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U.S. Supreme Court declines involvement in Boy Scouts, San Diego Balboa Park case

May 3, 2010 |  6:15 pm

The U.S. Supreme Court on Monday declined to hear a case involving allegations that the Boy Scouts of America should not be allowed to lease property in San Diego's Balboa Park because of the group's religious overtone and its policy banning gays, agnostics and atheists from being members or leaders.

The U.S. 9th Circuit Court of Appeals had ruled that an agnostic couple and a lesbian couple, backed by the American Civil Liberties Union, could sue to invalidate the Boy Scouts' lease on city property as discriminatory. The Boy Scouts appealed.

The high court's decision not to hear the case sends the issue back to the appellate court for further litigation.

The ACLU in 2000 sued the city on the assertion that its $1-a-year lease with the Boy Scouts was improper. The City Council then renegotiated the lease, requiring annual payment of more than $2,500.

In 2004, a federal court judge in San Diego said the lease was improper because the city had not allowed other groups to bid on the property and that giving preference to a religious organization violated the constitutional separation of church and state. The judge ruled that the Boy Scouts qualify as a religious organization because their oath requires members and leaders to show allegiance to God.

After the 2004 ruling, the San Diego City Council sought to terminate the Boy Scouts' lease. But they have remained in the park pending resolution of the legal issues.

Under the lease, the Boy Scouts agreed to make $1.7 million in improvements to the 18-acre site in  Balboa Park and have spent $2.5 million on an aquatic center on city-owned Fiesta Island in Mission Bay. The Boy Scouts have been part of Balboa Park since 1918.

In a statement on the group's website, Scout leadership expressed disappointment in the high court's decision but said that activities at Balboa Park and Fiesta Island will continue while the legal action proceeds in the federal and state court systems.

"Boy Scouts (of America) is confident that it will prevail on its 1st Amendment rights and other constitutional defenses as the matter proceeds through the courts," the group said. "Boy Scouts retains the right to petition the court to hear that issue again if the 9th Circuit decides the merits of the case unfavorably to Scouts."

David Blair-Loy, legal director for the ACLU chapter in San Diego and Imperial counties, said the court ruling "doesn't win the game (but) it advances the ball, and we expect to prevail."

"Discrimination is not a value we want to teach our kids," Blair-Loy said.

-- Tony Perry in San Diego