Alright, it isn’t actually a bake sale, but it might as well be. On May 15, the House of Representatives passed H.R. 5872, an act “To require the Secretary of the Treasury to mint coins in commemoration of the centennial of the Boy Scouts of America, and for other purposes.” The other purposes? The sale of the coins by the Secretary of the Treasury, with a surcharge on each coin sold to “be paid to the National Boy Scouts of America Foundation.” In other words, this is a congressionally mandated fundraiser for the Boy Scouts.
With the act allowing for up to 350,000 of this coin to be issued and fixing the surcharge at $10 per coin, the Boy Scouts could receive as much as $3.5 million from their sale. Never before, in the long history of U.S. government issued commemorative coins, has this benefit been granted to an organization that promotes religion or discriminates based on religion.
What is a Commemorative Coin and How Does the Program Work?
A 1996 U.S. Mint report titled “Commemorative Coins Could Be More Profitable,” described the issuance of commemorative coins as follows: “Every commemorative coin program is authorized by an act of Congress. Congress authorizes commemorative coins primarily as a means of honoring certain events and individuals and raising funds for the coins’ sponsors. On occasion, the proceeds from commemorative coin sales are applied to the national debt. Commemorative coins are legal tender but are purchased and retained by collectors, rather than used as a circulating medium of exchange.”
The first commemorative coin, authorized by Congress in 1892, was the Columbian Exposition silver half dollar, commemorating Columbus’s first voyage to the new world. These coins, priced at twice their face value, did not sell well, and many of them ended up being put into circulation by the banks that held them as collateral against unpaid loans taken out by the Exposition. Over fifty other commemorative coin programs were authorized between 1892 and 1951, and for the first few decades they were all to recognize anniversaries of major historical events or to raise money for legitimate memorial projects. But, of course, any program where money is involved is subject to abuse
By the 1920s things were already getting out of control. At that time, coins issued to fund a particular project were simply minted and then sold by the government to the recipient organization, which would then resell them for a profit, with the selling price set by the organization. This led to a flood of coins commemorating events that were only of local rather than national interest, organizations charging exorbitant prices for their coins, and even instances of coin dealers fabricating anniversaries to obtain a product to sell. In 1936, for example, a group of Ohio coin dealers formed the “Cincinnati Music Center Commemorative Coin Association” and applied to have a coin issued commemorating Cincinnati’s “contribution to the art of music for the past 50 years.” This coin was authorized by Congress despite the fact that the Commission of Fine Arts found that nothing of musical significance had occurred in Cincinnati in 1886 to make 1936 a 50th anniversary of anything. In 1939, Congress passed legislation severely limiting commemorative coins, and following the issue of the George Washington Carver – Booker T. Washington half dollar, which was sold from 1951 to 1954, the program was suspended for nearly three decades.
The program was revived in 1981 with the authorization of a George Washington 250th Anniversary half dollar to be issued in 1982, the profits from which were applied to the national debt. By 1984, Congress was once again authorizing coins to raise funds for private organizations, but new legislation required that the coins be sold directly to the public by the U.S. Mint, with a fixed surcharge to be paid to the recipient organization. The minting of many of these coins resulted in a loss to the government, although the sponsoring organizations always made a profit. The problem was that the organization received its surcharge beginning with the very first coin sold, before the mint had recovered its set-up and other costs. If a coin sold so poorly that its sales didn’t cover these costs, it was the government that took the hit. On the 1994 World Cup Tournament coins, for example, the government lost over $4 million, while the sponsor received over $9 million. Current law requires that the mint ensure that it will not lose any money before transferring any surcharges to the recipient organization, and limits commemorative coin programs to two per year.
The Unconstitutionality of Issuing a Commemorative Coin for the Boy Scouts
This should be obvious, but apparently it isn’t to the overwhelming majority in our House of Representatives, who just passed H.R. 5872 by a vote of 403 to 8. (Kudos to Tammy Baldwin (D-WI), Barney Frank (D-MA), Luis Gutierrez (D-IL), Dennis Kucinich (D-OH), Barbara Lee (D-CA), Jim McDermott (D-WA), Pete Stark (D-CA), and Lynn Woolsey (D-CA) — the eight who voted no.)
While much has been written about the disputes and court cases resulting from establishment clause issues raised by government support of the Boy Scouts, the organization’s actual statements and policies are usually only vaguely described or briefly quoted. To leave no doubt as to why Congress, without question, should be prohibited from passing legislation to raise money for this organization, here are some of the statements and policies from official Boy Scout publications and websites.
First, there’s the “Declaration of Religious Principle,” found in the organization’s bylaws. This declaration must be subscribed to by every member of the Boy Scouts, from the youngest scout to the adult leaders, volunteers, and employees.
