Posted on 07/31/2003 11:22:36 PM PDT by lowbridge
Boy Scouts' use of Balboa Park land ruled unconstitutional
Judge says use violates separation of church and state
By Ray Huard
UNION-TRIBUNE STAFF WRITER
2:29 p.m., July 31, 2003
The Boy Scouts' lease of public land in San Diego's Balboa Park is unconstitutional, a federal judge decided in a ruling released Thursday.
U.S. District Judge Napoleon Jones Jr. said the Scouts' lease of the 18-acre Camp Balboa in Balboa Park violates provisions in the U.S. and state constitutions governing the separation of church and state.
Jones said the Boy Scouts are a religious organization because the Scouts require members to profess a belief in God.
The American Civil Liberties Union sued over the lease in August 2000 on behalf of a lesbian couple and an agnostic couple and their son.
Deputy City Attorney John Mullen issued a statement that said "the City Attorney's Office will analyze the decision and seek direction from the City Council."
The council will review the ruling in a closed session Tuesday, Mullen said.
A lawyer for the ACLU, Jordan Budd, said the council should cancel its lease with the Scouts unless the Scouts change their policies against admitting homosexuals and requiring members to express a belief in God.
"We believe it is long past time for the City Council to end its affiliation with this discriminatory organization and to keep open this public parkland for the use of all citizens of San Diego on a fair and equal basis and not just those citizens preferred by the Boy Scouts," Budd said.
The Boy Scouts have a 50-year, $1-a-year lease that is due to expire in 2007. The City Council in December renewed the lease at the Scouts' request for 25 years, with a city option to extend the lease an additional 15 years.
Under terms of the lease, the Scouts must spend $1.7 million over the next seven years to upgrade Camp Balboa. The Scouts also are required to pay the city an annual administrative fee initially set at $2,500.
In a press release, the Desert Pacific Council of the Boy Scouts of America expressed disappointment with the judge's ruling.
The council used its own money to construct and maintain Camp Balboa, according to the release, building nine camp sites, bringing water and power to the property, and building a swimming pool, parking lot, restroom and showers, meeting rooms, and a residence and office for a camp ranger.
U.S. District Judge Napoleon Jones Jr. said the Scouts' lease of the 18-acre Camp Balboa in Balboa Park violates provisions in the U.S. and state constitutions governing the separation of church and state.
Jones said the Boy Scouts are a religious organization because the Scouts require members to profess a belief in God.
The American Civil Liberties Union sued over the lease in August 2000 on behalf of a lesbian couple and an agnostic couple and their son.
This decision is a travesty of justice for several different reasons. First, consider the fact that the park was built and financed by the scouts and is open to the public. (Read this article for a brief history of the land in question and its use by the Boy Scouts since 1915.) But more importantly is the precidence that a case like this brings to the judiciary. A precidence which seeks to continue to redefine the constitution.
The honorable Judge Jones feels that the lease violates provisions in both the U.S. and California State constitutions. Here are those provisions:
THE CONSTITUTION OF THE UNITED STATES OF AMERICA - Amendment I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
CALIFORNIA STATE CONSTITUTION - ARTICLE 1: DECLARATION OF RIGHTS
SEC. 4. Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.
In essense, both constitutions say exactly the same thing: The government will make no law respecting an establishment of religion, and that free exercise of religion is protected. It is important to note that the clause "separation of church and state" does not appear in any form in either constitution. A law which respects an establishment of religion would be a law which elevates a specific religion in the eyes of the government. The primary motivation behind this provision was to insure that the state would not crown a specific religious group or sect as the "state religion". This was critical to many of the colonists who had fled Europe because they did not have freedom of religion there. Although the founding fathers were religious men, they understood that their freedom to practice their religion was dependent upon the freedom of others to practice their own as well.
It is apparent, to me at least, that the intent of both constitutions is to guarantee the right to freely practice religion and for the state not to interfere with that practice. There are two ways for the state to avoid "respecting" a specific religious establishment. They can either avoid all religious contact or they can provide equal access to all religious groups.
The Balboa Park decision is an attempt of the former. However, if government tries to separate church and state by divorcing itself from any contact at all, then the following scenarios must be also be considered (and then outlawed):
I think that the Judge's decision is wrong for several reasons but the key one is because it discriminates against the Boy Scouts primarly because he classifies them as a religious organization. Last time I checked, that was unconstitutional.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.