Sep 15, 2011

The Boy Scouts of America is a religious organization that requires scouts, adult leaders, and employees to profess a belief in God. A federal statute authorizes the Department of Defense to host the Scouts’ National Jamboree at a U.S. military base; to hire civilians to provide labor, logistical support, and medical care at the Jamboree; and to loan the Scouts equipment free of charge during the event. The government spends more than $7 million in taxpayer funds on each Jamboree. (The event occurs quadrennially, with scouts as participants and other members of the public as invited spectators.) A federal district court in Illinois held that the Jamboree statute is unconstitutional because it provides federal funding exclusively to a religious organization. The government appealed that ruling to the U.S. Court of Appeals for the Seventh Circuit. In February 2006, we filed an amicus brief arguing that the district court’s decision should be affirmed because, among other things, the Jamboree statute constitutes significant governmental aid to the BSA’s invidious religious discrimination against atheists and agnostics, thus violating both the Establishment Clause and the Equal Protection Clause. The court heard oral argument in April 2006 and issued its decision in April 2007, concluding that the plaintiffs lacked standing as taxpayers to challenge the governmental support for the jamboree because the support is not provided under Congress’s taxing-and-spending power, but rather is provided under Congress’s constitutional authority to dispose of property to provide for the arming and support of the military. The court therefore declined to "reach the complex question whether aid to a civic organization that conditions membership on a particular religious belief but that does not otherwise exclude people from its activities violates the Establishment Clause." The plaintiffs did not petition for certiorari, so the case has been concluded.