The following (long, legal) text is from a presentation by James Grafton Randall, attorney at law, and member of the California State Bar, and the Montana State Bar, at the 1991 Belli Society Seminar, Toronto, Canada.
The Randalls made available a copy of his prepared speech. It may contain some errors from scanning, or from editing.
JAMES GRAFTON RANDALL is a member of the California and Montana State Bars. He practices person injury law in Orange County, California. Mr. Randall was a speaker for the July, 1990, Belli Society Seminar, where he spoke on "Hedonic Damages". The author of the two-volume book, _California Personal Injury Forms_ (bancroft-Whitney), Mr. Randall is also a contributing editor to several legal publications in California and has written/ published over 100 articles in the field of personal injury law in the last few years. Listed in Who's Who in Emerging Leaders, Who's Who in California and Who's Who in America Law, Mr. Randall has taught Evidence and Labor Law, and lectured in various aspects of personal injury law. Mr. Randall lists as his proudest "accomplishments" however, his two sons, WILLIAM and MICHAEL RANDALL, and his 10-plus year marriage with his wife, VALERIE.
I, 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.
The Cub Scout pledge. 27 words which have now caused problems for
several young people and have caused many to examine closely the
organization which is known as "Boy Scouts of America". In fact,
it's not 27 words which have caused the problems, it is really one
word, "God", and the fact that young people who want to camp, have
fun, earn badges, participate in Pine Wood Derby races, and other
youthful activities are required to say the word --irrespective of
one's beliefs, religious or otherwise.
One three-letter word has now pitted several major religions; an organization with over 4 1/2 million members in the United States, and millions upon millions of dollars in assets -- against several young children who, in order to be able to participate in this national, public, organization have had to either procure the services of the A.C.L.U., or private lawyers providing pro bono services, to challenge the blatant discriminatory practices of this federally chartered, tax-exempt organization.
One three-letter word has engaged two nine-year old twins and an eight-year boy in a battle of issues ranging from the simple to the complex; from freedom of religion (or lack thereof), to freedom of association (expressive and intimate); from questions as to whether the B.S.A. is a private organization, and thus free to discriminate, or public, and controlled by the Unruh Civil Rights Act (Calif.) or other state and/or federal public accommodations laws.
On the other hand, the argument is made that the BSA is a public organization that must admit homosexuals, females and young persons who do not say the word "God", and cannot exclude an entire class of people solely upon grounds of religious or non-religious beliefs, sex or sexual preference -- until such time as there is some proof that an individual member has committed some offense and was then given due process rights prior to expulsion.
There is absolutely no basis in law, logic or fact to support a contention that the BSA is a private organization. An examination of the facts reveals the following:
"_Our federal charter sets forth our obligation to serve boys. Neither the charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy. The National Council and the Executive Board have always taken the position that Scouting should be made available for all boys who meet entrance age requirements._"
"The idea of religion without God is shocking to Christians, Jews and Mohammedans, but Buddha and Confucius long ago founded nontheistic religions and some modern Unitarian Humanists insist that the idea of God is a positive hindrance to the progress of real religion." _Fellowship of Humanity v. County of Alameda_ (1957) 153 Cal.App.2d 673 [315 P.2d 394] . See also, _Torcaso v. Watkins_ 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed2d 982 (1961).
"It is very difficult-perhaps impossible-to give a definition of God that will cover all usages of the word and the equivalent words in other languages."
"It is not the role of the Boy Scouts of America to give theological interpretations. Religion is the responsibility of the Scout's family and religious leaders." (Reaffirmation of The Position of the Boy Scouts of America on 'Duty to God').This same document further states, "While not intending to define what constitutes belief in God...", it still requires a "duty to God".
Further, in a publication entitled, Cub Scout
Leader Book , the BSA states:
"...The Boy Scouts of America does not define what constitutes a belief in God or the practice of religion.The Boy Scouts of America does not require membership in a religious organization or association for enrollment in the movement, but does prefer, and strongly encourages, membership and participation in the religious programs of a church, synagogue, or other religious association." Id., p. 89.
