IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EUGENE WINKLER, GARY GERSON, )
TIMUEL BLACK, MARY CAY )
MARUBIO, and C. DOUGLAS }
FERGUSON, )
)
Plaintiffs, )
) NO.
v. )
)
CHICAGO PUBLIC SCHOOLS, )
on its own behalf and on behalf of all )
those entities similarly situated; and )
UNITED STATES TRANSPORTATION )
COMMAND, on its own behalf and on )
behalf of all those entities similarly situated, )
)
Defendants. )
COMPLAINT
Plaintiffs Eugene Winkler, Gary Gerson, Timuel Black, Mary Cay Marubio, and C. Douglas
Ferguson, by their attorneys, make their complaint against Defendants as follows:
PRELIMINARY STATEMENT
1. This is a civil rights suit in two counts.
2. Count I is an Illinois statewide class action challenging the expenditure of Illinois
state tax funds in the operation of Boy Scout youth activity programs by the Chicago Public
Schools and other units of local government in Illinois [together, "the Local Government
Agencies"]. As alleged in detail below, the Local Government Agencies exclude youth and
adult participants from these programs on the basis of religious belief, and require
participants to affirm belief in God. The Local Government Agencies' actions violate the Establishment Clause of the First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
3. Count II is a nationwide class action challenging the expenditure of federal tax funds in the operation of Boy Scout youth activity programs by the United States Transportation Command ["USTRANSCOM"] and other federal agencies [together, "the Federal Government Agencies"]. As alleged in detail below, the Federal Government Agencies exclude youth and adult participants from these programs on the basis of religious belief, and require participants to affirm belief in God. The Federal Government Agencies' actions violate the
Establishment Clause of the First Amendment to the United States Constitution.
4. This Complaint is brought against Defendants by Plaintiffs [collectively "the
Taxpayers"] pursuant to the First Amendment to the United States Constitution, 42 U.S.C.
§§ 1983 and 1988, and 28 U.S.C. §§ 2201, 2202 and 2412. The Taxpayers seek declaratory and
injunctive relief.
COUNT I
(Local Government Agencies)
JURISDICTION AND VENUE
5. This Court has jurisdiction over this Count under 28 U.S.C. §§ 1331 and 1343.
6. Pursuant to 28 U.S.C. § 1391, venue is proper in this District because Plaintiff Taxpayers
and the Chicago Public Schools are located in the Northern District of Illinois, and the acts
described took place within the Northern District of Illinois.
PARTIES
PLAINTIFFS
7. Plaintiff Eugene Winkler is a resident of Chicago, Illinois. He pays Illinois state
taxes. Reverend Winkler is an ordained Methodist minister. He believes in the separation of
church and state, and therefore objects to the Local Government Agencies' expenditure of state tax monies in their endorsement of religion.
8. Plaintiff Gary Gerson is a resident of Oak Park, Illinois. He pays Illinois state taxes. Rabbi Gerson is an ordained Reform rabbi. He is the parent of two teenaged daughters. Rabbi Gerson believes in the separation of church and state, and therefore objects to the Local Government Agencies' expenditure of state tax monies in their endorsement of religion.
9. Plaintiff Timuel Black is a resident of Chicago, Illinois. He pays Illinois state taxes.
Mr. Black has been an advocate for civil rights for decades. He believes in the separation of
church and state, and therefore objects to the Local Government Agencies' expenditure of state tax monies in their endorsement of religion.
10. Plaintiff Mary Cay Marubio is a resident of Chicago, Illinois. She pays Illinois state taxes. Ms. Marubio is active in Chicago's lesbian and gay community. She believes in the
separation of church and state, and therefore objects to the Local Government Agencies' expenditure of state tax monies in their endorsement of religion.
11. Plaintiff C. Douglas Ferguson is a resident of Chicago, Illinois. He pays Illinois state taxes. Mr. Ferguson is an Eagle scout. He believes in the separation of church and state, and therefore objects to the Local Government Agencies' expenditure of state tax monies
in their endorsement of religion.
DEFENDANTS
12. Defendant Chicago Public Schools ["the School District"] is an Illinois
municipal corporation.
