By Julia Dunn, The Washington Times, Mar 7 2004
The northwest corner of Balboa Park in downtown San Diego is an oasis of pine trees, a pool, a tiny amphitheater, an archery range, a rifle range, an activity center for knot tying plus several campsites.
Ordinarily, the 15.6 acres that has been leased to the Boy Scouts of America since 1957 is a restful spot and an easy commute for residents who want a quick escape to parkland within city limits. The Boy Scouts have invested at least $5 million in the park, which is open to the public.
All this is now up for grabs because of a lawsuit seeking to remove the Boy Scouts of America (BSA) from their land. It is one of many battles nationwide affecting an organization serving one million boys ages 11 to 17 that in 2000 won a Supreme Court decision in Boy Scouts of America vs. Dale, allowing the BSA to ban homosexuals from scoutmaster positions.
In the past four years, numerous lawsuits have been filed against the Boy Scouts, at least 60 United Way chapters have withdrawn funding, and government officials from San Diego to Hartford, Conn., are saying the Scouts' exclusion of homosexuals should not go unchallenged.
The newest case, Boy Scouts vs. Wyden, is before the Supreme Court, which is expected to announce soon whether it will take the case. The Balboa Park case began four years ago when the American Civil Liberties Union (ACLU) filed suit on behalf of two couples: a pair of lesbians and an agnostic couple with Scout-age sons.
Although neither couple had ever visited the property, both claimed the Scouts' policies compelling boys to believe in God and shunning homosexuals made them feel excluded. The suit also said the city was violating the doctrine of separation of church and state with its 50-year, $1-a-year agreement with the Boy Scouts allowing it to lease the 15 acres from Balboa Park's total spread of 1,200 acres. When the lease was renewed in 2002, the Boy Scouts agreed to spend another $1.7 million during the next seven years to upgrade the park plus pay the city a $2,500 administrative fee.
Also at risk is less than an acre five miles away on Fiesta Island in San Diego's Mission Bay Park, where the Scouts built a $2 million aquatic center. But in July 2003, U.S. District Judge Napoleon Jones ruled the BSA is a religious organization and, thus, the city was violating the separation of church and state by leasing them the land.
The Scouts protested that their aim was not to advance religion but to support camping and water sports for boys. Their Web site says their goal is to “build in young people lifetime values and develop in them ethical character,” as well as “offer young people responsible fun and adventure.”
In January, the San Diego City Council, a co-defendant with the Boy Scouts of America and the BSA's Desert Pacific Council, bailed out, settling with the ACLU for $950,000.
The Boy Scouts since have filed suit against the city of San Diego for breaking the lease, claiming the city's refusal to lease to the Scouts on the same terms available to other groups violates the Scouts' First Amendment rights of freedom of speech and freedom of association, as well as their 14th Amendment right to equal protection under the law.
On Feb. 24, the Scouts amended the suit, claiming that city employees are now harassing and mistreating the Scouts by photographing their vehicles and levying thousands of dollars of parking tickets against the Scouts.
“The San Diego case represents an ominous metamorphosis in the gay rights movement,” wrote Peter Ferrara, executive director of the American Civil Rights Union, in the Weekly Standard. “Gay rights used to represent the freedom for adults to do what they want to with their sex lives behind closed doors…. But what the ACLU seeks now is something quite different. It is pursuing the vilification and marginalization of those who hold to traditional morality.”
Martha Matthews, a staff attorney for the ACLU of Southern California, says the Boy Scouts wants it both ways. “I don't know of any other group with exclusionary membership policies that wants to receive public subsidies,” she said. “You can't do both of these things at the same time.”
Thursday night, the Justice Department's civil rights division filed a friend-of-the-court brief siding with the Scouts. “Quite simply, the Boy Scouts of America is not a church and canoeing, kayaking and swimming are not religious activities,” said R. Alexander Acosta, assistant attorney general. “Boy Scouts should not be prohibited from using public lands on an equal basis with other youth groups.”
All over the country, the Boy Scouts are being thrown out of public facilities that are open to other similarly situated groups — such as the Girl Scouts — as retribution, they claim, for the Dale case. Since 1975, the Boy Scouts have won more than 30 lawsuits challenging the Scouts' membership standards requiring Scouts to believe in God, be male and not openly homosexual. In the Dale case, the Supreme Court ruled the Boy Scouts are a private organization with a constitutionally protected right of freedom of association to set membership standards.
Scores of organizations sympathetic to homosexual rights began punishing the Scouts by withdrawing facilities, discounts and funds.
In Connecticut, the Boy Scouts for the past 30 years have been one of 900 charities on a list that Connecticut state employees could donate to via payroll deduction. Included on the list were many groups limited by religion: (Lutheran World Relief, Catholic Family Services, Jewish Family Services); by race (National Association for the Advancement of Colored People), by sex (Girl Scouts) or sexual practice (Lambda Legal Defense and Education Fund; Hartford Gay and Lesbian Health Collective; Parents, Families and Friends of Lesbians and Gays and the Stonewall Foundation, a homosexual lobbying group).
Several of these organizations, such as Stonewall, had gone on record to say their organizations would exclude as leaders anyone who opposed homosexual rights.
