The battle with the Boy Scouts
Published Thursday, 24-Jun-2004 in issue 861
It’s not very often in a city’s history that the opportunity to hear what politicians and local leaders really think about GLBT equality is not only granted, but forced. For the past four years, the Boy Scouts of America, through a legal fight and court hearings that attempted to uphold discriminatory policies toward gays and lesbians, provided us with that opportunity. The issues were clear: The Boy Scouts openly ban gays and lesbians (and atheists, incidentally) from participating in their organization, and they wanted to continue to do it on city land for a subsidized rate. At one point some members of the San Diego City Council, including our mayor, agreed that this was just a-okay. Then along came a judge who disagreed with that outlook. The result has been a victory for equality ultimately – but along the way our city council on several occasions became a forum for straightforward talk about discrimination, equality and rights – with some of our community’s most eloquent speakers and bigoted haters all participating with passion on both sides. Below, we’ve provided a breakdown of the saga for anyone who might have missed it. If there was ever any doubt where our local leaders stand on GLBTs when push comes to shove, check it out – the Boy Scouts shoved. See who pushed back.
Scouts and the city: the bigger picture
On June 28, 2000, the United States Supreme Court ruled that as a private organization the Boy Scouts of America did indeed have the right to discriminate against gays, lesbians and others who did not share their religious beliefs or conflicted with them. In the case of Boy Scouts of America v. Dale, the Scouts argued that forcing their organization to allow an openly gay man to serve in the Scouts was contrary to their constitutionally protected right under the First Amendment for freedom of association to set membership standards.
The case set off a string of events across the country, often times ending with cities terminating or choosing not to renew leases with the Scouts for use of public lands in parks and schools because they were in violation of nondiscrimination ordinances, or because cities simply did not wish to do business with a discriminatory organization.
Things were different in San Diego. In 2001, unlike most cities that were distancing themselves from the Boy Scouts of America, San Diego was preparing to renew its lease of 16 acres of public land in Balboa Park to the Scouts at a subsidized rate of $1 per year, otherwise known as a “sweetheart deal.” All of this was occurring while the city faced a lawsuit filed by two couples, one lesbian and the other atheist, both alleging that the lease was in violation of the city’s Human Dignity Ordinance.
The council vote of 2001: Welcoming bigotry into San Diego
In the weeks leading up to the city council’s vote to extend the Boy Scouts of America’s lease on land in Balboa Park for 50 years, several groups, including the ultra-conservative Westboro Baptist Church, staged protests in the park to show their support for the Scouts. Meanwhile, City Councilmember Toni Atkins was rallying to gain votes against the Scouts, and GLBT community members and their allies were being asked to contact key council members, especially those who lived in District 5, Brian Maienschein’s district.
“He is the number-one guy who can make or break this,” explained Sherry Wright, then director of The Center’s Public Policy office, in an interview one week before the Scouts’ lease was scheduled for a vote. “He has been attempting to be a friend of the gay and lesbian community. Many of us supported him in his city council election. I think for him, he could be a hero, he could be the top guy of the council and he could be such a great guy for the community if he would really stand up for this issue and say, ‘Look, it’s not a controversial issue. This is saying we are not going to subsidize this kind of discrimination.”
On the day of the vote, Tuesday, Dec. 4, 2001, the city council moved its meeting from council chambers to Golden Hall, expecting a capacity turnout. During the two-hour session more than 60 people, including employees of the city, the ACLU, residents of all of the council districts and even former Boy Scouts, spoke out against the lease renewal.
“I cannot see how you cannot see the issue of discrimination that is so blatant in this organization,” said Christopher Ward, a member of the public who identified himself as a former Scout. “They haven’t ever denied that they discriminate, and in fact they are constantly defending their right to selective exclusion. We all know this exists and we all know the law and they are our city’s laws. There are policies in place, so where is the problem?”
In defense of the lease, Boy Scout supporters were also given two hours to speak before the council. The majority of the comments cited the work the Scouts do for the community, including the cleanup of public lands, maintenance of hiking and horseback riding trails throughout the city and food donations for local charities.
Others used their time before the council as an opportunity to condemn the GLBT community.
“I want to look at the opposition for a minute here,” one former Scout said, addressing the council. “Atheists, they have taken prayer out of schools and homosexuals, they have given us AIDS. At the age of 5 I was sexually attacked by homosexuals several times. I know there are groups presently in existence of adult homosexuals that rape heterosexual boys. I want my son, my grandsons and their sons to have a place to go and grow without being sexually assaulted or having their belief in God mocked.”
With public comment both for and against the lease complete, the city council began a lengthy discussion during which councilmembers Toni Atkins, Donna Frye and Ralph Inzunza were the only three to stand against the lease renewal. The rest of the council members and the mayor went on to vote in favor of renewing the lease.
“There should be no misunderstanding that the Boy Scouts discriminate against gays and those of different religious beliefs,” Atkins said in an address to her fellow council members. “The Boy Scouts spent the better part of a decade and the equivalent of hundreds of thousands of dollars in legal fees to retain their expressed right to exclude gays.”
