ACRU amicus briefs supported them in San Diego Lawsuit

“We’re proud to have stood by the Scouts in this crucial case,” said ACRU Chairman and CEO Susan A. Carleson. “This is a major victory for the Scouts and for our constitutionally-guaranteed freedoms of association and religion.”

January 10, 2013 — A unanimous Ninth Circuit U.S. Court of Appeals panel on Dec. 22 reversed a federal district judge’s order to evict the Boy Scouts from their longtime camp and local headquarters in San Diego’s Balboa Park.

The ruling came in a case filed by the American Civil Liberties Union (ACLU) in 2001 on behalf of a lesbian couple and an agnostic couple, who disagreed with the Boy Scouts’ requirement that members and leaders profess a belief in God and be “morally straight.”

On April 5, 2004, the ACRU filed a brief in the Ninth Circuit defending the Scouts’ right to operate a Youth Aquatic Center on nearby city-owned Fiesta Island, arguing that this was not a case of the city illegally “aiding religion” but rather the Scouts aiding the city.

On May 4, 2009, the ACRU filed another amicus brief at the U.S. Supreme Court supporting the Scouts, arguing that under the law, merely being offended by the views of others is not sufficient for standing, which requires a concrete injury-in-fact.

In 2003, federal District Judge Napoleon A. Jones Jr. had ruled that the Boy Scouts were a religious organization that discriminates and therefore were ineligible for a public lease. Judge Jones’s opinion came despite the Supreme Court’s Dale decision in 2000 upholding the Scouts’ right to their moral standards.

The San Diego City Council abandoned the defense in 2004 and paid the ACLU attorneys nearly $1 million in legal fees. The Scouts stayed on the property and fought on. None of the plaintiffs or their children ever actually tried to use the facilities. As the ACRU’s 2009 brief, written by General Counsel Peter J. Ferrara, states:

“[T]hey did not suffer any loss of recreational enjoyment caused by the Boy Scouts. That was caused by the Plaintiffs themselves in refusing to use the facilities open to them. Quite to the contrary, it was the Boy Scouts who spent millions of dollars of their own funds precisely to offer recreational enjoyment open to them. The ’emotional harm’ is the purely psychological injury of being offended by the traditional moral values that the Boy Scouts hold, and uphold. This does not remotely amount to standing under the precedents of this Court. Those precedents have long held that the mere psychological harm of feeling offended does not provide standing.”

The ACRU’s brief made other points that were reiterated in the majority ruling, such as that the Plaintiffs did not provide “any evidence that they would be exposed to any religious expression or conduct merely by interacting with Scout officials involved in administering the properties. There is no record of any complaints lodged with anyone regarding such religious activity by any Scout administrator at Camp Balboa or the Youth Aquatic Center. These Scout officials are involved in overseeing outdoor activities such as camping, swimming, canoeing, kayaking, and archery, not religious advocacy.”

The ACRU’s brief further asked, “Suppose the City ran the facilities and just hired an Orthodox Jew as a park ranger sitting at the entrance and processing entrants and administering reservations? Could an offended Muslim sue? What if the City hired a Muslim instead and an offended Jew wanted to sue?”

In a concurring opinion, the Ninth’s Judge Andrew J. Kleinfeld wrote, “Revulsion for a group so intense that one cannot bear to be on property they manage cannot, in a tolerant society, be deemed harm sufficiently concrete as to confer standing to sue.”

“The Ninth’s ruling is a huge victory for freedom,” said Mrs. Carleson. “The ACRU is proud to have brought crucial aspects of the case to the court’s attention.”