Ninth Circuit reverses district court decision that was in favor of lesbian couple; calls discounts for discriminatory organization ‘incidental’

By Anthony King | SDUN Editor

In a Ninth Circuit Court of Appeals decision handed down Dec. 20, San Diego is allowed to lease property in Balboa Park and Mission Bay to the Boy Scouts of America at discounted rates, overturning a lower, district court ruling from 2003.

The 2003 ruling stated the City’s agreement with the Scouts – who can legally exclude gays and lesbians, as well as those who do not adhere to the organization’s stated religious beliefs – was unconstitutional.

The San Diego-Imperial Council of the Boy Scouts is headquartered on 18 acres in Balboa Park, in a 50-year lease that originated in 1957. The lease was extended for an additional 25 years in a contentious Dec. 2001 Council decision.

With the American Civil Liberties Union (ACLU), a lesbian couple and an atheist couple sued the City over the lease, saying they and their sons were excluded from using the facilities because of the Boy Scouts’ discriminatory policy, resulting in the 2003 district court decision that was appealed to the higher court in San Francisco.

Under the lease terms, San Diego receives $1 a year in rent for the space in Balboa Park, plus an additional $2,500 yearly fee. In return, the Boy Scouts are responsible for spending $1.7 million over seven years for capital improvements on the park site, as well as a $1.5-million aquatic center in Mission Bay.

The Ninth Circuit ruling called the discounts “incidental” and “indirect,” a sentiment Assemblymember Toni Atkins said was false.

“Today the court told the children of San Diego that discrimination against them and their families based on sexual orientation or religious practice is ‘incidental.’ I could not disagree more,” she said in a statement on Dec. 20.

Atkins was a member of the City Council in 2001 when the lease for the Balboa Park space was up for Council action. The Council voted 6-3 in favor of the extension, with Atkins, Donna Frye and Ralph Inzunza voting against it.

“In the decade since this case was first filed, Americans have increasingly embraced LGBT families. Our government should do no less,” Atkins said.

Leading the Ninth Circuit’s three-judge, unanimous decision was William C. Canby Jr., who said the discounted lease does not promote the organization’s religious mission, and benefits the City because of deferred maintenance expenses on the property.

“There is no evidence that the City’s purpose in leasing the subject properties to the Boy Scouts was to advance religion, and there is abundant evidence that its purpose was to provide facilities and services for youth activities,” Canby wrote.

Also in the decision, Judge Andrew J. Kleinfeld said, “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.”

Plaintiffs in the case were lesbian couple Lori and Lynn Barnes-Wallace, as well as atheists Michael and Valerie Breen. The couples sued the City before the 2001 lease extension.

After the 2003 decision, in which the City was named co-defendant, the Council voted 6-2 to withdraw from furthering the lawsuit and agreed to a $950,000 settlement with the ACLU for legal fees. Then-City Attorney Casey Gwinn issued a statement at the time, saying the Boy Scouts did not support the City financially in any way.

“The Boy Scouts have repeatedly and pointedly refused to support the City in helping to pay any of the potential attorney’s fees involved in this case,” Gwinn said. “They want the City taxpayers to continue to argue the case even though they have acknowledged that they are a religious organization and even though they refuse to share in the potentially enormous attorney’s fee award that will be ultimately awarded to plaintiffs.”

Attorneys for the couples said they were “reviewing all options” in the Dec. 20 decision, according to the Los Angles Times, which include an appeal to a larger panel of the Ninth Circuit.

“Just because a court says you can do something, doesn’t mean you should do it,” Atkins said. “I hope that the current City leadership will find ways to affirm the value of all boys and to welcome them in all taxpayer-funded parks.”