Targeting the Scouts

by William C. Duncan & Michael T. Worley

Following closely on the decision of the Boy Scouts of America to retain its longstanding policy of requiring leaders to adhere to the organization’s policies regarding sexual morality, the California state senate approved a bill providing: “An organization organized and operated exclusively as a public charity youth organization that discriminates on the basis of gender identity, race, sexual orientation, nationality, religion, or religious affiliation shall not be exempt from taxes imposed by this part.” Current law specifically lists the Cub Scouts and Boy Scouts among the exempt organizations, but this bill adds the requirement that they “shall not discriminate on the basis of gender identity, race, sexual orientation, nationality, religion, or religious affiliation.” Notice the inclusion of “gender identity” and “religion.” To regain tax exemption, the bill suggests, the Scouts would have to allow men and boys who take on the appearance of women and atheists to be members and leaders. In other words, they would have to abandon the things that make Scouting what it is, including a recognition of each Scout’s “duty to God” which the recent policy says is “a core value and immutable tenet of the Boy Scouts of America.”

There’s reason to doubt that the California Legislature’s moral preening is even constitutional. The Scouting organization is explicitly religious and the free-exercise protections are not applicable only to actual religious sects. This bill targets, very specifically, a youth organization with a religious mission by penalizing it while favoring religious and other organizations that have adopted a state-approved notion of morality.While the religious liberty recognized by the U.S. Supreme Court is not currently robust (a law that applies to all doesn’t violate the Constitution even if it adversely impacts religious exercise), the Court has made clear that if a law targets religious practice it is unconstitutional. That appears to be precisely what is happening here. California would be singling out the Scouts for adverse treatment (removal of a tax exemption) because of the organization’s policies on religious matters including sexual morality and belief in God.As the Supreme Court ruled in Church of Lukumi Babalu Aye v. City of Hialeah, “If the object of a law is to . . . restrict practices because of their religious motivation, the law is not neutral.”

The text of the law is enough to rebut any presumption of neutrality, but the bill’s author has gone further, making the targeting explicit in a speech on the Senate floor, including this statement: “We’ve given the Boy Scouts ample time to solve their discrimination problem and they’ve chosen a path that still leads to discrimination.”

The most recent religious-freedom decision from the Supreme Court, Hosanna-Tabor v. E.E.O.C., is also analogous. The Court there said a church’s “authority to select and control who will minister to the faithful” is protected by the First Amendment. Why should that not be true for an organization with an explicit religious mission just because it is not formally organized as a church? In fact, 70 percent of Scout units are chartered by churches who select the leaders of the unit.

In pursuing unconstitutional legislation, the California legislature’s grandstanding only increases costs for boys and the taxpayers of California. It’s a legal and moral embarrassment and exceedingly poor public policy.

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