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     Once again, BSA is being taught a lesson by our judicial system. If you claim to be a private religious organization, then on can't expect (much less demand) governmental support. As long as BSA continues not to be "open to all boys," they will continue to see their special rights and privileges evaporate, until they become just another religious youth group.

     On December 18, 2006, the U.S. Court of Appeals for the Ninth Circuit asked the California Supreme Court to clarify whether the City's leases to the BSA violated the California Constitution's "No Preference" or "No Aid" Clauses, which prohibit government support for religion. The California Supreme Court twice declined to address these questions, and the Ninth Circuit then ordered the parties to submit supplemental briefs on any relevant developments of California and federal law occurring after the original briefing. After hearing oral argument in June 2011, the Ninth Circuit ordered the parties to file additional briefs addressing whether the case is moot or will become moot before the court could resolve the case. The parties filed those briefs in July 2011. As of July 2012, there has been no decision made by the Ninth Circuit.

Judge says no to Scout lease on Fiesta isle : Action is same as Balboa Park ruling
By Ray Huard
UNION-TRIBUNE STAFF WRITER

April 14, 2004

The Boy Scouts lease of a Fiesta Island aquatics center on city-owned land is just as unconstitutional as its lease of public land in Balboa Park, a federal judge ruled yesterday.

U.S. District Judge Napoleon Jones Jr. said the lease of the half-acre aquatics center violates the constitutional separation of church and state because the Boy Scouts is a religious organization.

The same judge ruled in August that the Boy Scouts lease of Camp Balboa, where it has its regional headquarters, was unconstitutional because the Scouts require members to profess a belief in God.

The American Civil Liberties Union sued the city and the Boy Scouts of America over the lease in August 2000 on behalf of a lesbian couple and an agnostic couple. Each couple has a son who wanted to join the Scouts. They argued that the leases of public land were unconstitutional because of the Scouts' policies requiring a belief in God and prohibiting homosexuals from joining.

A lawyer for the ACLU, M.E. Stephens, said the judge's ruling "vindicates our clients and all San Diegans who care about values of tolerance and equality."

The Boy Scouts will appeal the rulings on Fiesta Island and Balboa Park, spokeswoman Merrilee Boyack said.

"We feel very confident that we will be vindicated on appeal," Boyack said. "We believe it's obvious to everyone that the Boy Scouts are not a church or a religion, and the activities going on at the youth aquatics center – including canoeing, kayaking and swimming – are obviously not religious activities."

The Scouts have leased the aquatics center land since November 1987 at no charge. They have spent $2 million to build the center. The city requires them to pay the cost of operation and maintenance. The lease expires in 2012.

Judge Jones said the city had shown preferential treatment to the Boy Scouts – "an admittedly religious, albeit nonsectarian, and discriminatory organization" – because it had negotiated exclusively with the Scouts for the lease of the aquatics center. He said the city "failed to make it publicly known that such property was available for lease and invite bids" from others.

San Diego Mayor Dick Murphy would not discuss the ruling because he hadn't seen it, said Deputy Press Secretary David Hicks.

City Councilman Jim Madaffer, an assistant Scout master with two sons who are Scouts, said, "This isn't about separation of church and state. This is about people who don't like the Boy Scouts and want to see them go away."

Madaffer said the city's lease of the center "is no different than any other lease the city has with nonprofit organizations."

Councilwoman Toni Atkins, who voted against extending the Boy Scouts' lease in Balboa Park in 2001, said she expected the ruling based on the previous case.

"I don't think we should be surprised that this ruling was handed down by Judge Jones," she said. "I think we should have seen that it would be coming based on his ruling in Balboa Park."

Deputy City Attorney Frank Devaney said the ruling would not immediately affect the Scouts' use of Fiesta Island and Balboa Park.

Under the terms of a settlement the city announced with the ACLU in January, Devaney said all sides agreed that the city would take no action to evict the Boy Scouts from Balboa Park or Fiesta Island until all legal appeals were exhausted. The city as part of that settlement agreed to pay the ACLU $790,000 in legal fees and $160,000 in court costs and step aside from any further litigation.

"We're just sitting it out, letting all the court hearings and appeals go through," Devaney said.

Jordan Budd, the ACLU's legal director in San Diego, said the Scouts could resolve the issue and stay on Fiesta Island and in Balboa Park if they changed their policies and didn't discriminate against non-believers and homosexuals.

Boyack said, "The Boy Scouts will be true to their values and will not be changing their policies."

