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53 Ohio St. L.J. 1385 (1992)
Boy Scouts and Non-Believers: The Constitutionality of Preventing Discrimination

handle is hein.journals/ohslj53 and id is 1397 raw text is: Boy Scouts and Non-Believers: The Constitutionality of Preventing Discrimination I. INTRODUCTION [Tihe individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects-or even intolerance among religions-to encompass intolerance of the disbeliever and the uncertain. 1 The Supreme Court has long held that the First Amendment requires the government to uphold the principle of freedom of religion by not discriminating among religions or between religion and non-religion.2 Congress adopted this policy of non-discrimination on the basis of religion for public accommodations when it passed Title II of the Civil Rights Act of 1964.3 Now, the Boy Scouts of America (Boy Scouts) contend that the First Amendment guarantee of freedom of association makes the Boy Scouts constitutionally immune from the Title II ban on discrimination against atheists, agnostics, and other religious non-believers. This Note will argue, however, that the First Amendment does not forbid the application of civil rights statutes to the Boy Scouts, a group that many experts-including United States Supreme Court Justice Sandra Day O'Connora-believed was immune from I Wallace v. Jaffree, 472 U.S. 38, 52-54 (1985). 2 See Zorach v. Clauson, 343 U.S. 306, 319-20 (1952) (Black, J., dissenting) and Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968). 3 42 U.S.C. § 2000a(a)-(b)(3) (1988). 4Roberts v. United States Jaycees, 468 U.S. 609, 636 (1984) (O'Connor, I., concurring). Justice O'Connor noted in dicta in her concurrence, which no other justice joined, that the training of survival skills and participation in community service could become expressive when intended to develop morals or patriotism and cited the Boy Scout Handbook as an example. The court in Welsh dismissed the Boy Scouts' reliance on

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