Barnes-Wallace v. Boy Scouts of America
Encyclopedia
Barnes-Wallace v. Boy Scouts of America is an on-going case involving the City of San Diego
's relationship with the Boy Scouts of America
.
Plaintiffs Lori and Lynn Barnes-Wallace, a lesbian
couple, joined Michael and Valerie Breen, an agnostic couple, in suing the City of San Diego and the Boy Scouts of America. Both couples are the parents of Scout-aged sons.
The Boy Scouts of America have policies forbidding gay
s, atheists
, and agnostics
from participating in the organization. Since 1957, the City of San Diego has leased part of the city's Balboa Park to the Boy Scouts of America for the price of $1 per year. In 2000, the Breens and the Barnes-Wallaces, aided by the American Civil Liberties Union
, sued the city, alleging that the lease was unconstitutional.
In 2003, the District Court
agreed and ruled in favor of Barnes-Wallace. The case was appealed to the Federal Court
who have referred it to the California Supreme Court in 2006, requesting the California Supreme Court to rule on three questions related to the Blaine Amendment
in the state Constitution.
A number of other leases involve property in residential and commercial zones. The lessees under the San Diego policy are diverse, ranging from the YMCA and the Jewish Community Center to the Vietnamese Federation of San Diego and the Black Police Officers Association. A number of churches are among the lessees.
The issue in this case involves two of these leases, between the City and the Boy Scouts for dedicated parkland in Balboa Park and Mission Bay Park (which includes Fiesta Island). The Boy Scouts of America is a nonprofit charitable organization that received a congressional charter
in 1916 "to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues."
All youth members and adult leaders must subscribe to the Scout Oath
and Law
. Together, these entail acknowledging a duty to God
, and recognizing reverence as a virtue. The bylaws of the BSA includes the Declaration of Religious Principle, which is printed in BSA publications such as the youth and adult applications and the various leader handbooks.
The original lease for Camp Balboa was entered into in 1957 for a period of 50 years. This lease enabled the Boy Scouts to build a recreational facility and administrative offices for the Desert Pacific Council (now San Diego-Imperial Council ) of the Boy Scouts. The Boy Scouts also built nine campsites, made extensive improvements to the property, and maintains all of the facilities of Camp Balboa. These facilities are available, for a nominal usage fee, to all community groups and individuals on a first-come, first-served reservation basis.
In 1987, the City entered into a 25-year lease with the Boy Scouts for a half acre parcel of public parkland located on Fiesta Island in Mission Bay Park. The Fiesta Island Facility Committee, which was composed of more than 40 organizations serving youth in the San Diego area, had identified the Boy Scouts as the entity best able to provide the funding for construction and maintenance of a community aquatic park, and to run its operations. In lieu of cash rent, the Boy Scouts committed to build the San Diego Youth Aquatic Center on Fiesta Island.
The Aquatic Center that BSA built is used by a wide variety of other groups serving youth. The lease states that the Boy Scouts "can use no more than 75% of all available aquatic activities up to 7 days prior." http://beta.bsalegal.org/downloads/bsa_pdfs/BWPDFS/Amicus_Brief_United_States.pdf Both leases include nondiscrimination clauses prohibiting the Boy Scouts from discriminating in access to the properties against non-scouting individuals and organizations based on religion and sexual orientation. There have been no instances of a non-scouting organization or individual being discriminated against when requesting access to either facility.
The Boy Scouts of America have policies forbidding homosexuals, atheists, and agnostics from participating in the organization.
In December 2001, prior to the lease’s expiration date, the city renewed the lease for an additional 25 years, with an option to renew for an additional 15-year term. The terms of the renewal lease require the Boy Scouts to spend at least $1.7 million over the next seven years on improvements, remodeling, and new construction.
(ACLU). They alleged that the lease was unconstitutional.
The case was filed in the United States District Court, Southern District of California. The official title is LORI & LYNN BARNES-WALLACE; MITCHELL BARNES-WALLACE; MICHAEL & VALERIE BREEN; and MAXWELL BREEN, Plaintiffs, v. BOY SCOUTS OF AMERICA; CITY OF SAN DIEGO; and BOY SCOUTS OF AMERICA — DESERT PACIFIC COUNCIL. Case No. 00CV1726 J (AJB).