"All persons within the jurisdiction of this state ar free and equal, and no matter what their..religion...are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever."There is no doubt that the Boy Scouts of America is a "business establishment" -- one need only look as far as the annual reports which the Boy Scouts of America are required to file with Congress every year disclosing the fact that that this is a multi-million dollar "business" engaged in the selling of everything from Boy Scout camping items in Scout stores open to the public; to the Boy's Life Magazine (available to non-Scouts and Scouts); to the sale of uniforms in public department stores; to assets, real estate holdings and revenue of over 180 million dollars. As the court stated in Curran v. Mt. Diablo Council of the Boy Scouts of America (1983) 147 Cal.App.3d 712 [195 Cal.Rptr. 325]:
"We have ...determined that the Boy Scouts of America is a business establishment within the meaning of the Unruh Act and is therefore prohibited from all discrimination in the provision of its services." (Id., at p. 717).As the California Supreme Court later stated in Ibister v. Boys' Club of Santa Cruz, Inc. (1985) [40 Cal.3d 72, 75 219 Cal.Rptr. 150] compelling the admittance of girls into the "boys club": "The Second District Court of Appeal recently held that the Boy Scouts' ...extension to the youthful public of a membership invitation limited only by sex made it a public organization covered by the Unruh Act." Ibister, 40 Cal.3d at p. 81, n.8. Further, as the California Supreme Court held in O'Connor v. Village Green Owners Ass', (1983) 33 Cal.3d 790 [191 Cal.Rptr. 320] , and in Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463 120 Cal.Rptr. 609] , the term "business" includes non-commercial entities; includes not only a fixed location but also a "commercial force or organization"; includes not only "private or public groups,organizations, business establishments, schools and public facilities"; and finally, that a non-profit status was held not to insulate an organization from Unruh's requirements.
It has been further stated that collection of dues, no matter how small indicates that an entity is a business establishment. I.e., see, Schwartz, The Unruh Civil Rights Act: Is A private Club A Business Establishment after O'Connor v. Village Green Owners Association (1984) 21 San Diego L.Rev. 477 . Further, the acceptance of funds from such organizations as the United Way (which comprises approximately 25% of the Boy Scouts budget) has been considered a significant factor in determining that other organizations, such as the Club, is a business establishment (Ibister, supra, 40 Cal.3d at p.80) . See also Stout v. Y.M.C.A. (5th Cir. 1972) [Chapter of Y.M.C.A. with 54% of its funds from United Way of Community Chest, held not private and subject to federal nondiscrimination laws]; Nesmith v. Y.M.C.A. (4th Cir. 387 F.2d 96, 102 [athletic building of chapter of Y.M.C.A., more than 20% of operating funds derived from United Fund, made entire chapter of Y.M.C.A. non-private and subject to anti-discrimination laws.]
If one wants to stand fast on a "it's the rules" argument, then we would all be drinking English tea and serving under the King (or Queen); blacks would still be picking cotton; Chinese would still be working on the railroad and Japanese would still be interned in camps; Jews would probably be non-existent under Hitler's "rules"; and women would still be barefoot and pregnant and staying at home.
In a public organization whose only membership requirement is an age requirement -- and one which welcomes any "religious" organization, from Unitarians, to Buddhists, from Taoists to Shintoism, from religions which are deistic , monotheistic and even ones who not profess a belief in "God" -- the admittance of two young boys who do not quite yet understand or know who "god" is not going to violate the right of association, expressive or intimate.
What is it exactly that the Boy Scouts are attempting to "express", i.e., the right of "expressive association"? This question cannot be clearly answered, nor does the Boy Scouts of America provide any guidance or assistance. It states that there is no religious test for membership; the Boy Scouts of America does not define "God"; it is a nonsectarian organization; "The Boy Scouts of America does not define what constitutes belief in God or the practice of religion" [B.S.A. Policies] ; the B.S.A. does not require membership in a religious organization or association to join the B.S.A.; if a Scout is a member of one religious group he does not have to participate in the religious activities of another group; the B.S.A. states that religion is to be taught at home or in the religious organization; and again, they allow the participation in Scouting of those who belong to religious organizations which do not have either a deistic premise or a belief in "god" at all.
The Boy Scouts of America does contend, however, that "no member can grow into the best kind of citizen without recognizing an obligation to God" ["Declaration of Religious Principle", B.S.A.] . This, of course, would be news to people such as Bertrand Russell, Albert Einstein, and literally millions of others who are patriotic "good citizens" without a belief in "God". This archaic and absurd contention is based upon a statement in the 1911 Boy Scout Handbook -- which also stated that there only three religions (Catholic, Jewish and Protestant), and they all believed in the same "God" [ignoring the fact that there are literally hundreds of religions recognized today -- and they do not all believe in the same "God" by any stretch of the imagination].
