An ACLU lawsuit on behalf of an agnostic, lesbian couple seeking to nullify the Boy Scouts’ long-standing lease with a San Diego park will be heard in the 9th Circuit Court of Appeals, widely regarded as the nation’s most liberal.

The city of San Diego is appealing a U.S. District Court judge’s ruling in 2003, which determined the agreement violates the First Amendment’s ban on state-sponsored religion.

Oral arguments will begin Tuesday morning in Pasadena, Calif. A decision is expected later this year.

Judge Napoleon Jones said in his 2003 ruling 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.

Backers of the Boy Scouts argue that while the group promotes belief in God, it represents no particular denomination or religion. Individual troops can be sponsored by a church, synagogue, mosque or secular organization.

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 Boy Scouts argue Camp Balboa and a nearby city facility maintained at their expense, the Youth Aquatic Center, are used extensively on a first-come, first-served basis by the public as well as by Scouts. The plaintiffs have never even tried to use the facilities, they maintain.

The ACLU represents Lori and Lynn Barnes-Wallace and their “Boy Scout-aged sons.”

In the district-court ruling, Jones pointed to 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 James Dale was an Eagle Scout whose adult membership in the Boy Scouts was revoked when the organization learned he was an avowed homosexual and homosexual-rights activist.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 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 city and the Boy Scouts argue 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 district 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.

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