The U.S. Justice Department attempted to join the case on behalf of the Boy Scouts, but Judge Jones in March ruled that the department did not have a sufficient stake in the outcome of the case to merit getting involved.


 

AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO & IMPERIAL COUNTIES
NEWS RELEASE
FOR IMMEDIATE RELEASE

Thursday, January 8, 2004

ACLU SECURES LANDMARK SETTLEMENT IN BOY SCOUT LEASE CASE SAN DIEGO TO END SUPPORT FOR SCOUTS

(San Diego) The San Diego City Council has agreed to a settlement in the ACLU's 2000 lawsuit challenging the City's subsidy of the Desert Pacific Boy Scout Council through preferential leases for public land in Balboa Park and Fiesta Island Aquatic Park. In July 2003, Federal District Court Judge Napoleon Jones ruled that the Balboa Park lease violates First Amendment guarantees of separation of church and state. The City has agreed to request that Judge Jones enter a final judgment based on that ruling and then to give notice to the Scouts that the Balboa Park lease has terminated and that their interest in the property has expired. The City has also agreed to end its support of the Scouts in the lawsuit and not to oppose the ACLU as it pursues resolution of the remaining issues in the lawsuit, particularly those involving the Fiesta Island lease, which Jones put over for trial in his July ruling.
     "San Diego has finally taken itself out of the business of endorsing the exclusion of many of its residents from their own city parks. While, it is unfortunate that it has taken an adverse court ruling to get the City on the right side of this issue, the end result is a victory for every San Diegan who cares about tolerance and equality," says ACLU legal director, Jordan Budd.
     The City has given the Scouts nearly seventy years of exclusive use of 18 acres of prime park property in city-owned Balboa Park for $1 per year and free use of an aquatic facility on city-owned Fiesta Island in Mission Bay through preferential leases. The Balboa Park lease also contains a provision that terminates the lease if any court issues a final judgment finding the lease illegal. The City Attorney will ask Judge Jones for such a final judgment based on the court's finding that the lease is unconstitutional and will then notify the Scouts that the termination clause has been triggered, paving the way for the removal of the Boy Scouts from the park.
     "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," says ACLU volunteer attorney M.E. Stephens of the law firm Stock, Stephens, LLP.
     "We applaud the City for finally doing the right thing," says co-counsel Mark Danis of the law firm of Morrison & Foerster. "While it may be legally acceptable for the Scouts to privately discriminate against so many boys and their families, it has never been acceptable for the City to bar those families from a public park. Government has a constitutional duty to treat everyone fairly and equally."
     The lawsuit was filed on behalf of two San Diego families, the Breens and the Barnes-Wallaces. The Breens are agnostics who are unsure of the existence of God and who do not participate in organized religion. They have a son, Maxwell, who is nine years old. The Barnes-Wallaces are a same sex couple with a ten-year-old son, Mitchell. Both families are avid users of Balboa Park, except the portion of the park under Boy Scout control. Their sons would like to be Scouts, but cannot join. Max Breen would be unable to take the Boy Scout oath, which avows a reverence for God. Mitchell Barnes-Wallace cannot join because his parents are lesbians, whom the Scouts do not consider "morally clean." Even if the boys were able to avoid taking the Scout oath or, in Mitchell's case, revealing his parents' sexual orientation, each time the boys participated in Scouting activities they would be reminded that their families are considered unfit by Boy Scout standards and, by extension, by the City of San Diego. The lawsuit challenges the City's financial subsidy of these policies.

The lawsuit is Barnes-Wallace v. City of San Diego, case # 00cv1726J.