Donna Frye simply cited the city’s own Human Dignity Ordinance for her vote against the lease, saying: “It shall be the policy of the city council to only consider for tenancy only those organizations whose memberships are open to the public and does not discriminate in any manner against any person.”
And in a nod to the Boy Scouts Oath that was quoted throughout the day, she added: “When I joined this council I took an oath, an oath to uphold the laws of our city. To me, that means discrimination is unlawful and should not be subsidized. I will not be voting to renew the Boy Scouts lease in Balboa Park because that would violate my oath of office.”
While most of the members of the city council spoke out in strong opposition to the Boy Scouts national policy against discrimination, George Stevens, the deputy mayor at that time, unleashed the most venomous attack of the day against the GLBT community’s opposition to the lease renewal.
“I respect prostitutes as individuals, I respect criminals as individuals, I respect thieves and drunks as individuals but I don’t respect nor accept what they do,” Stevens preached to the crowd in attendance. “I hate the act of thievery. I hate the act of murder. I hate the act, but I gotta love the murderer. Am I a Jesus freak? Yes, you’ve got a council member who is a Jesus freak. But we have a good understanding of each other. That’s what I understand about homosexuality and I understand the individuals. But the act, no I don’t agree with the act. To make this a main issue in dealing with kids is just not right to do. Don’t twist this around. Sometimes you try to twist things around and make something else out of it and it’s not going to work. Get upset with me if you want to, but I am not living this life for you and I am going to support the Scouts.”
Following Stevens’ statement, District 1 representative Scott Peters defended Atkins saying, “The message this sends to her is that she’s not qualified and she’s not good enough and that you have to be straight to be morally straight, and incidentally as a Christian I don’t think that’s what my religion says.”
Peters, however, went on to vote with the four other council members and mayor, all of whom ignored the City of San Diego’s Human Dignity Ordinance in favor of renewing the Scouts lease in Balboa Park.
Opening arguments: Barnes-Wallace v. Boy Scouts of America
Within three months of the San Diego City Council vote to renew its lease with the Scouts, the Barnes-Wallace case had landed in the courtroom of Judge Napoleon Jones of the Ninth District Federal Court of Appeals. The ACLU, representing the Barnes and Wallace families, alleged that the lease and the city’s subsidy of land was in violation of the city’s own nondiscrimination ordinance and that the city was obliged to comply with state and federal laws against discrimination and constitutional standards which prohibit government from endorsing a particular religious viewpoint or excluding people from city services based on sexual orientation.
Mark Danis, a volunteer attorney with the ACLU, argued: “The organization is so religious in its function or purpose that a reasonable person would assume that the city is funding its mission.”
Deputy City Attorney John Mullen argued that it is not uncommon for cities to negotiate with private religious groups and cited case law that set the precedent. He went on to say that the negotiations were neutral and that any other organization could have come before the city council when the lease was approved.
“At the same time the council was hearing about the Scouts’ discriminatory policies,” Danis said, making a point that would become key in Judge Jones decision in the case, “there were not other organizations invited to the hearing. No other organizations were allowed to present competing bids.”
George Davidson, of Hughs, Hubbard and Reed law firm in New York, the firm that defended the Boy Scouts in the original Dale case and in a number of suits since, claimed that no other organizations had expressed an interest in the land. He went on to say that it was only fair that the city negotiate with the Boy Scouts because they also have agreements with the Girl Scouts which, he argued, discriminates based on gender.
“The plaintiffs just don’t like the type of discrimination the Boy Scouts practice,” Davidson asserted. When asked about the Boy Scouts discriminatory policy, he said, “The Boy Scouts are open to people who accept Scouting values, among those would be being morally straight.”
Judge Jones rules: The lease is unconstitutional
“It is clear that the Boy Scouts of America’s strongly held private, discriminatory beliefs are at odds with values requiring tolerance and inclusion in the public realm,” U.S. District Judge Napoleon Jones, Jr., wrote in his June 2003 summary judgment finding the City of San Diego’s lease of land in Balboa Park to the Boy Scouts of America in violation of the California State Constitution and the First Amendment of the United States Constitution.
Jones went on to say in his decision that the lease extension was the result of exclusive negotiations that implied the city’s endorsement of the Scouts’ “inherently religious programs and practices.”
“It’s so clear,” said attorney M.E. Stephens, a volunteer member of the trial team representing the ACLU, of the ruling. “He hits the key issues in such a compelling and concise way at the beginning of the opinion. He couldn’t have said it any better. It’s eloquent, it’s concise, it’s to the point, it captures the critical notions about the city not having the right or the ability to do business with a discriminatory organization.”
Word of the ruling reached the city council in the form of a memo from City Attorney Casey Gwinn’s office and a closed-door session was scheduled for Tuesday, August 5, to discuss the council’s options and what the ruling meant to the city.
