Federal court asks California to weigh in on Boy Scouts case

A federal appeals court has asked for a legal opinion from the California Supreme Court in a lawsuit over whether San Diego acted illegally in granting leases to the Boy Scouts of America.

At issue is whether the BSA is a religious organization, and if the leases violate the California constitution which ban governments from favoring religious groups.

The decision by the 9th U.S. Circuit Court of Appeals to ask for a legal opinion from a state high court in a federal case is rare, but not unheard of.

The 9th Circuit is considering an appeal of a 2003 ruling that voided the Scouts’ leases based on the state rule.

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

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.

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.

In 2006, the Scouts appealed to the 9th Circuit and a three judge panel in a split decision ruled to asked the California Supreme Court for an opinion.

The Scouts then asked for a review by the full 9th Circuit court. The full court declined to hear the case until the California justice weigh in. The high court has not indicated when it will issue a legal opinion in the case.