Court Watch: Whistleblowers & Boy Scouts

Wednesday, 31 May 2006

George W. Bush's administration is in shambles, his policies are widely viewed as failures, and in many ways he is already a lame duck, with almost three years remaining in his second term. While many will focus on the long-term consequences of his misadventures in Iraq, his dismantling of FEMA, and his ideological opposition to science for short-term political gain, he has had unqualified success in one key area that may well have repercussions far into the future. By appointing two ultra-conservatives to the Supreme Court, Bush has set the stage for rulings that rob Americans of their civil rights and pander to corporate juggernauts, leaving average Americans--and especially the poor--to languish under the increasingly harsh hand of corporate America. Barring a miraculous conversion to populism (or morality) by one of the Gang of Four (Scalia, Thomas, Roberts, and Alito) or by erstwhile "swing-voter" Kennedy, America may be in for a long, dark night of the soul. Two significant decisions were released by the Court this week, both boding ill for the civil rights of U.S. citizens.

Government Whistleblowers Denied Free Speech Protections

The Pentagon Papers, Watergate, Abu Ghraib, NSA Spying--without government whistleblowers, who courageously let the public know about abuses of power, the U.S. government would be able to get away with murder, literally. Both Congress and the states have passed a variety of whistleblower protections over the past several years, and workers at most private companies are protected by these laws, but what about government employees? If a worker believes that the government--whether local, state, or federal--is abusing its power, can he or she speak out without fear of reprisal? The Supreme Court says No. Writing for the majority in a 5-4 decision, Justice Kennedy said, "We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties." In the case in question, Garcetti v. Ceballos, Ceballos, a deputy district attorney, reported to his supervisors an allegation of police misconduct and urged that a case be dismissed. After he was called by the defense in the case to testify about the misconduct, he claimed that he was punished by the D.A.'s office for telling the truth about an impropriety. Although the Ninth Circuit Court agreed with Ceballos, the Supreme Court reversed their decision. The upshot of this decision is that employees who witness gross violations of procedures or laws will undoubtedly be less inclined to speak out for fear of retaliation. The Court's majority opinion not only crushes those few brave souls with the courage to speak out against government wrongdoing, it gives governments throughout the country the green light to break rules, abuse their power, and violate the civil rights of their employees and others--as if they needed any encouragement!

The Court's rational minority disagreed vociferously with the majority on this ruling. Writing for himself and two other justices, Stevens and Ginsburg, David Souter said, "I agree with the majority that a government employer has substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work. But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection." (Justice Breyer wrote a separate dissenting opinion.)

The First Amendment was added to the Constitution because James Madison and others feared that without explicit prohibitions, the government would soon attempt to control the speech of its citizens. Once free speech rights are thrown out, next to be lost will be the other rights currently protected by the First Amendment: a free press, the right to assemble freely, and freedom of religion. Robbing whistleblowers of their formerly constitutionally-guaranteed right to free speech is deeply disturbing, for it strengthens government bureaucracies while weakening the ability of ordinary citizens to fight for their rights. Whether it signals the first step toward the establishment of a government "thought police" remains to be seen.

Boy Scouts Free to Discriminate against Atheists in Public Schools

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 (Boy Scout Oath).
A Scout is Trustworthy, Loyal, Helpful, Friendly, Courteous, Kind, Obedient, Cheerful, Thrifty, Brave, Clean, and Reverent (Boy Scout Law).

I was a Cub Scout and a Boy Scout, and I attained the rank of Eagle Scout. I thoroughly enjoyed my time in scouting, and I respect the Boy Scouts as an organization. I have no problem with anything in the Scout Oath or the Scout Law. I think the Scout Motto ("Be prepared") and the Scout Slogan ("Do a good turn daily") are good codes to live by. However, I have a problem with the Supreme Court's decision to refuse to hear the case Scalise v. Boy Scouts of America, in which a non-religious father argued that the Boy Scouts should not be allowed both to meet on school property and to exclude his son from membership on the basis of his inability to fulfill that part of the Scout Oath that says "To do my duty to God."

The Boy Scouts of America are a private organization, and as such they have the right to determine their membership. The Supreme Court ruled in 2000 that BSA can prohibit gay scoutmasters, and presumably gay scouts as well. I disagree with the BSA's policy, but I agree with the Court that private groups are allowed to discriminate, as part of their free association rights, as long as they do not receive public support. However, if they meet and recruit in public schools, they are receiving public support, so they should not be allowed to discriminate. (Churches that meet temporarily on school property may also discriminate on religious grounds, but there are differences. First, churches may not recruit at school. Second, churches should only meet in schools for a fixed amount of time, so their right to discriminate on religious grounds is not an undue burden to the community, as long as the church pays for utilities, etc.)

In my experience, the Boy Scouts were hardly a bastion of religious conformism. It's true that we sometimes had makeshift "worship services" on Sunday mornings when we were on campouts. However, I don't equate a few words about the beauty of nature and a chorus of "Kum-Ba-Yah" with a ringing endorsement of religion. I suspect that pretty much any non-religious person, or even atheist, could stomach such an experience. I have serious doubts that all of my troop members were devoted Christians or Jews, and I doubt that most troops around the country would have any serious problem with a boy who was more outspoken about his lack of religious belief. Isn't one element of the Boy Scout Law "A Scout is Trustworthy"?

What about that part of the Oath that requires a Scout "to do my duty to God"? Here I think the problem is with the Scouts rather than with the Court. In my copy of the Boy Scout Handbook, which I still have, when discussing the twelfth point of the Law, "A Scout is Reverent," the book gives this explanation: "A Scout is Reverent: He is reverent toward God. He is faithful in his religious duties and respects the convictions of others in matters of custom and religion." The Boy Scouts are not a Christian organization, or even a Judeo-Christian organization. According to their own documents, they encourage scouts to respect each other's convictions. If the religious convictions of a scout are not to believe in God, are those convictions the only ones to be disrespected? The Court is wrong to allow a private organization that discriminates on the basis of religion (and sexual orientation) to receive public support. The BSA (as opposed to local troops, many of which may not agree or follow the national policy) is wrong to discriminate on the basis of religion when it is not, nor has it ever been, a religious organization.

© Copyright 2006, Progressive Theology

Progressive Theology