by Wendy Cloyd, assistant editor
Group to face the American Civil Liberties Union and the iconoclastic 9th circuit to defend the right to use public land.
The Boy Scouts of America (BSA) will come face to face Tuesday with the 9th U.S. Circuit Court of Appeals — the same court that recently ruled parents have no say in their child's education once they enter the school building — in order to preserve their right to use land on which they have spent millions of dollars over several decades to develop.
The Scouts have operated and maintained Camp Balboa in a public-private partnership with the city of San Diego since 1915. The San Diego Youth Aquatic Center on Fiesta Island was an unused land fill before the Scouts developed it. Both facilities are open to the public on a first-come, first-served basis.
Five years ago, two sets of parents — one atheist, one homosexual — enlisted the help of the American Civil Liberties Union (ACLU) to sue the city of San Diego. As usual, the ACLU claimed the lease agreement between the city and the Scouts violated the separation of church and state because membership requires adherence to religious principles.
According to an article in Citizen magazine, San Diego ACLU Director Nancy Sasaki wrote an editorial explaining the reason for the lawsuit. "The Boy Scouts are an anachronism in these times of diversity and inclusiveness," she said. "And the Scouts show no signs of joining the progress the rest of society has made."
The ACLU demanded the Scouts be kicked off land it's used since World War II, spent millions of dollars to build and improve — at no cost to the city — and that it shares with at least 120 other nonprofit groups, including The Girl Scouts; The Salvation Army; The Boys and Girls Club; The Jewish Community Center; The San Diego Lesbian, Gay and Transgender Community Center; a Korean church and several Protestant churches
Judge Napoleon Jones with the U.S. District Court heard the case in 2003. He ruled in favor of the ACLU, stating that the partnership between the Scouts and the city of San Diego was a violation of the First Amendment. He determined the Scouts to be a religious organization because members generally take an oath that references God. "On my honor, I will do my best to do my duty to God and my country," the oath states, "and to obey the Scout law, to help other people at all times, to keep myself physically strong, mentally awake and morally straight."
Jordan Lorence, attorney for the Alliance Defense Fund, said the Scouts are being treated differently because of the message they espouse. "That's classic viewpoint discrimination," he told Citizen magazine. "This is about punishing the Boy Scouts and anybody who associates with them." Robert Bork, spokesman for the BSA, said despite the ACLU challenge, the Scouts are still using the properties.
"We're still operating under those leases," he said. "We have a basic agreement that we will continue to do so until such time that it is ultimately resolved." Regardless of Tuesday's outcome, Bork is confident the case will end up before the Supreme Court. "From our point of view, this is basically a case about whether or not the Boy Scouts have the same constitutional First Amendment rights to use public property as any other organization does," he said. "And the answer to that question ultimately, we believe, will be 'Yes' — whether it's here or at the Supreme Court."
FOR MORE INFORMATION:
To learn more about the Boy Scouts of America's fight to use public land, read the Citizen magazine article, "Voted Off The Island."
The ACLU represents Lori and Lynn Barnes-Wallace and their "Boy Scout-aged sons."
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