Volokh, Eugene wrote:
The Boy Scouts asserts the following:"With respect to positions limited to professional Scouters or, because of their close relationship to the mission of Scouting, positions limited to registered members of the Boy Scouts of America, acceptance of the Declaration of Religious Principle, the Scout Oath, and the Scout Law is required. Accordingly, in the exercise of its constitutional right to bring the values of Scouting to youth members, Boy Scouts of America will not employ atheists, agnostics, known or avowed homosexuals, or others as professional Scouters or in other capacities in which such employment would tend to interfere with its mission of reinforcing the values of the Scout Oath and the Scout Law in young people." Say that the Boy Scouts are sued for refusing to hire an atheist or agnostic for a high leadership position. They raise a RFRA defense, as well as a post-Smith Free Exercise Clause defense. Yes, they say, our shared religious beliefs are quite limited -- we don't insist on agreement about the Trinity, about the divinity of Christ, or even about monotheism. (I'm not sure whether the Scouts read the "God" in their Declaration of Religious Principles as necessarily referring to only one God, but assume that they don't.) But we do have two shared religious beliefs: God(s) do(es) exists, and we must be reverent to Him/Them. We therefore have the right to hire as our leaders only those who share the group's stated religious beliefs, just as a church or a synagogue has the right to hire as its leaders only those who share its religious beliefs. What result? This doesn't, of course, test the access-to-subsidy aspects of my earlier hypotheticals. But it does test the question whether the Boy Scouts have any RFRA rights, or whether they are so latitudinarian that they can't be said to have a religious practice to be burdened.
I think they would be reluctant to assert that they are a religious organization because they are involved in so many cases involving government benefits. If they take the position that they are an explicitly religious organization, they will have a much harder time making the case for subsidy.
Ed Brayton _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
