A challenge to the administration of San Diego public recreation property by a local Boy Scouts of America affiliate, the Desert Pacific Council, has been rejected by the federal Ninth Circuit Court of Appeals. Six plaintiffs in Barnes-Wallace v. Boy Scouts of America objected to “the Boy Scouts’ discriminatory policies, which prohibit atheists, agnostics, and homosexuals from being members or volunteers and require members to affirm a belief in God,” according to the appellate court’s summary.
The City of San Diego has a long-standing practice of leasing city recreational property to local non-profit organizations for low rent or no rent, on condition that the property be maintained and open to the public for designated cultural, recreational or educational purposes. This saves the city considerable money, compared to administering the property itself. The Desert Pacific Council operates two out of 123 such properties, at Balboa Park, and part of Mission Bay Park.
The plaintiffs described themselves as a lesbian couple and an agnostic couple, who object to Boy Scout policies which deny participation to individuals who identify themselves as homosexual, and the Scout oath affirmation of duty to God, as well as the scouting law reference to “A scout is reverent.” The court’s opinion observed, “there is no evidence that the Council actively excluded them. Rather, they testified that the Council’s occupation and control of the land deterred them from using the land at all. The plaintiffs desired to make use of the recreational facilities at Camp Balboa and the Youth Aquatic Center, but not under the Council’s authority. As a result, they actively avoided the land.”
Rejecting each argument presented by the plaintiffs, the Ninth Circuit panel ruled, first, that city leases for recreational property were “available to both secular and sectarian institutions on an equal basis.” Further, “no City funds go for religious projects at either facility leased to the Boy Scouts because the City expends no funds at all on the Boy Scouts or on the properties leased to them.”
In fact, as part of the lease agreements, the Boy Scouts had expended $1.7 million on improvements at Camp Balboa, and $1.5 million on water-front property at Fiesta Island in Mission Bay. These facilities are used for scouting activity, but are also open to the public. Thus, no financial burden is imposed upon the state to fund religious purposes. The court ruled that any benefit to religion is incidental.
Assuming for purposes of decision that, “in granting the leases for secular purposes, the City confers a benefit on the Boy Scouts, and that the Boy Scouts are a sectarian organization,” the panel found that this in itself does not violate the No Aid (to religion) clause of the state constitution.
Examining the clauses of both the state and federal constitutions which prohibit the establishment of religion, the court found “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. Indeed, the plaintiffs do not seriously argue that the City’s intentions were forbidden.” The judges also found no evidence that the city’s leasing of public property had any purpose to indoctrinate in religion, nor did the leases entangle the city with religion.
The Barnes-Wallace’s claim that they had been denied equal protection of the laws was also rejected, since none of the plaintiffs had ever been turned away from any facilities at either park. The court was not persuaded that choosing to stay away because an individual finds Boy Scout policies “repugnant” meant that individual had been deprived of equal access. Indeed, they “have never attempted to use the facilities and accordingly have not been treated differently from other members of the public.”
The Ninth Circuit decision overturned a federal district court ruling, which enjoined the leases as in violation of the Establishment Clauses of the federal and state constitutions. The district court had assumed that if the Boy Scouts’ own policies were in some manner sectarian and discriminatory, in a manner no level of government could adopt, therefore the leases were unconstitutional.
The remand to the district court leaves room for organizations such as the Boy Scouts to participate in a local government program which has neutral, nonsectarian, purposes, and which is, itself, administered in a nondiscriminatory manner, open to the general public. The fact that some members of the public are offended by the Boy Scouts principles, and therefore choose not to use facilities open to the public, does not create an Establishment Clause violation.