- The Washington Times - Wednesday, December 1, 2004

First the Pentagon plans to send away the Boy Scouts. Then Defense Secretary (and Eagle Scout) Donald Rumsfeld promises he won’t allow that. Now Congress is making noises about backing up the Scouts with legislative protection. A growing number of legal scholars think the arguments against the Boy Scouts of America no longer stand scrutiny, and we’re heartened to hear it.

Trouble for the Boy Scouts began with a lawsuit filed in 1999 by the American Civil Liberties Union. The ACLU argues that the Pentagon is wrong to allow military sponsorship of Scout troops because Scouts are required to pledge belief in God. To the ACLU, that’s religious discrimination. The ACLU argues further that since military bases sponsor about 400 Boy Scout units and spend $2 million annually to support Boy Scout jamborees, the government is guilty, too. The ACLU wants to evict the Boy Scouts from military bases. This would constitute discrimination against the Boy Scouts of America, not by them, but this does not impress the ACLU.

Things took a turn for the worse in mid-November, when a group of Pentagon lawyers reached a settlement that would have prevented military bases from sponsorship. Congress cried foul. That’s when Mr. Rumsfeld stepped in. “The Department of Defense takes great pride in its longstanding and rich tradition of support to the Boy Scouts of America,” he wrote to a group of congressmen, and vowed that Boy Scouts would be allowed to stay on the bases. Now Republican leaders in the Senate plan to codify these ties.

The best news of all is that the ACLU’s interpretation of the First Amendment provision “that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” — sometimes characterized as the “separation of church and state,” and the basis for the ACLU’s argument — is eroding in legal circles. There’s growing belief that the framers of the Constitution never intended this clause to compel absolute separation of church and state. Philip Hamburger, a legal historian at the University of Chicago, argues that the separation doctrine was actually a late-nineteenth-century fabrication of anti-Catholic nativists. The clause itself says nothing about separation. Read it again: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That implies neutrality toward religion, not absolute separation. Neutrality means that the Boy Scouts, like any civilian group that uses the bases, is only subject to law and to the approval of appropriate military authorities.

Nevertheless, we urge the Senate to follow through to shore up the Boy Scouts’ ties with military bases. The House should promptly follow. The ACLU lawyers should not be allowed to dispose of wholly constitutional associations like those between the Boy Scouts and the military.