San Diego Ends Fight for Scouts

The City Council on Thursday decided to stop its fight with the ACLU to prevent the Boy Scouts from being ousted from city property because of the group’s anti-gay policy and pro-religious stance.

The council won’t appeal a federal judge’s ruling that the city’s lease with the Boy Scouts for a prime spot in Balboa Park is unconstitutional. The city also will pay $790,000 to the ACLU for legal fees and $160,000 in court costs.

The Boy Scouts vowed to continue the legal fight, and the Bush administration has signaled a willingness to join in on the Scouts’ side.

The ACLU sued the city three years ago to terminate the $1-a-year lease because of the Scouts’ national policy of not hiring homosexuals and requiring members to state their belief in God by reciting the Pledge of Allegiance.

“San Diego has finally taken itself out of the business of endorsing the exclusion of many of its residents from their own parks,” ACLU legal director Jordan Budd said. “The end result is a victory for every San Diegan who cares about tolerance and equality.”

The council’s decision to quit the fight came on a 6-3 vote in closed session in December and was announced Thursday.

“In my opinion, it is a bad deal, both legally and financially,” said Mayor Dick Murphy, a former Superior Court judge, who voted against it.

Councilwoman Toni Atkins, the council’s only openly gay member, said she had voted in favor of the settlement to avoid even greater legal costs and to send a message to children that “it is not right to discriminate.”

The ACLU sued on behalf of a same-sex couple and an agnostic couple. Each couple has a son who would like to join the Boy Scouts but feels intimidated by the group’s policies about religion and homosexuals, ACLU lawyers asserted.

The ACLU based its legal strategy on a 5-4 ruling by the U.S. Supreme Court in 2000 that the Boy Scouts of America has a right to exclude homosexuals because it is a religiously based organization.

Using that ruling, the ACLU argued that, by granting a “sweetheart” lease to the Boy Scouts, the city of San Diego was giving undue preferential treatment to a religious group and thus violating the separation of church and state.

In July, U.S. District Judge Napoleon Jones sided with the ACLU. In December, a 9th Circuit Court of Appeals panel dismissed the city’s appeal as premature because another case dealing with similar issues was still pending.

Under the settlement between the city and ACLU, the Boy Scouts can remain at the 18-acre Camp Balboa site until all legal appeals are completed.

Officials of the Boy Scouts’ Desert Pacific Council issued a statement expressing disappointment in the city’s decision and the amount of the legal fees.

George Davidson, an attorney with the New York firm of Hughes, Hubbard and Reed, said the Boy Scouts would fight to the U.S. Supreme Court.

Along with a statement, the Boy Scouts released a letter from Eric Treene, special counsel for religious discrimination in the civil rights division of the Department of Justice. Treene expressed interest in intervening on behalf of the Scouts to protect their 1st Amendment rights.

The lease, dating to World War II, had been set to expire in 2007, but hundreds of Scouts’ supporters packed the council chambers in 2001 to argue in favor of renewal. In exchange for a 25-year renewal, the Boy Scouts promised to make $1.7 million in improvements to the site.

The Boy Scouts also lease city property on Fiesta Island in Mission Bay; the ACLU believes the group also should be ousted from that site.

A Girl Scout lease on property at Balboa Park is not involved in the case because that group has no policies involving homosexuality or religion, attorneys said.