Now Orange County

[eisely]

I post this, not in the spirit of furthering debate, but in the spirit of simply providing information. Pacific Legal Foundation is a non profit law firm that takes up conservative causes in litigation.

_____________________

 

The anti-Scouting witch hunt

ACLU targets organization for not accepting political-correctness demands

 

By HAROLD JOHNSON

Attorney with Pacific Legal Foundation

 

In 2000, the Orange County Board of Supervisors gave the Boy Scouts of America a 30-year extension on their lease at the popular Sea Base recreation camp in Newport Beach. The Scouts maintain the camp and keep it open for the general public on an equal-access basis. So the supes' decision was financially wise as well as public-spirited.

 

But the American Civil Liberties Union wasn't pleased because it can't tolerate Scout traditions, particularly the pledge of duty to God and the belief that being "morally straight" includes foreswearing sex outside of marriage (including homosexual activity). An ACLU lawyer made noises about suing, but the Scouts agreed to fund the county's defense if that happens. "The county gets sued every day by somebody," an unruffled Supervisor Todd Spitzer responded.

 

Anti-Scout pressure groups don't always find public officials so hard to roll. While Orange County remains Scout-friendly territory, elsewhere in California the Scouts have been punished for not being politically correct.

 

Two lawsuits highlight Scouting's struggle. Evans vs. Berkeley, currently before the state Supreme Court, challenges Berkeley's second-class treatment of the Sea Scouts, a Boy Scout affiliate that focuses on sailing.

 

Berkeley excludes the local Sea Scouts from a program offering nonprofits free use of the city's marina. As a result, the Sea Scouts have had to cut back activities.

 

Berkeley calls the larger Boy Scouts organization "discriminatory" - a disparaging term that shows the city's constitutional blind spot. Freedom of association must not be disparaged as "discrimination." The Constitution permits people to organize around shared values, and it protects private organizations from being punished solely because government officials don't like their views.

 

First Amendment freedoms are also at stake in the San Diego case of Boy Scouts vs. Barnes-Wallace, now before the Ninth U.S. Circuit Court of Appeals. The Scouts are appealing the startling decision by U.S. District Judge Napoleon A. Jones Jr. to void the Scouts' longtime leases at San Diego's Balboa Park and on Fiesta Island in Mission Bay Park.

 

Siding with the ACLU, Judge Jones labeled Scouting a "religious" organization. This caused a lot of head-scratching because the Scouts don't have a theology, just a broad acknowledgment of a common-denominator deity. In any case, San Diego hasn't been "endorsing" religion by leasing land to the Scouts. Not when the city also leases to many other nonprofits with missions across the spectrum - from the Girl Scouts to a Jewish Community Center; from the Boys and Girls Clubs to the YMCA. Taken as a whole, these leases endorse pluralism and diversity, not religion.

 

San Diego officials originally stood by the Scouts, but last year, in a move that drew widespread criticism, they bailed out of the litigation and paid the ACLU $950,000 for "attorneys fees" and "court costs."

 

So the ACLU's battle against the Scout leases is now fueled by a hefty taxpayer subsidy.

 

Judge Jones topped off his ruling with gratuitous insults. He denounced Scouting as "anti-homosexual," "anti-atheist," and "at odds with values requiring tolerance and inclusion in the public realm."

 

These abusive terms don't square with the Scout Law and Scout Oath, which pledge respect for all people. Harvard law professor Laurence Tribe has summarized the beliefs on which Scouting's right-to-association claims rest, and they are about positive aspirations, not hate or hostility toward anyone: "The Boy Scouts ... are dedicated to teaching that the good life is one that ... practices sexual abstinence until marriage, respects and protects the young woman ... and looks forward to the ultimate satisfaction of fathering children."

 

One doesn't have to concur with the Scout creed to applaud Scouting for not abandoning it under pressure. It's the Scouts - not Judge Jones or Berkeley bureaucrats - who are standing for "tolerance and inclusion in the public realm." They're fighting for the right of all private organizations to follow their own convictions without fear of censorship, intimidation or reprisal by the state - or the ACLU.

