Free Republic
Browse · Search
Topics · Post Article

Skip to comments.

Ninth Circuit Court Gets One Right ^ | January 15, 2013 | Robert Knight

Posted on 01/15/2013 12:00:18 PM PST by Kaslin

The Ninth Circuit U.S. Court of Appeals in San Francisco has a well-earned reputation as the hippiest, dippiest, most-reversed appellate court in these United States.

It’s where the Pledge of Allegiance gets scrutinized for possible eradication, at least, the “under God” part. But every so often, the Court gets something right.

On December 22, a unanimous Ninth Circuit panel reversed a federal district judge’s order to evict the Boy Scouts from their longtime camp and local headquarters in San Diego’s Balboa Park. The ruling came in a case filed by the American Civil Liberties Union (ACLU) in 2001 on behalf of a lesbian couple and an agnostic couple, who basically accused the Boy Scouts of holding traditional values.

In 2003, federal District Judge Napoleon A. Jones Jr. ruled that the Boy Scouts were a religious organization and therefore ineligible for a public lease. Judge Jones somehow ignored the Supreme Court’s Dale decision in 2000 upholding the Scouts’ right to their own moral standards. He also ignored the First Amendment’s religious freedom guarantee.

Facing mounting legal costs, the weasel San Diego City Council bailed in 2004, agreeing to pay their tormentors nearly $1 million in legal fees. The Scouts stayed on the property and fought on, and although the Scouts finally prevailed, the Ninth Circuit’s opinion makes it clear that the case should have been tossed on arrival, not hanging over the Scouts for 11 years like a sword of Damocles. None of the plaintiffs or their children ever actually tried to use the facilities and had no demonstrable “harm.”

The Court initially erred in concluding that the Scouts had barred the plaintiffs from using the property – giving the couples standing – and the case went forward. However, the plaintiffs admitted that they had not tried to use the facilities because they break out in hives if they’re within a canoe’s length of anyone in a neckerchief. They didn’t put it this way, but that’s the gist.

In a concurring opinion, the Ninth’s Judge Andrew J. Kleinfeld wrote, “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.”

That’s a relief, because otherwise, people could sue every time they’re annoyed by someone with a contrary opinion. Come to think of it, that’s pretty much the Left’s overall approach to dismantling the First Amendment in the name of “tolerance.”

In the case, Barnes-Wallace vs. City of San Diego and Boy Scouts of America -- Desert Pacific Council, the aggrieved couples claimed that the Scouts’ exclusion of atheists, agnostics and homosexuals as members or volunteers constitutes unlawful discrimination on public property.

In a 2009 U.S. Supreme Court amicus brief in defense of the Scouts in the San Diego case, American Civil Rights Union General Counsel Peter J. Ferrara summarized the absurdity of the plaintiffs’ claim of injury:

“[T]hey did not suffer any loss of recreational enjoyment caused by the Boy Scouts. That was caused by the Plaintiffs themselves in refusing to use the facilities open to them. Quite to the contrary, it was the Boy Scouts who spent millions of dollars of their own funds precisely to offer recreational enjoyment open to them. The ‘emotional harm’ is the purely psychological injury of being offended by the traditional moral values that the Boy Scouts hold, and uphold. This does not remotely amount to standing under the precedents of this Court.”

In 2010, the Supremes declined to hear the case, and it bounced back to the Ninth, where oral arguments were heard most recently in June 2011. In the December 2012 ruling, Judge William C. Canby, Jr. wrote that the city of San Diego did not violate the California or United States Constitutions or the San Diego Human Dignity Ordinance in granting the Scouts a new 25-year lease in 2002 for the use of 18 acres of the park for an annual rent of $1, plus a $2,500 annual “administration fee.”

The city also did not err in granting the Scouts a rent-free, 25-year agreement in 1987 to use nearby Fiesta Island in Mission Bay Park to build a Youth Aquatic Center.

The Ninth’s opinion notes that the Scouts’ purpose in building the facilities, which include $1.7 million in capital improvements to Camp Balboa and another $2.5 million to Fiesta Island, was not to “advance religion” but to “provide facilities” for camping, swimming and other “youth activities,” open to all –including the plaintiffs.

In dismissing the plaintiffs’ claims, the Court cited the “Lemon test” from the 1971 Lemon v. Kurtzman U.S. Supreme Court case: “to be constitutional, the government conduct at issue must: (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster an excessive government entanglement with religion.”

The plaintiffs failed miserably to prove that the city violated any of these conditions.

Although it took more than a decade, the Left’s chosen vehicle to bully the Boy Scouts turned into a lemon.

