TRUCKEE, Calif. – The City of San Diego leases popular Camp Balboa and the Youth Aquatic Center to the Boy Scouts. Camp Balboa offers an urban camping opportunity in the heart of San Diego and the Youth Aquatic Center on Fiesta Island in Mission Bay Park is used for aquatic activities like kayaking, canoeing and sailing. The leases cost the Scouts a dollar a year in rent but extensive capital improvements are required.

Plaintiffs Allege Discrimination

A lesbian couple and an agnostic couple sued the City and the Scouts claiming that because of their sexual orientation and religious beliefs, they cannot be Boy Scout volunteers. Further, they refuse to use the leased (public) parks because of the Boy Scouts “repugnant” discriminatory policies. The suit alleges violations of California’s Constitutional “No Aid” Clause, Establishment Clause and Equal Protection Clause; and makes similar federal constitutional claims.

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In short, the Plaintiffs allege San Diego is aiding the Scouts who are discriminatory; and the leases are “direct aid” of public property by the City for a religious purpose.

Scout’s Honor

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The federal Court of Appeals wrote, “While Scouting focuses primarily on outdoor activity, the Boy Scouts’ rules include a prohibition against allowing youths or adults who are atheists, agnostics, or homosexuals to be members or volunteers.” All Scout members and volunteers take an oath to “do my best to do my duty to God and my country,” and to remain “morally straight.” (I want to comment on that – but won’t.)

Plaintiffs do not challenge the Boy Scouts’ right to hold discriminatory views or arbitrarily limit their membership based on their views, but they object to the Scouts’ favorable leases of Balboa Park and the Youth Aquatic Center from the City.

As you may recall, in 2000 the U.S. Supreme Court ruled the Scouts have a constitutional right to exclude homosexuals. This case centered on whether the City was aiding the Boy Scouts in violation of the California and U.S. Constitutions which prohibit “aid of any religious sect, church, creed, or sectarian purpose.”

Ruling

The Court of Appeals overturned the trial judge and ruled in favor of the City and Scouts. The Court noted that San Diego leases portions of city lands to 123 nonprofit organizations, almost all of which were secular and not religious. Certainly there was no preference for religion or any religious organization. The City’s leases to the Scouts served the public interest and provided no more than “incidental benefit” to religion.

The leases do not violate federal or California law.

Concurring Opinion

The concurring judge agreed with the majority Opinion ruling for the Scouts and the City, but would have denied the Plaintiffs’ “standing” to sue in the first place, keeping them out of court, writing: “Revulsion for a group (Scouts) so intense that one cannot bear to be on property they manage (City leased land) cannot, in a tolerant society, be deemed harm sufficiently concrete to confer standing to sue.”

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He was the Governor’s appointee to the California Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, foreclosures, mediation and other transactional matters. He may be reached at porter@portersimon.com or at the firm’s website http://www.portersimon.com