 

[VentureScoutNY]

Thanks for sharing eisely. I just finished reading 'The Savage Nation' by Michael Savgage, and its scary how true some of his predictions are when it comes to the ACLU and their constant attacks on Americans.

[Trevorum]

I have never heard that "being 'morally straight' includes foreswearing sex outside of marriage."

 

I know several single, adult scouters of both genders who are extremely moral and I can not believe that they are celibate. I can't believe that BSA would ever try to regulate it's (heterosexual) members' bedroom behavior.

[eisely]

I found that partial quote from Lawrence Tribe to be very strange. Tribe is pretty far to the left and I would not consider him an expert on BSA. I don't know the context in which the quote was found.

[Hunt]

I think the article is overheated. Of course, BSA really does discriminate on the bases of religion and sexual orientation--and the US Supreme Court has made it pretty clear that BSA can continue to do so. The ongoing legal issues involve what relationship BSA and its units can have with government entities, which can't discriminate on the basis of religion (or, in some localities, on the basis of sexual orientation). If the City of Berkeley wants to restrict the use of its marina to groups that do not practice discrimination, I see no problem with that. It's their marina. It would be a different story if they allowed some discriminatory groups, but not BSA. That would itself be discrimination. But if they just say that their marina can only be used by groups that are open to everyone, the BSA will lost the case.

The San Diego case is different, because the judge (in my opinion) made an absurd decision that the lease wasn't openly negotiated. That case was about San Diego breaking the lease--if it were a matter of San Diego just deciding not to renew the lease, I don't think there would be a case.

[eisely]

One of the issues in the Berkeley case is that the city successfully reneged on a contract. When the city built the breakwater for its marina many years ago, the boy scouts provided all the rip rap free from a property owned by the scouts. The only thing the city had to provide in return was free use of the marina by the boy scouts in perpetuity. I believe that the quarry is now located on the property now known as Camp Herms in the hills above El Cerrito, a town a few miles North of the Marina site. The trial judge simply ruled that this contractual requirement was irrelevant.

 

One of the most annoying aspects of the San Diego case was the enrichment of the ACLU almost to the tune of $1,000,000 by the taxpayers of the city as part of the settlement. This suggests that the ACLU is not a disinterested party to these disputes.

[Merlyn_LeRoy]

hunt writes:

The San Diego case is different, because the judge (in my opinion) made an absurd decision that the lease wasn't openly negotiated. That case was about San Diego breaking the lease--if it were a matter of San Diego just deciding not to renew the lease, I don't think there would be a case.

 

San Diego renewed the lease early (at the BSA's request) instead of going through the usual competitive bidding process for leases of public property. The BSA was the only organization that was considered for this lease; the judge ruled that San Diego improperly renewed the lease.

 

The BSA now has a lawsuit against San Diego for breaking the lease, but the original lawsuit (and the only lawsuit that has been ruled on so far) is over San Diego renewing the lease, not breaking it.

[evmori]

The ACLU doesn't have anyone's interest at heart except their own agenda. They are out to get the BSA & will stop at nothing to do so! The San Diego case is a classic where they lined their pockets & increased the cost of maintaining the park. The BSA was doing it for nothing!

 

Ed Mori

Troop 1

1 Peter 4:10

[Trevorum]

Ed, as much as I am surprised to admit it, I agree with you 100% on this!

 

The ACLU will stop at nothing to further "their own agenda" - namely protecting the constitutional rights of all Americans. The ACLU has no ideological axe to grind; their cases are found on both sides of the labeled political spectrum, wherever our basic American rights are encroached upon. Those who disagree with them always have a vested interest

[berkshirescouter]

I agree with Ed.

The ACLU does have an axe to grind.

Trevorum if what you say were true there would be ACLU suits supporting freedom of speach claims for the Polital Correct comments that have gotten people fired. This has not happened. But BSA hands out a leaflet and you would think world has ended.

Just my two cents.

