Here in my hometown of San Diego, there’s been a long time effort to remove the Boy Scout Camp from Balboa Park. This is being spearheaded by the ACLU — the long running court case to eject the Boys Scouts from Balboa Park is regarding the Boy Scouts official policy of discriminating against atheist, non-theist, and LGBT leaders, parents, and children, and how these policies regarding religious creed violate state and federal law,
as well as how these policies based on sexual orientation and gender identity violate state law. Essentially, the City of San Diego is, and has been subsidizing discrimination by the Boy Scouts on public parkland with below market lease rates. San Diego is no longer defending the below market leases in the ongoing court cases, so it’s only the Boy Scouts at this point that are arguing that they should be allowed to discriminate against leaders, parents, and children because of their religious creed, sexual orientation, and/or gender identity.
As ACLU volunteer attorney Matt Stephens described the situation back 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.
The 9th Circuit Court Of Appeals has mad a ruling regarding in the past week regarding Barnes-Wallace v. Boy Scouts of America. According to the San Diego Union-Tribune:
The state Supreme Court, after a nearly two-year delay, will be asked to determine whether city of San Diego leases of Balboa Park land violate the state constitution’s ban on government preference for religious groups.
The move Wednesday by the 9th U.S. Circuit Court of Appeals, which is hearing a lawsuit challenging the leases, is the latest turn in the long-running case.
…The case focuses on a 2003 ruling by U.S. District Judge Napoleon Jones in San Diego. Jones struck down two leases that the city had with the Scouts for 16 acres in Balboa Park and on Fiesta Island. Jones concluded the Boy Scouts, which bars openly gay leaders and requires members to take an oath to God, is a religious organization and the leases amounted to government assistance to religion.
The ruling came in a lawsuit filed by a lesbian couple and an agnostic couple. The Scouts appealed, and in December 2006, the federal appeals court said it wanted the state Supreme Court first to weigh in on three questions of state law: Do the leases amount to aid to religion; if so, does that aid support a sectarian purpose; and do the leases violate the state constitution’s “no preference” ban on government favoring a religious group.
Federal courts on occasion will ask state high courts to issue opinions on unique questions of state law that arise in cases before federal judges.
Back in December of 2006, the 9th Circuit Court of Appeals ruled in Barnes-Wallace v. Boy Scouts of America, according to a December, 2006 San Francisco Chronicle article, that:
[Below the fold, some history of Barnes-Wallace v. Boy Scouts of America.]
…the Boy Scouts convinced the U.S. Supreme Court [in 2000] 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 back in late 2006, adding:
[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.
Last June, the 9th Circuit Court Of Appeals made a another ruling regarding Barnes-Wallace v. Boy Scouts of America. From the ACLU:
The United States Court of Appeals for the Ninth Circuit today issued an order in Barnes-Wallace v. Boy Scouts of America. The district court found that Boy Scouts of America is a religious organization with a religious purpose, because it requires leaders and members to swear a duty to God and it engages in religious instruction. As it did before, the Ninth Circuit asked the California Supreme Court to decide whether the City of San Diego’s heavily subsidized leases to the Boy Scouts for prime city parkland violate the California Constitution’s prohibition on governmental preference for and aid to religious organizations.
The Ninth Circuit correctly held, as it did before, that the ACLU’s clients are entitled to pursue their claims in court. The case can now move forward on the merits. We remain confident the California Supreme Court will find that a religious organization such as the Boy Scouts, which openly discriminates on the basis of religion and sexual orientation, is not entitled to a special preference and heavy subsidy from the City of San Diego.
Barnes-Wallace v. Boy Scouts of America case has been incredibly slow to resolve — it’s been winding it’s way through the federal courts since 2003. The Boy Scouts have been ruled against at every point, but they still are operating a camp where they’re allowed to discriminate against members of public on public parkland.
This week; however, the case has moved one step closer to a final resolution. This case can’t resolve soon enough for me.
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Further Reading:
* Law.com (Dec. 31, 2008): Conservatives on 9th Circuit Can’t Rescue Boy Scouts From Establishment Clause Claim
* Boy Scouts Of America Media Release (Dec. 31, 2008): Ninth Circuit sends San Diego Boy Scout case to Cal Supreme Court with “unprecedented” standing ruling
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Related:
* Boy Scout Discrimination Back In The News
* Supreme Court won’t review CA city’s move against Boy Scouts
* A Scout Is … Queer?
* LDS Church President Gordon B. Hinckley dies
* Pam’s House Blend tag: Boy Scouts
* Pam’s House Blend keyword search: Boy Scouts
Original post by Autumn Sandeen