Apropos of the current situation with the Boy Scouts of America, in which many Eagle Scouts are resigning and returning their badges, an earlier BSA case provided fortuitous material with which to inaugurate this blog.

By declining to hear the appeal of Welsh v. Boy Scouts of America in 1993, the Supreme Court upheld the right of the Boy Scouts, as a private organization, to discriminate on the basis of religion.  The case stemmed from a suit brought by an agnostic, Elliot Welsh, on behalf of his son Mark. (This was the same Elliott Welsh who successfully won the right of conscientious objection on non-religious grounds in 1970)  The Boy Scouts had denied Mark membership in the Tiger Cubs when his father refused to sign the “Declaration of Religious Principles” on the application.  Welsh alleged that the rejection constituted a violation of the 1964 Civil Rights Act, but the decision hinged on whether or not the Scouts were considered a place public accommodation.  They were not.

In the early stages of the case, however, the BSA spokesman Lee Sneath explained his organization’s position in telling language.  “We do not discriminate on the basis of religion.  And I don’t know that anyone has ever proved that having no belief is a religion,” he said.

Let’s look more closely at that statement, as it contains a kernel of the broad American religious worldview.  On behalf of the Boy Scouts of America, Sneath made the assertion that it is only religious discrimination if the discriminated-against party is religious.  That is, it is impossible to discriminate against an unbeliever.  He took the category of “religion” and applied to it the same logic he might to “race” or “gender”–at least in bog-standard legal thinking, there are no “none of the above” options in those latter categories.  It would be a supremely weaselly legal strategy to deny an instance of racial discrimination on the basis that the subject has no race, but it is hardly a leap to perceive those with no religion as aberrations and outliers in their category.

Sneath’s position was not a cleverly crafted bit of rhetoric designed to allow the Scouts to skirt the issue.  Rather, it reflected widely and deeply held assumptions about the nature of religion and its relation to the United States.  Indeed, a proposed amendment to the 1964 Civil Rights Act would have exempted atheists from religious discrimination protections, preventing Welsh from suing in the first place.  Of course, the Scouts would never discriminate against any religion, but there was nothing in U.S. law or culture to press them to be accommodating to an outlier.