The State of California filed an amicus brief in support of the plaintiffs. The United States Department of Justice and the American Civil Rights Union, a non-partisan legal policy organization, submitted an amicus brief on behalf of the Boy Scouts.
In 2003, Judge Napoleon A. Jones Jr. of the United States District Court for the Southern District of California
ruled that the Boy Scouts of America is, by its own admission a religious organization — and therefore that the non-market rate lease was in violation of the Establishment Clause of the Constitution
. A subsequent settlement between the ACLU and San Diego provided for the Scouts' continued ability to use the facilities.
While the City of San Diego had been a co-defendant, after the 2003 decision and a failed appeal the city council withdrew from the lawsuit and agreed to a $950,000 settlement to the ACLU to cover legal fees. The City Attorney issued a statement regarding the decision, stating that "During the course of the case, however, and without forewarning the City as to its position, the Boy Scouts admitted in court documents that it was in fact a ‘religious organization.’” and that “The Boy Scouts have repeatedly and pointedly refused to support the City in helping to pay any of the potential attorney’s fees involved in this case. They want the City taxpayers to continue to argue the case even though they have acknowledged that they are a religious organization and even though they refuse to share in the potentially enormous attorney’s fee award that will be ultimately awarded to plaintiffs who have already prevailed in Judge Jones’ ruling noted above.”
In a separate concurrence, Judge Marsha S. Berzon compared the plaintiff's argument to that of Rosa Parks
’ refusal to ride in the back of segregated buses: “Just as African-Americans could ride on Montgomery’s buses, but not in the front, the Scouts permit Plaintiffs to make use of Camp Balboa and the Mission Bay Park Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members.” Judge Andrew Kleinfeld dissented mainly because the plaintiffs had no concrete, particularized injuries, and in his argument compared it to a hypothetical scenario where a "Jewish plaintiff challenges a government lease to the Protestant Church to operate a non-discriminatory recreational facility that the plaintiff has never visited [...] on the grounds that the Protestant Church prevents him from serving as a minister."
San Diego, California
San Diego is the eighth-largest city in the United States and second-largest city in California. The city is located on the coast of the Pacific Ocean in Southern California, immediately adjacent to the Mexican border. The birthplace of California, San Diego is known for its mild year-round...
's relationship with the Boy Scouts of America
Boy Scouts of America
The Boy Scouts of America is one of the largest youth organizations in the United States, with over 4.5 million youth members in its age-related divisions...
.
Plaintiffs Lori and Lynn Barnes-Wallace, a lesbian
Lesbian
Lesbian is a term most widely used in the English language to describe sexual and romantic desire between females. The word may be used as a noun, to refer to women who identify themselves or who are characterized by others as having the primary attribute of female homosexuality, or as an...
couple, joined Michael and Valerie Breen, an agnostic couple, in suing the City of San Diego and the Boy Scouts of America. Both couples are the parents of Scout-aged sons.
The Boy Scouts of America have policies forbidding gay
Gay
Gay is a word that refers to a homosexual person, especially a homosexual male. For homosexual women the specific term is "lesbian"....
s, atheists
Atheism
Atheism is, in a broad sense, the rejection of belief in the existence of deities. In a narrower sense, atheism is specifically the position that there are no deities...
, and agnostics
Agnosticism
Agnosticism is the view that the truth value of certain claims—especially claims about the existence or non-existence of any deity, but also other religious and metaphysical claims—is unknown or unknowable....
from participating in the organization. Since 1957, the City of San Diego has leased part of the city's Balboa Park to the Boy Scouts of America for the price of $1 per year. In 2000, the Breens and the Barnes-Wallaces, aided by the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, sued the city, alleging that the lease was unconstitutional.
