Cover Story

Separation of scout and state

And that's not all. By taking on issues ranging from freedom of association to partial-birth abortion, the U.S. Supreme Court is on its way to a historic term

Issue: "High stakes at the Court," Jan. 29, 2000

in Dallas - The year of the Supreme Court has arrived, and it's coming soon to a local Boy Scout troop, medical clinic, and football field near you. Making its century debut, the high court last week announced a spring case line-up that could make this term the most important one in years. In June, the court plans to decide such volatile issues as: (1) whether the Boy Scouts must allow openly homosexual troop leaders, (2) whether state legislatures can ban partial-birth abortion, and (3) whether school districts can allow student-led prayer. All three issues elicit strong reactions. "I don't think the Supreme Court has any more business telling Boy Scouts what kind of leaders they can have than they do telling churches what kind of Sunday school teachers to have," says attorney Brian Hamilton, as his 10-year-old son joins a sea of tan-and-green uniforms flooding the basement of Highland Park Presbyterian Church. The line separating church and Scout seems tenuously thin on January 17 as 195 boys, ages 10-18, gather behind somber stained-glass windows for a rowdy discussion of outdoor survival. The Dallas church hosts weekly meetings for Troop 82, one of the nation's largest Boy Scout groups. But even the formidable walls of a church edifice might not protect the Scouts from the Supreme Court's reach. At issue is the Boy Scouts of America's expulsion of 20-year-old New Jersey assistant scoutmaster James Dale after he became co-president of his campus lesbian and gay student group. "Avowed homosexuals are not permitted to have a leadership role in the Boy Scouts of America (BSA)," said Scout spokesman Gregg Shields. "Since its inception, the BSA has been a private organization with the right to set its own standards for membership." Even so, the New Jersey Supreme Court sided with Mr. Dale, ruling that local troops must admit openly gay members under the state's public accommodation law. That court said, "The Boy Scouts' expulsion of Dale is based on little more than prejudice." The BSA appealed, arguing that "almost any organization could find itself a victim of a court's desire to foster social change." For 35-year-old Dallas Scoutmaster Robert Higginbotham, the issue is as simple as the Scout Oath he uttered 25 years ago: "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." "When I joined the Scouts, the definition of 'morally straight' was uncontested," says Mr. Higginbotham. "Now society is redefining what 'morally straight' is." In another case this term, the high court could redefine how U.S. law views life itself, to the point that babies who are mostly outside the womb may not qualify. In the partial-birth abortion procedure, an abortionist delivers a living baby feet first. Leaving the head in the womb, the abortionist then makes an incision in the baby's skull and forces out the brain with a suction tube. A federal appeals court blocked a Nebraska ban on the procedure last summer. That directly conflicted with another federal court ruling upholding similar bans in Illinois and Wisconsin. The Supreme Court now has the final say, issuing its first opinion on abortion since the Planned Parenthood vs. Casey ruling in 1992. But the nine high court justices have made it clear they will not overturn Roe vs. Wade, preferring instead to determine what constitutes a "legal" abortion. "The question before them is, If you have a child delivered, except for a few inches that measure the head, do you have infanticide or do you have a woman's right to choose?" said Janet Parshall of the Family Research Council. The current climate of judicial activism also makes the court's coming decision on public prayer all the more significant. This spring the Supreme Court will referee Doe vs. Santa Fe, which challenges the prayer policy of hundreds of Texas school districts. That policy allows students to decide whether to have prayer before football games-and, if so, who will lead it. The American Civil Liberties Union (ACLU) kicked off the dispute five years ago by suing the Galveston-area Santa Fe school district on behalf of two families offended by student-led prayers at football games. Proponents welcome pre-game, student-led prayer as a refreshing interruption in the 40-year ban on school prayer and a good response to last year's rash of student shootings. But opponents say it's a convenient ruse for government-endorsed religion. "Under the guise of free speech this is a frontal attack on the basic fundamental separation [of church and state]," said ACLU lawyer Anthony Griffin. "The attack is nicely done. It seems to be a benign position, but the logical extension of prayer in football games is prayer in schools." Last year, the 5th Circuit Court of Appeals sided with the ACLU, saying: "We hold that a public school prayer policy ... that permits sectarian, proselytizing benedictions and invocations cannot pass constitutional muster." As for the Supreme Court's verdict, "It could go 5-4 either way," predicted Kelly Shackelford, a Texas lawyer assisting the Santa Fe school's legal team. "If the court rules in favor of the school, it will create a new wall of protection for the students. If it rules against the school, it will be the first case in the country's history to say government must ban religious expression by a private citizen." While the nation awaits crucial verdicts on religious freedom and right-to-life issues, Troop 82 continues blissfully along its "morally straight" path. As tonight's meeting comes to an end, Scout leaders flash their "quiet" hand signal and quickly dim the lights. Then, for a brief and glorious moment, all 195 boys are silent as flickering candles illuminate a wooden cross in the center of the room. "Our father, who art in heaven," they recite in unison, a standard practice for this troop for more years than anyone cares to remember. The question is, how much longer will troops be able to determine such standards?

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