DEAN RODRIGUEZ: We have a cliffhanger. We’ll have to bring us back from the cliff, or take us over it. I’m glad to introduce John Eastman, our next speaker.

John is Professor of Law at Chapman University Law School. He joined the faculty in 1999. He teaches at Chapman, Constitutional Law, Legal History, and Property. He is also the Director for Constitutional Jurisprudence, a public-interest law firm affiliated with the Claremont Institute for the Study of Statesmanship and Political Philosophy.

Prior to joining the faculty at Chapman, John Eastman served as a law clerk to the Honorable Clarence Thomas, Associate Justice, Supreme Court of the United States, and the Honorable J. Michael Luttig, Judge for the U.S. Court of Appeals for the Fourth Circuit.

He practiced law with the national law firm of Kirkland and Ellis, representing major corporate clients in federal and state courts, and with respect to state attorneys general investigations in complex commercial contract litigation and in consumer litigation. John Eastman has also represented numerous clients in important constitutional law matters.

On behalf of the Claremont Institute Center for Constitutional Jurisprudence, he has participated as amicus curiae before the Supreme Court, U.S. Court of Appeals, and state Supreme Courts in numerous cases of constitutional significance, including Boy Scouts of America v. Dale.

John Eastman holds a Ph.D. in government from the Claremont Graduate School and a J.D. from the University of Chicago Law School, and is Chairman of the National Executive Committee of the Federalist Society’s Federalism and Separation of Powers Practice Groups. John Eastman.

PROFESSOR EASTMAN: Thank you, Dean Rodriguez. I guess I’m the one taking us over the cliff. Do I have to reset this to get my 10 minutes, or do I just go on? There we go, all right.

Professor Brownstein said that these are very difficult constitutional matters. I have to disagree. I think this is a very easy case. What makes it difficult are people like the ACLU, and quite frankly like Judge Jones, who are bent on engaging in an assault on the Boy Scouts.

Let me go through some of what I consider to be the contradictions that makes where we are right now have a certain beyond-the-looking-glass, Alice in Wonderland aspect to this litigation. It’s litigation that, as Dean Rodriguez said, I’ve been involved in since we filed amicus briefs in support of the Boy Scouts back in New Jersey. My connection with that particular case actually goes back much further, to 1968 when as a young 8-year-old man I joined a Cub Scout pack in Mattawan, New Jersey, the very pack that was affiliated with the troop James Dale would years later challenge. So I’ve got some personal stake in this.

Here’s the state of the law in California following Judge Jones’ decision: The Boy Scouts of America is a religion. But as of last year, March, the California Supreme Court decision, Catholic Charities is not.

The California no-aide clause in the California constitution prohibits aide to any sectarian purpose. But Judge Jones found that the Boy Scouts is non-sectarian, yet that was nevertheless immaterial because it is religious.

The Boy Scouts requires its members to acknowledge a duty to God. It requires that they take an oath. It includes as one of its elements of Scout law that they be reverent. The California constitution’s preamble likewise acknowledges our duty to God. It begins, “We the people of California, grateful to almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this constitution.”

George, I think maybe you should just get the Boy Scouts to change the oath just slightly, not acknowledge a duty to God, just acknowledge a duty to the California preamble’s duty to God, and maybe we’d be okay.

Other states, those that were around at the time of the founding and participated in the drafting of the Establishment Clause that we’re interpreting today call this duty to God a public duty. Massachusetts, that paragon of religious freedom today, it is the right, as well as the duty of all men in society, publicly to worship the Supreme Being -- they don’t leave it there -- the Great Creator and Preserver of the Universe. It even calls in their state constitution that it’s the duty of the faculty of Harvard University to instill these kinds of virtues in their students. The faculty hasn’t read that provision of their constitution for some time.

Those who actually wrote the Establishment Clause that we’re trying to interpret today had some things to say about this subject as well. Thomas Jefferson, James Madison, George Washington, every one of the principle founders of our nation had views of similar note.

I’ll quote George Washington for a great example. In his farewell address, his last public act, when he was giving to us, his fellow citizens, some direction that he had learned in his life about how to succeed in this experiment of self-government he wrote, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.”

The notion that people of such views would prohibit the Boy Scouts from engaging in the kind of activity they do, in fostering this kind of civic virtue that they for a century have been famous for fostering would violate the Establishment Clause is really to completely turn that clause upside-down.

The Northwest Ordinance, re-enacted by the same Congress that on the same day proposed the First Amendment, including the Establishment Clause, provides “religion, morality, and knowledge being necessary to good government and the happiness of mankind. Schools and the means of education shall forever be encouraged.”

This was the ordinance that was going to define how governmental institutions would operate in every territory that came into the United States. Religion, morality, and knowledge being necessary to good government. The notion that the Boy Scouts in fostering that kind of civic virtue somehow creates an unconstitutional problem for the city of San Diego has so turned upside-down our understanding of our own history and Establishment Clause that I don’t know where to begin.

