Boy Scouts Face Constitutional Test

Balboa Park dome with sculpture
Balboa Park (photo by Habi)

A long-standing fight over the city of San Diego’s relationship to the Boy Scouts of America comes up for review Monday before three judges of the 9th U.S. Circuit Court of Appeals in Pasadena.  This stems from objections to the city’s $1 per year lease of 18 acres at the city’s Balboa Park to the Boy Scouts, despite the scouts’ policy of forbidding gays, atheists and agnostics as members.

A lesbian couple and an agnostic couple, both with Scout-aged sons, sued the city charging the lease is unconstitutional.  Their challenge has been bouncing around in the courts for more than a decade.  And the Scouts have rented the park space since 1957.

Lori and Lynn Barnes-Wallace and Michael and Valerie Breen sued the city and the scouts with the aid of the American Civil Liberties Union in 2000.  The state of California filed a brief in their support, while the Justice Department, under the Bush Administration, supported the Boy Scouts.

Judge Napolean Jones Jr. in San Diego ruled in 2003 that the Scouts are a religious organization and the below-market $1 lease rate violates the Constitution’s Establishment Clause.

In 2005, the 9th Circuit asked the California Supreme Court to answer questions  about the application of California’s Constitution to the issue.  In an unusual move, the state’s high court refused to take up the questions.

Two of the three judges on the 9th Circuit panel have already made their positions clear in prior rulings and they are split.  Liberal Judge Marsha Berzon expressed support for the couples, while conservative Judge Andrew Kleinfeld sided with the Boy Scouts.  That makes the opinion of the third judge, William Canby, the tie-breaker.

In the request for the California court to look at the case, Berzon compared the case to African-American Rosa Parks refusing to sit in the back of the bus in Montgomery, Alabama in 1955.

By contrast, Kleinfeld said the couples simply didn’t suffer any injury courts can remedy. Kleinfeld said the couples argued they would suffer emotional harm and loss of recreational enjoyment by the Boy Scouts exclusion and public disapproval of lesbians, atheists and agnostics.  Those are not grounds for the couples to sue, he said.

 Case: Barnes-Wallace v. City of San Diego, No. 04-55732  (9th Circuit)

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