13. The School District "sponsors" - expends Illinois state tax monies in its
ownership and operation of one or more Boy Scout Troops, Cub Packs, Venturing Crews, Sea Scout
Ships, and/or Varsity Scout Teams [individually "a Scouting Unit," collectively
"Scouting Units"] chartered by the Boy Scouts of America, Inc. ["BSA"].
DEFENDANT CLASS ALLEGATIONS - LOCAL GOVERNMENT AGENCY CLASS
14. The Taxpayers bring this class action for declaratory and injunctive relief against
Defendant Local Government Agency Class, consisting of each Local Government Agency in
Illinois that sponsors Scouting Units chartered by BSA.
15. All of the prerequisites to a defendant class action as stated in Rule 23(b)(1) and (2)
are satisfied by the class:
(a) The defined defendant class is so numerous that joinder of all defendants is
impracticable.
(b) There are questions of law and fact common to the defendant class. Those common questions
include whether defendants have violated the Establishment Clause of the First Amendment in
the sponsorship of Scouting Units.
(c) The potential defenses of the named Defendant are typical of the defenses of each member
of the defendant class, since each Defendant's policies and practices with respect to its endorsing religion in the sponsorship of Scouting Units are substantially identical.(d) The named Defendant will fairly and adequately represent the interests of the class.(e) The prosecution of separate actions against individual members of the defendant class would create a risk of varying or inconsistent adjudication which would establish incompatible standards of conduct for the Local Government Agencies.
(f) The named Defendant has acted on grounds generally applicable to the class in sponsoring one or more Scouting Units, thereby making appropriate the final injunctive and declaratory relief prayed for by Plaintiffs.
FACTUAL ALLEGATIONS
16. For purposes of this Count I, the term "Government Agencies" as used in paragraphs 17 - 55 shall mean Defendant Chicago Public Schools and each member of Defendant
Local Government Agency Class (together, "the Local Government Agencies").
SCOUTING UNITS
17. BSA has established various youth programs for use by community organizations.
18. BSA-affiliated youth programs endeavor to develop American citizens who have personal values based on religious concepts; who understand the principles of the American social, economic, and governmental systems; and who have a keen respect for the basic rights of all people.
19. Scouting programs are organized into individual local Scouting Units affiliated with one of three membership divisions of BSA: Cub Scouting (including Tiger Cubs); Boy Scouting (including Varsity Scouts); and Venturing (including Sea Scouts).
20. "Cub Scouting" is a program for boys in the first through fifth grades (or ages 7, 8, 9, or 10). First-grade boys (Tiger Cubs) meet twice a month, while Wolf Cub Scouts
(second-graders), Bear Cub Scouts (third-graders), and Webelos Scouts (fourth- and fifth-
graders) meet weekly. Scouting Units in Cub Scouting are called "packs." Youth
members of packs are called "Cub Scouts."
21. "Boy Scouting" is available to boys who have completed the fifth grade, or who
are 11 through 17 years old. Scouting Units in Boy Scouting are called "troops."
Youth members of troops are called "Boy Scouts."
22. "Varsity Scouting" is part of BSA's Boy Scouting program. Varsity Scouting is
a program for young men aged 14 through 17. Scouting Units in Varsity Scouting are called
"teams." Youth members of teams are called "Varsity Scouts."
23. "Venturing" is a youth development program for young men and women who are 14
(and have completed the eighth grade) through 20 years of age. Scouting Units in Venturing
are called "crews." Youth members of crews are called "Venturers."
24. "Sea Scouting" is part of BSA's Venturing program. Sea Scouting is a co-educational program offered to young adults between the ages of 14 and 20. Scouting Units in
Sea Scouting are called "ships." Youth members of ships are called "Sea
Scouts."
ROLE OF CHARTERED ORGANIZATIONS IN SCOUTING
25. BSA makes its Scouting programs available for use by community organizations such as professional organizations, government bodies, and religious, educational, civic, fraternal, business, labor, and citizens' groups.
26. The community organizations that operate each Scouting Unit are called "chartered
organizations."
