in their entirety. They are eloquent, funny, personal, and moving.

Bush first noted that the "Scouts have set a high standard of service and duty to God and country." He observed that "through the generations, Scouts have made America a stronger and better country." After identifying the prominent former Scouts who serve in his administration, Bush paid tribute to the principles underlying the Scout movement and provided some striking advice regarding the enemies of those principles:

When you join a Scout troop and put on the Boy Scout uniform you make a statement. Your uniform is a sign that you're a certain kind of citizen--trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent. These are the values of scouting, and they're important values for America. By working to live up to them, you're bringing great credit to yourselves and to our nation . . .

[A]lways remember where you come from and what you believe. At times, you may come across people who say that moral truth is relative, or call a religious faith a comforting illusion . . . But remember, lives of purpose are constructed on the conviction that there is right and there is wrong, and we can know the difference.

In the years ahead you will find that indifferent or cynical people accomplish little that makes them proud. You'll find that confronting injustice and evil requires a vision of goodness and truth. You'll find that many in your community, especially those younger than you, look to you as an example. For your sake, and for the sake of our country, I hope you'll always strive to be men of conviction and character.

The Jamboree took place at Fort A.P. Hill in Caroline County, Virginia--its permanent home since 1981. Yet most coverage of the president's speech failed to note that the 2005 Jamboree may be the Scouts' last at the site. On June 22, Illinois federal district court Judge Blanche Manning prohibited the Defense Department from allowing the Scouts to use the site for future Jamborees.

WHY? Well, for the past 25 years the American Civil Liberties Union has conducted a legal war on the Boy Scouts. In 1980, the ACLU filed its first lawsuit seeking to remold the Scouts into an organization more to its liking. Claiming that the Scouts constituted a "public accommodation" for the purpose of state and local civil rights laws, the ACLU brought a discrimination suit against the Scouts on behalf of a troop leader excluded from membership after he took a male date to his senior prom. According to the ACLU throughout years of litigation, the Scouts didn't believe in anything in particular, so that its associational rights were not infringed by subjugation to the imperatives of state and local discrimination law.

That lawsuit was the first salvo in the ACLU's war on the Scouts; the ACLU subsequently brought similar lawsuits on behalf of homosexual Boy Scout leaders including James Dale. In the Supreme Court's 2000 decision in the Dale case, the Court rejected the ACLU's argument and held that the Scouts had a First Amendment right to determine their membership.

The Dale case represented only one of many fronts in the ACLU's war, though. In 1999, while the Dale case was working its way through the courts, the ACLU opened a second front in Winkler v. Chicago School Reform Board of Trustees. In Winkler, the ACLU contended that the Scouts are--contrary to the argument the ACLU pressed in Dale--a religious organization. Whereas the ACLU argued in Dale that the Scouts believed too little to qualify for First Amendment protection from governmental intrusion, in Winkler they argued that the Scouts believe too much, so to speak, to allow for governmental support. The ACLU attacked governmental support of Scouting programs as violating the Establishment Clause of the First Amendment.

Judge Manning has dismissed certain of the ACLU claims on technical grounds, but has found that the federal statute authorizing the Defense Department to provide services and supplies in connection with Boy Scout Jamborees is unconstitutional. On June 22, Manning entered an order enjoining the Defense Department from providing aid under federal law for future Boy Scout Jamborees. Unless Judge Manning's order is reversed--a big "if" in light of the tortured condition of the Supreme Court's Establishment Clause jurisprudence--the Boy Scouts' 2005 Jamboree will be its last at Fort A.P. Hill.

In his speech at the Jamboree, President Bush warned the Scouts that in the future they would confront indifferent or cynical people who accomplish little that makes them proud. With slight modification, this description seems to fit the forces of the ACLU with which the Scouts have now been contending for more than a generation. These forces have accomplished much, and although they should be ashamed, they are undoubtedly proud.

Scott Johnson is a contributing writer to THE DAILY STANDARD and a contributor to the blog Power Line.