Metropolitan News-Enterprise


Friday, December 21, 2012


Page 1


Ninth Circuit Upholds City Leases of Public Land to Boy Scouts

Panel, After 12 Years of Litigation, Says Any Benefit to Religion Is Incidental




The Ninth U.S. Circuit Court of Appeals yesterday ruled for the City of San Diego in a years-long dispute over whether the state Constitution allows public land to be leased to organizations that discriminate on the basis of religion or sexual orientation.

A three-judge panel said the state’s ban on government aid to religion does not apply to a lease for a secular purpose that provides a mere incidental benefit to a religious group.

The action was brought 12 years ago by plaintiffs identifying themselves as being agnostic or gay, seeking to evict the Desert Pacific Council of the Boy Scouts of America from Camp Balboa in San Diego’s Balboa Park and the Youth Aquatic Center on Fiesta Island, also in San Diego, for which the scouts pay nominal rent to the city.

Other than when Boy Scouts events are being held, the facilities, on land leased for a nominal amount, are open to the public.

The plaintiffs argued that because the Boy Scouts exclude atheists, agnostics, and homosexuals from membership, leasing public lands to the organization at below-market rates violates various provisions of federal, state, and city law.

Standing Issue

U.S. District Judge Napoleon A. Jones rejected the defendants’ claim that the plaintiffs lacked standing, and eventually granted them summary judgment. He ruled that the leases violated the Establishment Clause of the U.S. Constitution and the state Constitution’s bans on government aid to religion and government preferences based on religion.

Following Jones’ decision, the city exercised its right to terminate the leases, although the scouts were allowed to stay on as month-to-month tenants. The city agreed to settle out of the case by paying $950,000 in legal fees and costs to the local ACLU affiliate, which represents the plaintiffs.

The Boy Scouts, however, appealed, and in December 2006, the Ninth Circuit panel certified the state constitutional issue to the California Supreme Court, which declined to hear it pending the federal panel’s resolution of the standing issue.

The panel concluded that the plaintiffs had standing because their decision not to use the facilities was based on the Boy Scouts’ public rejection and disapproval of gays and of those who do not believe in a supreme being. After en banc rehearing was denied, with six judges dissenting, the panel again certified the state constitutional question to California’s highest court, which again declined to weigh in.

Certiorari Sought

The Boy Scouts then sought certiorari in the U.S. Supreme Court, which ultimately declined to consider the standing issue and sent the case back to the Ninth Circuit panel for resolution on the merits. That finally occurred yesterday, with the panel holding that the leases did not violate either the state Constitution or the Establishment Clause.

Senior Judge William C. Canby Jr., writing for the court, explained that while the state Constitution prohibits a local government from “mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose,” the California courts have not always applied the language in an absolute manner.

He cited California Statewide Communities Development Authority v. All Persons Interested in the Matter of the Validity of a Purchase Agreement (2007) 152 P.2d 1070, which held that private schools that were “pervasively sectarian” could obtain tax-exempt construction bond financing under certain circumstances.

In a 4-3 decision, the high court held that if the schools “offer a broad curriculum in secular subjects,” including secular classes that “consist of information and coursework that is neutral with respect to religion,” the Constitution does not bar them from participating in tax-exempt funding.

‘Equal Basis’

Applying a similar framework, Canby said that because San Diego made its leases available to religious and secular groups on an “equal basis,” did not make public funds available for “religious projects,” and was not burdening the taxpayers for the Boy Scouts’ benefit, the leases did not constitute aid to religion within the meaning of the state Constitution.

 For similar reasons, Canby said, the leases did not violate the Establishment Clause of the U.S. Constitution.

 Judge Marsha Berzon concurred with Canby. Senior Judge Andrew Kleinfeld concurred separately, agreeing with the majority on the merits but reiterating his previous argument that the plaintiffs lacked standing.

“Revulsion for a group so intense that one cannot bear to be on property they manage cannot, in a tolerant society, be deemed harm sufficiently concrete as to confer standing to sue,” Kleinfeld argued.

The case is Barnes-Wallace v. City of San Diego, 04-55732.


Copyright 2012, Metropolitan News Company