Court: Scout Jamboree May Receive Federal Help

By JOSH GERSTEIN, Staff Reporter of the Sun
April 5, 2007

A federal appeals court has rejected a challenge to aid that the Defense Department provides to a Boy Scouts of America gathering, or Jamboree, that takes place about every four years at a military facility in Virginia.

A three-judge panel of the Chicago-based 7th Circuit ruled unanimously yesterday that several religious leaders could not use their status as taxpayers to object to the federal assistance as unconstitutional aid to religion because of the requirement that scouts and scout leaders believe in God. The decision overturned a district judge's ruling barring future support for the gathering.

Two of the appeals judges, William Bauer and Diane Wood, found that the $6 million to $8 million that the Pentagon spends to set up tents and make other arrangements for the event was not the sort of spending that can be challenged by taxpayers.

"In a time when the armed forces regularly spend significant funds both for recruitment and for public relations, Congress's decision to authorize them to take advantage of a built-in audience of potential recruits is reasonably related to the activities authorized by the Military Clauses," Judge Wood wrote in an opinion joined by Judge Bauer. "Although some support of the organization does occur, the statute does not turn money or services over to BSA to handle any way it wants."

Judge Diane Sykes objected to some aspects of the majority's reasoning but agreed with the conclusion. She said the fact that the plaintiffs, who are represented by the American Civil Liberties Union of Illinois, allowed the 2005 event to go forward despite the lower court's ruling "undermines any claim that they were suffering a grave constitutional injury."

A pending Supreme Court case about President Bush's initiative to support faith-based programs,

Hein v. Freedom from Religion Foundation, may clarify the contentious question of under what circumstances taxpayers have the right to challenge government spending that could promote religion.

That case also arose in the 7th Circuit, which upheld the taxpayers' right to sue. In the opinions issued yesterday, the judges seemed to be jockeying over the earlier decision and attempting to second-guess how the Supreme Court may resolve that fight.

In separate statements, the Boy Scouts hailed yesterday's decision, while the ACLU said it was "extremely disappointed."

Judge Wood was appointed by President Clinton, Judge Bauer by President Ford, and Judge Sykes by President Bush.