In a concurring opinion, Seventh Circuit judge (and Supreme Court short-lister) Diane Sykes calls foul on plaintiffs who claimed taxpayer standing to sue to block the Army from aiding the Boy Scout Jamboree (on grounds of the Scouts’ rather bland and generic religious requirements) but didn’t have the guts to take their position to its logical conclusion:
The district court held that Sec. 2554 violated the Establishment Clause and enjoined “the U.S. Secretary of Defense and his officers, agents, servants, employees and attorneys . . . from providing any aid to the Boy Scouts of America pursuant to 10 U.S.C. Sec. 2554, with the sole exception of aid provided or to be provided in support of the 2005 Jamboree that will take place from July 25 through August 3, 2005.” (Emphasis added.) This order was dated June 22, 2005, and it notes that “[t]he injunction the plaintiffs are seeking specifically excludes the upcoming 2005 Jamboree.” Whether the plaintiffs’ forbearance in this regard was the product of generosity, the spirit of compromise, or a desire to avoid the public relations fallout that would have attended their eleventh-hour scuttling of the 2005 Jamboree (if that’s what would have occurred), their conduct undermines any claim that they were suffering a grave constitutional injury. Constitutional litigation is legitimate only where there is a real injury and a legal remedy available to redress it. A willingness to postpone the remedy suggests that the plaintiffs’ injury was not real but only a legal fiction to get their Establishment Clause claim before the court.
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Nice to see the legal system finally stepping up for the Boy Scouts. Amazing how the simple, plain language contained in teh Constitution can be twisted in so many ways. Boy Scouts are not a religion, they just believe in God. I would have been nice if teh court had taken a more firm stance on this issue, but we will take what we can get.