27. The charter agreement between BSA and each chartered organization operating a Scouting
Unit enables the chartered organization to use the Scouting program under its own management
and leadership.
28. The chartered organization is responsible for providing leadership, the meeting place,
and support materials for Scouting Unit activities.
29. Volunteer adult leaders are chosen by the chartered organization, and serve in a variety
of jobs - everything from unit leaders to chairmen of troop committees, committee members,
merit badge counselors, and chartered organization representatives.
SPONSORING OF SCOUTING UNITS BY THE GOVERNMENT AGENCIES
30. Each Government Agency "sponsors" - expends tax monies in its ownership and
operation of - one or more Scouting Units chartered by BSA.
31. For example, the School District sponsors Sea Scout Ship Kelly (Number 5537) at Kelly
High School. This Sea Scout Ship is organized to promote better citizenship and to improve
members' boating skills and knowledge through instruction and practice in water safety, boating skills, outdoor, social, and service experiences, and knowledge of our maritime heritage.
32. The annual charter agreement for each Scouting Unit provides that the Government Agency will operate its Scouting Unit subject to the provisions of the Charter and Bylaws and Rules and Regulations of BSA. (See attached Exhibit A- Annual Charter Agreement form.)
33. Although the Scouting Units are chartered by BSA, each Scouting Unit is owned and operated by a Government Agency.
34. The Government Agencies are responsible for selecting youth members and adult volunteer leaders for the Scouting Units.
35. The Government Agencies are responsible for the content of the program provided in the Scouting Units.
RELIGIOUS DECLARATIONS, OATHS, AND AFFIRMATIONS
36. The BSA Declaration of Religious Principle provides: The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God and, therefore, recognizes the religious element in the training of the member, but is absolutely non-sectarian in its attitude toward that religious training. The Boy Scouts of America's policy is that the home and the organization
or group with which the member is connected shall give definite attention to religious life.
Only persons willing to subscribe to this Declaration of Religious Principle and to the Bylaws
of the Boy Scouts of America shall be entitled to certificates of leadership.
37. Under the Bylaws and Rules and Regulations of BSA, all adult volunteer leaders in
Scouting Units are required to subscribe to the Declaration of Religious Principle.
38. The Scout Oath (or promise) provides:
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
39. Under the Bylaws and Rules and Regulations of BSA, all Scouts and Varsity Scouts are
required to subscribe to the Scout Oath.
40. The Cub Scout Promise provides:
I, [name], promise to do my best
To do my duty to God and my country,
To help other people, and
To obey the Law of the Pack.
41. Under the Bylaws and Rules and Regulations of BSA, all Cub Scouts are required to
subscribe to the Cub Scout Promise.
42. The Tiger Cub Promise provides:
I promise to love God,
my family, and my country,
and to learn about the world.
43. Under the Bylaws and Rules and Regulations of BSA, all Tiger Cubs are required to
subscribe to the Tiger Cub Promise.
44. The Venturing Oath provides:
As a Venturer, I promise to strengthen America,
to be faithful in my religious duties,
to help others,
and to seek truth, fairness, and adventure in our world.
45. Under the Bylaws and Rules and Regulations of BSA, all Venturers and Sea Scouts are
required to subscribe to the Venturing Oath.
THE GOVERNMENT AGENCIES EXCLUDE PARTICIPANTS ON THE BASIS OF RELIGIOUS BELIEF
46. As a condition of receiving authority from BSA to operate Scouting Units, the Government
Agencies must certify that all adult volunteer leaders subscribe to the "BSA Declaration
of Religious Principle." (See attached Exhibit B - Charter Renewal Application
Instructions; Exhibit C - Adult Leader Application.)
47. BSA has adopted a written policy that only persons who believe in God may participate in
Scouting Units as adult volunteers or youth members.
48. Pursuant to their charter agreements with BSA, the Government Agencies have adopted a
policy of excluding persons who do not believe in God from participating as adult volunteer
leaders or as youth members in the Scouting Units that they sponsor.
