Last summer, a federal judge in Chicago ruled unconstitutional the old tradition of holding Boy Scout Jamborees at Fort A.P. Hill in Virginia every four years. The military base belongs to the taxpayers and citizens of America, and the Boy Scouts do not. But the Boy Scouts do much for the nation, and even if the nation doesn’t own the Boy Scouts, the Boy Scouts own major stock in the nation.

On Thursday, April 6, oral arguments will commence in Chicago at the United States Court of Appeals for the Seventh Circuit. The appellant is the Department of Defense, and the case is Winkler v. Rumsfeld. If the decision is upheld, the military will be barred from providing Jamboree campsites at Fort A.P. Hill, showing exhibits to the Scouts, and lending military equipment to the Scouts.

The Boy Scout Jamboree has been held at Fort A.P. Hill since 1981, and the military has provided support and resources for every Boy Scout Jamboree since the first one in 1937. The Jamboree is an opportunity for military recruitment, personnel training, and facilities construction and maintenance used for other military purposes. Some 40,000 Scouts and adult leaders attend the Jamboree from around the world, and no president has turned down an invitation to speak at the gatherings except for Bill Clinton.

The Boy Scouts are not the only group that partners with the nation’s Armed Forces, though it would seem they ought to be at the top of the list of partners. As the Boy Scouts of America Legal Issues website explains, “Military bases routinely hold circuses, carnivals and rock concerts which are open to the public; the military provides safety, security and logistical support for sporting events and political conventions; the military sends bands to perform at churches, community centers, and nursing homes across the country; and the Navy’s Blue Angels perform flyovers for NASCAR racing, truck and tractor pulls, and local parades across the country.”

That the American Civil Liberties Union would single out the Boy Scouts for exclusion from our nation’s military bases suggests an agenda so out of control that if upheld by the Seventh Circuit will threaten the very strength of our nation.

What kind of thing is it, this attempt by the ACLU to rid the public square of boys in uniforms who swear to serve God and country?

There are three possible answers. First, it might be justified by the nature of our government. Perhaps our government requires the purgation of private character-building groups from the public setting. But this is not the case. In fact, our form of government requires virtue that has its source in the private sphere. The public welfare cannot be divorced from private morality.

Perhaps though, second, something within that private sphere could still violate the principles of good government. Perhaps the Boy Scouts might do harm to the separation of church and state; perhaps the Scouts might impede upon the religious liberty of individual citizens. And yet the Boy Scouts do not constitute an establishment of religion or a violation of religious conscience. They are a private organization, and they are one of the most religiously diverse groups in the nation. Buddhists and Muslims join troops with Baptists and Mormons. Catholics go hiking with Charismatics.

And the third reason that the ACLU might wish to undo the role of the Boy Scouts in the public square is a more recent development. It is the non-discrimination code, which goes beyond basic egalitarianism to impose a radical agenda not only on the Boy Scouts of America, but on all of society – to subvert the foundations of that government that owes its very existence to the preservation of private morality. The non-discrimination code seeks to protect the moral choices of immoral human beings; it establishes license; it wreaks of our nation’s communities havoc. Furthermore, it fails the test of the Constitution, as it is applied.

The Boy Scouts will discriminate, and they have the right to do so, and they are right to do so. The U.S. Supreme Court upheld the right of the Boy Scouts to discriminate in the 2000 case of Dale v. BSA. The Scouts can exclude homosexuals and atheists from joining troops as members and leaders for the same reason that a homosexual or atheist organization can exclude Christians or people who won’t pay dues. In our free society, private organizations can set their own terms as long as they don’t impose anything on other groups.

That isn’t to say that the government has no interest in private organizations. The government must work alongside the private sphere if it is to be effective. Governments from the local to the federal must partner with groups like the Boy Scouts and Girl Scouts, the American Legion and the VFW, or the Salvation Army and the Red Cross. Whether the occasion is Hurricane Katrina, or Sept. 11, or Veterans Day, or the Boy Scout Jamboree, a connection between government and the private sphere ought not be precluded.

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