Scouts' Balboa Park lease ruled unconstitutional
By Ray Huard and Marisa Taylor
STAFF WRITERS
August 1, 2003
The Boy Scouts' lease of public land in Balboa Park violates constitutional separation of church and state, a federal judge ruled yesterday.
U.S. District Judge Napoleon Jones Jr. said the city gave preferential treatment to the Scouts when it leased the 18-acre Camp Balboa, even though there is "overwhelming and uncontradicted evidence" showing that the Boy Scouts are a religious organization.
"The city handpicked as the preferred lessee an organization that describes religious belief and practice as fundamental to the services it provides," Jones wrote.
The American Civil Liberties Union sued the city and the Boy Scouts of America over the lease in August 2000 on behalf of a lesbian couple and an agnostic couple. Each couple has a son.
It was unclear what the immediate impact of the ruling would be because the city and the Scouts could appeal.
The city and the Boy Scouts have defended the lease, saying other groups are allowed to use the camp.
Deputy City Attorney John Mullen said the City Attorney's Office will seek direction from the City Council, which is to review the ruling in a closed session Tuesday.
The Scouts have used the park since 1920 and have been on their current site, at the northwest corner of the park near the San Diego Zoo, since 1940. They have had a lease since 1957.
Jordan Budd, legal director for the ACLU's San Diego office, said the City Council should cancel its lease with the Scouts. The only other solution, Budd said, is for the Scouts to change their policies barring homosexuals and requiring members to express a belief in God.
"We believe it is long past time for the City Council to end its affiliation with this discriminatory organization and to keep open this public park land for the use of all citizens of San Diego on a fair and equal basis and not just those citizens preferred by the Boy Scouts," he said.
Jones' ruling comes three years after the U.S. Supreme Court ruled 5-4 that, under the First Amendment, the Boy Scouts have a constitutionally protected right of "expressive association," which allows the organization to exclude gay members.
The dispute over the lease was "predictable fallout" from the high court's decision, Jones said.
"Those protected, private viewpoints include an anti-homosexual, anti-agnostic and anti-atheist stance," he wrote. "After (the Supreme Court ruling), 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."
Jesse Choper, a professor with UC Berkeley's Boalt Hall School of Law, said Jones' decision demonstrates that organizations like the Boy Scouts are "entitled to express their views and associate in any way they wish, but they're not entitled to preference."
Other legal experts were surprised by Jones' conclusion that the Scouts are a religious organization because they require members to profess a belief in God.
"It's not to say that it's wrong. There must have been a factual record that supported the ruling," said Vik Amar, a constitutional law professor with Hastings College of the Law in San Francisco. "But it does sound like something that a lot of people would disagree with."
The decision is the city's second constitutional loss involving a dispute with the ACLU in less than a year.
In April, city officials lost their bid to argue the Mount Soledad cross case before the U.S. Supreme Court. The high court let stand an earlier decision by the 9th U.S. Circuit Court of Appeals that the sale of land under the cross to a veterans group violated the article of the California Constitution that prohibits governments from financing religion.
The Boy Scouts' 50-year, $1-a-year lease expires in 2007. The City Council in December renewed the lease at the Scouts' request for 25 years, with the city having the option to extend the lease an additional 15 years.
Under terms of the lease, the Scouts must spend $1.7 million over the next seven years to upgrade Camp Balboa. The Scouts also are required to pay the city an annual administrative fee initially set at $2,500.
The Desert Pacific Council, which represents Scouts in San Diego and Imperial counties, said in a news release they are disappointed with the judge's ruling. Boy Scouts representative Thyme Osborne declined to elaborate.
"We're not doing any interviews," Osborne said.
Mayor Dick Murphy also declined to discuss the ruling.
In a statement issued by his deputy press secretary, David Hicks, Murphy said: "Having been a Boy Scout as a child, I've always supported the Boy Scouts here in San Diego. However, because this is pending litigation, all questions should be referred to the City Attorney."
Councilwoman Toni Atkins, whose district includes Balboa Park, said the city should cancel its park lease with the Boy Scouts unless the Scouts change their policies.
"It's time for the city to get on the right side of this discussion and work to abolish discrimination wherever it can," said Atkins, who is lesbian.
The land the Boy Scouts use "should be turned over to an organization that allows everyone use of public land – and I know there are enough good groups out there," she said.
The city also gives the Scouts free use of a half-acre for an aquatic center on Fiesta Island in Mission Bay. That lease expires in 2012 and has not been extended.
Jones refused to rule on the Fiesta Island lease, saying he hadn't seen enough evidence to make a ruling.
Budd said the dispute over the Fiesta lease could be heard by Jones before any appeal is decided on the park lease. The Scouts' news release said the Desert Pacific Council spent $2 million to build the aquatic center on an unused landfill.
A practical issue that remains unresolved is what will happen to the facilities the Scouts have built in Balboa Park.
Osborne said the Scouts have made extensive improvements at the park, planting trees, installing water and power lines, and building nine campsites. Also added were a swimming pool, a parking lot, restrooms and showers, a residence and office for a camp ranger, and meeting rooms.
Budd said the fate of those facilities could be decided in a final court order, which typically would include requirements the city must meet to comply.
"The fact that they've invested a substantial amount of money in the park is not a justification for them to occupy park land for free," Budd said. " . . . If they want a public subsidy and free access for years upon years to public park land, they have to do what virtually every other youth organization has done. The Girl Scouts, the Campfire Girls, the YMCA, the YWCA – every other youth organization has abandoned exclusive membership policies."
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