DEAN RODRIGUEZ: Thank you, Dean, and thank the Federalist Society, the Civil Rights Practice Group nationally, and also the San Diego Lawyer’s Chapter for their sponsorship and bringing this august group together to gather.

We’re here to discuss without too much further ado the Boy Scouts case. It is a case decided in the Southern District of California, here in San Diego, recently. It’s called Barnes-Wallace v. City of San Diego. You’ll here much more about that through the next hour. In that case the District Court in San Diego invalidated two leases to the Boy Scouts of parkland property controlled by the city of San Diego.

So thanks to the Federalist Society, the Civil Rights Practice Group, and the San Diego Lawyer’s Chapter to bring together what, to say the least, is a diverse group of folks who span the spectrum of views on this case. Understanding it will be a contentious gathering, I’ve prepared for this program not only by reading the materials but by putting on C-SPAN and watching the debate over the nominations of Judges Brown and Owens this morning to try and get in the habit. Hopefully you did that as well.

Anyway, we’re glad to bring this group to you. I’m going to introduce them very briefly as they come up. So let me proceed by introducing to you George Davidson. Mr. Davidson is the co-chair of the litigation department at Hughes Hubbard & Reed, and is a partner in the firm’s New York office. Mr. Davidson has represented a wide variety of clients, including banks, insurance companies, security brokers, universities, museums, charitable organizations, and of course individuals.

For the past quarter century he has represented the Boy Scouts of America on a variety of constitutional issues. He argued Boy Scouts of America v. Dale before the Supreme Court of the United States. He has also represented the Boy Scouts before various appellate courts and district courts throughout the U.S.

He is a Fellow of the American College of Trial Lawyers, a member of the American Law Institute and the National Association of College and University Attorneys, and is past president of the Legal Aid Society.

Mr. Davidson received his A.B. from Brown University and his L.L.B. magna cum laude from Columbia University’s Law School. George Davidson.

MR. DAVIDSON: Thanks very much, Dan. As one of the lawyers actually involved in the case, and therefore the panelist most up on the facts, it falls to me to discuss the facts with you. The two leases by the city to Boy Scouts are both open to the public. They are not occupied exclusively by the Boy Scouts.

Let me tell you a little bit about how those leases came about. First, the aquatic center lease: In the late 1980’s a coalition of all the youth-serving organizations in San Diego got together and asked the city to lease a half-acre on Fiesta Island in Mission Bay to the Boy Scouts for the purpose of creating an aquatic center for the use of all youth groups in the city.

The lease was entered into. The Boy Scouts built the center at a cost of two-and-a-half million dollars from its own resources, and it underwrites the annual operating losses even though most of the usage at the center is by groups unaffiliated with the Boy Scouts.

The second lease is in Balboa Park. In the late 1950’s the city reached out to the three national youth camping organizations: the Girl Scouts, the Boy Scouts, and Campfire, and asked them to develop and operate youth camping facilities in a remote corner of Balboa Park, which was otherwise unimproved. Again, the facility is used extensively by groups other than the scouting organizations.

In 2001 the city entered into new 25-year leases with the Girl Scouts and the Boy Scouts with the agreement by the organizations to invest over one-and-a-half million dollars each in additional leasehold improvements beyond what they had already done for the properties. Each year Boy Scouts spends about 150,000 dollars keeping the two lease properties going. The City of San Diego spends nothing.

As even the District Court here found, there is no evidence that Boy Scouts has ever discriminated against anyone in the use of either property. These arrangements with the youth camping groups are not at all unique in San Diego. The city has 120 other similar leases to non-profits, including several churches.

Having provided and maintained park facilities at the cost of millions of dollars to itself and no cost to the city, you would think the Boy Scouts would get a medal and not a lawsuit, particularly on a day when the paper reports that the city’s park and recreation budget is being cut by four-and-a-half million dollars.

So how did the District Judge manage to conclude that there was an Establishment Clause violation here when, first, the city treated Boy Scouts just like the other 120 not-for-profit leases; second, Boy Scouts is subsidizing the city rather than the other way around; and third, Boy Scouts is not a church? It’s an organization of persons who profess a belief a God, but includes members of virtually every organized religion, as well as many members not affiliated with any church.

Judge Jones came up with the rather idiosyncratic theory that the leases to Boy Scouts were necessarily preferential because they were not the result of a competitive bidding process. Well what the city did is clearly a neutral process. It reached out to the organizations with the ability and interest to deal with youth camping, all three national organizations involved in that field.

The leases were awarded after public hearings, so if somebody else wanted to come in and complain about it, they had that opportunity. Really it would just make sense for the city to do what they did. It makes no sense to reach out to the chess club, which has neither the interest nor the expertise nor the desire to spend a lot of money for something that chess players have little interest in.

The consequences of Judge Jones’ opinion would appear to be extensive. Many, many cities, San Diego included, provide social services through agreements with religious organizations. It seems ridiculous to suppose that one can’t renew a contract with Catholic Charities for foster care or the Salvation Army for a soup kitchen just because they’ve done a good job, but really as a matter of constitutional law would have to go through a competitive bidding process.

We have a lot of smart people on this panel that are very knowledgeable about the legal issues. I’m going to use the rest of my time to talk instead about the sociology of litigation of this kind.

Judge Jones did not start this case, so who is the Grinch? The plaintiffs have no better claim to standing to sue the Boy Scouts than it would make them feel bad if they had to deal with an organization of believers in order to use the leased facilities. Presumably, if they decide that it makes them feel bad to live in a city named after a Catholic saint, we may be living in the city of Mr. Diego in a few years.

But the plaintiffs are really not what drive these cases. These cases are funded by organizations. The Barnes Wallace case and the Dale case before it are just the tips of an iceberg in a quarter century assault by the ACLU on the civil liberties of Boy Scouts.

Over that period, the ACLU has contributed to at least 14 cases attacking Boy Scout values for a total of 92 years of litigation if laid end-to-end. Since the Supreme Court held in Dale that Boy Scouts’ leadership qualities were part of its protected First Amendment expression, the ACLU has sought to exclude Boy Scouts’ participation in public forums in this and several other cases.

But you ask, I thought the ACLU was an organization that was supposed to be on the side of civil liberties. Aren’t they the ones that represent the North American Man-Boy Love Association, the teenage nudist camp, the Nazis, and the Ku Klux Klan? Well the ACLU today is not the ACLU that Roger Baldwin founded. His board had a board reflecting the entire political spectrum.

Today the board is dominated by a narrow politically correct ideology. They’re happy to defend the insignificant fringe of any political stripe. But a mainstream organization which departs from the ACLU’s view of political correctness may expect Boy Scouts’ faith.

I’m not surprised that the ACLU declined repeated invitations to participate in today’s debate, as their position is really embarrassing for a supposed defender of civil liberties. Not to end on quite such a confrontational note, for those that want to get deeper into the issues, you can consult bsalegal.org, which has a marvelous collection of materials that are relevant to these issues. Thank you.