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Boy Scout Discrimination Back In The News

San Diego’s Boy Scout camp is in the news again.  For those not aware, in 2003 U.S. District Judge Napoleon Jones Jr. ruled that the Boy Scouts’ below market lease of public parkland (one-dollar a year at the time of the lawsuit) in Balboa Park (the “Central Park of San Diego“) violates the Constitution.  Specifically, it’s one of those “separation of church and state” things.

ACLU volunteer attorney Matt Stephens said in 2004:

The Boy Scouts cannot have it both ways. Having gone to great lengths to establish that discrimination against gays and non-believers is essential to their mission, and therefore protected by the First Amendment, they cannot now turn around and ask the people of San Diego to foot the bill for that discrimination.


But, that’s what they’re doing.  In Barnes-Wallace v. Boy Scouts of America, they’re arguing that they should be allowed to discriminate against children, parents, or potential Boy Scout leaders that identify atheist or LGBT, AND yet still receive city subsidies in the form of a below market lease.  The Boy Scouts’ press release from December 22, 2006 stated their case as follows: (more after jump)

The ACLU filed the Barnes-Wallace lawsuit against Boy Scouts and the City of San Diego two months after the U.S. Supreme Court decision in Boy Scouts of America v. Dale holding that Boy Scouts have a constitutional right to select their members. The ACLU tried to force the City to discriminate against Boy Scouts because of their constitutionally-protected membership policies.

The new news on Barnes-Wallace v. Boy Scouts of America per the San Francisco Chronicle is:

Six years ago, the Boy Scouts convinced the U.S. Supreme Court that their deep-seated principles gave them a constitutional right to exclude gays and atheists. Now the California Supreme Court has been asked to look at the other side of that coin — whether the Scouts are a religious organization ineligible for certain types of government aid, including dollar-a-year leases of public land.


The request came this week from the Ninth U.S. Circuit Court of Appeals in San Francisco, which is reviewing a federal judge’s ruling striking down the city of San Diego’s lease of prized downtown parkland to the Boy Scouts.

The San Diego Union-Tribune clarified it a little more:

[U.S. District Judge Napoleon Jones Jr.] ruled that the Boy Scouts – which bar gays and require members to take an oath to God – are a religious organization and that the leases amounted to an unconstitutional government assistance to religion.


The Boy Scouts appealed, contending they are not a religious group and that there was no evidence their religious practices were a factor in getting the leases.


In an order issued Monday, the judges asked the state court to weigh in on three questions:


– Do the leases violate the state constitution’s “no preference” ban on government favoring of a religious group?


– Do the leases amount to aid for religion, and thereby violate a second clause in the state constitution banning government aid to religion?


– If the leases amount to aid, do they support a “sectarian purpose” or “creed”? In other words, can the Scouts be considered a religious group?


The judges wrote that California’s high court has never had to define what “aid”, “creed” or “sectarian purpose” mean in a way that can be applied to the circumstances raised by the Scouts’ lease case.

This case is similar to a case in Berkley, California, which was decided against the Sea Scouts earlier this year.  In that case; however, the central issue centered on Berkeley’s enforcing its anti-discrimination policy, whereas San Diego’s Balboa Park/Boy Scout Camp case centers around the interpretation of religion clauses in the state constitution.


Per the San Diego Union-Tribune story, Boy Scout attorney George Davidson says neither side is likely to be happy with this decision as it’s likely going to add 20-months to the point where a 9th Circuit Court of Appeals decision will be rendered.


At least on that last point, I agree with the Boy Scouts.  Almost two more years of the Boy Scouts discriminating against atheist and LGBT people on leased City of San Diego parkland doesn’t please me at all.

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