ACLU of San Diego Secures Landmark Settlement in Boy Scout Lease Case

January 8, 2004 12:00 am

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SAN DIEGO — The American Civil Liberties Union of San Diego and Imperial Counties today announced a settlement with the City Council here in its 2000 lawsuit challenging the city’s subsidy of the Desert Pacific Boy Scout Council through preferential leases for public land in Balboa Park and Fiesta Island Aquatic Park.

“San Diego has finally taken itself out of the business of endorsing the exclusion of many of its residents from their own city parks,” said Jordan Budd, Legal Director of the local ACLU. “While, it is unfortunate that it has taken an adverse court ruling to get the city on the right side of this issue, the end result is a victory for every San Diegan who cares about tolerance and equality.”

In July 2003, Federal District Court Judge Napoleon Jones ruled that the Balboa Park lease violates First Amendment guarantees of separation of church and state.

As part of the settlement, the city has agreed to request that Judge Jones enter a final judgment based on that ruling and then to give notice to the Scouts that the Balboa Park lease has terminated and that their interest in the property has expired. The city has also agreed to end its support of the Scouts in the lawsuit and not to oppose the ACLU as it pursues resolution of the remaining issues in the lawsuit, particularly those involving the Fiesta Island lease, which Jones put over for trial in his July ruling.

The city has given the Scouts nearly 70 years of exclusive use of 18 acres of prime park property in city-owned Balboa Park for $1 per year and free use of an aquatic facility on city-owned Fiesta Island in Mission Bay through preferential leases. The Balboa Park lease also contains a provision that terminates the lease if any court issues a final judgment finding the lease illegal.

The City Attorney will ask Judge Jones for such a final judgment based on the court’s finding that the lease is unconstitutional and will then notify the Scouts that the termination clause has been triggered, paving the way for the removal of the Boy Scouts from the park.

“The Boy Scouts cannot have it both ways,” said ACLU volunteer attorney M.E. Stephens of the law firm Stock, Stephens, LLP. “Having gone to great lengths to establish that discrimination against gays and non-believers is essential to their mission, and therefore protected by the First Amendment, they cannot now turn around and ask the people of San Diego to foot the bill for that discrimination.”

The lawsuit was filed on behalf of two San Diego families, the Breens and the Barnes-Wallaces. The Breens are agnostics who are unsure of the existence of God and who do not participate in organized religion. They have a son, Maxwell, who is nine years old.

The Barnes-Wallaces are a same-sex couple with a 10-year-old son, Mitchell. Both families are avid users of Balboa Park, except the portion of the park under Boy Scout control. Their sons would like to be Scouts, but cannot join. Max Breen would be unable to take the Boy Scout oath, which avows a reverence for God. Mitchell Barnes-Wallace cannot join because his parents are lesbians, whom the Scouts do not consider “morally clean.”

Even if the boys were able to avoid taking the Scout oath or, in Mitchell’s case, revealing his parents’ sexual orientation, each time the boys participated in Scouting activities they would be reminded that their families are considered unfit by Boy Scout standards and, by extension, by the City of San Diego. The ACLU lawsuit challenged the city’s financial subsidy of these policies.

“We applaud the city for finally doing the right thing,” said ACLU co-counsel Mark Danis of the law firm of Morrison & Foerster. “While it may be legally acceptable for the Scouts to privately discriminate against so many boys and their families, it has never been acceptable for the city to bar those families from a public park. Government has a constitutional duty to treat everyone fairly and equally.”

The lawsuit is Barnes-Wallace v. City of San Diego, case # 00cv1726J.

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