Consider decisions just in the past two years in which the "right" hasn't prevailed:
- Non-combatant terrorists right to Habeas. Hamdi v. Rumsfeld (2004)
- Striking down law on Internet child-porn. Ashcroft v. ACLU (2004)
- College affirmative action. Grutter v. Bollinger (2003)
- Constitutional right to homosexuality. Lawrence v. Texas (2003)
- Limitations on speech and contributions to candiates. McConnell v. FEC (2003)
The last time conservatives won a major victory in the Supremes was in the Clinton Administration: upholding the Constitutionality of the Boy Scouts' exclusion of homosexuals, Boy Scouts of America v. Dale (2000). Dale was a 5-4 decision, grounded not on disapproval of gays but on the First Amendment rights of individuals and private groups to choose with whom they associate. The government can't order a church to admit a non-believer, or anyone to hold a dinner party for black one-eyed Jews (should they not be a Sammy Davis Jr. fan). Homosexuals remain free to create "gay scouts," but can't compel their admission into Boy Scouts. In short, the decision properly recognized that liberty cannot compel equality in the private, as opposed to public, sphere.
Score one--that's uno, une, "o" "n" "e"--for the right. Until now. Since its defeat, the ACLU has been re-litigating the decision with a new twist: they claim the "religious test" turns the Boy Scouts into a church. According to the ACLU, the Scouts thus are ineligible to use public facilities--schools, parks--for meetings. If accepted, this could cripple the Scouts.
This time, the Boy Scouts are losing. Last year, the ALCU won a suit forcing San Diego to rescind its lease of a public park to the scouts. And today, the Department of Defense capitulated to an ACLU complaint, and officially forbade military units and bases from sponsoring any Scout troops or functions. As Lawrence Auster writes, the "result of the Boy Scouts' moral and constitutional refusal to hire open homosexuals as Scoutmasters, many American cities now treat that once honored organization as a pariah."
So let's recap: the right wins one case in five years. Then, ACLU litigation--with the assistance of un-elected liberal judges--reversed that one too. Some win. Some conservative judiciary.
Captain Ed slams the Pentagon's surrender to political correctness.
James Lileks on the Boy Scouts litigation:
[W]e're still in danger. It's possible that in some distant base in a flat, empty state, some rogue officer might horribly commingle Boy Scouts and his official duties – say, showing up in uniform to teach the Webelos the Pledge of Allegiance.More and More:
Why is this bad? Simple: The Scouts make you swear an oath that mentions the Big Guy. Here's the marrow-curdling vow in its entirety, brazenly posted on a Web site they use to communicate with other cells. Ready?
"On my honor I will do my best to do my duty to God and my country and to obey the Scout Law; To help other people at all times; To keep myself physically strong, mentally awake, and morally straight."
Whew. Strong stuff. The God part is bad enough, but the "morally straight" line is the big cherry on the cake. But remember, please: The Scouts are a private organization; they have the right to believe what they wish, even if you disagree. . .
Who has the time to worry whether the Scouts are meeting in the local library? Isn't there some real, actual evil handy you could sue?
The Wall Street Journal argues the ACLU's pursuit of the Boy Scouts illustrates the mis-application of the term "civil rights:"
Ever since the Supreme Court upheld the Scouts' First Amendment right to bar Scoutmasters who are openly gay, the ACLU has looked for softer targets. The suit against the military is one of a series aimed at getting communities to deny access to public facilities. The original lawsuit also challenged the city of Chicago's sponsorship of troops in public schools, another venue where sponsors aren't always easy to find. The city settled.
In Connecticut the ACLU has succeeded in getting the state to remove the Scouts from the list of charitable institutions to which public employees may make voluntary contributions. And earlier this year it settled a suit against the city of San Diego, which agreed to evict the Scouts from a public park they have been using since 1918. The Scouts countersued, lost, and the case is now on appeal before the Ninth Circuit.
The question no one seems to be asking is, who's better off as a result of these lawsuits? Surely not the 3.2 million Boy Scouts, whose venerable organization is part of the web of voluntary associations once considered the bedrock of American life. If anything, the purpose of the ACLU attacks is to paint Scouts as religious bigots. Other losers are communities themselves, which are forced to sever ties to an organization that helps to build character in young men.
It's been 20 years since the ACLU brought its first suit against the Scouts. If there's one thing we've learned by now, it's that the ACLU offensive says more about the degraded status of the civil liberties group than it does about the Boy Scouts.