Barnes-Wallace v. Boy Scouts of America

Barnes-Wallace v. Boy Scouts of America is an on-going case involving the City of San Diego's relationship with the Boy Scouts of America.

Plaintiffs Lori and Lynn Barnes-Wallace, a lesbian couple, joined Michael and Valerie Breen, an agnostic couple, in suing the City of San Diego and the Boy Scouts of America. Both couples are the parents of Scout-aged sons.

The Boy Scouts of America have policies forbidding gays, atheists, and agnostics from participating in the organization. Since 1957, the City of San Diego has leased part of the city's Balboa Park to the Boy Scouts of America for the price of $1 per year. In 2000, the Breens and the Barnes-Wallaces, aided by the American Civil Liberties Union, sued the city, alleging that the lease was unconstitutional.

In 2003, the United States District Court agreed and ruled in favor of Barnes-Wallace. The case is currently being appealed.

Background information
The City of San Diego has leased property to more than 100 nonprofit organizations for little or no cash rent to provide for the “cultural, educational, and recreational enrichment of the citizens of the City.” Many of those leases involve parkland from which the City benefits by saving on maintenance costs.

A number of other leases involve property in residential and commercial zones. The lessees under the San Diego policy are diverse, ranging from the YMCA and the Jewish Community Center to the Vietnamese Federation of San Diego and the Black Police Officers Association. A number of churches are among the lessees.

The issue in this case involves two of these leases, between the City and the Boy Scouts for dedicated parkland in Balboa Park and Mission Bay Park (which includes Fiesta Island). The Boy Scouts of America is a nonprofit charitable organization that received a congressional charter in 1916 "to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues."

All youth members and adult leaders must subscribe to the Scout Oath and Law. Together, these entail acknowledging a duty to God, and recognizing reverence as a virtue. At the same time, however, the Scoutmaster Handbook stresses that the Boy Scouts is a nonsectarian organization, and that religious instruction remains the responsibility of a Scout’s parent or guardian and his religious institution.

The original lease for Camp Balboa was entered into in 1957 for a period of 50 years. This lease enabled the Boy Scouts to build a recreational facility and administrative offices for the Desert Pacific Council (now San Diego-Imperial Council ) of the Boy Scouts. The Boy Scouts also built nine campsites, made extensive improvements to the property, and maintains all of the facilities of Camp Balboa. These facilities are available, for a nominal usage fee, to all community groups and individuals on a first-come, first-served reservation basis.

In 1987, the City entered into a 25-year lease with the Boy Scouts for a half acre parcel of public parkland located on Fiesta Island in Mission Bay Park. The Fiesta Island Facility Committee, which was composed of more than 40 organizations serving youth in the San Diego area, had identified the Boy Scouts as the entity best able to provide the funding for construction and maintenance of a community aquatic park, and to run its operations. In lieu of cash rent, the Boy Scouts committed to build the San Diego Youth Aquatic Center on Fiesta Island.

The Aquatic Center that BSA built is used by a wide variety of other groups serving youth. The lease states that the Boy Scouts "can use no more than 75% of all available aquatic activities up to 7 days prior." Both leases include nondiscrimination clauses prohibiting the Boy Scouts from discriminating in access to the properties against non-scouting individuals and organizations based on religion and sexual orientation. There have been no instances of a non-scouting organization or individual being discriminated against when requesting access to either facility.

The Boy Scouts of America have policies forbidding homosexuals, atheists, and agnostics from participating in the organization.

In December 2001, prior to the lease’s expiration date, the city renewed the lease for an additional 25 years, with an option to renew for an additional 15-year term. The terms of the renewal lease require the Boy Scouts to spend at least $1.7 million over the next seven years on improvements, remodeling, and new construction.

Legal case
In 2000, the Plaintiffs sued the city, aided by the American Civil Liberties Union (ACLU). They alleged that the lease was unconstitutional.

The case was filed in the United States District Court, Southern District of California. The official title is LORI & LYNN BARNES-WALLACE; MITCHELL BARNES-WALLACE; MICHAEL & VALERIE BREEN; and MAXWELL BREEN, Plaintiffs, v. BOY SCOUTS OF AMERICA; CITY OF SAN DIEGO; and BOY SCOUTS OF AMERICA - DESERT PACIFIC COUNCIL. Case No. 00CV1726 J (AJB).

The State of California filed an amicus brief in support of the plaintiffs. The United States Department of Justice and the American Civil Rights Union, a non-partisan legal policy organization, submitted an amicus brief on behalf of the Boy Scouts.

In 2003, Judge Napoleon A. Jones Jr. of the United States District Court for the Southern District of California ruled that because the Scouts require members to profess a belief in God, the Boy Scouts are a religious organization and that the non-market rate lease therefore violates the Establishment Clause. The case is currently being appealed to the US Court of Appeals.

Originally, the City of San Diego was a defendant along with the Boy Scouts. However, after the 2003 decision by Judge Jones, and a failed appeal by the Boy Scouts, the city council decided to pull out of the lawsuit by dropping the Scouts and agreeing to pay a $950,000 settlement to the ACLU to cover the legal fees for the court battle.