George Davidson, a legal counsel for the Scouts who has represented the organization before the U.S. Supreme Court, said his client was undecided on its next legal maneuver but an appeal was certain.
“There’s been at least 10 times where we’ve lost along the way,” he said to the Associated Press. “This is a step in the process, and if history is a guide, we will pursue all appellate remedies. The last word has yet to be heard.”
Outside of the Scouts’ pending appeal, there was still a question over the validity of the city’s lease of land on Fiesta Island to the Scouts and a trial to address that issue was still pending.
Appeal fails: The city jumps ship
As the Scouts appealed the preliminary ruling on the Balboa Park lease, the city council had begun to distance itself from the Scouts by withdrawing from the appeal. It was the first time since the initial council vote that the city had chosen not to side with the Scouts. In the end, the Ninth District Court dismissed the appeal, calling it premature because the issue of Fiesta Island had not been decided.
Following the failure of the appeal, the city council, in a controversial 6-2 vote, decided to pull out of the lawsuit by dropping the Scouts and agreeing to pay a $950,000 settlement to the ACLU to cover the legal fees for the court battle.
“I am extremely pleased that the city decided to step out of this fight because I think we should not have been engaged in this from the very beginning,” Atkins told the Gay & Lesbian Times about the council’s settlement for $950,000. “Unfortunately, as a result of being in this fight for two years it will cost the taxpayers money. Frankly, had a majority of the council voted the way I voted in 2001 we would not be in the position where we would be writing a check to anyone.”
The two dissenting votes came from Mayor Dick Murphy and Councilmember Jim Madaffer; Councilmember Brian Maienschein, who also voted in favor of the lease, was absent from council the day members voted to settle with the ACLU.
“I disagreed with the settlement and voted against it,” Mayor Murphy said in his only released comments on the decision. “In my opinion, it is a bad idea both legally and financially.”
The Scouts’ last stand: bringing out the big guns – and getting shot down
Like a wild animal ready to make its last stand, the Scouts lashed out with a lawsuit against their former ally, the City of San Diego. In February of this year, the Scouts sued the City of San Diego in federal court, seeking to stop the city from terminating their lease of 18 acres of land in Balboa Park. Additionally, the lawsuit specifically named councilmembers Donna Frye, Ralph Inzunza, Scott Peters, Michael Zucchet, Charles Lewis and Deputy Mayor Toni Atkins, all of whom voted to approve the $1 million settlement of the lawsuit with the ACLU.
In a more desperate move, the Scouts amended the suit, claiming that the city had begun to violate the Scouts’ constitutional rights by harassing Scouts and Scout leaders who were using the property leased to them on Fiesta Island. The Scouts claimed that city employees were singling them out for mistreatment both on the Property Desert Pacific Council leases from the city and the adjacent city parkland. The Scouts also accused the city of writing thousands of dollars of parking tickets; photographing the Scouts’ vehicles; and selectively enforcing the city’s regulations against the Scouts.
Calling in the big guns, the Scouts began touting a letter of support from the U.S. Justice Department on the lease issue.
“Singling out the Boy Scouts for exclusion from such a program based on their viewpoint would raise serious First Amendment concerns,” wrote Eric W. Treene, special counsel for religious discrimination at the Justice Department, in response to a request for help from the Scouts. “The Civil Rights Division has an interest in participating in cases of this nature.”
The U.S. Justice Department went so far as to file to be heard as a friend-of-the-court on whether the Boy Scouts should lose their lease in Balboa Park. Jones rejected the Justice Department’s argument that the outcome of the local case would affect another case involving the Scouts in Illinois, where the U.S. government is currently a defendant. In a ruling issued on March 15, Jones said the Scouts were adequately represented in San Diego and did not require the government’s assistance.
The verdict – but not the final word
Nearly four years after their battle had begun, the Barnes and Wallace families were finally rewarded with the justice they had been seeking. Judge Jones offered up his final verdict in the case against the Boy Scouts, a verdict that included an answer to the issue of the use of city lands on Fiesta Island.
In his decision Jones ruled that the city had shown preferential treatment to the Boy Scouts, “an admittedly religious, albeit nonsectarian, and discriminatory organization,” by negotiating exclusively with the Scouts for the lease of the aquatics center as well as the land in Balboa Park.
The court’s decision also activated a trigger clause in the Scout’s contract with the City of San Diego that provides for the termination of the lease, but the Boy Scouts have already gone on record stating that they will appeal the rulings on Fiesta Island and Balboa Park.
“We feel very confident that we will be vindicated on appeal,” said Merrilee Boyack, a spokesperson for the Scouts. “We believe it’s obvious to everyone that the Boy Scouts are not a church or a religion.”
For the present, however, justice ruled the day.
“Today, our clients, and all people who care about equality, have been vindicated,” said Stephens on the day of the ruling. “After a lengthy process, the court has ruled that the City of San Diego cannot make our clients second-class citizens by providing public benefits to a discriminatory organization that excludes them. Now, all San Diegans can freely and equally enjoy all of San Diego’s beautiful public parks.”

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