Harold Johnson- Columnist
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
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.