This isn't recent news, but it is as irritating as a fire ant bite between your toes and the itch lasts just as long. About two weeks ago, U.S. District Judge Napoleon Jones Jr. made a decision that the Boy Scout's use of Balboa Park land is unconstitutional. From a July 31, 2003 article in the San Diego Union-Tribune: This decision is a travesty of justice for several different reasons. First, consider the fact that the park was built and financed by the scouts and is open to the public. (Read this article for a brief history of the land in question and its use by the Boy Scouts since 1915.) But more importantly is the precidence that a case like this brings to the judiciary. A precidence which seeks to continue to redefine the constitution.

The honorable Judge Jones feels that the lease violates provisions in both the U.S. and California State constitutions. Here are those provisions:

In essense, both constitutions say exactly the same thing: The government will make no law respecting an establishment of religion, and that free exercise of religion is protected. It is important to note that the clause "separation of church and state" does not appear in any form in either constitution. A law which respects an establishment of religion would be a law which elevates a specific religion in the eyes of the government. The primary motivation behind this provision was to insure that the state would not crown a specific religious group or sect as the "state religion". This was critical to many of the colonists who had fled Europe because they did not have freedom of religion there. Although the founding fathers were religious men, they understood that their freedom to practice their religion was dependent upon the freedom of others to practice their own as well.

It is apparent, to me at least, that the intent of both constitutions is to guarantee the right to freely practice religion and for the state not to interfere with that practice. There are two ways for the state to avoid "respecting" a specific religious establishment. They can either avoid all religious contact or they can provide equal access to all religious groups.

The Balboa Park decision is an attempt of the former. However, if government tries to separate church and state by divorcing itself from any contact at all, then the following scenarios must be also be considered (and then outlawed):

• Religious groups providing training or visitation at state or federal prisions
• Religious weddings performed in public parks or in rented public facilities
• Religious crusades using civic auditoriums
• Religiously motivated demonstrations on government facilities

Unfortunately, going down this road leads to another crisis. A non-religious group may rent a public facility but a religious group may not. A non-religious group may demonstrate in a park or in front of the state legislature but a religious group may not. At this point, the state is now violating the constitutional right of free exercise of religion. The constitution does not guarantee that religious groups cannot discriminate but it does guarantee that it will not discriminate against religious groups.

I think that the Judge's decision is wrong for several reasons but the key one is because it discriminates against the Boy Scouts primarly because he classifies them as a religious organization. Last time I checked, that was unconstitutional.