In a surprising decision last week that drew little press attention, the Ninth Circuit Court of Appeals, handed the Boy Scouts a victory over a lesbian couple and an agnostic couple. The Ninth Circuit is considered the most liberal appellate court in the land.
The Boy Scoutsâ€™ victory came nearly ten years after they were originally sued. At issue in the case are leases between San Diego and the Boy Scouts which allow the Boy Scouts to build and operate camp grounds and an aquatic center for use by the Scouts and the public. The lesbian and agnostic couples sued even though they had never visited the facilities nor asked to join in scouting activities.
In 2003 a lesbian couple and their son and an agnostic couple and their son filed a federal lawsuit against the Desert Pacific Council of the Boy Scouts and the City of San Diego. They claimed that the leases to the Boy Scouts violated the Establishment Clause of the Constitution because the Boy Scouts discriminate on the basis of religion and sexual orientation. A federal district court judge agreed and enjoined both leases. The Boy Scouts then appealed to the Ninth Circuit Court of Appeals. The initial three-judge panel dismissed the case finding the couples lacked standing to sue. However, the three-judge panelâ€™s decision was reversed by an en banc panel of the Ninth Circuit. The ensuing legal maneuvering involved the California Supreme Court and the U.S. Supreme Court. But both courts refused to act. In the lengthy legal process, TMLC filed friend of the court briefs in both the Ninth Circuit and the U.S. Supreme Court in support of the Boy Scouts. After the Supreme Courtâ€™s refusal to review the case, the Ninth Circuit held a hearing in June 2011. It handed down its opinion last week, December 20, 2012.
Richard Thompson, TMLCâ€™s President and Chief Counsel, commented:
â€œThe Plaintiff-couples never visited the facilities in question nor did they ask to participate in scout activities. Their sole reason for bringing this lawsuit was because they were offended and outraged by the Boy Scoutâ€™s Oath to do his duty to God and his country and to keep himself morally straight. Although the Ninth Circuit Courtâ€™s decision in favor of the Boy Scouts is to be applauded, the case should have been dismissed at the outset, since being offended by the Boy Scoutsâ€™ religiosity and opposition to homosexuality is not a basis for â€œstandingâ€ to bring the lawsuit.â€