As the United States Supreme Court stated in
Board of Directors of Rotary International v. Rotary Club of
Duarte, 481 U.S. 537, 107 S.Ct. 1940 (1987) on appeal from
the Second District Court of Appeal of California, and in a
decision prohibiting the Rotarians from excluding women:
"As a matter of policy, Rotary Clubs do not take positions on "public questions" including political or international issues. Manual 115, App. 58-59. To be sure, Rotary Clubs engage in a variety of commendable service activities that are protected by the First Amendment. But the Unruh Act does not require the clubs to abandon their basic goals of humanitarian service, high ethical standards in all vocations, good will and peace. Nor does it require them to abandon their classification system or admit members who not reflect a cross section of the community. Indeed, by opening membership to leading business and professional women in the community, Rotary Clubs are likely to obtain a more representative cross section of community leaders with a broadened capacity for service."As the Court further stated, even if the Unruh Act does work some slight infringement on Rotary members right of expressive association, this infringement is justified because it serves the State's compelling interest in eliminating discrimination against women. See also Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam) [right of association can be limited by state regulation necessary to serve a compelling state interest unrelated to the suppression of ideas].
Can the Boy Scouts of America "express" themselves with two Buddhist Scouts present? Of course they can -- just like they can if two Unitarian Scouts were present, or two Secular Humanists, or two Hindu Scouts, or two Mormon Scouts, or two Catholic, Jewish, Jehovah Witness, Scientologist, Protestant or two "Moonies" were present. They can further express themselves if two atheists or two agnostic Scouts were present.
The Unruh Act does not require the Boy Scouts to abandon their basic goals of humanitarian service, high ethical standards, good will and peace. Nor will the admission of two atheist or agnostic or "religiously ambivalent" Scouts distract from the purpose of the B.S.A. as expressed in their federal charter, "..to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self- reliance, and kindred virtues...". [36 U.S.C. §23] .
In the case of Welsh v. Boy Scouts of America, 742 F.Supp. 1413 (N.D. Ill 1990) , in rejecting the Boy Scout's motion to dismiss, Judge Rovner held that in light of the First Amendment, it is questionable whether Congress would have the power to charter an organization officially entitled to discriminate on the basis of religion. Recognizing the admission of the Boy Scouts of America, to-wit: "It is not the role of the Boy Scouts of America to give theo- logical interpretations. Religion is the responsibility of the Scout's family and religious leaders." ["Reaffirmation of the Position of The Boy Scouts of America on "Duty to God"", 1985] , Judge Rovner further stated that the Boy Scouts believe that Protestant members are willing to participate alongside of Catholics, Jews, Buddhists, Hindus, Unitarians, Deists, Hare Krishnas, and adherents to all religions known to humankind -- but not atheists or agnostics. "Indeed, the concept of "God" is sufficiently vague that it is difficult to understand how the Boy Scouts can actually use, in practice, belief in God as a criterion for membership." [Id., 742 F.Supp. at 1427] .
Recognizing that invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment which has never been accorded affirmative constitutional protection [Norwood v. Harrison, 413 U.S. 455, 470 (1973)] , Judge Rovner stated that the Boy Scouts did not call to the Court's attention any specific expressive activities which the Boy Scouts conducts. Rejecting the B.S.A.'s argument that the organization was entitled to protection and a right to associate because they were bound by a common belief, the Court held that a whites-only club might similarly argue that its members are engaged in expressive association because they are bound together by a common belief that whites are better than blacks. Judge Rovner further states that in light of the Boy Scouts' apparent tolerance for an innumerable variety of religious beliefs, it is difficult to understand how the organization could -- even if it so desired -- present a unified expression on positions concerning religion. [Id., 742 F.Supp. at 1431] .
Holding that the Boy Scouts of America do not engage in overtly religious activities or expression, based upon a review of the By-Laws, Rules and Regulations and other documents, the Court held that requiring the Boy Scouts to admit individuals who do not believe in God would not require the organization to alter any of its activities. As the United States Supreme Court held in Roberts v. United States Jaycees (1984) 468 U.S. 609 , the admission of women into the Jaycees would not impede the organization's ability to engage in protected activities or to disseminate its preferred views, nor will the admission of two atheists or agnostics or "religiously ambivalent" Scouts impede the expressive activities of the Boy Scouts of America.
