Scouts Don't Discriminate Bush Admin Lawyer Tells Court

by Paul Chavez, Associated Press

February 15, 2006 - 11:00 am ET


(Los Angeles, California) An attorney for the Boys Scouts of America and a lawyer from the Bush administration's Justice Department told an appellate court panel Tuesday that a lower court erred when it ruled that San Diego was promoting religion by granting the youth organization long-term leases to city parklands.

George Davidson, an attorney for the Boy Scouts, said the group has no theology and only holds the position that children should "do duty to God" in order to become productive citizens. The organization has few references to religion in its manual and has a practice of "punting it
back to parents and religious leaders" when it comes to religious matters, Davidson told the court.

Eric Treene, a Justice Department lawyer in the Civil Rights Division, told the three-judge panel of the 9th Circuit Court of Appeals that the
Scouts have a nondiscrimination policy when it comes to who can use its space and the city has more than 120 leases with other groups who use park areas in exchange for maintenance and improvements.

The Boy Scouts has been the target of preferential treatment lawsuits since the U.S. Supreme Court in June 2000 ruled that the organization has a constitutional right to exclude openly gay men from serving as troop leaders and because it compels members to swear an oath of duty to God.

The American Civil Liberties Union sued San Diego and the Boy Scouts of America over the leases in August 2000 on behalf of a lesbian couple and an agnostic couple, each with scouting-age sons.

U.S. District Judge Napoleon Jones Jr. ruled in July 2003 that San Diego acted improperly when it leased 18 acres of Balboa Park camp space to the Scouts. The judge ruled that the group is a religious organization and the lease violated the federal establishment clause that prohibits the government promotion of religion.

The city's action was an implicit endorsement of the Scouts' "inherently religious programs and practices," Jones ruled.

The same judge later ruled that the Scouts' lease with the city for a separate aquatics center at Fiesta Island in Mission Bay Park also was
illegal.

Jones said the city has 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.

The Scouts had leased the half-acre Fiesta Island property since 1987 at no charge. The group spent $2 million to build the aquatics center and provided for its maintenance.

The Balboa Park camp was developed by the Scouts after World War II and in 1957 the group signed a 50-year lease with the city. The lawsuit was brought after the City Council voted to extend the lease for 25 years.

Mark Danis, an attorney for the plaintiffs, told the appellate court Tuesday that the Boy Scouts reserves six weeks during the height of summer
for itself on Fiesta Island and other groups have "inferior access" to both sites. The group also has its local headquarters on the site, he
said.

"San Diego city land can't be used as the headquarters of a discriminatory organization," Danis said outside court. "This organization kicks people out if they don't believe in God and our clients are agnostics, they chose to not believe in God, and they can't use city land on an equal basis with Boy Scouts."

The Bush administration in March 2004 filed a friend of the court brief arguing that even though Boy Scouts believes in God and members take an oath to do their duty to God, the group is not a religious organization.

The panel did not release a decision, which typically isn't announced until three to six months following the hearing of arguments.

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