In Final Chapter of San Diego Park Lease Case, Court Rules Against Boy Scouts on All Issues

April 14, 2004 12:00 am

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SAN DIEGO -- Addressing the last outstanding issues in a lawsuit challenging the constitutionality of exclusive preferential leases for the Boy Scouts, a federal district court has found that the lease for the Boy Scouts' free use of aquatic parkland on City-owned Fiesta Island is unconstitutional.

"Today's decision affirms the fundamental principle that government may not favor a discriminatory religious organization," said Jordan Budd, Legal Director of the ACLU of San Diego and Imperial Counties. "When government endorses a particular religious viewpoint, as the city plainly has done through its preferential treatment of the Boy Scouts, it undermines the values of tolerance and inclusiveness that are at the core of our constitutional system."

The lawsuit was brought by the ACLU of San Diego and Imperial Counties, ACLU cooperating law firm Stock Stephens LLP and their co-counsel Morrison & Foerster on behalf of an agnostic couple and a lesbian couple.

The court said the city had violated the constitutional requirement of separation of church and state by granting these preferential and exclusive arrangements for use of public resources to the Boy Scouts, a self-described religious organization that discriminates on the basis of religious belief and sexual orientation.

"For four years our clients stood up to the city and to the Scouts because public parks should never be used for discrimination," said Mark Danis, a partner with Morrison and Foerster. "Judge Jones correctly found that the city violated the separation of church and state by anointing a religious organization to lease Fiesta Island to the exclusion of all others."

"Even the City has now done the right thing by settling this case and choosing to uphold its policies against discrimination and religious preference," he added. "This has been a long road, but we are gratified that the city's parks now are open to all San Diegans."

The court ruling cited a number of factors that led to its determination that the Fiesta Island lease process was not open and neutral. The fact that no bids from any other organizations were ever invited by the city, that no other organizations were involved in the lease negotiations, and that the Scouts were granted exemptions from the city's non-discrimination policy and other applicable city rules and policies all led the court to the

conclusion that the city had violated the Establishment Clause of the federal constitution and the No Aid and No Preference clauses of California constitution. These constitutional provisions require government to be neutral with respect to religion.

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."

The court's action will trigger a clause in the Scouts' Balboa Park lease that provides for that lease to terminate on the day a court enters a final judgment invalidating the lease. Now that the court has ruled on all issues in the case, a final judgment has been entered.

Under the terms of an earlier settlement agreement between the ACLU and the city, the city must now send the Scouts a letter notifying them of the termination of the Balboa Park lease.

Today's ruling is added to a virtually identical ruling with respect to a lease for land in City-owned Balboa Park and becomes the final judgment in this case.

The lawsuit is Barnes-Wallace v. Boy Scouts, case # 00cv1726J.

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