We have frequently written about the ACLU’s generation-long war against the Boy Scouts. We wrote specifically about the ACLU lawsuit against the City of San Diego for leasing park land to the Scouts in “Why the Democrats filibuster judges” and added comments in “The liberal shell game” and “On the front lines of the culture war.” The San Diego lawsuit is Barnes-Wallace v. City of San Diego.
Reader Dr. Layne Rasmussen, assistant scoutmaster of Troop 616, Scripps Ranch, California, has written to update us on the lawsuit: “Things have taken a decidedly unpleasant turn as of today, Jan 8. The City has caved to the extortion of ACLU, and abandoned the Boy Scouts. Below are copies of the City’s and ACLU’s press releases, as well as a link to the response from the Desert Pacific Council.”
Here is the City’s press release: “The City of San Diego and the American Civil Liberties Union (ACLU) have agreed to a settlement of the lawsuit challenging the two leases between the City and the Boy Scouts. Under the settlement, the City will take no position on the validity of the leases in future legal proceedings. The Boy Scouts will have the right to continue to present their defenses to the ACLU’s legal claims, and will retain possession of the Balboa Park and Fiesta Island properties during the pending litigation, including all appeals. Under the settlement, the City will pay to Plaintiff’s attorneys $790,000 in legal fees incurred during the last three years of litigation, and $160,000 in court costs. The Boy Scouts are not a party to the settlement. The settlement also relieves the City of any liability to Plaintiffs for attorney’s fees and costs of suit to be incurred in future litigation, which could last years.”
Here is the ACLU’s press release on what it describes as a “landmark settlement” (Dr. Rasmussen adds: “Falsehoods and all: Note that the son of the lesbian couple would be welcomed under Scouting rules, and participation by his ‘moms’ would also be allowed, though not as enrolled leaders”): “The San Diego City Council has agreed to a settlement in the ACLU’s 2000 lawsuit challenging the City’s subsidy of the Desert Pacific Boy Scout Council through preferential leases for public land in Balboa Park and Fiesta Island Aquatic Park. In July 2003, Federal District Court Judge Napoleon Jones ruled that the Balboa Park lease violates First Amendment guarantees of separation of church and state. The City has agreed to request that Judge Jones enter a final judgment based on that ruling and then to give notice to the Scouts that the Balboa Park lease has terminated and that their interest in the property has expired. The City has also agreed to end its support of the Scouts in the lawsuit and not to oppose the ACLU as it pursues resolution of the remaining issues in the lawsuit, particularly those involving the Fiesta Island lease, which Jones put over for trial in his July ruling.
“‘San Diego has finally taken itself out of the business of endorsing the exclusion of many of its residents from their own city parks. While, it is unfortunate that it has taken an adverse court ruling to get the City on the right side of this issue, the end result is a victory for every San Diegan who cares about tolerance and equality,’ says ACLU legal director, Jordan Budd.
“The City has given the Scouts nearly seventy years of exclusive use of 18 acres of prime park property in city-owned Balboa Park for $1 per year and free use of an aquatic facility on city-owned Fiesta Island in Mission Bay through preferential leases. The Balboa Park lease also contains a provision that terminates the lease if any court issues a final judgment finding the lease illegal. The City Attorney will ask Judge Jones for such a final judgment based on his finding that the lease is unconstitutional and will then notify the Scouts that the termination clause has been triggered, paving the way for the removal of the Boy Scouts from the park.
“‘The Boy Scouts cannot have it both ways. Having gone to great lengths to establish that discrimination against gays and non-believers is essential to their mission, and therefore protected by the First Amendment, they cannot now turn around and ask the people of San Diego to foot the bill for that discrimination,’ says ACLU volunteer attorney M.E. Stephens of the law firm Stock, Stephens, LLP.
“‘We applaud the City for finally doing the right thing,’ says co-counsel Mark Danis of the law firm of Morrison & Foerster. ‘While it may be legally acceptable for the Scouts to privately discriminate against so many boys and their families, it has never been acceptable for the City to bar those families from a public park. Government has a constitutional duty to treat everyone fairly and equally.’
“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 ten-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.’ Even if the boys were able to avoid taking the Scout oath or, in Mitchell’s case, revealing his parents’ sexual orientation, each time the boys participated in Scouting activities they would be reminded that their families are considered unfit by Boy Scout standards and, by extension, by the City of San Diego. The lawsuit challenges the City’s financial subsidy of these policies.”
The Desert Pacific Council of the Scouts has also issued a press release on the settlement. Here are the key paragraphs: “Boy Scouts are disappointed that the City is settling with Plaintiffs so quickly, rather than defending the leases
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