WASHINGTON — The Ninth Circuit Court of Appeals Thursday ruled that the Boy Scouts of America’s ban against gay, atheist and agnostic scouts does not represent a constitutional violation that would prohibit the City of San Diego from leasing land to the organization.
The Desert Pacific Council of the Boys Scouts leases land from the city to operate Camp Balboa property in Balboa Park for one dollar per year and pays no rent to lease the Youth Aquatic Center property on Fiesta Island in Mission Bay Park.
As the Ninth Circuit noted, “The plaintiffs Barnes-Wallaces are a lesbian couple, and the plaintiffs Breens are agnostics. Because of their sexual orientation and religious beliefs, they cannot be Boy Scout volunteers.” The court also stated, “They and their plaintiff sons would use the land or facilities leased by the Desert Pacific Council but for the Boy Scouts’ discriminatory policies.”
The court held that, despite the Boy Scouts’ policies, the leases did not violate the Establishment Clause of the U.S. Constitution, which prohibits government establishment of religion.
“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,” Judge William Canby Jr. wrote for the court. “We are satisfied that a reasonable observer familiar with San Diego’s leasing practices … could not conclude that the City was engaged in religious indoctrination, or was defining aid recipients by reference to religion,” in large part because the court noted that “the City has leased 123 parcels to nonprofit agencies, the overwhelming majority of which are secular in nature.”
The court also held the leases did not violate any relevant portions of the California Constitution of state law.