Skip to comments.9th circuit hears Boy Scouts case
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.
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?
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?
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.
that counts as "jurisprudence" in Kalifornia...
what about the Dancing Ito' s??
Actually, the ACLU could be identified as a group of "illegal combatants", and all of their members rounded up and shipped to Guantanimo.
The leftist want the scouts to either become a farm team for San Francisco or else to go away.
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.
Maybe they could fall out of the plane on the trip to Cuba.
Well, maybe they kind of "fall short" and just fill in a breach in the levee in New Orleans.
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.
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 :-).
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.
Just reinforces the truth in the association of the ACLU and NAMBLA!