Skip to comments.Boy Scouts, ACLU Settle Land Lease Lawsuit
Posted on 01/08/2004 2:53:45 PM PST by RonF
San Diego and the American Civil Liberties Union settled a lawsuit over two leases between the city and the Boy Scouts, both sides announced Thursday.
The ACLU suit, filed in 2000, challenged the city's subsidy of the Desert Pacific Boy Scout Council through leases for public land in Balboa Park and Fiesta Island Aquatic Park.
In July 2003, a federal judge ruled the Balboa Park lease violates First Amendment guarantees of separation of church and state. The judge also put over for trial the matter of the Fiesta Island lease.
Under its settlement with the ACLU, the city will take no position on the validity of the leases in future legal proceedings, and the city will pay the ACLU's attorneys $790,000 for legal fees incurred during the three years of litigation and $160,000 in court costs.
"The Boy Scouts cannot have it both ways," said ACLU volunteer attorney M.E. Stephens. "Having gone to great lengths to establish that discrimination against gays and (athiests) is essential to their mission, and, therefore, protected by the First Amendment, they cannot now turn around and ask the people of San Diego to foot the bill for that discrimination."
The settlement also relieves the city of any liability to pay future ACLU legal costs.
"While it may be legally acceptable for the Scouts to privately discriminate against so many boys and their families, it has never been acceptable for the city to bar those families from a public park," said ACLU co-counsel Mark Danis. "Government has a constitutional duty to treat everyone equally and fairly."
The Boy Scouts of America, which is not a party to the settlement, has the right to continue to present defenses to ACLU legal claims.
The national organization, based in Irving, Texas, also retains possession of the leased properties during the pending litigation, including all appeals, according to Deputy City Attorney John Mullen.
The BSA says the mission of the organization is to "prepare young people to make ethical and moral choices over their lifetimes by instilling in them the values of the Scout Oath and Law."
The Scout Oath reads: "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."
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How many is so many? How many kids are there that are the sons of atheists, or are open about their sexuality during youth activities?
it has never been acceptable for the city to bar those families from a public park,"
Which it doesn't; non-Scouting groups have been and are welcome to use the facilities in question.
"Government has the responsibility to treat everyone equally and fairly."
Including the BSA.
Did the city bar a gay scout troop from the park?
"The Boy Scouts cannot have it both ways," said ACLU volunteer attorney M.E. Stephens.
Am I missing something? How can legal fees be racked up by "volunteer" attorneys? Do they just volunteer to only make $150.00 per hour instead of the $1,500.00 per hour they could realize chasing ambulances?
"Questioning whether gay Scoutmasters should be taking 14-year-old boys on overnight sleepovers in the woods is "out of the mainstream."
The USSC did decide on the BSA's behalf that they are a private organization and therefore have the right to discriminate.
In this case (should it continue) the BSA is in the position of defending San Diego's lease of the land at a nominal rent. The city has bowed out and will not defend its own actions. I imagine the issue comes down to whether the city can lend its resources to a private (though benevolent) organization which discriminates.
San Diego has entry in its municipal code which might apply:
City Facilities. It shall be an unlawful service practice for any person to deny any individual the full and equal enjoyment of, or to place different terms and conditions on the availability of the use of any City facility on the basis (in whole or in part) of such individual?s sexual orientation or gender identity.I haven't seen the suit so I'm not sure what its basis is. There may be other city, state, or federal laws that could apply. I'm not sure that this is a case that'd make it all the way to the USSC. It does have relevance to dozens, maybe hundreds, of BSA leases and accomodations.
That is not a very compelling argument. If this was Disney leasing the land instead of the BSA would you argue that because they have made improvements to the land by building a theme park on it they should receive a lease for free? If that were the case any organization that promises to build a few cabins should get prime public land without paying.
On the contrary, the BSA's best defense in this case may be that they make the camp available to any group that wants to use it, including gay groups, when the scouts are not there.
If that is true then it changes the case. In Los Angeles the huge Griffith Park was given with restrictions which the heirs have gone to court to enforce (for example, no charge allowed for patrons).
The bulk of Balboa Park was created by the city before the BSA was even founded, but perhaps this camp is on a contiguous parcel.
Scouts' Balboa Park lease ruled unconstitutional
By Ray Huard and Marisa Taylor
UNION-TRIBUNE 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.
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.
Other legal experts were surprised by [Judge] 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 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.
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."
"Boy Scouts, ACLU settle Land Lease Suit"
"The Boy Scouts of America, which is not a party to the settlement, has the right to continue to present defenses to ACLU legal claims."
Does anyone else notice the disconnect between the headline and the actual facts????
The City of San Diego and the ACLU were the litigants... the Boy Scouts were not involved except as the subject of the dispute. THEY have settled nothing!
This is either more disinformation... or totaly idiocy in the reporting and editing by 'professionals'.
The article is not from the Union - it is from a local TV channel KFMB-8, which is owned by something called "Midwest Television."
Unfortunately, poor journalism is par for the course on local TV news.
The Boy Scout facilities are not exactly available for public use. As a park-goer you may not stroll through the grounds. It is available to other groups only on those occasions when it is not being used by the Boy Scouts. Those groups have to pay a fee.
To use the Disney analogy again - they have made substantial improvements to the land under their theme parks, and they make it open to the public for a fee. Should the cost of their improvements count as a lease payment?
I don't know how the original lease was written, but the ownership of improvements is undoubtedly covered. On National Forest lands, for example, the leaseholder generally retains ownership. The downside of that is that when the lease expires the owner must remove all trace of the improvements. In other cases the improvements become the property of the landowner. I wish the District Court's filing was available online - I'm sure these issues would have come up.
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