Arguments in a major Boy Scouts case unfolding in Pasadena, Calif., before a three-judge panel of the Ninth Circuit Court of Appeals – a case that is certain to be headed for the Supreme Court — centered on the contention that the revered organization is actually a religion and should therefore not be given a lease of public land.
The case was brought by self-declared agnostics Lori and Lynn Barnes-Wallace and Michael and Valerie Breen, along with a son of each, in protest of a lease of parkland in Balboa Park and Fiesta Island by the city of San Diego to the Boy Scouts of America.
The agnostics sued the city on a claim that the lease to the Boy Scouts – out of more than 100 leases, including to the YMCA, a number of Jewish groups, one of which conducts Sabbath services on parkland, and the Girl Scouts – violates the Establishment of Religion Clause of the First Amendment, and that they are suffering “inferior usage” thereby because they don’t want to have to apply for permits, or pay usage fees, to the BSA. The case is Barnes-Wallace, et al. v. Boy Scouts of America, Nos. 04-55732, 04-56167.
A federal judge in San Diego granted the summary judgment to the agnostics, finding that the Boy Scouts are a “religion” because of the Boy Scout Oath, which includes doing one’s duty to “God and my country,” and the Boy Scout Law, which includes “reverence” as one of 12 precepts. Also, the Scouts require a belief in God as a condition of membership.
The city itself is not part of the appeal. It settled with the American Civil Liberties Union to avoid further expense, agreeing to terminate the lease and to give the ACLU $940,000 in attorney fees. The appeal continues since the Boy Scouts, if they prevail, want to be able to contract for a lease with the city again.
The case has drawn national attention because the federal judge’s finding that the BSA is “a religion” imperils the future work of not only the Boy Scouts, but all organizations that recognize a transcendent higher authority, including community service organizations like Rotary and Kiwanis, Alcoholics Anonymous, which works directly with the courts and government, and veterans organizations like the American Legion, whose constitutional preamble begins “For God and Country,” almost identical to the Boy Scouts Oath.
“If the Boy Scouts are ‘a religion,’ so are we in the American Legion. Is the ACLU going to sue our 2.7 million wartime veteran members next, claiming we, too, are ‘religion’? Are they going to sue to destroy the religious symbols at our veterans’ memorials on public property? The Tomb of the Unknown Soldier? Our work in Boys State, Boys Nation, with the government? Our Oratorical Contests with schools?” a Legionnaire asked after Tuesday’s court session.
The crucial cultural question of who or what “is a religion” was argued by lawyers for the parties and submitted for decision to three lawyers sitting as Ninth Circuit Justices: William C. Canby, Andrew J. Kleinfeld and Marsha Berzon.
Mark Danis, lawyer for the agnostics, argued that the Boy Scouts are “a religion,” and the lease to the BSA therefore violates the Establishment Clause because the agreement “aids” religion. The Boy Scouts pay only $1 a year, as do, apparently, all the other nonprofit groups that have leases on parklands.
George P. Davidson, BSA lawyer, argued that the Scouts are “not a religion,” but an organization dedicated to helping youth build moral and ethical character, which mission the BSA believes needs a belief in God and reverence as a necessary component.
He emphasized that the BSA is “not sectarian;” has no creed, in the sense of a systematic theology or religious doctrine; expressly directs Scouts that any religious instruction should be by their parents and self-chosen religious affiliations; and that the Scouts include boys of many religions, including Christians, Jews, Muslims and others.
Davidson argued that the city isn’t aiding the Scouts within the meaning of the law. Rather, the city is benefiting from the deal because it requires the BSA, in lieu of rent, to build, maintain and operate the facilities at its own expense. He stated the Boy Scouts have already spent some $1.7 million on capital improvements to the property and expend over $150,000 annually in operating expenses.
The attorney also referred the court to the friend-of-the-court brief filed by the Thomas Beckett Fund. John C. Eastman, Chapman University law professor, joined Davidson at the counsel table to be available for questions, but did not argue due to the 30-minute time limit allowed for argument.
Eric W. Treene, special counsel for religious discrimination at the U.S. Department of Justice, filed a brief and argued the case as friend of the court in defense of the Boy Scouts.
