San Diego settles lawsuit, ends support for Scouts

[MarkNoel]

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.

 

# # #

 

[Bob White]

So as of today,the scouts in San Diego still meet on their regular nights, at the regular time and learn the same values that they learned yesterday. They still do the same activities, lead by the same leaders who all agreed to the same values.

 

They can even still use the same land. Only now they use it under the same conditions as any other citizen of San Diego. So what's wrong with this picture? Nothing that I can see.

 

I do think that it will be intersting to see the condition of the land a few years down the road now that the caretakers have changed.

[Bob White]

(This message has been edited by Bob White)

[dan]

There is at least one glaring error in that newspaper clipping that I see. I wonder how much of it is true?

As someone pointed out a few days ago on this forum, lets wait until we get the facts. Newspaper should be taken with a grain of salt.

[evmori]

So what happened? The Scouts now must pay for the use of the park like everyone else. Big deal! Sounds like the only winners in this is the city of San Diego. They will see an increase in the amount of park fees collected!

 

Ed Mori

1 Peter 4:10

[Fat Old Guy]

I'm still reading the Constitution and trying to find anything about "separation of church and state."

[evmori]

"I'm still reading the Constitution and trying to find anything about "separation of church and state.""

 

You can stop reading Fat Old Guy. It isn't in there!

 

Ed Mori

1 Peter 4:10

[Merlyn_LeRoy]

Neither is "separation of powers" or "right to a fair trial", but the concepts are there.

 

You can easily read historic first amendment court decisions on the web and actually understand what it means, or you can choose ignorance.

[evmori]

"Neither is "separation of powers" or "right to a fair trial", but the concepts are there."

 

The 1st Ammendment states the government will not establish a religion. It also states the freedom of religion will not be denied. It also guarantes freedom of speech.

 

Where in the Constitution is the concept of separation of church & state?

 

Ed Mori

1 Peter 4:10

[Merlyn_LeRoy]

 

The first amendment forbids the "establishment of religion", NOT the "establishment of a religion".

 

As I said, you can read actual court decisions on the web, or choose to remain ignorant. Notice that "or I'll be your legal tutor" is not one of the choices.

[NJCubScouter]

So as of today,the scouts in San Diego still meet on their regular nights, at the regular time and learn the same values that they learned yesterday. They still do the same activities, lead by the same leaders who all agreed to the same values.

 

They can even still use the same land. Only now they use it under the same conditions as any other citizen of San Diego. So what's wrong with this picture? Nothing that I can see.

 

Well, as the complete story (posted in the other thread but not in this one) makes clear, "as of today" nothing has changed at all, even the status of the lawsuit. It seems to me that all has really changed is who the parties to the lawsuit are. It was the ACLU against the city and Boy Scout council, now it is just the ACLU against the council. Pending the outcome of the lawsuit the council is still using the land for $1 a year.

 

But, Bob, if your meaning was that the Boy Scouts would not be affected if they finally lose the $1 a year lease, that is not at all clear. I have to wonder whether the SE of that council would agree with you. Having an exclusive lease to use a substantial tract of land for free (essentially), and having what other groups would have -- probably either a non-exclusive right to use the land on a rotational or as-scheduled basis, or the "right" to pay full market rent for the land -- is hardly the same thing. If your council suddenly had to share its camp with every other group in the world, it would affect your program. That is not an issue when a council owns a camp, but obviously it is an issue when you are simply one of a number of groups asking for permits to use public land.

 

As for your statements about "values", this is just your usual spin on the issue. What is really happening is that units are, if the issue of a gay leader actually comes up, being forced by national to violate what may may be their actual values, to impose a "value" that is not a "value" of the BSA. Exclusion of gays is a political and religious doctrine, but it is not a value of the BSA, despite what the current leaders of the BSA say.

 

I do think that it will be intersting to see the condition of the land a few years down the road now that the caretakers have changed.

 

They haven't changed yet. And when and if the BSA does "move out," I agree with your implication that the property probably will not be as well taken care of. It's too bad. It would be worth it, however, if the BSA was sticking by its guns on a policy that actually furthered the values of Scouting. But that is not the case.

[evmori]

"The first amendment forbids the "establishment of religion""

 

Correct! Not that the church & state should be separate!

 

Ed Mori

1 Peter 4:10

[NJCubScouter]

Ed, I think I've explained that to you about five times. I'm not going to do it again. But you can keep saying that the First Amendment does not say anything about separation of church and state, and your statement will continue to be irrelevant to the decision of any court in any "establishment of religion" case. Not wrong, just irrelevant.

[evmori]

NJ,

Ever think that maybe the court made a mistake in their interpretation of the 1st Ammendment?

 

Ed Mori

1 Peter 4:10

[Merlyn_LeRoy]

 

I think they messed up in McConnell v. Federal Election Commission, Ed. Is that what you meant, or could you cite an actual court decision and point out what part you think is a mistake?