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Action is same as Balboa Park ruling

By Ray Huard

April 14, 2004

The Boy Scouts lease of a Fiesta Island aquatics center on city-owned land is just as unconstitutional as its lease of public land in Balboa Park, a federal judge ruled yesterday.

U.S. District Judge Napoleon Jones Jr. said the lease of the half-acre aquatics center violates the constitutional separation of church and state because the Boy Scouts is a religious organization.

The same judge ruled in August that the Boy Scouts lease of Camp Balboa, where it has its regional headquarters, was unconstitutional because the Scouts require members to profess a belief in God.

The American Civil Liberties Union sued the city and the Boy Scouts of America over the lease in August 2000 on behalf of a lesbian couple and an agnostic couple. Each couple has a son who wanted to join the Scouts.

They argued that the leases of public land were unconstitutional because of the Scouts' policies requiring a belief in God and prohibiting homosexuals from joining. A lawyer for the ACLU, M.E. Stephens, said the judge's ruling "vindicates our clients and all San Diegans who care about values of tolerance and equality."

The Boy Scouts will appeal the rulings on Fiesta Island and Balboa Park, spokeswoman Merrilee Boyack said. "We feel very confident that we will be vindicated on appeal," Boyack said. "We believe it's obvious to everyone that the Boy Scouts are not a church or a religion, and the activities going on at the youth aquatics center “including canoeing, kayaking and swimming“ are obviously not religious activities."

The Scouts have leased the aquatics center land since November 1987 at no charge. They have spent $2
million to build the center. The city requires them to pay the cost of operation and maintenance. The lease expires in 2012.

Judge Jones said the city had shown preferential treatment to the Boy Scouts "an admittedly religious, albeit nonsectarian, and discriminatory organization" because it had negotiated exclusively with the Scouts for the lease of the aquatics center. He said the city "failed to make it publicly known that such property was available for lease and invite bids" from others.

San Diego Mayor Dick Murphy would not discuss the ruling because he hadn't seen it, said Deputy Press Secretary David Hicks.

City Councilman Jim Madaffer, an assistant Scout master with two sons who are Scouts, said, "This isn't about separation of church and state. This is about people who don't like the Boy Scouts and want to see them go away." Madaffer said the city's lease of the center "is no different than any other lease the city has with nonprofit organizations."

Councilwoman Toni Atkins, who voted against extending the Boy Scouts' lease in Balboa Park in 2001, said she expected the ruling based on the previous case. "I don't think we should be surprised that this ruling was handed down by Judge Jones," she said. "I think we should have seen that it would be coming based on his ruling in Balboa Park."

Deputy City Attorney Frank Devaney said the ruling would not immediately aff ect the Scouts' use of Fiesta
Island and Balboa Park. Under the terms of a settlement the city announced with the ACLU in January, Devaney said all sides agreed that the city would take no action to evict the Boy Scouts from Balboa Park or Fiesta
Island until all legal appeals were exhausted. The city as part of that settlement agreed to pay the ACLU $790,000 in legal fees and $160,000 in court costs and step aside from any further litigation. "We're just
sitting it out, letting all the court hearings and appeals go through," Devaney said.

Jordan Budd, the ACLU's legal director in San Diego, said the Scouts could resolve the issue and stay on Fiesta Island and in Balboa Park if they changed their policies and didn't discriminate against non-believers and homosexuals.

Boyack said, "The Boy Scouts will be true to their values and will not be changing their policies." The U.S. Justice Department attempted to join the case on behalf of the Boy Scouts, but Judge Jones in March ruled that the department did not have a sufficient stake in the outcome of the case to merit getting involved.

Staff writer Jennifer Vigil contributed to this report.
Ray Huard: (619) 542-4597;

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