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9th circuit hears Boy Scouts case
whitierdailynews.com ^ | 2-20-06 | By Marshall Allen Staff Writer

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


TOPICS: Constitution/Conservatism; Culture/Society; News/Current Events
KEYWORDS: 9thcircuit; aclu; balboapark; boyscouts; bsa; establishmentclause; gayfarming; heterophobia; homosexualagenda; lawsuit; publicsquare; sandiego; teens; waronrealboys

1 posted on 02/20/2006 10:27:35 AM PST by franky
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To: franky

Ninth Circus? Boy Scouts lose and ACLU wins - again.


2 posted on 02/20/2006 10:29:56 AM PST by mlc9852
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To: franky
Wonder how this will go. NOT!
3 posted on 02/20/2006 10:31:42 AM PST by airborne
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To: franky

Boy scouts HAVE NO CHANCE.

This case was decided before it began.


4 posted on 02/20/2006 10:32:55 AM PST by Finalapproach29er (Americans need to remember Osama's "strong horse" -"weak horse" analogy. Let's stop acting weak.)
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To: franky

Integrity vs Deviancy


5 posted on 02/20/2006 10:33:18 AM PST by FearNoMan
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To: franky

GEE, I wonder what the ruling will be..............


6 posted on 02/20/2006 10:33:56 AM PST by joe fonebone (Woodstock defined the current crop of libs, but who cleaned up the mess they left?)
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To: franky

I predict that if after appeals, etc, the Scouts win, the perverts will flaunt their stuff on the same public property at the same time the scouts are there -- making it unsuitable. The ACLU will fight for the left's right to be on the same public land, and their rights to contribute to the delinquency of these kids, etc, etc.

Ths scouts might just as well work out comparable arrangements with a church group or organization, get private land made available for their good works.


7 posted on 02/20/2006 10:34:29 AM PST by George from New England
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To: mlc9852
Ninth Circus? Boy Scouts lose and ACLU wins - again.

Thank goodness we have the Supremes that mostly likely will overturn it.

8 posted on 02/20/2006 10:36:02 AM PST by Always Right
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To: Finalapproach29er

But I think a higher court is going to have something to say about this.


9 posted on 02/20/2006 10:36:13 AM PST by half-cajun
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To: Always Right

I certainly hope so. It will be interesting.


10 posted on 02/20/2006 10:36:37 AM PST by mlc9852
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To: franky

Every group with any definition at all discriminates. It's called freedom of association. This case is about pitting one belief system against another and asking the court to choose. No doubt they will choose the ACLU. Frankly if they win, their own atheistic beliefs should ban them from all public places or connection with public funds too.


11 posted on 02/20/2006 10:38:53 AM PST by The Ghost of FReepers Past (Woe unto them that call evil good, and good evil; that put darkness for light..... Isaiah 5:20)
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To: franky
In my mind these proceedings have the lawyers juggling knives and tigers jumping through flaming hoops in the background.
12 posted on 02/20/2006 10:39:07 AM PST by Pookee
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To: franky

"We only say God in general. & It could be the Buddha god, the Hindu god. It doesn't say anything about Jesus Christ."

By Allah, I believe that sounds like a capitulation; might as well stop right there, the ACLU could hardly ask for more.


13 posted on 02/20/2006 10:39:29 AM PST by Old Professer (Fix the problem, not the blame!)
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To: franky; RonF; AppauledAtAppeasementConservat; Da Jerdge; Looking for Diogenes; ...

14 posted on 02/20/2006 10:39:35 AM PST by SandRat (Duty, Honor, Country. What else needs to be said?)
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To: mlc9852
I wouldn't worry too much. The Ninth Circus judges don't seem to know too much about the legal principle of standing *coughNewdowcough*, and SCOTUS has proven themselves willing to slap them down whenever they ignore standing in an attempt to legislate from the bench.

Besides, O'Connor has been replaced by Alito. It'll be even easier this time around.

15 posted on 02/20/2006 10:40:49 AM PST by Gordongekko909 (I know. Let's cut his WHOLE BODY off.)
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To: SandRat

The BSA has good support in this battle, and ultimately I expect them to win. On to the supreme court.


16 posted on 02/20/2006 10:41:53 AM PST by MarMema (Buy Danish, support freedom)
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To: franky

This will be a good test for the new Supreme Court. We shall see where we stand.

I hope Bush gets to appoint at least one more on the USSC.

And it would be great to see a change in the Ninth Circuit Court as well.


