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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
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Court Upholds San Diego Lease to Boy Scouts

PASADENA, Calif. (CN) - Cities can lease land to the Boy Scouts even though the organization discriminates on the basis of religion and sexual orientation, the 9th Circuit ruled Thursday.

In 1987, the Desert Pacific Council of the Boy Scouts entered into a 25-year, rent-free agreement with the city of San Diego to lease half an acre of waterfront property in Mission Bay Park, where it built and operates a youth aquatic center.

The scouts have also leased 18 acres of nearby Balboa Park for $1 per year, plus an annual $2,500 administrative fee, since 2002. They have spent $1.7 million on capital improvements of this land over the last seven years.

A lesbian couple and their son joined with an agnostic couple and their son to sue San Diego and the Desert Pacific Council in 2003, claiming that they violate California and federal law in leasing public land to an exclusionary organization. Specifically, the families stated that the lease agreements violate the establishment clause, the equal-protection clause and California's No Preference and No Aid rule.

Agreeing with the families, a federal judge in Los Angeles enjoined both leases. San Diego canceled the term agreements and converted to month-to-month tenancy while the scouts pursued an appeal.

In December 2006, the 9th Circuit deferred to the state high court, asking it to decide if the leases interfere with religious freedom and civil rights. It also asked the justices if the organizations were receiving government "aid" for "sectarian purposes."

Though the families had admittedly never tried to participate in Boy Scout activities, or even use the leased land, the panel said they had standing to sue.

That decision - and the court's subsequent refusal to hear the case en banc drew the ire of Judge Diarmuid O'Scannlain, who said the families "are psychologically injured by the thought of associating with the Boy Scouts."

O'Scannlain eviscerated his colleagues for creating "a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court."

The U.S. Supreme Court declined a petition for certiorari from the scouts, and the California Supreme Court declined to answer the 9th Circuit's constitutional questions. And so the 9th Circuit held another hearing on the case and finally sided with the scouts nearly 10 years after the original suit was filed.

California's No Aid clause, which purports to ban taxpayer funding of religious institutions, does not prohibit "the mere conferring of some benefit on a sectarian organization," the court found, citing precedent from the state's high court.

To determine if state aid complies with the No Aid clause, courts must consider if the aid serves the public interest while providing a merely incidental benefit to religion. The aid must also be available to all regardless of religious preference, and it can neither fund "religious projects" nor impose financial burden on government.

San Diego's agreements with the Boy Scouts passes each test, the panel found.

"The facts that the Scouts receive a benefit and are a religious organization do not by themselves amount to a violation of the No Aid Clause," Judge William Canby wrote for the panel.

Though the Boy Scouts "may express religious sentiments," precedent dictates that "the expression of a religious viewpoint in otherwise secular classes will provide a benefit to religion that is merely incidental to the . . . primary purpose of promoting secular education,'" according to the ruling.

The panel also rejected the federal constitutional claims.

"As in the case of the state constitutional claims, we conclude that the District Court gave insufficient weight to the fact that the city had leased portions of city lands to 123 nonprofit organizations, the great majority of which were secular in nature," Canby wrote. "In light of that fact, and the other indications of the purpose and effect of the Boy Scouts' leases, we conclude that those leases did not violate the federal establishment clause."

He added that "a reasonable observer familiar with San Diego's leasing practices, as well as with the events surrounding the leasing of Camp Balboa and the Aquatic Center and the actual administration of the leased properties, could not conclude that the city was engaged in religious indoctrination, or was defining aid recipients by reference to religion."

Of San Diego's 123 leases to nonprofit agencies, 96 do not require rent, the court found. "Moreover, in the actual management of the leased properties, the city is not involved at all, and consequently cannot be seen to be involved or entangled in any religious activities of the Boy Scouts," Canby added.

The decision concludes in finding no violation of the equal-protection clause or San Diego's human dignity ordinance, which prohibits discrimination in the availability of the city's facilities on the basis of sexual orientation or gender identity.

"As we have explained, the Barnes-Wallaces never attempted to use the Camp Balboa or Aquatic Center Facilities, and accordingly suffered no discrimination in a denial of those services," Canby wrote. "They thus have not alleged any violation of the ordinance affecting them. The district court did not err in dismissing their claim."

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