- The Washington Times - Monday, January 14, 2013

The 9th U.S. Circuit Court of Appeals in San Francisco has a well-earned reputation as the hippiest, dippiest, most-reversed appellate court in these United States.

It’s where the Pledge of Allegiance gets scrutinized for possible eradication — at least the “under God” part. Every so often, though, the court gets something right.

On Dec. 22, a unanimous 9th Circuit panel 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 basically accused the Boy Scouts of holding traditional values.

In 2003, Federal District Judge Napoleon A. Jones Jr. ruled that the Boy Scouts were a religious organization that discriminates and, therefore, were ineligible for a public lease. Judge Jones somehow ignored the Supreme Court’s Dale decision in 2000 upholding the Scouts’ right to their own moral standards. He also ignored the First Amendment’s religious freedom guarantee.

Facing mounting legal costs, the weasel San Diego City Council bailed in 2004, agreeing to pay their tormentors nearly $1 million in legal fees. The Scouts stayed on the property and fought on, and although the Scouts finally prevailed, the 9th Circuit’s opinion makes it clear that the case should have been tossed on arrival, not left hanging over the Scouts for 11 years like a Sword of Damocles. None of the plaintiffs or their children ever actually tried to use the facilities, had no demonstrable “harm” and should not have had standing to sue.

The court initially erred in concluding that the Scouts had barred the plaintiffs from using the property — giving the couples standing — and the case went forward. However, the plaintiffs admitted that they had not tried to use the facilities because they break out in hives if they’re within a canoe’s length of anyone wearing a neckerchief. They did not put it this way, of course, but that’s the gist.

In a concurring opinion, the 9th Circuit’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.”

That’s a relief, because otherwise, people could sue every time they’re annoyed by someone having a contrary opinion. Come to think of it, that’s pretty much the left’s overall approach to dismantling the First Amendment in the name of “tolerance.”

In a 2009 U.S. Supreme Court amicus brief in defense of the Scouts in the San Diego case, American Civil Rights Union General Counsel Peter J. Ferrara summarized the absurdity of the plaintiffs’ claim of injury:

“[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.”

In 2010, the Supreme Court declined to hear the case, and it bounced back to the 9th Circuit, where oral arguments were heard most recently in June 2011. In the December 2012 ruling, Judge William C. Canby Jr. wrote that the city of San Diego did not violate the California or United States Constitutions, the San Diego Human Dignity Ordinance or the park nondiscrimination code in granting the Scouts a new 25-year lease in 2002 for the use of 18 acres of the park for an annual rent of $1, plus a $2,500 annual “administration fee.”

The Scouts, by the way, have been using Balboa Park since the mid-1950s. The city also did not err in granting the Scouts a rent-free, 25-year agreement in 1987 to use nearby Fiesta Island in Mission Bay Park to build a Youth Aquatic Center.

In the case, Barnes-Wallace v. City of San Diego and Boy Scouts of America-Desert Pacific Council, the aggrieved couples claimed that the Scouts’ exclusion of atheists, agnostics and homosexuals as members or volunteers constitutes unlawful discrimination on public property.

The 9th Circuit’s majority opinion rejects all claims of discrimination and notes that the Scouts’ purpose in building the facilities, which include $1.7 million in capital improvements to Camp Balboa and another $2.5 million to Fiesta Island, was obviously not to “advance religion” but to “provide facilities” for camping, swimming and other “youth activities,” open to all — including the plaintiffs.

The city has leased 123 public properties to nonprofit organizations, including “indisputably religious organizations,” the court said, and 96 of the leases require no rent or less rent than the Scouts’ administrative fee. Nineteen of those were leased to “youth-oriented” nonprofits.

In dismissing the plaintiffs’ claims, the court cited the “Lemon test” from the 1971 Lemon v. Kurtzman U.S. Supreme Court case: “To be constitutional, the government conduct at issue must: (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster an excessive government entanglement with religion.”

The plaintiffs failed miserably to prove that the city violated any of these conditions.

Freedom lovers should rejoice. Although it took more than a decade, the left’s chosen vehicle to bully the Boy Scouts turned out to be a lemon.

Robert Knight is a senior fellow for the American Civil Rights Union and a columnist for The Washington Times.

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