Court Says O.C. Scouts Can’t Bar Boys for Beliefs

In a rebuke to the Boys Scouts of America, a state appeals court ruled Monday that twin Anaheim Hills brothers cannot be excluded from Scouting because they don’t believe in God.

The 4th District Court of Appeal ruled 2 to 1 that the Orange County Council of the Scouts is a business as defined by state law and therefore cannot discriminate on the basis of religion.

“The council could have no compelling justification for discriminating against children because of their current notions concerning the subject of God,” the justices wrote. “Indeed, such discrimination would appear to contradict a variety of the principles of the congressionally chartered Boy Scouts of America.”

But in a sharply worded 12-page dissent, Justice David G. Sills accused his colleagues of undermining Scouting’s values and traditions.

“To read the majority opinion, one would think we are writing about a pizza parlor where the proprietor requires prayers before serving a medium pepperoni with anchovies,” Sills wrote.

“It may come as a surprise to my colleagues, but there are those who still seek membership in an organization which teaches duty to God and country and the virtues of order and discipline.”

The majority opinion upholds a ruling by Orange County Superior Court Judge Richard O. Frazee Sr. in 1992 that allowed William and Michael Randall, now 12, to remain in Scouting despite their position on the existence of God.

The Randalls’ lawsuit was filed in early 1991, shortly after the twins were ousted from an Anaheim Hills Cub Scout pack for refusing to swear an oath to God. The boys argued that their First Amendment religious rights were being violated by the organization.

Scouting officials, however, contended that their constitutional rights of freedom of association were being denied. They said allowing atheists in Scouting would undermine the founding principles of the organization.

The case hinged on whether Scouting was defined as a private organization, with the right to pick and choose its members, or as a business and therefore bound by the state Unruh Civil Rights Act, which prohibits businesses from discriminating on the basis of religion or race.

The majority opinion, written by Justice Thomas F. Crosby Jr. with Justice Sheila Prell Sonenshine concurring, said the nonprofit Boy Scouts are a business. The justices noted that the organization has retail stores, three large recreational centers, $9 million in assets and an annual budget of $4 million.

“The county council is a business, a fairly big business,” the justices said.

Sills disagreed, saying that even if the organization is a business, state law does not prohibit it from excluding “those who refuse to take their oath as long as the exclusion is not arbitrary.”

“Ironically,” Sills concluded, “today’s decision effectively tramples on the rights of atheists as well as believers. Times change. Fashions in ideas change. If the First Amendment will not stop the government from effectively dictating the content of the Boy Scout’s oath today, it will not stop the government from requiring prayer tomorrow.”

Boy Scout officials said Monday that they will appeal the decision to the state Supreme Court.

“Obviously we’re very disappointed,” said Devon Dougherty, spokesman for the Orange County Council of Scouts. “We hope (the decision) is overturned. . . . This shows that private organizations have to stand up and fight to preserve the integrity of their principles.”

George A. Davidson, the Scouts’ attorney, said he thinks the state Supreme Court will side with Sills on the matter.

“We are not a pizza parlor,” Davidson said. “I think the (court) majority failed to come to grips of the constitutional issues of the case. . . . We’re an organization designed to promote particular values, including a duty to God.”

Attorney James G. Randall, who represented his sons at trial, said he and they were “extremely pleased by the court’s ruling. . . . All they want to do is continue in Scouting.”

Currently, the twins participate in a Tustin Boy Scout troop. “They really enjoy it,” he said. “They wish that this could be put behind them, but it appears it will not end even with this decision.”

Randall added that his sons do not want to harm the organization or disrupt it with their religious views. He said Scouting officials are overreacting about the impact of the case.

ACLU attorney Jon W. Davidson, who assisted Randall in the case, agreed.

“Allowing these boys in Scouting is hardly going to take down the organization,” he said. “I don’t think admitting children who don’t believe in God is going to prevent the Boy Scouts of America from teaching whatever they want about God.”

The Randall case is one of several legal challenges that Scouting has faced over the past several years. Scouting values and traditions have come under attack nationwide from women and homosexuals who have been excluded from leadership positions and from a girl who was denied membership.

Last December, the U.S. Supreme Court declined to require the Boy Scouts of America to admit youngsters who refused to acknowledge a “duty to God.” That case, however, applied only to federal discrimination laws, which are not as restrictive as California’s Unruh Act.