Defending the Boy Scouts

Tomorrow the ACLJ will file an amicus brief with the U.S. Court of Appeals for the Seventh Circuit on behalf of 88 members of the House and Senate. 

Since 1937, the United States military has provided supplies and services in support of the National Scout Jamboree held every four years by the Boy Scouts of America (the BSA).  Congress formally recognized this tradition in 1972 by passing the Jamboree statute, authorizing the Department of Defense to provide such support for the Jamborees. The militarys support of Jamborees came into question when Eugene Winkler and other federal taxpayers brought the current lawsuit. Winkler sought to enjoin the enforcement of the Jamboree statute and other programs under which the BSA is eligible to receive some form of federal aid.  The plaintiffs claimed that the Jamboree and other statutes were laws respecting an establishment of religion in violation of the First Amendment to the United States Constitution because the BSA has a religious component to its activities and beliefs. The District Court denied most of the plaintiffs claims.  The court sustained the challenge to the Jamboree statute, holding that it violated the Establishment Clause because it had the primary effect of advancing religion.  

The District Courts holding that the Jamboree statute violated the Establishment Clause was flawed in three respects.  First, the District Court failed to give appropriate weight to the context and purpose of the Jamboree statute. The statute is one small part of a much larger statutory and regulatory scheme which allows the military to pursue its own recruiting and public relations interests through involvement with private organizations. In enacting the Jamboree statute, Congress sought to help the military advance its own goals, not promote BSAs religious beliefs.  Second, the District Courts extensive reliance on Agostini and Mitchell was misplaced, as those cases were designed primarily to address the unique issues raised by school aid programs. The endorsement testwhich has been repeatedly applied by this Courtis most appropriate here and leads to the conclusion that the militarys support of BSA Jamborees is constitutional.  Finally, to the extent that Agostini and Mitchell are relevant to this case, the District Court rigidly applied Agostinis three primary criteria as if this were a school aid case without giving adequate consideration to the rationale driving Agostini and Mitchell.