By George A. Davidson

The citizens of San Diegoneed to know why the city’s recent $1 million settlement with the American Civil Liberties Union sells out the Boy Scouts, sells out taxpayers, and sells out the youth of San Diegowho enjoy camping on CampBalboa.

What’s the harm of the city’s financial settlement?  The city’s settlement will fund the ACLU’s continued litigation against Boy Scouts.  The city has turned away from fighting the battle they have fought alongside Boy Scouts for two years and instead is giving the adversary a war chest.  While the ACLU will have $1 million more in resources, the Boy Scouts must continue to pay for the litigation out of charitable funds and membership dues.  Boy Scouts asked the city to continue to support the leases it signed with Scouts because the only sure way for the city to avoid paying attorneys fees to the ACLU is to win the case.  Instead, the city’s settlement guarantees that the taxpayers will pay the ACLU’s fees. 

Does anyone think the city settled in order to help keep Boy Scouts on CampBalboa?  The city’s settlement brings Boy Scouts to the brink of eviction from CampBalboa.  The city agreed in the settlement to “promptly” ask the Court to issue final judgment against the Boy Scouts’ lease of CampBalboa.  That is, the city agreed to actively seek the termination of the lease.

If you are concerned about the Boy Scouts’ legal position, let me explain.  The ACLU argues—and this has given some of our friends pause—that Scouting is a “religious organization” and therefore the lease is aid to religion by the city, which is inappropriate under the Establishment Clause of the U.S. Constitution.  It is no surprise to the city that Boy Scouts is an association of people who believe in God—two of the plaintiffs in the ACLU case are atheists who specifically complain about Boy Scouts’ membership requirement of duty to God.  Indeed, in February 2003, the city agreed with the Boy Scouts in documents submitted to the court that while Boy Scouts is not a religion and is completely nonsectarian, Boy Scouts is a religious organization.

Leasing to Boy Scouts would be an establishment clause problem only if the city’s motivation in leasing the property to Boy Scouts were to promote religion.  The city did not lease to Boy Scouts to promote religion, as city officials will readily tell you.  The city’s motivation for leasing to Boy Scouts was simply to provide affordable outdoor experiences for the city’s youth.  The northwest corner of Balboa Park is earmarked for youth camping under the Balboa Park Master Plan, and the city leases to the three national youth camping organizations—Girl Scouts, Camp Fire, and Boy Scouts—in order to provide urban youth who cannot easily travel outside the city with outdoor activities. 

The city lease with Boy Scouts is part of a leasing program where over 100 non-profits, both religious and secular, receive leases with little or no rent in return for them performing services for the city community.  And a substantial amount of usage of CampBalboais by citizens who are not at all affiliated with the Boy Scouts and are not bound by Boy Scouts’ membership requirements.  CampBalboais simply a camp ground, which is open to the community.

So the important point to remember is that it does not matter whether Boy Scouts are religious or not.  The city cannot treat Boy Scouts worse than other organizations on the basis of Scouting’s viewpoints, whether those viewpoints are religious or not.  The city knows this very well, as the city leases to the Jewish Community Center and two Presbyterian churches on the same financial terms as Boy Scouts. 

Further, the city gives thousands in taxpayer dollars every year to Episcopal Community Services, Catholic Charities, and the Salvation Army for their services to the community.  The city has entered into exclusive lease negotiations with Hillel of San Diego, the San DiegoHebrewDay School, and other membership organizations. 

Some of these groups are not required to open their leased properties to the public, as Boy Scouts do.  Yet the city’s leasing program is not only permissible under the establishment clause, but the free speech clause requires that the city lease to all groups which qualify for the leasing program without censoring their private viewpoints or membership criteria.  The Constitution requires that Boy Scouts be treated like any other of the 100 groups that have leases with the city. 

Boy Scouts are not alone in their view of their rights here.  The U.S. Department of Justice is considering intervening on Boy Scouts’ side because “singling out the Boy Scouts for exclusion from such a [lease] program based on their viewpoint would raise serious First Amendment concerns.”  This is not something the Department of Justice takes lightly.  Neither do the Boy Scouts and neither should the city.

Now, by actively seeking to nullify the lease the city granted to Boy Scouts just two years ago—while the ACLU’s case was already underway—the city has put Boy Scouts in an awkward position.  Boy Scouts agreed under the lease to invest $1.7 million in the city’s property.  Boy Scouts already had invested millions.  Do you think Boy Scouts would be smart to invest more charitable funds in the property now that the city has undertaken to terminate the lease? 

The ACLU proposed in its lawsuit that the city should sell the properties so that hotels or condominiums can be built on them.  Is that how the citizens of San Diegowant their parkland used?  Don’t you think that it is odd for the ACLU to prefer that hotels and condominiums be built on these youth campsites, rather than to have Boy Scouts making them available to the entire community?

Boy Scouts will, as always, continue to defend their constitutional right to be treated the same as any other youth group leasing property from the city.

Davidson, of Hughes Hubbard & Reed LLP, is legal counsel for Boy Scouts of America and Desert Pacific Council, Boy Scouts of America