7th Circuit dismisses challenge to military support of Scout event
The judges repeatedly said that the Boy Scouts of America Jamboree is open to the general public and that it is important to military recruitment and preparedness. The relevance of this part of their argument to their decision, based on past precedent, that the plaintiffs technically don't have taxpayer standing, is unclear. However, in the event this lawsuit was able to proceed, those arguments could be considered relevant to deciding if there is a violation of the no establishment clause. Since it is possible that future plaintiffs who are parents of children that were refused membership in BSA will have standing to bring this lawsuit, and it is also possible that the current plaintiffs will win standing on appeal (if they appeal and it is accepted) or after a new Supreme Court decision clarifies various ambiguities regarding taxpayer standing (Hein v. the Freedom From Religion Foundation), this part of the judges' argument nevertheless warrants further scrutiny.
When characterizing the Jamboree as open to the general public the judges completely overlooked the obviously pertinent fact that one of the primary functions of the Jamboree is to provide opportunities for Scouts to engage in activities that help them earn merit badges. The merit badges are requisite for earning Eagle Scout rank which qualifies military recruits for an automatic initial pay grade increase (a similar pay grade increase is available for Girl Scouts). This government subsidized opportunity to qualify for an automatic increase in government salary is thus being denied to male agnostics and atheists.
I don't believe the judges would dare make this argument about the importance of the Jamboree to the military justifying the government subsidies if the Jamboree merit badge activities, some of which were co-sponsored by government agencies, were closed to Episcopalians and Anglicans. The judges would immediately recognize that such an argument would be both implicitly disparaging towards and unfair to Episcopalians and Anglicans, some of whom served in the military, currently serve in the military, or may one day in the future consider serving in the military. So I find it difficult to avoid the conclusion that this aspect of the judges' argument exhibits an oblivious and blatant anti-agnostic and anti-atheist bias which is irreconcilable with the basic legal principle of equal protection before the law.
Also, Judge Sykes ungenerous comment that the complaint against the government subsidies isn't serious because the judge who ruled the government subsidies are unconstitutional nevertheless permitted the Jamboree to proceed one month after his decision is a cheap shot. That is a superficial argument that substitutes style for substance. A sensible accommodation to the already ongoing preparations by that judge, as requested by the defendants, doesn't undermine the merit of the plaintiffs complaint. Judge Sykes is wrong to claim otherwise.
The judges repeatedly said that the Boy Scouts of America Jamboree is open to the general public and that it is important to military recruitment and preparedness. The relevance of this part of their argument to their decision, based on past precedent, that the plaintiffs technically don't have taxpayer standing, is unclear. However, in the event this lawsuit was able to proceed, those arguments could be considered relevant to deciding if there is a violation of the no establishment clause. Since it is possible that future plaintiffs who are parents of children that were refused membership in BSA will have standing to bring this lawsuit, and it is also possible that the current plaintiffs will win standing on appeal (if they appeal and it is accepted) or after a new Supreme Court decision clarifies various ambiguities regarding taxpayer standing (Hein v. the Freedom From Religion Foundation), this part of the judges' argument nevertheless warrants further scrutiny.
When characterizing the Jamboree as open to the general public the judges completely overlooked the obviously pertinent fact that one of the primary functions of the Jamboree is to provide opportunities for Scouts to engage in activities that help them earn merit badges. The merit badges are requisite for earning Eagle Scout rank which qualifies military recruits for an automatic initial pay grade increase (a similar pay grade increase is available for Girl Scouts). This government subsidized opportunity to qualify for an automatic increase in government salary is thus being denied to male agnostics and atheists.
I don't believe the judges would dare make this argument about the importance of the Jamboree to the military justifying the government subsidies if the Jamboree merit badge activities, some of which were co-sponsored by government agencies, were closed to Episcopalians and Anglicans. The judges would immediately recognize that such an argument would be both implicitly disparaging towards and unfair to Episcopalians and Anglicans, some of whom served in the military, currently serve in the military, or may one day in the future consider serving in the military. So I find it difficult to avoid the conclusion that this aspect of the judges' argument exhibits an oblivious and blatant anti-agnostic and anti-atheist bias which is irreconcilable with the basic legal principle of equal protection before the law.
Also, Judge Sykes ungenerous comment that the complaint against the government subsidies isn't serious because the judge who ruled the government subsidies are unconstitutional nevertheless permitted the Jamboree to proceed one month after his decision is a cheap shot. That is a superficial argument that substitutes style for substance. A sensible accommodation to the already ongoing preparations by that judge, as requested by the defendants, doesn't undermine the merit of the plaintiffs complaint. Judge Sykes is wrong to claim otherwise.
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