In 2003, the District Court
United States District Court for the Southern District of California
The United States District Court for the Southern District of California is the federal district court whose jurisdiction comprises the following counties in California: Imperial and San Diego. In terms of filed indictments, it is one of the busiest criminal districts in the United States...
agreed and ruled in favor of Barnes-Wallace. The case was appealed to the Federal Court
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
who have referred it to the California Supreme Court in 2006, requesting the California Supreme Court to rule on three questions related to the Blaine Amendment
Blaine Amendment
The term Blaine Amendment refers to either a failed federal constitutional amendment or actual constitutional provisions that exist in 38 of the 50 state constitutions in the United States both of which forbid direct government aid to educational institutions that have any religious affiliation...
in the state Constitution.
Background information
The City of San Diego has leased property to more than 100 nonprofit organizations for little or no cash rent to provide for the “cultural, educational, and recreational enrichment of the citizens of the City.” Many of those leases involve parkland from which the City benefits by saving on maintenance costs.A number of other leases involve property in residential and commercial zones. The lessees under the San Diego policy are diverse, ranging from the YMCA and the Jewish Community Center to the Vietnamese Federation of San Diego and the Black Police Officers Association. A number of churches are among the lessees.
The issue in this case involves two of these leases, between the City and the Boy Scouts for dedicated parkland in Balboa Park and Mission Bay Park (which includes Fiesta Island). The Boy Scouts of America is a nonprofit charitable organization that received a congressional charter
Congressional charter
A congressional charter is a law passed by the United States Congress that states the mission, authority and activities of a group. Congress issued federal charters from 1791 until 1992 under Title 36 of the United States Code....
in 1916 "to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues."
All youth members and adult leaders must subscribe to the Scout Oath
Scout Promise
Since the publication of Scouting for Boys in 1908, all Scouts and Guides around the world have taken a Scout promise or oath to live up to ideals of the movement, and subscribed to a Scout Law. The wording of the Scout Promise and Scout Law have varied slightly over time and from country to...
and Law
Scout Law
Since the publication of Scouting for Boys in 1908, all Scouts and Guides around the world have taken a Scout Promise or oath to live up to ideals of the movement, and subscribed to a Scout Law...
. Together, these entail acknowledging a duty to God
God
God is the English name given to a singular being in theistic and deistic religions who is either the sole deity in monotheism, or a single deity in polytheism....
, and recognizing reverence as a virtue. The bylaws of the BSA includes the Declaration of Religious Principle, which is printed in BSA publications such as the youth and adult applications and the various leader handbooks.
The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God and, therefore, recognizes the religious element in the training of the member, but it is absolutely nonsectarian in its attitude toward that religious training. Its policy is that the home and organization or group with which the member is connected shall give definite attention to religious life. Only persons willing to subscribe to these precepts of the Declaration of Religious Principle and to the Bylaws of the Boy Scouts of America shall be entitled to certificates of membership.
The original lease for Camp Balboa was entered into in 1957 for a period of 50 years. This lease enabled the Boy Scouts to build a recreational facility and administrative offices for the Desert Pacific Council (now San Diego-Imperial Council ) of the Boy Scouts. The Boy Scouts also built nine campsites, made extensive improvements to the property, and maintains all of the facilities of Camp Balboa. These facilities are available, for a nominal usage fee, to all community groups and individuals on a first-come, first-served reservation basis.
In 1987, the City entered into a 25-year lease with the Boy Scouts for a half acre parcel of public parkland located on Fiesta Island in Mission Bay Park. The Fiesta Island Facility Committee, which was composed of more than 40 organizations serving youth in the San Diego area, had identified the Boy Scouts as the entity best able to provide the funding for construction and maintenance of a community aquatic park, and to run its operations. In lieu of cash rent, the Boy Scouts committed to build the San Diego Youth Aquatic Center on Fiesta Island.
The Aquatic Center that BSA built is used by a wide variety of other groups serving youth. The lease states that the Boy Scouts "can use no more than 75% of all available aquatic activities up to 7 days prior." http://beta.bsalegal.org/downloads/bsa_pdfs/BWPDFS/Amicus_Brief_United_States.pdf Both leases include nondiscrimination clauses prohibiting the Boy Scouts from discriminating in access to the properties against non-scouting individuals and organizations based on religion and sexual orientation. There have been no instances of a non-scouting organization or individual being discriminated against when requesting access to either facility.
The Boy Scouts of America have policies forbidding homosexuals, atheists, and agnostics from participating in the organization.