17 posted on 02/20/2006 10:42:13 AM PST by Rocky (Air America: Robbing the poor to feed the Left)
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To: franky
I predict that the BSA will loose in the 9th District and win in the SC on appeal. A waste of BSA money that could have been spent on helping boys. Too bad the ACLU cannot be held liable for the legal expenses the BSA has had to pay.
18 posted on 02/20/2006 10:43:35 AM PST by reagandemo (The battle is near are you ready for the sacrifice?)
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To: mlc9852
Ninth Circus? Boy Scouts lose and ACLU wins - again.

Exactly. Why even bother showing up? The Boy Scouts are bound to lose. If it is good for America, you can bet the 9th Circus will strike it down.

19 posted on 02/20/2006 10:46:37 AM PST by yellowdoghunter (I sometimes only vote for Republicans because they are not Democrats...by Thomas Sowell)
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To: franky

BSA's legal website is here:

http://www.bsalegal.org

BSA's main website is here:

http://www.scouting.org


20 posted on 02/20/2006 10:49:00 AM PST by bnelson44 (Proud parent of a tanker! (Charlie Mike, son))
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To: George from New England

Ths scouts might just as well work out comparable arrangements with a church group or organization, get private land made available for their good works.

Didn't the Scouts use to use land owned by Phillips Petroleum in New Mexico?


21 posted on 02/20/2006 10:49:02 AM PST by chainsaw ( ("We're going to take things away from you on behalf of the common good." - H. Clinton))
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To: franky

Be interesting to see how this all plays out.

What if the Klan wanted to rent space? No, some say because they discriminate.
But what if the Klan wants a permit to demonstrate, courts have said you have to let them. What's the difference?


22 posted on 02/20/2006 10:54:12 AM PST by Smartaleck
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To: franky; All

I have been camping here as a boy scout some 30yrs ago, it was cool then, I am sure with all the inprovemnts it's better not, also ther was a girl scout camp not far away we use to sneek to and check out the girls. BOO HISS on the ACLU and the 9th circus.


23 posted on 02/20/2006 11:16:27 AM PST by markman46 (engage brain before using keyboard!!!)
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To: Pookee

that counts as "jurisprudence" in Kalifornia...
what about the Dancing Ito' s??


24 posted on 02/20/2006 11:33:56 AM PST by Rakkasan1 (Muslims pray to Allah, Allah prays to Chuck Norris.)
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To: reagandemo

Actually, the ACLU could be identified as a group of "illegal combatants", and all of their members rounded up and shipped to Guantanimo.


25 posted on 02/20/2006 11:36:45 AM PST by muawiyah (-)
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To: muawiyah
"Actually, the ACLU could be identified as a group of "illegal combatants", and all of their members rounded up and shipped to Guantanimo."

Nope I would not subject our fine troops to such filth. There is only so much a decent person should have to put up with!
26 posted on 02/20/2006 11:55:34 AM PST by reagandemo (The battle is near are you ready for the sacrifice?)
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To: franky

The leftist want the scouts to either become a farm team for San Francisco or else to go away.


27 posted on 02/20/2006 12:05:04 PM PST by festus (The constitution may be flawed but its a whole lot better than what we have now.)
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To: muawiyah

Illegal combatants might be a stretch but supporting terrorist and terroristic activity isn't. Should freeze their assets and arrest their leaders just like the Holy Land Foundation etc. that the Mooslimbs are running.


28 posted on 02/20/2006 12:07:25 PM PST by festus (The constitution may be flawed but its a whole lot better than what we have now.)
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To: reagandemo

Maybe they could fall out of the plane on the trip to Cuba.


29 posted on 02/20/2006 12:10:56 PM PST by muawiyah (-)
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To: muawiyah
"Maybe they could fall out of the plane on the trip to Cuba."

Oh no do you want Greenpeace on your case? That is polluting the oceans. That will never do.
30 posted on 02/20/2006 12:18:11 PM PST by reagandemo (The battle is near are you ready for the sacrifice?)
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To: reagandemo

Well, maybe they kind of "fall short" and just fill in a breach in the levee in New Orleans.


31 posted on 02/20/2006 12:19:57 PM PST by muawiyah (-)
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To: muawiyah
I was thinking of putting t-shirts with the cartoon of Mohammad on them and then dropping them off in Pakistan.
32 posted on 02/20/2006 12:24:24 PM PST by reagandemo (The battle is near are you ready for the sacrifice?)
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To: reagandemo
I think that the ACLU claim, as best I understand it is nebulous. I would think that a certain minimal amount of reference to a divine being has to be permitted..... after all our money says "In God we trust".