Treene discussed all the leading cases on the Establishment Clause and judicial tests for what constitutes a “religion” or impermissible “aid” to religion, and argued that the Boy Scouts are not under those precedents “a religion,” nor is the organization being “aided” unconstitutionally by the lease.
“This is a value-for-value agreement,” he argued. “The city is exchanging use of the land by the BSA in exchange for the capital improvements and the operating expense which the BSA is absorbing at its own, and not the city’s, expense.”
Justice Berzon asked no questions about how it is that the Scouts are a religion, but sharply questioned the BSA’s lawyers on why the lease is not impermissible “aid” under the California Constitution, rather than the federal Establishment Clause. She also asked why the case shouldn’t be certified to the California Supreme Court.
Berzon also did a bit of lawyering for the agnostics’ attorney, questioning why he hadn’t raise a legal theory that Berzon felt would be more effective in attacking the Boy Scouts, but had not been raised in the lower court. Generally, a theory not raised in the lower court cannot be raised in the first instance in the Court of Appeal. Notwithstanding, Berzon pressed the question of her theory, receiving in response a stutter, then acknowledgment the theory hadn’t been raised in favor of others that were.
Davidson countered Berzon’s observations, arguing that there is no “aid” as the BSA is not receiving any taxpayer funds nor material, and its use of the parkland is conditioned upon its making millions of dollars in improvements and operating expenses, relieving the city of those expenses.
Justices Kleinfeld and Canby, on the issue of “aid,” questioned agnostics’ counsel Danis if there was any amount of money the BSA could pay to improve the property that would negate the claim of aid.
“If the Scouts paid, say, $100,000,000, far more than the value of the use of the land or its value – would that satisfy your clients?” asked Canby.
“No,” answered Danis, arguing that the lease by the city would be “aid” to religion, i.e., the Scouts, no matter how much the BSA paid and how much more value it provided to the city than it received.
Kleinfeld said he was troubled by that response and the issue of legal “standing” of the agnostics to challenge the lease. Noting that there was no evidence that the Scouts had ever excluded anyone who sought a use permit, including “… gays, lesbians, atheists, anyone,” and that the agnostic plaintiffs had never sought or been denied a permit to use the facilities, he asked: “How can they claim injury in fact?”
Danis conceded it was true that his clients had never applied for nor been denied use of the facilities. However, he argued their constitutional injury is that they are suffering “inferior use” because they find it offensive to have to submit a permit application, and to pay usage fees, “to the Boy Scouts.”
Because of the importance of the case, numerous briefs were filed as amicus curiae (friend of the court). Present in court, although not arguing, were attorneys for organizations that had filed amicus briefs.
Those supporting the agnostics were the Unitarian/Universalist Church Association by attorney Eric Isaacson of San Diego.
Supporting the Boy Scouts were the Thomas Beckett Fund and attorney John C. Eastman, director of the Center for Constitutional Jurisprudence at Chapman University School of Law; the Individual Rights Foundation by attorney Paul A. Hoffman; and the American Legion, by Paul Rosenzweig, Esq., of the Heritage Foundation with National Judge Advocate Philip B. Onderdonk Jr. serving of counsel.
Whatever the Ninth Circuit rules, it appears certain the case will go to the U.S. Supreme Court.
No attorney on either side had an answer to the question put by reporters at a press conference following oral argument: “How will the Ninth Circuit rule?”
On the other hand, no member of the press could answer one attending attorney’s question to them:
“Why should the judiciary ‘rule’ at all, in a democratic republic, on such a core cultural question as to what constitutes ‘a religion’ in America? That is, why should three unelected lawyers sitting as judges, or perhaps nine unelected lawyers on the Supreme Court, ‘rule,’ instead of a decision being made by deliberations and vote by elected representatives after procedures in which citizens have an opportunity to be heard?”
“Hmm, that’s very interesting. I’ll have to think about that,” politely responded one reporter as he gathered gear to scurry off to make deadline for the early news television broadcast.
Attorney Rees Lloyd attended the oral arguments for the San Diego Boy Scout case and filed this exclusive report for WND.