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In the ongoing battle over the Boy Scouts’ use of San Diego’s Balboa Park, this week the U.S. Supreme Court declined to hear the case–allowing a Ninth U.S. Circuit court decision to stand.  The case will now return to the federal and state courts for appeals.

The Los Angeles Times reports:

“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 Boy Scouts in the San Diego area began their association with Balboa Park back in 1918.  Since a lease to use part of the park was issued, the Boy Scouts have made an estimated $4.9 million in improvements to the Balboa site and to a city-owned site in Mission Bay.  The improvements to these facilities include a multi-million aquatic center and campsite which is open to all members of the public for a fee.

This legal nightmare for the Scouts began when the 50-year lease came up for renewal in 2000, the ACLU sued the Boy Scouts on behalf of an agnostic couple and a lesbian couple who claimed that the lease violated the establishment clause and that the Boy Scouts were a discriminatory organization.

The Ninth U.S. Circuit had ruled against the Boy Scouts on the reasoning that they are the equivalent of a religious organization and based that, in part, because of the Scout oath that includes “to do their duty to God and my country.”  Attorneys for the two couples claim that their clients were personally affected because if they have to pay a fee to use the Boy Scout site fees this amounts “to a toll payable to a discriminatory, religious organization to use public property.”

To meet legal requirements for standing in a case, the couples had to prove that they have been “injured.”  What was their injury?  This from The Christian Science Monitor (CSM):

“The couples said they would like to use those portions of the public parks, but that they were so offended by the exclusionary policies of the Boy Scouts that they avoid those sections of the park…The families cannot visit those sections of the parks ‘without gaining approval from and submitting themselves under dominion and control of an organization that openly rejects their beliefs and sexual orientation…’  Washington lawyer Seth Galanter wrote in his brief. ‘Even if they did access it, their enjoyment would be diminished by having to view symbols of the [Boy Scouts’] presence and dominion on the land.”

The CSM article continues:  “Lawyers for the Boy Scouts said the families’ claim is ‘contrived.’ The families choose not to visit certain sections of the city parks, the lawyers said, because they’d have to ‘interact with people they don’t like.’ The lawyers added that any alleged injury was of the families’ own making.”

Judge Diarmuid O’Scannlain writes in dissent to the Ninth Circuit ruling:

“Today, our court promulgates an astonishing new rule of law for the nine Western states. Henceforth, a plaintiff who claims to feel offended by the mere thought of associating with people who hold different views has suffered a legally cognizable injury-in-fact.”

That ramifications of that statement ought to give everyone pause.

Judge O’Scannlain emphasized the insanity of such reasoning by adding that the Ninth Circuit decision “creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court.”

The Boy Scouts are allowed to continue to use the Balboa Park facilities until the appeals process is completed.

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