Boy Scouts at the 9th Circuit

The Boy Scouts of America will square off against the American Civil Liberties Union on Valentine's Day. There won't be much love in the courthouse. The Ninth Circuit Court of Appeals is not known as a loving bench anyhow.

At issue is the Boy Scouts' stewardship of property belonging to the City of San Diego. The Scouts operate and maintain Camp Balboa in Balboa Park at their own expense, and they also manage at their own expense the San Diego Youth Aquatic Center on Fiesta Island in Mission Bay Park. Both facilities are open to the public on a first-come, first-serve basis. Libertarian free-market think-tanks call such arrangements public-private partnerships.

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The case comes to the Ninth Circuit from U.S. District Judge Napoleon Jones, a Clinton-appointed ACLU activist in robe. In suing the City of San Diego and the Boy Scouts, the ACLU represented an agnostic couple and an atheist couple who were offended by the Boy Scouts' stewardship of city property.

Jones determined that the Boy Scouts are a "religious organization" because they affirm a "duty to God" in the Scout Oath. He therefore decided that it is a violation of the First Amendment for the Boy Scouts to have a partnership with the City of San Diego.

But it was a rather loosely constructed decision, for not only are the Boy Scouts a religiously diverse program, they have been so at Balboa Park since 1915. And just because the Boy Scouts enter public-private partnerships does not make them a public organization. The U.S. Supreme Court ruled in 2000 that the Boy Scouts are private and have the right to make their own determination about who can and cannot be a member.

After more than 90 years since the Santa Fe Railroad donated its Pueblo Indian Village in Balboa Park to the Boy Scouts, and 50 years after the City of San Diego began leasing camp property to the Scouts for a dollar a year, and 20 years after the Scouts founded the Fiesta Island aquatics center, the future of public-private partnerships is uncertain.

It is not as though the Boy Scouts are the beneficiaries of favoritism. Over 100 nonprofit groups in San Diego enjoy free or low-cost rent of city land and facilities, on the condition that those groups help to maintain the property for the general public. Organizations in such partnerships with the City of San Diego include the Girl Scouts, Boys and Girls Clubs, a Korean church and a Jewish Community Center.

What's more, the Boy Scouts are not the only organization that uses Balboa Park. For many summers, the San Diego Lesbian, Gay, Bisexual, Transgender Pride Festival has been held in the park.

The thing that distinguishes the Boy Scouts from the Pride Festival in economic terms is its investment in Balboa Park. Over time, the Boy Scouts have spent millions of dollars maintaining and improving the park.

Upon the Ninth Circuit Court of Appeals rests the future of public-private partnerships. Such partnerships have become increasingly controversial when the Boy Scouts are involved.

In recent days, 216 Boy Scout and Cub Scout troops in New Jersey have severed their charters with government sponsors such as public schools and fire departments. Under threat of lawsuits by the ACLU, the national Boy Scouts had no choice but to direct thousands of Scout troops nationwide to locate new private charter sponsors. Because the Boy Scouts believe in exercising "duty to God" and being "morally straight," they are unfit for sponsorship by police departments or elementary schools, according to the ACLU.

It took but a 37-cent stamp and ACLU letterhead – and the threat of thousands of lawsuits around the country – to cause the Boy Scouts' capitulation. The Boy Scouts have to choose their battles, and the organization has neither the resources nor the patience to wage endless war over public-private sponsorships.

Why does the ACLU want so desperately to destroy the Boy Scouts? It is simple:

On my honor, I will do my best to do my duty to God and my country, and to obey the Scout Law, to help other people at all times, to keep myself physically strong, mentally awake, and morally straight.

That is a statement of self-government, and self-government is the foundation of liberty. The ACLU defines liberty very differently. To the ACLU, liberty is the ability to do whatever one wants. And in the end, that is no different than slavery.