Loss in Court Is the First Ever for Boy Scouts : Ruling: Other atheists, as well as gays and girls, failed in challenges.

An Orange County judge’s ruling Thursday that two Anaheim Hills brothers who do not believe in God must be allowed back into Scouting was the first major membership challenge the Boy Scouts of America has lost in court.

Other plaintiffs, from atheists to homosexuals to females, have fought the organization’s membership requirements before, but none has been as successful as the William and Michael Randall.

Key in their victory was Superior Court Judge Richard O. Frazee Sr.’s finding that the Boy Scout organization is a business establishment under state law and, as such, prohibited from discriminating on the basis of religion.

Boy Scout attorneys argued that the organization was a private group, free to pick and choose its members. They argued that their freedom of association was being threatened.

That argument worked in Chicago last March, when a U.S. District judge ruled that an 8-year-old boy who, like the Randalls, refused to swear an oath to God, could be excluded from the organization.

The difference between the Chicago case and the Randalls’, Frazee said, is that federal law defines a business establishment much more narrowly than California law.

In another California case, however, a gay man was told by a Superior Court judge in Los Angeles that the Boy Scouts could bar him from being a Scoutmaster. Even though the judge in that case determined that the organization was a business establishment, she decided that the Boy Scouts’ First Amendment right of freedom of expression took precedence over state law.

In his ruling Thursday, Frazee said that the evidence in the Randall case showed that the Boy Scouts’ freedom of association would “not be abridged by requiring (the Randalls) to become and remain members of the Cub Scouts.”