Thread on Scouting, KKK, and Islamic fundamentalism

[Vance R. Koven]

At 01:15 PM 11/6/01 -0800, A.E. Brownstein wrote:
>If the Scouts believed that conformity to a policy of racial
>purity was the best way for a man to order his life and rejected all
>otherwise qualified men as Scoutmasters who were married to women of a
>different race, most of us would think the Scouts were intolerant.

I daresay we would. The issue for this list, however, is whether the
government should be debarred from declaring itself, as a matter of policy,
in favor of this or any other matter of cultural "intolerance" in the
absence of some obvious Constitutional impediment like the Establishment
Clause. In the case of the Scouts, although its position is consistent with
that of certain religions and inconsistent with the position of certain
other religions, I don't believe it has tried to justify its position as a
matter of religion. Therefore, if Congress decides as a matter of policy
that it will use its fiscal powers to punish those who would like to punish
the BSA for its cultural preferences, the question is whether anything in
the Constitution prohibits it. For my part, I don't see anything in the
religion clauses that would (as it would if the Scouts' discriminatory acts
were focused against Jews, for example). I can see an argument that a
reverse-incorporated Fourteenth Amendment-into-Fifth Amendment equal
protection claim might lie à la Colorado, but unless someone here can make
that case more forcefully than I can in my own mind it doesn't persuade me
much.


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