Boy Scouts Sue San Diego Over Lease Dispute

The Boy Scouts of America has sued the city for allegedly surrendering to the ACLU’s demand that the Scouts be ousted from Balboa Park.

The American Civil Liberties Union, which objects to the Boy Scouts’ policies barring gays and nonbelievers from its membership ranks, had sued the city over the Scouts’ use of the public park. The City Council voted 6 to 2 to settle that lawsuit and to pay the ACLU $790,000 in legal fees.

In the latest round of litigation, the suit filed by the Boy Scouts on Thursday in federal court alleges that the council decision violated the Scouts’ constitutional rights and asks that it be voided.

In settling the ACLU lawsuit, the council, in effect, agreed not to appeal a federal court ruling that the city, in giving a $1-a-year lease to the Boy Scouts, had improperly given special treatment to a religious organization.

Boy Scouts attorney George A. Davidson said San Diego is discriminating against the Scouts because the city continues to sign leases with other nonprofit groups.

“The city left the Boy Scouts no choice but to sue them,” he said. “The Boy Scouts cannot stand by while their constitutional rights are violated.”

The Boy Scouts have used Balboa Park since 1918. In 2001, even as the ACLU lawsuit was being fought, the council voted to extend by 25 years the group’s lease on the wooded, 18-acre site, which includes a swimming pool and recreation grounds. In exchange for the extension, the Boy Scouts promised to make $1.7 million in improvements.

Boy Scout officials said they had been forced to sue because the city, just days after settling with the ACLU, had notified the Boy Scouts that it still would have to make the improvements or risk termination of the lease, regardless of how the ACLU lawsuit was resolved.

Under the settlement between the city and the ACLU, the city has agreed to let the Boy Scouts remain at the park until all appeals are completed.

City Atty. Casey Gwinn called the Scouts’ lawsuit meritless and “mean-spirited” and vowed an aggressive defense of the six City Council members and the city’s real estate assets director, all named as defendants.

“The City Council acted prudently in approving a settlement that limited taxpayers’ liability,” Gwinn said.

The ACLU lawsuit was brought on behalf of two couples -- a same-sex couple and a couple who do not believe in God. Each couple has a son who would like to join the Boy Scouts, the lawsuit states. It used a 2000 ruling by the U.S. Supreme Court that declared the Boy Scouts were a religiously based organization and thus has a right to exclude gays.

The ACLU argued that the city, in approving the $1-a-year lease, was giving preferential treatment to a religious group and violated the constitutional separation of church and state.

In July, U.S. District Court Judge Napoleon Jones agreed with the ACLU. The Boy Scouts has vowed to appeal that decision, and the Bush administration has signaled interest in intervening on its behalf.