At the hearing on the Motions for Summary Judgment, I said that I intended to inform you of my decision before the school year began. That day is in fact approaching. This letter constitutes my decision with a very brief discussion. Clearly the important issues in this case deserve a more detailed and scholarly discussion than will appear in this letter and I have no doubt that they will receive such discussion id due course. However, the parties deserve, if not a scholarly, at least a prompt decision so that they may take appropriate action.
The issue in this case is clear. The Portland, public School District allows the BSA to enter school property during school hours to speak to young boys about scouting. Plaintiff contends that the BSA are a religious organization and that the district's practice violates Article 1, section 5 of the Oregon constitution, our States equivalent of the Establishment of Religion Clause. Plaintiff also contends that the Superintendent of Public Instruction erred when she ruled that the district's practice does not violate the State's establishment clause.
All parties agree that there are no material facts in dispute.
(He goes on to explain Lemon and why he thinks it is ruling law)
I conclude that the religious aspect of scouting is a very small part of its programs. I also conclude that under any criteria or test that I am aware of the Boy Scouts are not a religious organization for the purposes of the establishment clause of the Oregon Constitution.
I am aware of cases throughout the country in which the BSA have earnestly contended that they are a religious organization. In all these cases it was claimed that the BSA were a place of public accommodation and subject to the various State Public Accommodation laws. However the law which applies to establishment cases is clearly different from that which applies to public accommodation cases and what is a religious organization under one set of laws in not under another. These cases are troubling but not persuasive.
The most disturbing aspect of this case is the BSA's denial of membership to boys and soutmasters who do not acknowledge the existence of GOD. This admitted fact was almost pivotal in my analysis. The religious organization can of course, exclude persons who do not subscribe to their beliefs. Organizations subject to the public accommodations laws are limited in whom they can exclude from employment. However, for purposes of the establishment clause, this denial of membership does not seem to matter.
For the above reasons I find that the Superintendent of Public Instruction did not err when she ruled that the District's practice did not violate the establishment clause of the Oregon Constitution.