The Court further noted that the clubs are encouraged to seek coverage of their activities in local newspapers, and as the Court stated, the Rotary Clubs, rather than carrying on their activities in an atmosphere of privacy, seek to keep their "windows and doors open to the whole world". Any one who knows anything at all about the Boy Scout organization knows that it does not seek to hide under a rock, but instead engages in a number of public activities -- from carrying banners in the Rose Bowl Parade, to food drives, and other civic and community activities. The "right of intimate association" has thus been rejected by the United States Supreme Court in the Rotary and Jaycees cases, and by the federal court in Welsh v. Boy Scouts of America, supra.
"Incredibly, 14 years before the start of the 21st century and 210 years after the signing of the Declaration of Independence we still find ourselves having to write an opinion defending the right of American women to equal opportunity in a secular organization of approximately 20,000 clubs with more than 900,000 members." Rotary Club of Duarte v. Board of Directors, 224 Cal.Rptr. 213 at 216 (1986), affirmed 481 U.S. 537 (1987).The same can be said to be true for the exclusion of young children from an organization with over 420 councils in the United States and over 4 million members in the United States alone, with several million across the world. As Judge Rovner points out in Welsh v. Boy Scouts of America, supra, cases involving allegations of racial and gender-based discrimination, while now commonplace, rarely provoke the expressed defense that such discrimination is justified. In contrast, religious discrimination against those who do not believe in God" remains openly defended by some in a way that most of our society no longer tolerates with respect to other forms of discrimination.
Mandated religious oaths have been banned in the employment arena Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680 (1961) ; one does not have to take a religious oath or swear or affirm to "God" to testify in a California court Code of Civil Procedure &2096]; even the President of the United States oath as set forth in the Constitution of the United States does not include an oath to "God" [Article II, Section 2] . In fact, there are even Biblical prohibitions against oaths to "God", i.e., see Matthew 5:33-37; James 5:12 .
Can the Boy Scouts of America exclude those who do not believe in "God"? Absolutely not.
Quite frankly, even if the Boy Scouts of America [now known as "Scouting/U.S.A."] could kick out children who did not believe in God, why would they want to? Do evangelists only preach to the "saved"? Do missionaries only seek out those who already believe in God? Did Christ say only bring the children to me who already believe in me? Of course not. Religion should be an example -- not a grounds of exclusion.
As one Scouting document states:
"An 11-year-old Scout announces that he is an atheist and doesn't believe in God. What can the leader do. (Scouting believes "...that no member can grow into the best kind of citizen without recognizing an obligation to God." A Scout "...respects the beliefs of others." It could be questioned if an 11-year-old has sufficient experience to understand the claim of atheism. Religious instruction is the responsibility of the home and church. Scouting sets an example."An 11-year-old can't understand atheism -- but he can understand Catholicism or Mormonism, or a variety of other religious doctrines or dogma? How absurd.
Unfortunately, this secular organization has become beholden to religious organizations, particular the Mormon Church [which sponsors the largest number of troops and which was the first religious organization to sponsor Boy Scout troops], which has now dictated the "values" of the organization and threatened to withdraw from the organization if the plaintiffs win. This threat, which would mean a loss of revenue to the Scouts, has caused the Scouts to sell their soul to the devil in an attempt to appease such organizations.
Michael Rosenthal, the author of the book, "The
Character Factory: Baden-Powell and the Imperatives of the Empire"
(1986), recently stated that Robert Baden-Powell, founder of the
Boy Scout movement never would have asked any person or his parents
if they believed in God. Responding to a New York Times newspaper
editorial, Mr. Rosenthal states:
"Contrary to the statement of Scout officials you mention, Baden-Powell did not found the movement for boys "who believe in God". He wanted boys - large numbers of them -- and didn't care what they believed. He recognized, indeed, that requiring some form of religious belief would exclude potential members, limiting the movement's mass appeal. On the other hand, he also recognized that he would run the risk of alienating Britain's religious and moral establishment -- whose support he needed for the growth of the Scouts -- if he paid insufficient attention to religion."As Mr. Rosenthal states:
" Baden-Powell, were he alive, would certainly want [these boys] to be a Cub Scout." [New York Times, 7/8/91].It is a shame that hundreds and thousands of dollars of charitable and public funds are being spent to keep out children from a public, civic, educational organization. Enough is enough -- What does the Scouting organization fear? Larry A. Taylor,