Paul

[Hunt]

Actually, the San Diego case is about two leases. One,for a camp in Balboa Park, was originally negotiated in 1957 for a term of 50 years, and renewed in 2001 for a period of 25 years. The second, for an aquatic center, was negotiated in 1987 for a period of 25 years. The plaintiffs wanted both leases broken because of the Boy Scouts' religious requirement, and the district court ruled (absurdly, given the facts) that the leases were not negotiated openly enough, and thus appeared to favor religion. Rather than appeal a clearly erroneous decision, the city caved in to political pressure and settled the case, agreeing to break the leases, and even agreeing to pay the ACLU $950,000. Now the BSA has sued the city to uphold the leases--a lawsuit I predict it will win.

 

I must add that although I think the ACLU was wrong in this case, I think the ACLU genuinely doesn't believe that government entities should be sponsoring or aiding religious groups, and they're right about the general principle. In this particular case, their zeal (and anger at BSA for winning the Dale case, probably) caused them to take a position that was unreasonable and unfair. If it ever gets to a higher court, probably through BSA's lawsuit, it will be reversed. Certainly, the current Supreme Court would make short work of ACLU's argument in this particular case.

[Merlyn_LeRoy]

Like I said, the original lawsuit (which isn't over yet) wasn't about breaking the lease, it was over renewing the lease. Saying "That case was about San Diego breaking the lease" is wrong, because the only decision rendered so far concerning the Balboa Park lease is the ACLU lawsuit against the renewal, not the BSA lawsuit against San Diego filing to break the lease. There has been no decision of any kind on the BSA lawsuit yet, so the phrase "that case WAS about" only makes sense if it refers to the ACLU lawsuit.

 

I don't see anything wrong with the judge's decision - he based his ruling on the fact that the BSA was the only organization that was considered to lease that part of Balboa Park. No other organizations were given the opportunity to lease the land. The judge also found that the BSA was a religious organization, because the BSA has stated in other court proceedings that it is a religious organization. That's enough to invalidate the lease.

 

The city council's decision to not appeal the decision was partly the result of the BSA not telling the city council that they were a religious organization. It apparently came as something as a shock to the San Diego attorneys, as their defense of the lease as legal was partly based on their arguing that the BSA was NOT a religious organization.

[CubsRgr8]

Merlyn, is Hunt incorrect when he states:

 

Actually, the San Diego case is about two leases. One, for a camp in Balboa Park, was originally negotiated in 1957 for a term of 50 years, and renewed in 2001 for a period of 25 years. The second, for an aquatic center, was negotiated in 1987 for a period of 25 years. The plaintiffs wanted both leases broken because of the Boy Scouts' religious requirement...?

 

If Hunt is correct that there are two separate leases, isn't the aim of the lawsuit to get the city to "break its lease" for the aquatic center?

[Merlyn_LeRoy]

The Balboa Park and Fiesta Island lawsuits weren't triggered because the city wanted to break the leases - the city resisted breaking the leases and defended them. Since Judge Jones' decisions, the city has agreed to stop defending the leases and switch to seeking their termination as part of an agreement with the ACLU to remove the city from further litigation. THAT is the lease-breaking that the BSA is now countersuing for, but that's an entirely new lawsuit which has not been ruled on.

 

Here's the Balboa Park decision:

http://ACLUSanDiego.org/pdf/MSJorder.pdf

 

Here's the Fiesta Island decision:

http://www.bsa-discrimination.org/Fiesta_Park_Order-0404.pdf

 

Here are documents for both the BSA's new countersuit against San Diego (BSA v. San Diego) and the above case (Barnes-Wallace v. BSA):

http://www.bsalegal.org/document-117.htm

[Hunt]

Just to clarify--my point was that if a city develops a policy that it will no longer lease to any organization that discriminates, I think it would be able to enforce that policy with respect to future leases and lease renewals, as long as it applies it evenhandedly. Thus, given what little we know about the facts, I don't think BSA will succeed in forcing Berkeley to allow it to use the marina, unless Berkeley allows other discriminatory groups to use the marina.

In the San Diego case, the plaintiffs in the original case wanted to void the existing leases--and they needed an argument that the leases were somehow illegal--they couldn't rely on a nondiscrimination policy. It should be noted that the San Diego cases doesn't turn on whether BSA's policy is discriminatory, but rather on the proposition that it is a religious organization. This is why BSA's separate suit has pointed out that San Diego has leased many properties to religious organizations, and I suspect it will come out that the leasing process was not much different for them.