WASHINGTON -- The Boy Scouts got the Supreme Court's implied permission yesterday to exclude boys who do not believe in God or are not willing to say that they do.
The court's permission, however, did not come in a binding decision; the court simply refused to review a lower court ruling in the Scouts' favor.
Because the court's action set no precedent, the Scouts were left with the costly task of defending their membership policies in a variety of state courts where legal challenges are now pending. Among the continuing cases are claims that the Scouts must allow homosexual adults to become Scout leaders.
Yesterday's action turned only on the meaning of a federal civil rights law. While the Scouts won on that issue, the court rejected a plea by the Scouts for a broader ruling that would give them a constitutional right to decide who may or may not join the Tiger Cubs, the Cub Scouts, the Boy Scouts or the Explorers.
The Scouts wanted the court to declare, once and for all, that private membership organizations cannot be forced by law to admit anyone against their will.
For the past 17 years, the Boy Scouts' membership policies have been under legal attack in state and federal courts, and before state civil rights agencies. Those attacks have been increasing zTC in recent years, the organization's lawyers told the Supreme Court.
Many of those challenges have been based on federal or state laws that require open entry to places of "public accommodation." The Scouts have insisted that they do not fit that category as a voluntary organization comprised of individuals who share common beliefs and goals.
The court's action yesterday came in the case of an 11-year-old boy in the Chicago suburb of Hinsdale, and his father, who argued that the federal public accommodation law -- a part of the 1964 Civil Rights Act -- forbids discrimination based on religious beliefs.
The Boy Scout oath requires every youth or adult leader seeking to join to promise to "do my duty to God" as a condition of membership. The Illinois youth, Mark G. A. Welsh, and his father, Elliott, refused to make that pledge when they tried to sign up with a Tiger Cub den in Burr Ridge, Ill. -- the boy as a Tiger Club, the father as an adult partner. They were rejected, and they sued.
The 7th U.S. Circuit Court of Appeals in Chicago ruled last May that the Boy Scouts are not covered by the 1964 act, either because they are not a "place of public accommodation," or because they qualify for a "private club" exception to the law.
Mr. Welsh and his son then took the case on to the Supreme Court. The Scouts, while supporting the appeals court ruling in their favor, joined the Welshes in urging the Supreme Curt to step in.
The Scouts' plea argued that a belief in God and a duty to God are "the foundation of Boy Scouts' system of ethical values." The Scouts should not be forced, they argued, to become "a vehicle for the values of secular humanism."
The court took one other significant action yesterday: it agreed to rule on the constitutionality of California's death penalty law in two cases that potentially affect 375 inmates now on death row in that state's San Quentin Prison.
The court agreed to hear claims that the 1978 state law is written in such vague terms that jurors are free to use their own uncontrolled discretion to decide for or against a death penalty, making that decision an arbitrary one in California.
Those challenges are being made by two death row inmates. The first was sentenced to die for the rape, torture and stabbing murder of a first-grade school teacher in 1982. The second was given the death sentence for the shooting death of one man and the wounding of two others by spraying rifle fire in a bar while the patrons watched "Monday Night Football" on television.
A final Supreme Court decision is expected before next summer.
THE SCOUT OATH
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.