Does THAT imply the endorsement of a divine being that is prohibited by the constitution? I'm sure that the ACLU's case is more complex than that but I think it shows that there was no intent to ban any mention of a God.

This comes down to the ACLU's punishment of an organization which doesn't like queers around young boys.

33 posted on 02/20/2006 12:30:37 PM PST by lOKKI (You can ignore reality until it bites you in the ass.)
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To: chainsaw
PHILMONT... Cimmeron New Mexico

http://www.scouting.org/philmont/main.shtml

Premier outdoor Scouting experience. 10's of thousands of acres in the Sangre De Christo Mtn range. (OH, that translates to "Blood Of Christ" dosen't it?) Land was donated by the Phillips family to the Boy Scouts in perpetuity.

My troop has used 'phone-bank and speed dials" to get on the list for "next years" slots. Usually treks are filled within minutes of the opening for the seasons reservations.
34 posted on 02/20/2006 12:31:09 PM PST by UPcrawfish
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To: chainsaw

The Phillips brothers (not the company they owned) gave Philmont Ranch to the BSA. They also donated a number of other significant properties to the State of Oklahoma, the City of Tulsa, and other entities. It seems Frank and Waite liked to buy and build properties, but then they got bored with them and gave them away! Nice folks :-).


35 posted on 02/20/2006 12:41:40 PM PST by Tax-chick (My remark was stupid, and I'm a slave of the patriarchy. So?)
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To: UPcrawfish
Ahhh Philmont. I was a part of crew 615-P last summer. Our crew did 85 miles visiting places like Baldy, Cimmeron Ceto, Pablano Ruins, Tooth of Time. We save mule deer, bear, rattle snakes.I would not trade the experience for anything!
36 posted on 02/20/2006 12:43:21 PM PST by reagandemo (The battle is near are you ready for the sacrifice?)
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To: reagandemo; SandRat; franky
I predict that the BSA will loose in the 9th District and win in the SC on appeal.

Me too.

A waste of BSA money that could have been spent on helping boys.

Which I figure is part of the strategy. First, to deny the BSA access to public facilities and resources wherever possible. Second, to bleed money from the BSA by forcing it to spend money on lawyers instead of the Scouts they exist to serve.

37 posted on 02/20/2006 12:44:13 PM PST by RonF
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To: RonF
ACLU strategy = sue their adversaries into bankruptcy.
38 posted on 02/20/2006 12:48:54 PM PST by reagandemo (The battle is near are you ready for the sacrifice?)
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To: RonF
The ACLU works to....bleed money from the BSA by forcing it to spend money on lawyers instead of the Scouts they exist to serve>

Just reinforces the truth in the association of the ACLU and NAMBLA!

39 posted on 02/20/2006 12:50:05 PM PST by SandRat (Duty, Honor, Country. What else needs to be said?)
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To: mlc9852
Bringing any case that involves morals, ethics or freedom to the 9th Circuit is like playing Russian Roulette with 5 in the cylinder.

 

40 posted on 02/20/2006 12:52:20 PM PST by Psycho_Bunny
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To: Finalapproach29er

"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...


41 posted on 02/20/2006 12:55:51 PM PST by Bean Counter ("Stout Hearts!")
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To: mlc9852

If the ACLU wins, it's open season on their lawyers.


42 posted on 02/20/2006 12:57:28 PM PST by bert (K.E. N.P. Slay Pinch)
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To: bert

I thought it was always open season on lawyers - LOL.


43 posted on 02/20/2006 1:02:10 PM PST by mlc9852
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To: lOKKI
Or, alternatively, that Boy Scouts of America has been so successful in keeping the pedophiles away from the boys that the perverts at the ACLU can only get near them in court.

Something to think about.

I have no doubt ACLU members have impure thoughts about children.

44 posted on 02/20/2006 2:04:40 PM PST by muawiyah (-)
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To: franky

Has there been any reports about this, considering it is the 9th Court, they should be able to hand down a quick decision....


45 posted on 02/20/2006 2:31:09 PM PST by notpoliticallycorewrecked (God bless our military)
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To: AFA-Michigan; AggieCPA; Agitate; AliVeritas; AllTheRage; An American In Dairyland; Annie03; ...
Homosexual Agenda Ping!

To be included in or removed from the
HOMOSEXUAL AGENDA PING LIST,
please FReepMail either DBeers or DirtyHarryY2k.

Free Republic homosexual agenda keyword search

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...

46 posted on 02/20/2006 4:49:06 PM PST by DBeers ()
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To: franky
Already posted here this morning

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.

47 posted on 02/20/2006 5:01:48 PM PST by BigFinn
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