The City of San Diego leases portions of Balboa Park and Fiesta Island to the San Diego Boy Scouts, which use the land to operate a camp and aquatic center. The Boy Scouts use the leased areas for their own events but otherwise keep them open to the general public — and have spent millions of dollars to improve and maintain facilities on the properties, eliminating the need for taxpayer funding. While the Boy Scouts’ membership policies exclude homosexuals and agnostics, the Scouts have not erected any religious symbols and do not discriminate in any way in administering the leased parklands.
Nevertheless, a lesbian couple with a son and an agnostic couple with a daughter challenged the leases under the Establishment Clauses of the U.S. and California Constitutions. Although none of the plaintiffs has ever tried to use the parklands or otherwise had any contact with the Boy Scouts, the Ninth Circuit found they had standing to proceed with their lawsuit because they were offended at the idea of having to contact Boy Scout representatives to gain access to the facilities. The court denied en banc review over a scathing dissent by Judge Diarmuid O’Scannlain.
The Boy Scouts have asked the Supreme Court to review the case — whose
outcome conflicts with other federal courts of appeal — and Cato joined the
Individual Rights Foundation in filing a brief supporting that petition. Cato’s brief argues that the
Ninth Circuit’s decision dangerously confers standing on anybody wishing to
challenge the internal policies of expressive associations having any business
with local government; chills public/private partnerships of all kinds for
reasons disconnected from the beneficial services civic organizations provide
the public; and generally represents a radical extension of standing
jurisprudence — opening the courthouse doors to anyone claiming to be
subjectively offended by any action and manufacturing litigation out of
The Supreme Court is likely to decide whether to take up the case of Boys Scouts of America v. Barnes-Wallace before the start of the next term this fall.