Scouts Can’t Bar Atheists, Court Rules : Organizations: Appellate justices uphold Orange County ruling that prevents exclusion of brothers. Dissenting justice accuses colleagues of undermining Scouting’s principles.

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 do not believe in God.

The 4th District Court of Appeal ruled 2 to 1 that the Orange County Council of the Scouts was 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.

“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,” he said.

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 views 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 1st Amendment religious rights were being violated by the organization.

Scouting officials 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 members, or as a business and therefore bound by the state Unruh Civil Rights Act, which prohibits 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 is a business. They noted that the organization has retail stores, three large recreational centers, $9 million in assets and an annual budget of $4 million.

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. . . . If the 1st 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 they will appeal the decision to the state Supreme Court.

Attorney James G. Randall, who represented his sons at trial, said they participate in a Tustin Boy Scout troop. Randall said his sons do not want to harm or disrupt the organization.