Scout’s Honor: 9th Circuit Rules Boy Scouts Can Continue to Lease Public Land in San Diego

By Jon Street | January 11, 2013 | 3:29pm EST

Boy Scouts at Scout camp, Fiesta Island, Calif. (Photo: Boy Scouts of America)

( – Following an 11-year legal battle, the Ninth Circuit U.S. Court of Appeals has handed the Boy Scouts of America (BSA) a victory in California.

On Dec. 22, a three-judge appeals panel in San Francisco unanimously overturned a 2003 lower court ruling which said the Boy Scouts could not operate a Scout camp, a youth aquatic center and their local headquarters on city-owned property in San Diego because of the Scouts’ requirement that members and leaders profess a belief in God and be “morally straight.”

“The San Diego-Imperial Council appreciates the court’s thoughtful and comprehensive review of this matter,” Deron Smith, director of public relations for the Boy Scouts of America, told

“This decision enables us to continue serving more youth in the San Diego area, not only through Scouting, but also through other youth-serving organizations in the community.  The Boy Scouts of America continues to focus on delivering the nation’s foremost youth program of character development and values-based leadership training.”

The conservative American Civil Rights Union, which had aided the Scouts during the long legal battles, praised the court for its decision.

“This is a major victory for the Scouts and for our constitutionally-guaranteed freedoms of association and religion,” Susan Carleson, ACRU chairman said.

In 2003, U.S. District Judge Napoleon Jones Jr. ruled that the Boy Scouts could not lease 16 acres of land in San Diego’s Balboa Park for a camp and their local headquarters, as well as a half-acre on city-owned Fiesta Island for a Youth Aquatic Center.

The judge had ruled that the Scouts were “a religious organization” that he said “discriminated” against atheists and homosexuals -- despite a U.S. Supreme Court decision in 2000 which had upheld the Scouts’ right to maintain their own moral and membership standards.

The lawsuit, which was filed in 2001 by the ultra-left American Civil Liberties Union on behalf of a lesbian couple and an agnostic couple, had argued that the city was illegally “aiding religion” by leasing each piece of property to the Scouts for a dollar a year.

However, in a legal brief filed in April of 2004, the conservative American Civil Rights Union defended the Scouts’ right to lease property, arguing that the Scouts were actually aiding the city.

“These Scout officials are involved in overseeing the outdoor activities such as camping, swimming, canoeing, kayaking, and archery, not religious advocacy,” ACRU General Counsel Peter Ferrara wrote.

In May 2009, the ACRU filed a second court brief in which it argued that being offended by the Scouts’ views was not a valid enough reason for the couples to have filed a lawsuit that “invaded” legally protected interests.

“[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,” Ferrara wrote.

“The emotional harm,” Ferrara continued, “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.”

The Ninth Circuit Court of Appeals unanimously agreed with Ferrara.

Judge Andrew Kleinfield wrote in the court’s concurring opinion: “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.”

The American Civil Liberties Union did not comment for this story.

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