Declaration of Religious Principle:
“The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God. In the first part of the Scout Oath or Promise the member declares, ‘On my honor I will do my best to do my duty to God and my country and to obey the Scout Law.’ The recognition of God as the ruling and leading power in the universe and the grateful acknowledgment of His favors and blessings are necessary to the best type of citizenship and are wholesome precepts in the education of the growing members. No matter what the religious faith of the members may be, this fundamental need of good citizenship should be kept before them. The Boy Scouts of America, therefore, recognizes the religious element in the training of the member, but it is absolutely nonsectarian in its attitude toward that religious training. Its policy is that the home and the organization or group with which the member is connected shall give definite attention to religious life.”
Then there are the policies governing volunteers and employees.
Youth and Adult Volunteers:
“Boy Scouts of America believes that no member can grow into the best kind of citizen without recognizing an obligation to God. Accordingly, youth members and adult volunteer leaders of Boy Scouts of America obligate themselves to do their duty to God and be reverent as embodied in the Scout Oath and the Scout Law. Leaders also must subscribe to the Declaration of Religious Principle. Because of its views concerning the duty to God, Boy Scouts of America believes that an atheist or agnostic is not an appropriate role model of the Scout Oath and Law for adolescent boys. Because of Scouting’s methods and beliefs, Scouting does not accept atheists and agnostics as members or adult volunteer leaders.”
“With respect to positions limited to professional Scouters or, because of their close relationship to the mission of Scouting, positions limited to registered members of the Boy Scouts of America, acceptance of the Declaration of Religious Principle, the Scout Oath, and the Scout Law is required. Accordingly, in the exercise of their constitutional right to bring the values of Scouting to youth members, the Boy Scouts of America will not employ atheists, agnostics, known or avowed homosexuals, or others as professional Scouters or in other capacities in which such employment would tend to interfere with the mission of reinforcing the values of the Scout Oath and the Scout Law in young people.”
And, according to BSALegal.org, a website “created on behalf of the Boy Scouts of America to inform the public about the legal issues that confront Scouting,” religious beliefs and activities are required for every level of advancement from Cub Scouts through Eagle Scouts.
“All levels of advancement in the Scouting program have requirements recognizing ‘duty to God’:
Bobcat Cub Scout
“A boy is required to promise to do his best to do his ‘duty to God,’ which means ‘Put God first. Do what you know God wants you to do.’
Wolf Cub Scout
“A boy is required to ‘[t]alk with your folks about what they believe is their duty to God,’ ‘[g]ive some ideas on how you can practice or demonstrate your religious beliefs,’ and ‘[f]ind out how you can help your church, synagogue, or religious fellowship.’
Bear Cub Scout
“A boy is required to ‘[p]ractice your religion as you are taught in your home, church, synagogue, mosque, or other religious community’ or ‘[e]arn the religious emblem of your faith.’
“A boy is required to either ‘[e]arn the religious emblem of your faith’ or do two of the following:
“’Attend the church, synagogue, mosque, or other religious organization of your choice, talk with your religious leader about your beliefs, and tell your family and Webelos den leader about what you learned.’;
“’Tell how your religious beliefs fit in with the Scout Oath and Scout Law, Discuss this with your family and Webelos den leader: What character-building traits do your beliefs and the Scout Oath and Scout Law have in common?’;
“’With your religious leader, discuss and write down two things you think will help you draw nearer to God. Do these things.’;
“’Pray to God or meditate reverently each day as taught by your family, and by your church, synagogue, or religious group. Do this for at least one month.’;
“’Under the direction of your religious leader, do an act of service for someone else. Talk about your service with your family and Webelos den leader. Tell them how it made you feel.’; or
“’List at least two ways you believe you have lived according to your religious beliefs.’
First Class Boy Scout
“A boy is required to ‘[l]ead your patrol in saying grace at the meals …’
Second Class, First Class, Star, Life, and Eagle Boy Scouts
“A boy is required to ‘[d]emonstrate Scout spirit by living the Scout Oath … and Scout Law in your everyday life.’”
On the FAQ page of BSALegal.org, the discriminatory policies of the Boy Scouts are defended through questions and answers like the following.
“Q. What allows the Boy Scouts of America to exclude atheists and agnostics from membership?
“A. The Boy Scouts of America is a private membership group. As with any private organization, Boy Scouts’ retains the constitutional right to establish and maintain standards for membership. Anyone who supports the values of Scouting and meets these standards is welcome to join the organization.”
This is absolutely correct. A private organization can have whatever beliefs and religious requirements it chooses to. That’s their constitutional right. But Congress can absolutely not financially aid the Boy Scouts in the promotion of their beliefs and enforcement of their religious requirements by legislating a fundraiser for them!