Posted on 02/20/2006 10:27:33 AM PST by franky
PASADENA - Oral arguments were punctuated Tuesday by questions about belief in God, discriminating membership standards, and how they relate to the Boy Scouts of America's leasing public land. Lawyers representing the Boy Scouts and the American Civil Liberties Union squared off before the Ninth Circuit Court of Appeals in a case of a lesbian and an agnostic couple and their Boy Scout-aged sons. The plaintiffs said the Scouts should not lease prime park space owned by the city of San Diego because of the organization's pro-God, anti-gay stance.
It is one of three current cases pitting the ACLU against the Boy Scouts. The lawyers faced a panel of three judges who peppered them with questions, sometimes interrupting and taking on an air of interrogation. A ruling in the case is expected later in the year. Judge Marsha Berzon questioned George Davidson, attorney for the Boy Scouts, on the organization's mandate that members believe in God, contrasted with its position that it's not a religious group. "It is without theological content," Davidson said of the Boy Scouts' theism. "\ expect the parents and the religious leaders to provide the content for that."
Jerry Trost, an assistant scoutmaster for Troop 688 in Whittier, does not understand why the ACLU would bother with what he sees as a trivial issue. If the Boy Scouts lose the court battle, he predicts operating costs going up for the organization for things like camp sites or renting meeting halls. "The Boy Scouts are for the betterment of everyone, so I don't know why they can't use public land," Trost said. "We only say God in general. & It could be the Buddha god, the Hindu god. It doesn't say anything about Jesus Christ. "It seems like they're just trying to make a name for themselves and they're picking an easy target."
Trost fears that if the ACLU prevails, his troop will be kicked out of a public meeting space the troop sometimes uses in South Whittier. "The ACLU have done some good things, like some of their work in the South," Trost said. "But now it seems their pendulum has swung the other way." The Boy Scouts of America are appealing two district court rulings, in 2003 and 2004, that negated the leases on their Camp Balboa and Fiesta Island recreational facilities. The leases were an unconstitutional establishment of religion under federal law and violated California's "no aid" clause, which prohibits the financial support of religion, the district court said.
The ACLU also argued that the leases violated the city's duty to maintain public park land for the benefit of the general population. The Boy Scouts display "intolerance" by denying or revoking the membership of gay or nonbelieving individuals, United States District Judge Napoleon A. Jones Jr. wrote in the 2003 ruling. The organization is free to hold its beliefs, but is not entitled to government aid, "especially on terms more favorable than those held by other, nondiscriminatory, organizations," the judge wrote. Mark Danis, attorney for the ACLU, said after the hearing that the primary issue is whether "city land can be used as the headquarters for the head of an organization that discriminates." The answer is clearly "no," Danis said.
The San Diego Boy Scouts have provided camping facilities to the public for 50 years, Davidson said. Any resident, no matter their religion or sexual orientation, can use the facilities with the same privileges of non-Scouts, he said. "We've always had great confidence in the merits of our case," Davidson said after the hearing. "We're no less confident than before." The city leases more than 100 similar park properties to other nonprofit organizations - including religious groups - at similar rates. The organizations pay little or no rent in exchange for developing the properties.
The Boy Scouts argued Tuesday that the plaintiffs lack standing and that the leases don't violate the Establishment clause of the U.S. Constitution or aid religion. Judge Andrew Kleinfeld told Danis the plaintiffs lack taxpayer standing, and while they have access to the properties like anyone else, they have never tried to use the facilities. "You can't say, `Something bothers me,' there has to be more injury," Kleinfeld told Danis. "I can't understand what the injury in fact is if there is no harm." But the plaintiffs would have to pay fees to a discriminatory organization to use the facilities, Danis said.
Do the Boy Scouts also have to pay fees? Kleinfeld asked. "They do," Danis replied. As for the Establishment clause, there is a difference between government speech endorsing religion and private speech, which is protected by freedom of speech and freedom to exercise religion, the Boy Scouts' brief said. "The Boy Scouts' private speech cannot be attributed to the city simply because the city leases park land" to the Scouts, the brief said.
The Boy Scouts also claimed their lease did not violate the "no aid" clause because they spent $1.7 million in capital improvements and $148,000 in operating expenses. It's costing the Boy Scouts lots of money to run their operation, which is for the public's benefit, Davidson said. Danis said the lease violates the no-aid rule because the Boy Scouts are benefitting financially. They would have to pay much more money to lease a similar piece of property, and in previous testimony said they could never afford to do so, he said. The Boy Scouts are still operating the San Diego facilities pending the results of the appeal in the case, Barnes-Wallace vs. Boy Scouts of America.
http://www.whittierdailynews.com/news/ci_3510364
whitierdailynews.com
"This case was decided before it began."
Not so fast...
While I think it's safe to guess what the decision the Ninth Circuit might make in this case, I think what will happen when this finally get to SCOTUS, and it eventually will, is a different matter.
Let's not forget that we have a major transition underway on the Supreme Court...
If the ACLU wins, it's open season on their lawyers.
I thought it was always open season on lawyers - LOL.
Something to think about.
I have no doubt ACLU members have impure thoughts about children.
Has there been any reports about this, considering it is the 9th Court, they should be able to hand down a quick decision....
Anyone ever wonder why the Girl Scouts do not have to constantly battle the leftist homosexual 'rights' onslaught that the Boy Scouts do. The answer may horrify some -objectively the leftists have already had thier way with the Girl Scouts organization -- be aware parents...
Write your Senators about 42 U.S.C. §1988:
The ACLU should be asked to explain
(1) how the organization funds its activities.
(2) how budgetary requirements are compiled,
(3) how the ACLU solicits funding,
(4) the manner in which the ACLU allocates assets,
(5) whether the ACLU fraudulently converted tax dollars to unlawful surveillance and other illegal purposes, and,
(6) whether the ACLU employs accounting fraud.
They're extorting money from the tax paying public to continue their assault on our moral organizations. Hold them accountable.
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