In the case, “Boy Scouts vs. Barnes-Wallace,” U.S. District Judge Napoleon Jones Jr. ruled in 2003 that San Diego improperly leased 18 acres of camp space to the Scouts, asserting that the nominal lease fell afoul of federal law that prohibits government promotion of religion.
The Scouts appealed the ruling to the Ninth U.S. Circuit Court of Appeals, which has asked the California State Supreme Court to rule on three issues: Do discounted leases amount to aid to religion? If yes, does that aid support a sectarian purpose? And do such leases violate state “no preference” ban on government favoring a religious group?
Before the state Supreme Court could rule on the case, the Scouts asked the U.S. Supreme Court to determine if the plaintiffs had legal standing to bring a suit, as the two couples (with Scouting-age sons) had never attempted to use the facilities, were not actually denied access and, therefore, didn’t suffer actual “injury.”
The appeals court stated the plaintiffs had experienced “emotional harm and the loss of recreational enjoyment” because they didn’t feel welcome to use the facilities due to the Scouts’ ban on gay and atheist participants.
The high court’s refusal to hear the case means that it can proceed to the California state Supreme Court.
The San Diego case is similar to the Philadelphia Scouts case in that it considers if the organization’s policy of prohibiting atheists and gays violates nondiscrimination law in accommodations, as both concern property leased at nominal/discounted rates ($1 per year in San Diego, free in Philadelphia).
The San Diego case is different in that it argues that the Scouts, as a religious organization, should not receive preferential treatment.
The decision by the Supreme Court not to hear the case is good for the gay community, as it means the outcome of this case will only affect California: With the current high court, a ruling against the Scouts is uncertain. Better to have no ruling than for the court to set a bad precedent, such as “Boy Scouts of America vs. Dale,” which allowed the Scouts to bar openly gay leaders.