TOPICS: Culture/Society; Editorial; Government; US: California
KEYWORDS: balboapark; boyscouts; homosexualagenda; lawsuit; ninthcircuit; ruling; sandiego

1 posted on 01/15/2013 12:00:22 PM PST by Kaslin
[ Post Reply | Private Reply | View Replies]

To: Kaslin

Finally after 11 years, a case that should have been LAUGHED out of court!! Those who brought up this twisted case should be made to pay court costs plus punitive damages to the Boy Scouts going all the way back to day one. Include those on the city council and anyone else who caved into their demands.

The Scouts have used that park forever.

Pat Buchanan says the government now consideres the Boy Scouts a “hate group.”

The groups accusing the Boy Scots of perfidy are hate groups.

2 posted on 01/15/2013 12:08:47 PM PST by Bon of Babble (Instant Human....Add Coffee)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin

The Democrats hate the Boys Scouts because the Boys Scouts have a rule against allowing 12-year-old boys to go on overnights with homosexual men.

3 posted on 01/15/2013 12:13:38 PM PST by Jeff Chandler (
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin

Nap Jones was an affirmative action judge. Don’t know if he’s still on the bench. Totally unqualified.

At long last, JUSTICE!

[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin
The Ninth Court ruled on another contentious case last week.

Warner Bros. Wins Superman Lawsuit, Just in Time for Man of Steel

Superman may stand for truth, justice and the American way, but in recent years he’s been concentrating on justice. The question of who owns Superman — and the right to make money off the character — has been the subject of ongoing court battles for years, but the latest move in the Ninth Circuit Court of Appeals on Jan. 10 gave Warner Bros. (which owns DC comics) a super-sized leg up. The decision comes mere months before the June 14, 2013, opening of the latest Superman movie, Warner Bros.’ Man of Steel.

5 posted on 01/15/2013 12:29:16 PM PST by Bratch
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin
most-reversed appellate court in these United States

Not any more. The Sixth Circuit currently holds that "honor."

6 posted on 01/15/2013 12:38:13 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin
“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.”

I'll bet the judge was chortling to himself when he wrote that. "Now, what's a judiciously polysyllabic way to say, 'Bugger off, you losers!'?"

7 posted on 01/15/2013 12:45:55 PM PST by Tax-chick (I'm a nightmare, not a dream.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: onyx

According to Wikipedia, Napoleon Jones, Jr., died in December 2009. He was a Bill Clinton appointee.

8 posted on 01/15/2013 12:56:21 PM PST by Verginius Rufus
[ Post Reply | Private Reply | To 4 | View Replies]

To: Bon of Babble

It a nasty, spiteful lawsuit meant to do noting more than force the Boy Scouts to spend their money defending it. I hope th boy Scouts counter sued for the money they spent on lawyers.

9 posted on 01/15/2013 1:08:12 PM PST by Blood of Tyrants (The only thing that Hollywood gets right about guns is that criminals will always get them.)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Kaslin

Let me get this straight; the ACLU filed an amicus brief SUPPORTING the Boy Scouts in this case?

10 posted on 01/15/2013 1:16:52 PM PST by Captain Rhino (Determined effort is the hammer that Human Will uses to forge Tomorrow on the anvil of Today.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Captain Rhino

It was the ACRU, not ACLU.

The ACLU was representing the plaintiffs (as we would expect.)

11 posted on 01/15/2013 6:53:08 PM PST by Gil4 (Progressives - Trying to repeal the Law of Supply and Demand since 1848)
[ Post Reply | Private Reply | To 10 | View Replies]

To: Bon of Babble; Kaslin; BillyBoy; AuH2ORepublican

Boy the wheels of justice sure turn slowly.

12 posted on 01/15/2013 10:15:40 PM PST by Impy (All in favor of Harry Reid meeting Mr. Mayhem?)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Gil4

Thanks for clarifying my misreading of the ACRU name in the article.

Although I donate to the Rutherford Institute and the ACLJ on occasion, I had never encountered the American Civil RIGHTS (vice Liberties) Union before. Blew right past the critical difference in the titles of these two very different organizations.

Guess I can now stop expecting imminent news reports concerning Hell freezing over. (Not that MSM would actually report such an event; professional courtesy, you know.)

(Note to self: When the news seems too impossibly good to be true, recheck; then check your recheck.)

13 posted on 01/16/2013 12:29:43 AM PST by Captain Rhino (Determined effort is the hammer that Human Will uses to forge Tomorrow on the anvil of Today.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: Kaslin

I can’t agree. There should be NO FAVOR provided to any organization, regardless of its values or purpose, when it comes to leases of public facilities. As I recall, San Diego didn’t even entertain other interested parties before rubber stamping a new deal with the BSA.

14 posted on 01/16/2013 3:33:58 AM PST by newzjunkey (bah)
[ Post Reply | Private Reply | To 1 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794 is powered by software copyright 2000-2008 John Robinson