Appeals court throws out Scouts' case

San Diego Union-Tribune, December 19, 2003
By Marisa Taylor, Union-Tribune Staff Writer
        A federal court has dismissed an appeal of a San Diego judge's ruling that declared the Boy Scouts' lease of city-owned land in Balboa Park unconstitutional.
        The 9th U.S. Circuit Court of Appeals decided Wednesday that the Scouts' appeal was premature because of a pending, but related, legal matter.
        In July, U.S. District Judge Napoleon Jones Jr. concluded that the Boy Scouts' lease of the 18-acre Camp Balboa violated the constitutional separation of church and state.  Jones said there is "overwhelming and uncontradicted evidence" showing that the Scouts are a religious organization.
        But Jones refused to rule on the legality of the Scouts' free use of a half-acre for an aquatic center on Fiesta Island, saying he hadn't seen enough evidence to make a ruling.
        The Scouts' attorneys appealed Jones' Balboa Park ruling, contending it amounted to an injunction against their group that could force them off the property at any time.
        Jordan Budd, legal director for the American Civil Liberty Union's San Diego office, said the 9th Circuit threw out the Scouts' appeal because Jones had yet to rule on the Fiesta Island lease.  Budd said the 9th Circuit's decision will allow Jones to set a trial date to decide the issue.
        City officials and the Scouts' attorneys could not be reached for comment last night.
        The ACLU sued the city and the Boy Scouts of America over the lease in August 2000 on behalf of a lesbian couple and an agnostic couple.  Each couple has a son.
        Jones agreed with the ACLU's contention that the city gave preferential treatment to the Scouts when it leased Camp Balboa despite the evidence that the Scouts are a religious organization.
        The Scouts have used the park since 1920 and have been on their current site, at the northwest corner of the park near the San Diego Zoo, since 1940.  They have had a lease since 1957.
        The ACLU believes the city could address the constitutional conflict by canceling its lease with the Scouts.
        The only other solution, Budd said, is for the Scouts to change their policies that bar homosexuals and require members to express a belief in God.
        The city denies that it gave the Scouts preferential treatment by entering into leases.
        Jones' ruling came three years after the U.S. Supreme Court ruled the Boy Scouts have a constitutionally protected right of "expressive association," which allows the organization to exclude gay members.
        Experts have said San Diego dispute is the "predictable fallout" from the court's decision.



Scouts' Balboa Park lease ruled unconstitutional

By Ray Huard and Marisa Taylor
San Diego Union-Tribune
August 1, 2003

The Boy Scouts' lease of public land in Balboa Park violates constitutional separation of church and state, a federal judge ruled yesterday.

U.S. District Judge Napoleon Jones Jr. said the city gave preferential treatment to the Scouts when it leased the 18-acre Camp Balboa, even though there is "overwhelming and uncontradicted evidence" showing that the Boy Scouts are a religious organization.

"The city handpicked as the preferred lessee an organization that describes religious belief and practice as fundamental to the services it provides," Jones wrote.

The American Civil Liberties Union sued the city and the Boy Scouts of America over the lease in August 2000 on behalf of a lesbian couple and an agnostic couple. Each couple has a son.

It was unclear what the immediate impact of the ruling would be because the city and the Scouts could appeal.

The city and the Boy Scouts have defended the lease, saying other groups are allowed to use the camp.

Deputy City Attorney John Mullen said theCity Attorney's Office will seek direction from the City Council, which is to review the ruling in a closed session Tuesday.

The Scouts have used the park since 1920 and have been on their current site, at the northwest corner of the park near the San Diego Zoo, since 1940. They have had a lease since 1957.

Jordan Budd, legal director for the ACLU's San Diego office, said the City Council should cancel its lease with the Scouts. The only other solution, Budd said, is for the Scouts to change their policies barring homosexuals and requiring members to express a belief in God.

"We believe it is long past time for the City Council to end its affiliation with this discriminatory organization and to keep open this public park land for the use of all citizens of San Diego on a fair and equal basis and not just those citizens preferred by the Boy Scouts," he said.

Jones' ruling comes three years after the U.S. Supreme Court ruled 5-4 that, under the First Amendment, the Boy Scouts have a constitutionally protected right of "expressive association," which allows the organization to exclude gay members.

The dispute over the lease was "predictable fallout" from the high court's decision, Jones said.

"Those protected, private viewpoints include an anti-homosexual, anti-agnostic and anti-atheist stance," he wrote. "After (the Supreme Court ruling), it is clear that the Boy Scouts of America's strongly held private, discriminatory beliefs are at odds with values requiring tolerance and inclusion in the public realm."

Jesse Choper, a professor with UC Berkeley's Boalt Hall School of Law, said Jones' decision demonstrates that organizations like the Boy Scouts are "entitled to express their views and associate in any way they wish, but they're not entitled to preference."

Other legal experts were surprised by Jones' conclusion that the Scouts are a religious organization because they require members to profess a belief in God.

"It's not to say that it's wrong. There must have been a factual record that supported the ruling," said Vik Amar, a constitutional law professor with Hastings College of the Law in San Francisco. "But it does sound like something that a lot of people would disagree with."

The decision is the city's second constitutional loss involving a dispute with the ACLU in less than a year.

In April, city officials lost theirbid to argue the Mount Soledad cross case before the U.S. Supreme Court. The high court let stand an earlier decision by the 9th U.S. Circuit Court of Appeals that the sale of land under the cross to a veterans group violated the article of the California Constitution that prohibits governments from financing religion.

