Scalise v. Boy Scouts of America

The primary purpose of the BSA fraternity today is no longer secular.


John Scalise

Below is an excerpt–minus some legalisms–of a request before the Supreme Court to hear a case challenging a partnership between a public school district and Boy Scouts of America, which excludes nonreligious children recruited through the schools.

The case has been brought by Michigan Foundation member John Scalise at personal expense. The Freedom From Religion Foundation agreed to pay the printing costs and filing fees of the request for cert. below. We’ll keep you posted!

In the Supreme Court of the United States



Lake Huron Area Council #265, and,



Constitution of the United States, Amendment I: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .”

Constitution of the United States, Amendment XIV 1: ” . . . No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

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Petitioners, a father and his eight-year-old son, who are nonreligious Humanists, were excluded in January 1998, from their local Mt. Pleasant Public Schools (“MPPS”) charter-partner-sponsored Boy Scouts of America (“BSA”) Cub Scout program for third-raders, solely because they could not in good moral conscience agree to the requirement of all members that they willingly swear oaths to a duty to God, and formally subscribe to the BSA Declaration of Religious Principle. Benjamin was beaten up by one of his classmates, and taunted repeatedly by his peers over the incident.

On May 4, 1999, during regular school hours, Benjamin was humiliated again in front of all his classmates by a BSA recruiter giving an annual program presentation to the students in his classroom. To make matters worse, on December 12, 1999, August 25, 2000, and again on October 8, 2001, Respondents distributed BSA recruitment flyers to all the boys in their classrooms during school hours, proclaiming in relevant part that: “. . . The BSA maintains that no member can grow into the best kind of citizen without recognizing an obligation to God . . . The BSA’s policy is that the home and the organization or group with which the member is connected shall give definite attention to religious life. Only persons willing to subscribe to this Declaration of Religious Principle and to the Bylaws of the BSA shall be entitled to certificates of leadership.

Petitioners’ ongoing written requests and formal complaints to the MPPS board and district superintendent for a hearing on their demands that these practices be stopped because they violate official MPPS district antidiscrimination policy were repeatedly rebuffed by the superintendent, culminating in this lawsuit on October 26, 2000. Petitioners never asserted any legal right to be BSA members, but, instead, seek injunctive relief and damages, claiming that Respondents’ longstanding charter-partner-sponsorship associations to promote and conduct the BSA’s private religiously oriented and discriminatory fraternity, jointly upon school premises, as a school-related extracurricular educational program, constitutes state action in violation of their constitutional and statutory civil rights guarantees against any establishment of religion, and equal protection of the laws prohibiting religious discrimination in the public schools.

Respondents appeared in the case together, and are still represented by attorneys from the same law firm. The Isabella County Circuit Court ultimately granted Respondents’ motions for summary disposition on all claims,1 without a trial, based on their identical affirmative defenses that BSA is allegedly not a state actor, and therefore the relief requested by Petitioners, if granted, would impermissibly violate BSA’s federal constitutional First Amendment right of expressive association. Thus, the federal question here was first raised by Respondents in their answers to Petitioners’ Complaint. The Michigan Court of Appeals, in a decision and Judgment dated January 20, 2005, affirmed, and the Michigan Supreme Court denied Petitioners’ application for leave to appeal.2

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Public school charter-partner-sponsorship associations with Boy Scouts of America to jointly promote and conduct the BSA’s private, religiously oriented, and discriminatory fraternity upon school premises is state action, which violates Petitioners’ federal and state constitutional and statutory civil rights guarantees against any establishment of religion, and equal protection of the laws against religious discrimination practices in the public schools. BSA’s First Amendment right of expressive association, as articulated by this Court in Boy Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct. 2446 (2000), is therefore not a valid affirmative defense to Petitioners’ claims. Thus, the Michigan Court of Appeals has decided an important federal question in a way that conflicts with relevant decisions of this Court.