THE GOVERNMENT AGENCIES REQUIRE PARTICIPANTS TO AFFIRM RELIGIOUS BELIEF
49. BSA has adopted a written policy that only persons who affirm a belief in God may
participate in scouting programs as adult volunteer leaders or youth members.
50. Under the Bylaws and Rules and Regulations of BSA, all adult leaders and youth
participants in Scouting Units are required to make the affirmations of religious belief in
the oaths and promises set forth above in Paragraphs 36 through 45.
51. Pursuant to their charter agreements with BSA, the Government Agencies have adopted a
policy of requiring adult volunteer leaders and youth members to affirm religious belief as a
condition of participation in the Scouting Units that they sponsor.
THE GOVERNMENT AGENCIES' CONDUCT ESTABLISHES RELIGION
52. The Government Agencies' sponsorship of Scouting Units endorses religion.
53. The Government Agencies' policy excluding participants from Scouting Units on the basis of religious belief has a predominantly religious effect.
54. The Government Agencies' policy requiring participants in Scouting Units to affirm belief
in God has a predominantly religious effect.
55. The Government Agencies' policy of sponsoring Scouting Units both endorses religion and has a predominantly religious effect.
CLAIM FOR RELIEF ON COUNT I
56. Plaintiffs have suffered irreparable injury because the Local Government Agencies advance religion by expending Illinois state tax funds in the operation of Scouting Units.
57. Plaintiffs will continue to suffer irreparable injury in the absence of injunctive relief, and lack any adequate remedy at law.
58. The Local Government Agencies' sponsorship of the Scouting Units violates Plaintiffs' right to be free from the unconstitutional establishment of religion guaranteed by the First Amendment to the United States Constitution, and made applicable to the states by the Fourteenth Amendment to the United States Constitution.
PRAYER FOR RELIEF ON COUNT I
WHEREFORE, Plaintiffs request that this Court:
A. Issue a judgment declaring that the Local Government Agencies have violated the Establishment Clause of the First Amendment to the United States Constitution by sponsoring Scouting Units under policies that limit participation in Scouting Units on the basis of religious belief and that require participants in Scouting Units to make religious affirmations.
B. Issue a permanent injunction enjoining the Local Government Agencies from sponsoring Scouting Units that (1) limit participation on the basis of religious belief or (2) require participants to make religious affirmations.
C. Award Plaintiffs their costs, expenses and reasonable attorneys' fees pursuant to 42
U.S.C. § 1988.
D. Grant any additional relief that the Court deems just and proper.
COUNT II
(Federal Government Agencies)
JURISDICTION AND VENUE
59. This Court has jurisdiction over this Count under 28 U.S.C. § 1331.
60. Pursuant to 28 U.S.C. § 1391, venue is proper in this District because Plaintiff
Taxpayers are located in the Northern District of Illinois.
PARTIES
PLAINTIFFS
61. Plaintiff Eugene Winkler is a resident of Chicago, Illinois. He pays federal taxes.
Reverend Winkler is an ordained Methodist minister. He believes in the separation of church
and state, and therefore objects to the Federal Government Agencies' expenditure of federal tax monies in their endorsement of religion.
62. Plaintiff Gary Gerson is a resident of Oak Park, Illinois. He pays federal taxes. Rabbi Gerson is an ordained Reform rabbi. He is the parent of two teenaged daughters. Rabbi Gerson believes in the separation of church and state, and therefore objects to the Federal Government Agencies' expenditure of federal tax monies in their endorsement of religion.
63. Plaintiff Timuel Black is a resident of Chicago, Illinois. He pays federal taxes. Mr.
Black has been an advocate for civil rights for decades. He believes in the separation of
church and state, and therefore objects to the Federal Government Agencies' expenditure of federal tax monies in their endorsement of religion.
64. Plaintiff Mary Cay Marubio is a resident of Chicago, Illinois. She pays federal taxes. Ms. Marubio is active in Chicago's lesbian and gay community. She believes in the separation
of church and state, and therefore objects to the Federal Government Agencies' expenditure of federal tax monies in their endorsement of religion.