The Boy Scouts' 50-year, $1-a-year lease expires in 2007. The City Council in December renewed the lease at the Scouts' request for 25 years, with the city having the option to extend the lease an additional 15 years.

Under terms of the lease, the Scouts must spend $1.7 million over the next seven years to upgrade Camp Balboa. The Scouts also are required to pay the city an annual administrative fee initially set at $2,500.

The Desert Pacific Council, which represents Scouts in San Diego and Imperial counties, said in a news release they are disappointed with the judge's ruling. Boy Scouts representative Thyme Osborne declined to elaborate.

"We're not doing any interviews," Osborne said.

Mayor Dick Murphy also declined to discuss the ruling.

In a statement issued by his deputy press secretary, David Hicks, Murphy said: "Having been a Boy Scout as a child, I've always supported the Boy Scouts here in San Diego. However, because this is pending litigation, all questions should be referred to the City Attorney."

Councilwoman Toni Atkins, whose district includes Balboa Park, said the city should cancel its park lease with the Boy Scouts unless the Scouts change their policies.

"It's time for the city to get on the right side of this discussion and work to abolish discrimination wherever it can," said Atkins, who is lesbian.

The land the Boy Scouts use "should be turned over to an organization that allows everyone use of public land – and I know there are enough good groups out there," she said.

The city also gives the Scouts free use of a half-acre for an aquatic center on Fiesta Island in Mission Bay. That lease expires in 2012 and has not been extended.

Jones refused to rule on the Fiesta Island lease, saying he hadn't seen enough evidence to make a ruling.

Budd said the dispute over the Fiesta lease could be heard by Jones before any appeal is decided on the park lease. The Scouts' news release said the Desert Pacific Council spent $2 million to build the aquatic center on an unused landfill.

A practical issue that remains unresolved is what will happen to the facilities the Scouts have built in Balboa Park.

Osborne said the Scouts have made extensive improvements at the park, planting trees, installing water and power lines, and building nine campsites. Also added were a swimming pool, a parking lot, restrooms and showers, a residence and office for a camp ranger, and meeting rooms.

Budd said the fate of those facilities could be decided in a final court order, which typically would include requirements the city must meet to comply.

"The fact that they've invested a substantial amount of money in the park is not a justification for them to occupy park land for free," Budd said. " . . . If they want a public subsidy and free access for years upon years to public park land, they have to do what virtually every other youth organization has done. The Girl Scouts, the Campfire Girls, the YMCA, the YWCA – every other youth organization has abandoned exclusive membership policies."

Boy Scouts' use of Balboa Park land ruled unconstitutional
Judge says use violates separation of church and state

San Diego Union-Tribune
July 31, 2003

By Ray Huard, Union-Tribune Staff Writer
       The Boy Scouts' lease of public land in San Diego's Balboa Park is unconstitutional, a federal judge decided in a ruling released Thursday.
       U.S. District Judge Napoleon Jones Jr. said the Scouts' lease of the 18-acre Camp Balboa in Balboa Park violates provisions in the U.S. and state constitutions governing the separation of church and state.
       Jones said the Boy Scouts are a religious organization because the Scouts require members to profess a belief in God.
       The American Civil Liberties Union sued over the lease in August 2000 on behalf of a lesbian couple and an agnostic couple and their son.
       Deputy City Attorney John Mullen issued a statement that said "the City Attorney's Office will analyze the decision and seek direction from the City Council."
       The council will review the ruling in a closed session Tuesday, Mullen said.
       A lawyer for the ACLU, Jordan Budd, said the council should cancel its lease with the Scouts unless the Scouts change their policies against admitting homosexuals and requiring members to express a belief in God.
       "We believe it is long past time for the City Council to end its affiliation with this discriminatory organization and to keep open this public parkland for the use of all citizens of San Diego on a fair and equal basis and not just those citizens preferred by the Boy Scouts," Budd said.
       The Boy Scouts have a 50-year, $1-a-year lease that is due to expire in 2007.  The City Council in December renewed the lease at the Scouts' request for 25 years, with a city option to extend the lease an additional 15 years.
       Under terms of the lease, the Scouts must spend $1.7 million over the next seven years to upgrade Camp Balboa.  The Scouts also are required to pay the city an annual administrative fee initially set at $2,500.
       In a press release, the Desert Pacific Council of the Boy Scouts of America expressed disappointment with the judge's ruling.
       The council used its own money to construct and maintain Camp Balboa, according to the release, building nine camp sites, bringing water and power to the property, and building a swimming pool, parking lot, restroom and showers, meeting rooms, and a residence and office for a camp ranger.
 

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