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Despite gay ban, Boy Scouts can lease public space, court rules

Even though the Boy Scouts of America bars atheists and gays, the city of San Diego is allowed to lease the group public property at nominal rates without running afoul of the state and federal constitutions, a federal appeals court decided Thursday.

A three-judge panel of the 9th Circuit U.S. Court of Appeals upheld the city’s practice of leasing valuable property to the Boy Scouts for nominal rent in exchange for the group’s commitment to undertake expensive renovations and to manage the property.

The unanimous ruling, which overturned a district court decision, said the city did not discriminate in its rental policies or bear any financial hardship under the terms of its leases to the Boy Scouts.

The decision stemmed from a lawsuit brought by a lesbian couple and an agnostic couple, who said the leases of public land to groups that discriminate violated both the state and federal constitutions.

The couples “had an aversion to the facilities and felt unwelcome there because of the Boy Scouts’ policies that discriminated against people like them,” the court said.

But the panel concluded that the city leases were not discriminatory.

“There is no evidence that the city’s purpose in leasing the subject properties to the Boy Scouts was to advance religion, and there is abundant evidence that its purpose was to provide facilities and services for youth activities,” wrote Judge William C. Canby Jr.,  a President Carter appointee, for the unanimous panel.


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--Maura Dolan in San Francisco

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