In December 2001, prior to the lease’s expiration date, the city renewed the lease for an additional 25 years, with an option to renew for an additional 15-year term. The terms of the renewal lease require the Boy Scouts to spend at least $1.7 million over the next seven years on improvements, remodeling, and new construction.
District Court
In 2000, the Plaintiffs sued the city, aided by the American Civil Liberties UnionAmerican Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
(ACLU). They alleged that the lease was unconstitutional.
The case was filed in the United States District Court, Southern District of California. The official title is LORI & LYNN BARNES-WALLACE; MITCHELL BARNES-WALLACE; MICHAEL & VALERIE BREEN; and MAXWELL BREEN, Plaintiffs, v. BOY SCOUTS OF AMERICA; CITY OF SAN DIEGO; and BOY SCOUTS OF AMERICA — DESERT PACIFIC COUNCIL. Case No. 00CV1726 J (AJB).
The State of California filed an amicus brief in support of the plaintiffs. The United States Department of Justice and the American Civil Rights Union, a non-partisan legal policy organization, submitted an amicus brief on behalf of the Boy Scouts.
In 2003, Judge Napoleon A. Jones Jr. of the United States District Court for the Southern District of California
United States District Court for the Southern District of California
The United States District Court for the Southern District of California is the federal district court whose jurisdiction comprises the following counties in California: Imperial and San Diego. In terms of filed indictments, it is one of the busiest criminal districts in the United States...
ruled that the Boy Scouts of America is, by its own admission a religious organization — and therefore that the non-market rate lease was in violation of the Establishment Clause of the Constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
. A subsequent settlement between the ACLU and San Diego provided for the Scouts' continued ability to use the facilities.
While the City of San Diego had been a co-defendant, after the 2003 decision and a failed appeal the city council withdrew from the lawsuit and agreed to a $950,000 settlement to the ACLU to cover legal fees. The City Attorney issued a statement regarding the decision, stating that "During the course of the case, however, and without forewarning the City as to its position, the Boy Scouts admitted in court documents that it was in fact a ‘religious organization.’” and that “The Boy Scouts have repeatedly and pointedly refused to support the City in helping to pay any of the potential attorney’s fees involved in this case. They want the City taxpayers to continue to argue the case even though they have acknowledged that they are a religious organization and even though they refuse to share in the potentially enormous attorney’s fee award that will be ultimately awarded to plaintiffs who have already prevailed in Judge Jones’ ruling noted above.”
Ninth Circuit
On appeal, the Federal Court found that “the Breens and Barnes-Wallaces have avoided Camp Balboa and the Aquatic Center because they object to the Boy Scouts’ presence on, and control of, the land: They do not want to view signs posted by the Boy Scouts or interact with the Boy Scouts’ representatives in order to gain access to the facilities.” According to the majority opinion, the injury-in-fact was the plaintiffs' “offen- [se]” at “the Boy Scouts’ exclusion, and publicly expressed disapproval, of lesbians, atheists and agnostics,” their “aversion to the facilities,” and their “fe[elings of] unwelcome[- ness] there because of the Boy Scouts’ policies that discriminated against people like them.” The Ninth Circuit thus satisfied itself that it had jurisdiction, and consequently certified some California constitutional law questions to the California Supreme Court.In a separate concurrence, Judge Marsha S. Berzon compared the plaintiff's argument to that of Rosa Parks
Rosa Parks
Rosa Louise McCauley Parks was an African-American civil rights activist, whom the U.S. Congress called "the first lady of civil rights", and "the mother of the freedom movement"....
’ refusal to ride in the back of segregated buses: “Just as African-Americans could ride on Montgomery’s buses, but not in the front, the Scouts permit Plaintiffs to make use of Camp Balboa and the Mission Bay Park Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members.” Judge Andrew Kleinfeld dissented mainly because the plaintiffs had no concrete, particularized injuries, and in his argument compared it to a hypothetical scenario where a "Jewish plaintiff challenges a government lease to the Protestant Church to operate a non-discriminatory recreational facility that the plaintiff has never visited [...] on the grounds that the Protestant Church prevents him from serving as a minister."