The city of San Diego is contemplating an appeal of a federal court decision that sided with the ACLU and a lesbian couple seeking to nullify its long-standing lease of a public park to the Boy Scouts.

A U.S. District Court judge ruled last Thursday the Boy Scouts is a religious organization, and the agreement to use Balboa Park violates the First Amendment’s ban on state-sponsored religion.

In a closed session last night, the city council was scheduled to discuss whether it would advise the city attorney to file an appeal.

Judge Napoleon Jones, Jr., said in his ruling the case was brought by a lesbian and agnostic couple, Lori and Lynn Barnes-Wallace, and their “Boy Scout-aged sons.”

They were supported by the American Civil Liberties Union.

Jones determined the Boy Scouts are a religious organization with a “religious purpose” because adult leaders and youth members are required to believe in a “formal deity” and to swear duty to God.

Gary Kreep, executive director of the San Diego-based United States Justice Foundation, said he is unaware of any other rulings that regard the Boy Scouts as a religious organization.

While the group promotes belief in God, it represents no particular denomination, he argued.

“If you look at the makeup of the Boy Scouts, they’re supported by the [Latter Day Saints], Protestant churches, Catholics – you name it, you got it,” he said. “I don’t think many of those people think the Boy Scouts are religious.”

Kreep said his group will file a brief in support of the city if it appeals the decision.

‘Discriminatory beliefs’

The judge noted the June 2000 U.S. Supreme Court decision, Boy Scouts of America v. Dale, which ruled the youth organization had a constitutionally based right to discriminate on the basis of “sexual orientation.” James Dale was an Eagle Scout whose adult membership in the Boy Scouts was revoked when the organization learned that he was an avowed homosexual and homosexual-rights activist.

Eagle Scout James Dale with parents in 1988 (Photo courtesy Dale family)

Jones said in his ruling, “After Dale, it is clear that the Boy Scouts of America’s strongly held private, discriminatory beliefs are at odds with values requiring tolerance and inclusion in the public realm, and lawsuits like this are the predictable fallout from the Boy Scouts’ victory before the Supreme Court.”

The local Desert Pacific Council of the Boy Scouts has used the northwest corner of Balboa Park, near the San Diego Zoo, since 1940. It has leased the land for $1 a year since 1957, and the city council approved a 25-year lease agreement at the end of 2001.

The judge noted the lease includes a non-discrimination clause prohibiting, among other things, discrimination based on religion and sexual orientation.

However, the city points out the non-discrimination clause applies only to the Boy Scouts regulation of access to the property by non-Scouting individuals and entities.

The Desert Pacific Council also has a lease agreement on Fiesta Island in Mission Bay, but the judge did not rule on that lease because none of the parties provided evidence of the process by which it was obtained. The Scouts have free use of a half-acre for an aquatic center on the island through a lease that expires in 2012.

The city and the Boy Scouts argued the agreements are just two out of 100 leases of public land by the city to non-profit groups to “advance the educational, cultural and recreational interests of the city” without regard to whether the lessees are religious.

The court, however, agreed with the plaintiffs that the city’s leases with other groups are irrelevant because there is no evidence they were negotiated as part of any leasing “program.”

The Boy Scouts engaged in exclusive negotiations on the Balboa land, the court said, as other groups did not have the opportunity to compete.

Jordan Budd, legal director for the ACLU’s San Diego office, said there are only two solutions, the San Diego Union-Tribune reported. Either the city council must cancel its lease or the Scouts must change its policy barring homosexuals and requiring 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 park land 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,” he said, according to the paper.

The city lost another dispute with the ACLU this year.

In April, the ACLU successfully argued San Diego gave an unfair advantage in its sale of city-owned Mt. Soledad Park to a veterans group that sought to maintain a cross on the land.

The Scouts noted in a statement the lease requires them to spend $1.7 million over the next seven years to upgrade Camp Balboa. The group also must pay the city an annual administrative fee initially set at $2,500.

The Desert Pacific Council said it spent $2 million to build an aquatic center on an unused landfill on Fiesta Island. The group also has significantly improved Balboa Park with trees, water and power lines, campsites, a swimming pool and other facilities.

The ACLU’s Budd argued the Scouts investment in these facilities could be worked out in a final court order, the San Diego paper said.

“The fact that they’ve invested a substantial amount of money in the park is not a justification for them to occupy park land for free,” Budd told the Union-Tribune.

Budd said if the Scouts want a public subsidy and free access to public park land, they must do what virtually every other youth organization has done.

“The Girl Scouts, the Campfire Girls, the YMCA, the YWCA – every other youth organization has abandoned exclusive membership policies,” he said.

In a statement, the local council, representing Scouts in San Diego and Imperial counties, called the ruling a disappointment. Spokeswoman Thyme Osborne told WorldNetDaily she could not comment further.

The news release said: “We are weighing our legal options and we expect that the order will ultimately be reversed.”

San Diego Mayor Dick Murphy issued a statement through his deputy press secretary.

“Having been a Boy Scout as a child, I’ve always supported the Boy Scouts here in San Diego,” he said, according to the Union-Tribune. “However, because this is pending litigation, all questions should be referred to the city attorney.”

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