All of these things, legislative prayer, all of these things are constitutional under existing jurisprudence, but a lease with the Boy Scouts are not. Other leases on the same land, the Jewish Community Center, the Point Loma Presbyterian Church, both discriminate on the basis of religion in their membership. The Black Police Officers’ Association discriminates on the basis of race in its membership. The Vietnamese Federation of San Diego discriminates on the basis of national origin in its membership. The Girl Scouts discriminates on the basis of gender in their membership.

They all violate California law if we’re going to apply this non-discrimination principle across the board. Yet all of these leases are okay. None have been challenged by the ACLU. But the Boy Scouts of America’s lease is somehow not okay.

The city paid 950,000 dollars to the ACLU for fees incurred, and that might be incurred in the future, if we continue to fight this case and continue to lose every step of the way. The ACLU, a pervasively irreligious organization. Yet the City of San Diego can’t accept 1.7 million dollars in benefits from the Boy Scouts of America in operating a camp facility that’s available to all the citizens of San Diego without violating the Establishment Clause on the ground that sectarian prohibitions in the California constitution include the distinction between religious and irreligious. Ladies and gentlemen, this is an Alice in Wonderland world we’re living in when the law can give us such nonsense.

I want to read to you -- I’m trying to figure out why Judge Jones would give us such an opinion. Let me read one passage right at the outset of the opinion. Because it is so dripping with animosity against the Boy Scouts of America, I think it actually provides grounds for Judge Jones to have, under proper circumstances, recuse himself from this case.

He describes the Boy Scouts’ protected private viewpoints as including an anti-homosexual, anti-agnostic, and anti-atheistic stance. I might point out it’s also anti-girl if we’re going to take that seriously. It is the Boy Scouts after all.

In addition to holding these views, Judge Jones continues, the Boy Scouts displays intolerance towards individuals who identify themselves as homosexual, agnostic, or atheist by denying membership to or revoking the membership of gay and non-believing individuals. I can’t imagine an opinion describing the Jewish Community Center’s views by having its membership limited to fellow participants in the Jewish faith as being anti any of the other groups that are not allowed to become members.

After Dale, Judge Jones continues, it is clear that Boy Scouts’ strongly held, private, discriminatory beliefs are at odds with values requiring tolerance and inclusion in the public realm. Lawsuits like this are one of the predictable fallouts from the Boy Scouts victory in Dale. A whole lot of tolerance evidence in Judge Jones’ opinion for the Boy Scouts’ own views on these subjects. So I can’t understand why he doesn’t recuse himself.

The ACLU -- this was already referenced by George Davidson -- a once great organization whose historic defense of individual liberties by groups who were outside of the current mainstream’s vogue should have led it to defend the Boy Scouts rather than to lead the assault on it.

I will tell you, though, to say that it’s outside of the current mainstream vogue is, I think, also to belie the facts. I marched with my son and his Cub Scout troop and now his Boy Scout troop in parades, and I tell you, parades get polite applause as each of the floats are going down. The firefighters or the police -- after 9/11 the firefighters and police got huge rounds of applause.

But never, never do we get as great applause for any float in these parades that we participate in than when the Boy Scout troops or the Cub Scout packs walk by. The mainstream America -- maybe call it Red State America -- understands what the fight here is about.

Rather the ACLU has been captured by a radical agenda that cannot tolerate dissenting views. All of that makes sense if you put it in the context of where they are now. But what about the city of San Diego itself? Why did the city of San Diego take a powder on this case, not appealing what I consider to be a patently frivolous claim and a patently erroneous decision that is not likely to stand even in the Ninth Circuit here in California?

They paid an illegal settlement to help the ACLU go after the Boy Scouts -- 950,000 dollars in attorneys’ fees for a case decided on summary judgment. A case up in the Mojave desert by the ACLU that went years back and forth, up twice to the Ninth Circuit, the fee award was 65,000 dollars. The settlement itself says that we’re paying this for fees already incurred and that might be incurred in the future.

In my view that violates the California constitution’s prohibition on illegal gifts to private entities, because it acknowledges that these fees have not been incurred. It breached its fiduciary duty to the citizens and taxpayers of San Diego by making that payment, by voiding a highly beneficial lease for the citizens of San Diego.

Why? This is political correctness run amok. This is the Boy Scouts we’re talking about. Historically society’s paragon of virtue. I mean, if you’re too virtuous, you get accused of being a Boy Scout.

Let’s be very clear what’s going on here. The attacks here -- the legal attacks, the factual attacks, the media assault, the ACLU assault -- are not because the Boy Scouts discriminate in who they want to have as their members, but because they subscribe to a moral code, a moral code that our founders thought essential if we were going to succeed in this experiment of self-government, that acknowledges a duty to God -- the same acknowledgement of a duty to God that’s in the California constitution, that’s in the constitutions of 47 out of the 50 states, that’s in the Declaration of Independence.

The Boy Scouts carry that self-governing experiment forward. They help us inculcate in our young people the civic virtues that are necessary to succeed. That’s the reason they’re being targeted. We should not sit by and tolerate cities to take a powder or judges who will assist in that effort. Thank you.