US Supreme Court Refuses to Hear Boy Scouts’ Appeal

The U.S. Supreme Court today refused to hear an appeal from the San Diego Boy Scouts challenging the standing of a lesbian couple and an agnostic couple who, with the ACLU of San Diego & Imperial Counties, filed a lawsuit in 2000. The lawsuit argues that taxpayer dollars should not be subsidizing an organization that chooses to discriminate based on religion and sexual orientation.

“While today’s decision doesn’t win the game, it advances the ball, and we expect to prevail” said David Blair-Loy, legal director for the San Diego ACLU. “Discrimination is not a value we want to teach our kids. There is no reason for the City of San Diego to subsidize discrimination against gay, atheist or agnostic families.”

The Supreme Court’s ruling leaves intact a district court decision saying that the city of San Diego was unconstitutionally subsidizing the Scouts by leasing city-owned property for $1 a year. The presiding judge, Napoleon Jones said this practice “provided not even the pretense of neutrality” toward religion. The ACLU filed the lawsuit on behalf of the families, who are unable to enjoy the parkland because of the Scouts’ formal exclusion of nonbelievers, gays and lesbians from its membership. Judge Jones’s well-reasoned opinion remains under appeal to the U.S. Court of Appeals for the Ninth Circuit.

In 2004, the city reversed its position challenging the leases and agreed to a settlement with the plaintiffs. The city chose to accept the district court’s findings and to take all available steps to terminate the lease at the earliest opportunity. It also agreed not to oppose the plaintiffs’ remaining claims, and to pay for attorney’s fees and costs.

The current legal fight has been about the standing of the ACLU clients. The Ninth Circuit has confirmed that the plaintiffs have standing, but had asked the California Supreme Court to decide several state law issues. With the U.S. Supreme Court’s ruling today, the circuit court may now decide the case on its merits, or it may elect to reinitiate its request to the California Supreme Court for a decision on state law before making a final decision.

It is undisputed that the Boy Scouts of America explicitly excludes atheist and agnostic citizens from its membership and activities. The BSA also bars gay citizens from its membership and activities. Unlike the Girl Scouts, who have an open and inclusive membership policy, opposition to homosexuality is a central principle of the Boy Scouts.

Judge Napoleon Jones, the district court judge whose ruling is being challenged by the BSA, said in his opinion that the Scouts’ “strongly held private, discriminatory beliefs are at odds with values requiring tolerance and inclusion in the public realm.”