Appeals court considers Boy Scouts' use of public space

An appellate court panel in Los Angeles is weighing arguments over whether the Boy Scouts of America, an organization that bars gays from membership and compels members to swear an oath to God, has the right to use city-owned parkland in San Diego.

George Davidson, an attorney for the Boy Scouts, told the three-judge panel of the ninth circuit court of appeals Tuesday that the group has no theology and only holds the position that children should "do duty to God" in order to become productive citizens. The organization has few references to religion in its manual and has a practice of "punting it back to parents and religious leaders" when it comes to religious matters, Davidson argued.

The group received support from the Bush administration, which in March 2004 filed a friend-of-the-court brief arguing that even though the organization believes in God and members take an oath to do their duty to God, it is not a religious organization.

The American Civil Liberties Union sued San Diego and the Boy Scouts in August 2000 on behalf of a lesbian couple and an agnostic couple, each with scouting-age sons. They filed the lawsuit after the San Diego city council voted to extend the group's 50-year lease of Balboa Park camp space for another 25 years.

In July 2003, U.S. district judge Napoleon Jones Jr. sided with the plaintiffs, ruling that San Diego acted improperly when it leased 18 acres of camp space to the Scouts. The judge ruled that the group is a religious organization and the lease violated federal law that prohibits the government promotion of religion. Jones later ruled that the Scouts' lease with the city for a separate aquatics center at Fiesta Island in Mission Bay Park was also illegal.

Mark Danis, an attorney for the plaintiffs, told the appeals panel the Boy Scouts reserves six weeks for itself on Fiesta Island during the height of summer and that other groups have "inferior access" to both sites. "San Diego city land can't be used as the headquarters of a discriminatory organization," Danis said outside court. "This organization kicks people out if they don't believe in God, and our clients are agnostics; they chose to not believe in God, and they can't use city land on an equal basis with Boy Scouts."

Jones ruled the city has shown preferential treatment to the Boy Scouts, "an admittedly religious, albeit nonsectarian, and discriminatory organization," because it negotiated exclusively with the group 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 Boys Scouts has been the target of preferential-treatment lawsuits since the U.S. Supreme Court ruled in June 2000 that it 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.

The appeals panel did not release a decision Tuesday. Rulings typically aren't announced in such cases until three to six months following the hearing of arguments. (AP)