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UPDATE: High court rules for Boy Scouts, against partial-birth abortion ban

WASHINGTON (BP)–The U.S. Supreme Court used the final day of its term to issue a quartet of decisions on moral and church-state issues, including deeply divided rulings upholding a private organization’s freedom to bar homosexuals from its leadership and striking down a state’s ban on an especially gruesome method of abortion.

In its June 28 opinions, the high court:

— Decided the Boy Scouts of America can prohibit homosexuals from being troop leaders;

— Rejected Nebraska’s prohibition of a technique known as partial-birth abortion;

— Ruled federal government aid can be used to purchase instructional equipment at religious schools;

— Upheld a Colorado law restricting sidewalk counselors and other pro-lifers outside abortion clinics.

The most divisive and highly anticipated opinions were those in the Boy Scouts and partial-birth abortion cases. Both were decided by 5-4 votes.

In Boy Scouts of America v. Dale, the justices rejected a decision by the New Jersey Supreme Court that found the BSA is not a private group but a public accommodation that cannot discriminate on the basis of “sexual orientation,” which includes homosexuality. The state supreme court ruled having a homosexual leader was not inconsistent with the Boy Scouts’ values, even though the organization argued it has consistently said homosexuality and other immorality violate its requirements for leadership.

In an opinion written by Chief Justice William Rehnquist, the court said the New Jersey law violated the Boy Scouts’ “First Amendment right of expressive association.”

“The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints,” Rehnquist wrote.

The New Jersey Supreme Court had ruled unanimously the Boy Scouts must reinstate James Dale, a homosexual assistant Scoutmaster. The Scouts removed Dale, a former Eagle Scout, from his position when a newspaper reported on a speech he gave at a 1990 seminar for homosexual teenagers. Dale was co-president of the Lesbian/Gay Alliance at Rutgers University at the time.

“Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,” Rehnquist wrote.

Associate Justice John Paul Stevens, who wrote the main dissenting opinion, argued the Scouts had no “shared goal or collective effort to foster a belief about homosexuality at all.”

Rehnquist wrote, “The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.”

He acknowledged homosexuality appears to have “gained greater societal acceptance” but said that “is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not.”

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said the ruling is “both a victory and vindication for every private, voluntary organization in America.” The justices “sent a message that the rights of private secular and faith-based groups to select their own leadership will be protected,” he said.

“At stake in the case was whether or not private organizations could continue to set the moral standards for those they entrust in leadership positions, particularly those who work directly with children,” Land said.

“Most Southern Baptists understand that the burden the government … sought to place upon the Boy Scouts it might well seek to impose tomorrow on religious organizations and the day after on individual churches themselves.”

The ERLC signed onto a brief by the American Center for Law and Justice in support of the Boy Scouts.

In a written release, the Boy Scouts of America welcomed the decision, saying it “must have the right to establish its own standards of membership if it is to continue to instill the values of the Scout oath and law in boys. We believe an avowed homosexual is not a role model for the values espoused in the Scout oath and law.”

While homosexual rights organizations criticized the decision, other pro-family advocates hailed it.

“If the Supreme Court had ruled the other way, it could have forced the NAACP to accept a Ku Klux Klan member, the B’Nai Brith to accept Catholics and the Knights of Columbus to accept Jews as members and leaders,” said Jan LaRue of Family Research Council in a written statement.

In Stenberg v. Carhart, the high court upheld an Eighth Circuit Court of Appeals opinion striking down Nebraska’s ban on partial-birth abortion.

Nebraska is one of 27 states that have adopted a ban patterned after federal legislation that twice has been vetoed by President Clinton following strong congressional support. The procedure prohibited by the bans is typically performed in the fifth or sixth month of pregnancy. As popularized by some abortion doctors, it involves the delivery of an intact baby feet first until only the head is left in the birth canal. The doctor pierces the base of the baby’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain.

In an opinion written by Associate Justice Stephen Breyer, the court agreed with the appeals court, finding the law imposed an “undue burden upon a woman’s right to make an abortion decision.”

Under its description of the partial-birth method, the law could also be used to prosecute doctors who use the D&E method, Breyer wrote. A D&E abortion involves the dismemberment of an unborn child while in the womb or birth canal. Breyer also found the law flawed because it did not include an exception for health reasons, which in a previous Supreme Court ruling encompasses not just physical health but mental, emotional and other considerations.

Rehnquist and Associate Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas each filed a dissenting opinion, sometimes using powerful rhetoric to voice their disagreement.

Thomas said the majority “must take a series of indefensible steps” to reach a decision the Constitution clearly “does not compel.”

“Today the court inexplicably holds that the states cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide and that the court hesitates even to describe,” Thomas wrote.

The Stenberg ruling is a “disappointing and shameful” decision, the ERLC’s Land said. “[T]his act of infanticide should not be tolerated in a civil society.”

If the ruling is “allowed to stand over time by the Supreme Court, it will eventually go down in the Supreme Court’s Hall of Shame” with other notorious decisions, Land said.

The ERLC signed onto a brief by the U.S. Catholic Conference in support of the state law.

In the Boy Scouts and partial-birth abortion cases, Associate Justice Sandra Day O’Connor was the swing vote, siding with the majority in both.

In a significant church-state ruling, the justices overturned by a 6-3 vote in Mitchell v. Helms a Fifth Circuit Court of Appeals decision that found a federal program as applied in Louisiana was unconstitutional in its provision of books, computers and other equipment to religious schools. Under Chapter 2 of the program, materials provided to the schools remain the property of local and state public education agencies. In Louisiana, religious schools were required to commit to using the materials only for nonreligious purposes.

Thomas wrote in the court’s opinion the “religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose. If a program offers permissible aid to the religious (including the pervasively sectarian), the areligious and the irreligious, it is a mystery which view of religion the government has established and thus a mystery what the constitutional violation would be.

“In short, nothing in the establishment clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this court bar it.”

O’Connor, joined by Breyer, offered an opinion concurring in the judgment but not in the reasoning of the plurality of Thomas, Rehnquist, Scalia and Kennedy. She said for one thing “the plurality’s treatment of neutrality comes close to assigning that factor singular importance in the future adjudication of establishment clause challenges to government school-aid programs.”

Associate Justice David Souter, joined by Associate Justices John Paul Stevens and Ruth Bader Ginsburg, dissented, saying the “plurality’s notion of evenhandedness neutrality as a practical guarantee of the validity of aid to sectarian schools would be the end of the principle of no aid to the schools’ religious mission.”

In Hill v. Colorado, the court voted 6-3 to uphold a 1993 Colorado law targeting the actions of sidewalk counselors and other anti-abortion protesters. The law prohibits anyone within 100 feet of a “health-care facility” from approaching within eight feet of another person, unless that person consents, on a sidewalk or in the “public way” in order to persuade or protest.

Writing for the majority, Stevens said the law was not an “unlawful prior restraint” on speech. It is not a “regulation of speech” but a “regulation of the places where some speech may occur,” he wrote. The restriction is “reasonable and narrowly tailored,” Stevens said.

Kennedy, however dissented, saying the decision “contradicts more than a half century of well-established First Amendment principles. For the first time, the court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.”

Joining Stevens in the majority were Rehnquist, O’Connor, Souter, Ginsburg and Breyer. Like Kennedy, Scalia and Thomas dissented.