Barnes-Wallace v. Boy Scouts of AmericaAll Boy Scout leaders must subscribe to the Scout Oath and Law. Together, these entail acknowledging a duty to God, living a “morally straight” life, and recognizing religious reverence as a virtue. At the same time, however, the Scoutmaster Handbook stresses that the Boy Scouts is a nonsectarian organization, and that religious instruction remains the responsibility of a Scout’s parent or guardian and his religious institution. But even so, the Scouts policies have led to numerous lawsuits.
In 1987 and 2002 the City of San Diego leased two parkland properties to the Boy Scouts of America under a lease program that allowed over 100 nonprofit organizations to use public lands for little or no rent in exchange for providing for the cultural, educational, and recreational enrichment of the citizens of the City. The plaintiffs, a lesbian and an agnostic couple, assert that the Scouts membership policies combined with the City’s long-term lease is an unconstitutional establishment of religion under the federal and state constitutions, and violates one of California’s two Blaine Amendments prohibiting state financial support for “sectarian” institutions.
In its opinion of July 31, 2003, a California federal court found that the Boy Scouts policies proved that they are a religious organization and then held that the City’s action of negotiating a lease exclusively with the Boy Scouts constituted an unconstitutional endorsement of religion. The court struck down the leases because, in the court’s opinion, a “reasonable observer” would perceive the leases to be a government advancement of religion. Additionally, the court relied one of California’s Blaine Amendments to ban the leases as an unconstitutional state funding of the Boy Scouts religious or “sectarian” purposes (California’s other Blaine Amendment did not apply as it targets only sectarian schools).
On appeal, the Becket Fund filed an amicus brief [PDF 100k] with the Ninth Circuit arguing that laws that single out the “sectarian” for exclusion from government benefits, though widespread in this country, share a common and pernicious heritage such that they cannot be enforced without violating the United States constitution.
Though the tradition of religious discrimination against so-called “sectarian” institutions is unfortunately long-standing, it does not originate with James Madison, Thomas Jefferson, or any other framers of the federal constitution. Instead, it emerged with force about a half-century later as part of a broader cultural movement reacting against a growing religious minority, whose controversial beliefs directly threatened the dominant religious ideology of the day. At its peak, American nativism succeeded not only in buttressing its hostility to Catholic immigrants (and especially their schools) with the force of law, but also in cloaking and mythologizing that hostility with the rhetoric of religious freedom and the authority of the founders. See generally PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (Harvard 2002).
Regrettably, Article XVI, Section 5 of the California Constitution falls squarely within this tradition. It is a true Blaine Amendment. That is, it is one of many “antisectarian” no funding provisions inserted into state constitutions throughout the country in the latter half of the 19th century, when nativist fervor was at its height. Unlike the “no compelled support” provision recently upheld by the U.S. Supreme Court in Locke v. Davey, 540 U.S. 712 (2004), Article XVI, Section 5 of the California Constitution targets the “sectarian,” instead of the “religious” generally, for exclusion from government funding programs. And when Article XVI, Section 5 was passed in 1879, that distinction was laden with meaning: “sectarian” referred to those faiths (especially Catholicism) that resisted assimilation to the “nonsectarian” Protestantism taught as the “common faith” in what were known as the “common schools” (i.e., public schools).
The case is Barnes-Wallace v. Boy Scouts, 275 F. Supp. 2d 1259 (S.D. Cal. 2003) was appealed to the Ninth Circuit court of appeals. Oral argument was heard in February of 2006. On December 18, 2006, the Ninth Circuit court of appeals handed down an order requesting the California Supreme Court rule on three questions related to the Blaine Amendment in the state Constitution. The Supreme Court must now decide whether to accept the request of the Ninth Circuit.
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