The primary purpose and mission of Boy Scouts of America today is to promote religion among school-aged boys, and to exclude as members those persons who are unwilling to swear oaths to a duty to God and subscribe to the BSA Declaration of Religious Principle. This Court has recognized that purpose by its decision in Boy Scouts of America v. Dale, holding in relevant part that: “The Boy Scouts is a private, not-for-profit organization, engaged in instilling its system of values in young people,” and, as such, it enjoys a First Amendment right of expressive association to exclude members (in that case, homosexuals), upon religious and ideological grounds.

Notwithstanding this undeniable fact, the Boy Scouts, which originated in 1910 as a secular public accommodation, open to all boys and parents regardless of religious belief, insists now on having it both ways, i.e., to be considered “public” in order to carry on its longstanding charter-partner-sponsorship associations with public schools, but “private” in order to discriminate against a minority of public school students and parents who are nonreligious, and therefore cannot in good moral conscience submit to the BSA religious requirements of all members.

This case involves a question of exceptional constitutional importance because, if the decision of the Michigan Court of Appeals is allowed to stand, BSA, and other similar private religiously oriented organizations, are permitted by the force of law to have it both ways in the public schools, i.e., to be considered both public and private, religious and secular at once, which thereby makes a mockery of the United States and Michigan constitutions and civil rights laws. Under this precedent, for example, public schools may partner with radical or extremist organizations such as the Ku Klux Klan to promote and conduct religiously oriented and discriminatory extra-curricular activities against minority students on school premises with impunity. Blacks, Catholics, Jews, and many otherwise legally protected minorities may be excluded from participation in any public school-related and school-sponsored extracurricular educational program or activity under this precedent. Students, for instance, may be declared unwelcome to participate on the school football team solely upon religious or other ideological grounds.

Contrary to the Court of Appeals opinion, this is not a case involving a question of “equal access” in which BSA is merely using school building facilities, and literature distribution policies, in the same manner as other similarly situated groups which have no partnership or sponsorship associations with the schools, as was the situation in Sherman v. Community Consolidated School District, 8 F.3d 1160 (CA 7, ND Ill., 1993), cert. denied, 511 U.S. 1110, 114 S. Ct. 2109 (1994), Westside Community Schools Bd. of Ed. v. Mergens, 496 U.S. 226, 110 S. Ct. 2356 (1990), Lamb’s Chapel v. Ctr Moriches Union Free School Dist., 508 U.S. 384, 113 S. Ct. 2141 (1993), and Good News Club v. Milford Central School, 533 U.S. 98, 106, 121 S. Ct. 2093 (2001), which cases collectively hold, inter alia, that the Establishment Clause demands only that school districts act neutrally in allocating community access to school facilities, and not engage in “viewpoint discrimination” against any such group.

Rather, here, the undisputed facts admitted by Respondents’ own party witnesses conclusively establish that Respondents are entering into formal written charter-partner-sponsorship agreements for the purpose of jointly promoting and conducting the BSA programs to students and parents as school-connected extracurricular activities. School officials, who are also BSA members, are conducting the activities, all of which are designated as school-related by MPPS official policy guidelines, and each Cub Scout pack uses the name of its own school with permission from the district. The MPPS superintendent oversees and personally approves of the activities. Respondents also share the same law firm and affirmative legal defenses in this case, which further demonstrates that they are acting jointly in concert, and there is no conflict of interest in their respective positions.

The Court of Appeals opinion recognizes that, in Michigan, both the state and federal provisions of the Establishment and Free Exercise Clauses of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, are subject to similar interpretation, thus the constitution protects individuals only from discriminatory “state action.” Violations of the Michigan Constitution, therefore, amount to violations of the U.S. Constitution. The court further acknowledges that MPPS is a state actor, and that, if BSA’s policy of requiring endorsement of religious principles can be attributed to it, both Respondents will have violated Petitioners’ rights under the Michigan Establishment and Equal Protection Clauses to be free from discrimination based on religion.