In May 2000, the state of Connecticut excised the four state Boy Scout councils from the employee list because of its stance on homosexuals.
The Connecticut River Council, which received at least $10,000 a year from the employee list, filed suit, saying it is not subject to the state's public anti-discrimination law because it is a private organization. It also said the state was denying its employees freedom of speech by not allowing them to contribute through the charitable-giving campaign.
“If you're a weirdo fringe loser, you can have all the free speech you want,” said BSA attorney George Davidson at a Feb. 3 speech to the Federalist Society. “The ACLU will fall all over itself to defend the American Nazis and the Klan. But woe betides any mainstream American institution that dares to buck the tide of political correctness. The ACLU and its fellow travelers of the thought police will seek to silence its voice through the litigation process,” he said.
The state said it is not forcing the Scouts to change its policy on its leaders, but nothing mandates it to cooperate with the Scouts. “No state facility may be used to further discrimination based on sexual orientation; no state agency shall be a party to discrimination,” said C. Joan Parker, assistant commission counsel for the Connecticut Commission on Human Rights and Opportunities.
The Wyden case is similar, she said, to when the U.S. military — which has a “don't ask, don't tell” rule toward homosexual members — sought to recruit at the University of Connecticut law school in the mid-1990s. The state Supreme Court barred the recruiters, saying even to simply make space available and coordinate the military's visit would make the state party to discrimination.
Unlike the 2000 Dale case, wherein the New Jersey Boy Scouts were ordered to retain James Dale as a leader, Connecticut is not mandating the BSA accept or admit anyone, she said.
“The Boy Scouts cannot participate because it would cause the state of Connecticut to be party to discrimination,” Ms. Parker said. More than two-dozen other organizations, she added, were taken off the campaign list in 2000 for not submitting proof of a nondiscrimination policy. They included two YMCA affiliates, Catholic Family Services of Danbury, Conn., Prison Fellowship International and World Vision; the latter two are evangelical Christian groups.
She said the Scouts asked for a religious exemption in allowing them to stay on the campaign list, which was refused when the state of Connecticut declared they are not a religious association.
Second Circuit Court Judge Guido Calabresi, who upheld the state's decision in July, informed the Boy Scouts in a footnote to his ruling the state was free to make the BSA “pay a price” for its stand on God and homosexuals.
This infuriated the BSA. “If the state is entitled to … require charities to pay a price, the impact of that is bounded only by the imagination of public officials hostile to religion or traditional moral values,” Mr. Davidson said.
“Can a church group reserve a softball diamond or a picnic area at a park, or are they to 'pay a price' for having limited their clergy to males or having other policies not favored by elected officials? And to get a little more extreme, if an Orthodox synagogue catches on fire, does the state have to send a fire engine?”
The Boy Scouts said the 2nd Circuit's decision is one more case of “viewpoint discrimination” the Supreme Court has struck down in recent years in cases such as Lamb's Chapel v. Center Moriches School District, Good News v. Milford Central School District and Rosenberger v. University of Virginia.
However, there are 150 government charitable campaigns around the country and a dozen states that have the same nondiscrimination laws as Connecticut, and if the Supreme Court turns down Wyden v. BSA on this round, similar cases will pop up.
“In one form or another,” Mr. Davidson said, “it is a case the Supreme Court will have to take
The Boy Scouts say what is happening to them today — in losing the benefits of tax-exempt groups — can happen to other groups tomorrow.
In Portland, Ore., the United Way will cut off at least $150,000 per year starting in July for about 53,000 inner-city youths served by the Boy Scouts. Activities included soccer for Hispanic youths in Clackamas County and camp-outs, community service and a Soap Box Derby in mainly black northeast Portland. After homosexual rights activists pressured the United Way to dump the group, an Oregonian columnist criticized the agency for forsaking poor, minority young people.
“Boy Scouts may not accept gays,” wrote S. Renee Mitchell last April, “but it does a better job than many United Way agencies at reaching out to everybody else.”
The California Supreme Court in June ordered that any state judges volunteering with the BSA as Scout leaders remove themselves from cases involving homosexuals.
In Berkeley, Calif., an affiliate known as the Sea Scouts has been denied free berthing rights at the local dock since 1998 because of the BSA's position. Even though the Sea Scouts insisted it does not discriminate, but could not renounce BSA policy if it wished to keep its charter, Berkeley city officials said they were within their rights to cease treating the BSA like other tax-exempt organizations. An appeal is being processed with the California Supreme Court.
In San Bernadino County, east of Los Angeles, the ACLU in January 2003 sued the BSA's Old Baldy Council because the Scouts, it said, falsely claimed they would comply with state anti-discrimination laws in order to get a $15,000 federal grant. The case is still in District Court.
In 2000, in response to the Dale decision, the delegates to the National Education Association's annual meeting adopted a resolution calling on school boards “to establish policies requiring that all private organizations using school facilities have nondiscriminatory membership policies.”
In response, Congress in 2001 voted 51-49 to deny federal education dollars to school districts that discriminate against the Scouts.
As pointed out by then-Sen. Jesse Helms, the North Carolina Republican who sponsored the legislation, the “very same meeting places at schools remain open to over 800 Gay-Straight Student Alliance clubs.”