65. Plaintiff C. Douglas Ferguson is a resident of Chicago, Illinois. He pays federal taxes. Mr. Ferguson is an Eagle scout. He believes in the separation of church and state, and therefore objects to the Federal Government Agencies' expenditure of federal tax monies in
their endorsement of religion.
DEFENDANTS
66. The United States Transportation Command ["USTRANSCOM"] is an agency of the
federal government.
67. USTRANSCOM is headquartered at Scott Air Force Base, Illinois.
68. USTRANSCOM "sponsors" - expends federal tax monies in its ownership and
operation of - one or more Scouting Units chartered by BSA, including Boy Scout Troop 15 at
Scott Air Force Base, Illinois.
DEFENDANT CLASS ALLEGATIONS - FEDERAL GOVERNMENT AGENCY CLASS
69. The Taxpayers bring this nationwide class action for declaratory and injunctive relief
against Defendant Federal Government Agency Class, consisting of each Federal Government
Agency that expends federal tax funds in the operation of Scouting Units chartered by BSA.
70. All of the prerequisites to a defendant class action as stated in Rule 23(b)(1) and (2)
are satisfied by the class:
(a) The defined defendant class is so numerous that joinder of all defendants is
impracticable.
(b) There are questions of law and fact common to the defendant class. Those common questions
include whether defendants have violated the Establishment Clause of the First Amendment in
sponsoring the Scouting Units.
(c) The potential defenses of the named Defendant are typical of the defenses of each member
of the defendant class, since each Defendant's policies and practices with respect to its endorsing religion in the sponsorship of Scouting Units are substantially identical.
(d) The named Defendant will fairly and adequately represent the interests of the class.
(e) The prosecution of separate actions against individual members of the defendant class would create a risk of varying or inconsistent adjudication which would establish incompatible standards of conduct for the Federal Government Agencies.
(f) The named Defendant has acted on grounds generally applicable to the class in sponsoring one or more Scouting Units, thereby making appropriate the final injunctive and declaratory relief prayed for by Plaintiffs.
FACTUAL ALLEGATIONS
71. Plaintiffs incorporate by reference the preceding paragraphs 17 - 55 as if fully set forth herein.
72. For purposes of this Count II, the term "Government Agencies" as used in paragraphs 17 - 55 shall mean Defendant USTRANSCOM and each member of Defendant Federal Government Agency Class (together, "the Federal Government Agencies").
CLAIM FOR RELIEF ON COUNT II
73. Plaintiffs have suffered irreparable injury because in expending federal tax funds in the operation of Scouting Units, the Federal Government Agencies act pursuant to Article I, Section 8 of the United States Constitution, but such expenditures are in violation of the First Amendment to the Constitution.
74. Plaintiffs will continue to suffer irreparable injury in the absence of injunctive relief, and lack any adequate remedy at law.
75. The Federal Government Agencies' sponsorship of the Scouting Units violates Plaintiffs' right to be free from the unconstitutional expenditure of federal tax monies for the establishment of religion guaranteed by the First Amendment to the United States Constitution.
PRAYER FOR RELIEF ON COUNT II
WHEREFORE, Plaintiffs request that this Court:
A. Issue a judgment declaring that the Federal Government Agencies have violated the Establishment Clause of the First Amendment to the United States Constitution by sponsoring Scouting Units under policies that limit participation in Scouting Units on the basis of religious belief and that require participants in Scouting Units to make religious affirmations.
B. Issue a permanent injunction enjoining the Federal Government Agencies from sponsoring Scouting Units that (1) limit participation on the basis of religious belief or (2) require participants to make religious affirmations.
C. Award Plaintiffs their costs, expenses and reasonable attorneys' fees pursuant to 28 U.S.C. § 2412.
D. Grant any additional relief that the Court deems just and proper.
Dated this 14th day of April, 1999.
By: _________________________
One of Plaintiffs' attorneys
ROGER A. LEISHMAN
HARVEY M. GROSSMAN
JANE M. WHICHER
MORRIS D. LIPSON
The Roger Baldwin Foundation
of ACLU, Inc.
180 North Michigan Avenue - Suite 2300
Chicago, IL 60601
(312) 201-9740