Atheists can be Boy Scouts, California court rules.

Two atheist boys can remain in the Boy Scouts of America even though they refuse to take an oath to do their "duty to God," according to a recent decision by a California appellate court. (Randall v. Orange County Council, No. G012797, 1994 Cal. App. LEXIS 174 (Ct. App. Feb. 28, 1994).)

The decision by California's Fourth District Court of Appeal upheld a trial court's ruling that enjoined a local Boy Scout council from excluding twin 11-year-old boys, Michael and William Randall, from participating in scouting activities on the basis of their religious beliefs. The appellate court found that the council was a "business establishment" subject to the Unruh Civil Rights Act, a California law that prohibits businesses from engaging in any form of religious discrimination.

The suit was filed in 1991 by the twins' mother, acting on their behalf, after they learned that they could not continue in scouting if they did not believe in God. The twins, who had gone to about five scout meetings, were told by their den mother that they would have to earn a religious emblem for their uniforms before they, could advance to the next scout ranking. When the boys announced that they, did not believe in God, the den mother told them they would have to quit. (See William Vogeler, Boy Scout Oath Is Struck Down by 4th District, Los Angeles Daily J., Mar. 1, 1994, at 1.)

Ruling in favor of the twins, the three-judge panel rejected the council's argument that it is a religious organization entitled to First Amendment protections. "The [defendant] can hardly be considered [a] religious organization ... since any creed will meet its requirements," Justice Thomas Crosby, Jr., wrote for the majority.

A lone dissenting judge disagreed in a sharply worded dissent. "[O]ne would think we are writing about a pizza parlor where the proprietor requires prayers before serving a medium pepperoni with anchovies," Justice David Sills wrote. "It may come as a surprise to my colleagues, but there are those who still seek membership in an organization which teaches duty to God and country and the virtues of order and discipline."

The majority's holding seems to conflict with a recent U.S. Supreme Court decision to let stand a Seventh Circuit opinion denying a 10-year-old agnostic membership in the Boy Scouts. (Welsh v. Boy Scouts of America, 114 S. Ct. 602 (1993).) The plaintiffs in that case alleged that the Boy Scouts' refusal to allow a nonbeliever to be a member violated Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations. The Seventh Circuit held that Title II does not apply to a voluntary membership organization like the Boy Scouts. (See High Court Al- lows Boy Scouts to Bar Atheist Applicant, TRIAL, Feb. 1994, at 80.)

Although the Randall case involves similar issues, it differs in one important fact, according to George Davidson, a New York attorney who represented the Boy Scout council in that case. The Welsh plaintiffs alleged a violation of federal law, while the Randall case centered on a state law. "The Randall court simply read the California statute a different way," Davidson said.

The council has filed a petition for review with the California Supreme Court, and if the case is heard, Davidson expects the decision will be overturned by that "more conservative" court.