MPPS and BSA are both state actors here. Respondents’ longstanding close associations, characterized by the charter-partner-sponsor agreements to jointly promote and conduct the BSA programs on school premises, and the fact that MPPS officials are conducting the activities, constitutes state action under this court’s holding in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 295, 121 S. Ct. 924 (2001), and therefore, Respondents are equally liable for violations of Petitioners’ constitutional and statutory civil rights. These facts, together with the fact that BSA is still chartered by the U.S. Congress, and nominally commanded by the President of the United States, also serve to render BSA a state actor under the circumstances of this case.

Since the primary purpose of the BSA fraternity today is no longer secular, but advances religion over nonreligion, and excessively entangles the MPPS elementary schools with religion, each of the three prongs in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971), used frequently by this Court as tests to determine whether a government agency is unlawfully establishing religion, are satisfied here.

The state may not lawfully partner with private organizations to promote, sponsor and conduct extracurricular educational programs, which establish religion and religious discrimination in public schools. This court’s decisions in Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992), which struck down a policy allowing nondenominational prayer for a high school graduation because school officials were involved in selecting the person who delivered the prayer and drafted guidelines for the prayer; and Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 120 S. Ct. 2266 (2000), which invalidated a school policy that permitted student-led prayers before school football games, also apply here, as well as this Court’s most recent decision in McCreary County, Kentucky v. ACLU of Kentucky, 545 U.S. ___, 125 S. Ct. 2722 (2005), which prohibits Ten Commandments displays in county courthouses.

BSA’s First Amendment right of free expression and association is not a valid defense to any of Petitioners’ claims. Respondents are engaging in state action upon public school premises–not private conduct within a private setting, as was the case in Dale. Public schools may not lawfully act in concert with private partners to establish religion and practice religious discrimination upon school property. Therefore, Petitioners’ requests for relief to enjoin public school charter-partner-sponsorships of BSA’s religiously oriented and discriminatory programs, if granted, would not result in ‘viewpoint discrimination’ by the state in violation of BSA’s First Amendment rights.

Even if BSA were not a state actor in this situation, it is subject to Michigan’s civil rights and public accommodations laws, because it is offering and making available the privileges, advantages, and accommodations of its private club to students and parents at public elementary schools, which are places of public accommodation. And, even if MPPS were not partnering with BSA in this situation, it is subject to state civil rights and public accommodations laws, and its own official district anti-discrimination policies, including the Michigan School Code, which specifically prohibit the existence of fraternities and the conducting of other discriminatory activities upon school premises.

MPPS official district policies #2260, #5517, #5730, and #5780, together fully comply with the mandate of the Fourteenth Amendment. They strictly prohibit religious discrimination and guarantee that “. . . no student is deprived of the basic right to equal treatment and equal access to all educational programs and activities.” Petitioners’ Fourteenth Amendment rights are denied because the State of Michigan has refused to enforce these official school district anti-discrimination policies, as well as its own constitution, civil rights, and public accommodations laws to protect them from religious discrimination in the same fashion as these policies and laws are enforced to protect other minorities. The Michigan Court of Appeals Decision, if allowed to stand, is therefore tantamount to the state ignoring its own laws and segregating school children on the basis of religion in the same manner as public schools in Kansas once unlawfully segregated children on the basis of race, and thereby depriving nonreligious children of equal educational opportunities, even though physical facilities and other tangible factors may be the same or equal. Brown v. Board of Education, 347 U.S. 483 (1954).


For these reasons, Petitioners respectfully request that this petition for a writ of certiorari be granted; that the Judgment of the Michigan Court of Appeals be vacated; and this case remanded for further proceedings and trial on the question of Petitioners’ requested remedies provided by state law, including injunctive relief and damages.

Respectfully submitted,

1 The circuit court originally found that the May 4, 1999, BSA school hour recruiting visit violated Petitioners’ rights under the U.S. Constitution First Amendment Establishment Clause, but later held that there is no remedy for the wrong.

2 Two of the seven Michigan Supreme Court Justices are members and leaders in BSA, including Chief Justice Clifford W. Taylor, who refused, without explanation, to recuse or disqualify himself from participation in this case. Justice Weaver dissented on this ground, and therefore did not participate in the decision on Petitioners’ application. Two other Justices would have granted leave to appeal.

Freedom From Religion Foundation