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Harold Johnson- Columnist

Harold Johnson is an attorney with Pacific Legal Foundation. A Sacramento-based public-interest law firm, PLF has a long history of litigating for tax restraint, including in support of Proposition 13 following its enactment in 1978.

Dishonoring the Boy Scouts
And dishonoring the taxpayers...
[Harold Johnson] 1/16/04

In a time of tight budgets for governments up and down California, San Diego recently announced a massive contribution of taxpayer dollars to the American Civil Liberties Union. Bet you didn't know there was extra cash lying around City Hall.

The payoff is part of the city's cave-in to the ACLU's lawsuit that aims to kick the Boy Scouts off public parkland in San Diego.

By the terms of the city's settlement, the ACLU gets a staggering $950,000 in public money, and the city pledges not to join in appealing the federal court ruling of this past summer that voided the Scouts' longtime low-cost lease at Balboa Park.

So the Scouts now go forward on their own to appeal U.S. District Court Judge Napoleon Jones' ruling on their Balboa Park lease. They face an ACLU that is vastly richer than before the city waved the white flag and opened its vaults. But the Scouts retain one advantage: the law is with them.

Judge Jones hung his hat on the doctrine of separation of church and state. He declared that, because belief in God is a core tenet of Scouting, the Balboa Park lease "advances" religion in violation of the Constitution.

This overlooked a compelling fact: The Scouts' lease is only one of dozens that the city has made available to nonprofits, both secular and religiously oriented. How can it be said that San Diego is endorsing" or "advancing" religion, when its property leases cover the entire spectrum of nonprofits – from the Girl Scouts to a Jewish Community Center; from a Korean Church to the Boys and Girls Clubs? These leases must be looked at in their entirety, as a lush pluralistic forest. Judge Jones insisted on focusing on a single tree – the arrangement with the Scouts, as if there were no larger context to consider.

For a more sophisticated approach, the judge should have looked to the U.S. Supreme Court's holiday-display rulings. The court has said, time and again, that religious symbols are acceptable on public property, as long as there are nonreligious symbols around to affirm a spirit of diversity. In Lynch v. Donnelly, for instance, the court upheld the placement of a crche in a Christmas display on city property in Pawtucket, R.I. What made the manger OK was that there was also a Christmas tree, a Santa Claus, reindeer and other secular figures – in short, a context ensuring that a reasonable observer would not perceive religious endorsement by the government.

In San Diego, the mosaic of leases to nonprofits (including the Boy Scouts) doesn't convey a government endorsement of religion, any more than Christian doctrine is endorsed by a government-sponsored holiday tableau in which Rudolph rubs elbows with the baby Jesus.

What's more, the Scouts are hardly getting a free ride. As renewed in 2001, their lease requires them to pay a $2,500 annual administrative fee; spend at least $1.7 million to improve the premises; buy a broad spectrum of insurance; pay taxes and keep the property open so as "to best serve the public" during hours approved by the city; and oversee landscaping and facility management as directed by the city. Far from the Scouts getting a gift from the city, they've agreed to make what amount to large financial contributions to the public.

Perhaps the most disturbing thing about Judge Jones' ruling is its gratuitous diatribe against Scout principles. He labeled Scouting a "discriminatory" group that holds beliefs "at odds with values requiring tolerance and inclusion in the public realm." This comment shows disrespect for the fundamental liberty known as freedom of association. To the degree any organization defines its membership by a code of beliefs, it "discriminates" against people who do not share those beliefs; this is true of organizations as diverse as B'nai B'rith, the NAACP, and liberal advocacy groups such as the People for the American Way. It disparages a keystone of American liberty for a court to scorn this right to join together around shared principles.

The judge's statement is also ironic because, by standing up for their rights, the Scouts are seeking to preserve "tolerance and inclusion in the public realm." True tolerance means that belief-based organizations such as the Scouts should not be treated intolerantly by government simply because they might not be politically correct.

The bottom line in this case is that the Scouts have been singled out in retaliation for not bending the knee to modern elitist orthodoxies on sex and secularism. Eventually, the 9th U.S. Circuit Court of Appeals – and perhaps the U.S. Supreme Court – will need to look hard at the assault on the Scouts in San Diego, and their right not to be punished or discriminated against because of their beliefs. This battle is important for all private organizations, across the philosophical spectrum, that value their right to hold principles of their choice without fear of reprisal from government (or the ACLU). It was a sad day when the city chose not to stand with the Scouts, but to cut, run – and pay booty to the ACLU.



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