San Diego The Desert Pacific Council of the Boy Scouts of America forced the city's hand in November when it asked for a 50-year extension of its lease on 16 acres of land in Balboa Park, where the council is based. Currently, that lease expires in 2007. The scouts also have a lease on city land on Fiesta Island that expires in 2012.
Despite growing opposition to the Boy Scouts' discriminatory policies against gays and atheists, and despite a suit pending in federal court that seeks to force the city to terminate its lease agreements with the scouts, the San Diego City Council appears poised to approve the lease extension sometime in January.
The suit, filed on August 28 by the San Diego American Civil Liberties Union and the Tom Homann Law Association, contends that by leasing city park land to an organization that discriminates, the city council is in violation of its own policies. Both sides agree, however, that a decision in the case is far off. The ACLU and M.E. Stephens -- a partner in the firm of Lynn, Stock, and Stephens, a volunteer litigator in the suit -- think the city council should postpone a decision on the lease extension until the court rules.
But from my interviews with city and scout officials, it's clear that the new council will not wait. After hearing arguments for and against the extension on November 14, the city council went into closed session the next day to discuss the matter. According to Stephens and the ACLU, the circumstances of that closed session were suspect. They are referring to the fact that on the day of the session then-Councilwoman Christine Kehoe -- who would have either opposed a lease extension or demanded provisions on a new lease -- was required to be in Sacramento. Regardless, in the closed session councilmembers gave city officials directions to work on a new lease with the Boy Scouts.
Will Griffith, the city's real estates assets director, says, "I can certainly say that we received no direction to terminate their existing lease and that we did receive direction to negotiate a new lease. The city council gave me very specific direction, and I took that to the scouts, and we're finalizing that so that it can be presented to the council in open session. I don't anticipate it going back to committee or anything. I will probably be in a position to make a request for council action and provide all the necessary documentation in January."
Ted Cox, scout executive and CEO of the Desert Pacific Council, corroborates Griffith's statement. The only reason negotiations aren't concluded, he says, is because of vacations and the swearing in of the new mayor and councilmembers. "A draft of a standard lease for this kind of property was even given to us before the closed session, and 98 percent of it was fine with us. We're optimistic that the city council will want to have the Boy Scouts continue to manage that property," he says.
Les Girard, an assistant city attorney who has advised the city council on legal matters pertaining to the scout leases, says that he has told them that policy number 700-04 -- which was drafted in 1981 and states that the city can rent land in Balboa Park only to "those organizations whose memberships are open to the public and who do not discriminate in any manner against any person on account of...sex [or] religious creed" -- is irrelevant. "It is only a policy," he says, "which is not legally binding like a municipal code." In the arcane syntax of his profession, Girard says, "The council may choose as a matter of policy not to apply a council policy to an open lease. Policies are not binding law."
"So they wrote that policy for what?" Stephens asks. "For nothing? Absurd. What is the point other than political expedience to say we have a nondiscrimination policy when in reality it's not true. So you just snow the people?"
Mayor Dick Murphy, for one, will vote for the new lease when it comes before council again. When reminded that the San Diego ACLU, local citizens, and national philanthropic organizations oppose the city's current subsidies of the scouts, John Kern, the mayor's chief of staff, responded, "I can't speak for the city council, but it's certainly the position of the mayor that he supports the scouts. The mayor has said repeatedly that he is for the Boy Scouts staying in Balboa Park, that he believes they perform a great public service, and supports their staying there."
During the mayoral race, both Dick Murphy and Ron Roberts defended the scouts. On KNSD-TV's Headliners talk show in early September, Murphy said he would "do everything to protect the Boy Scouts' right" to lease city land. Councilman Byron Wear says he will vote in favor of the lease extension and is confident that it will be approved by the city council. "I think there's going to be some disagreement," Wear says. "Obviously there will be a little dissension. But my position is that we can't have the members of our youth community drawn through a long battle. The Supreme Court has ruled on this. I think it is permissible to continue our lease, and I would be very much in support of the extension of the lease for another 50 years. The city attorney has addressed the issue. I think most of this city council is very comfortable in moving forward with the lease for the scouts. I haven't counted votes or anything, but there is a comfort level."
When asked about the Boy Scouts' discriminatory polices, Wear responds, "I think that entire debate needs to go on within the scouts themselves. That's the appropriate place for that discussion. They need to decide what kind of organization they're going to be."
Along with Mayor Murphy and Councilman Wear, an anonymous source tells me that councilmembers Jim Madaffer, Brian Maienschein, and George Stevens will likely vote to approve the lease extension. That amounts to a majority.
Councilwomen Valerie Stallings and Toni Atkins are likely to be dissenters. On December 14, Stallings released this statement to me: "I recognize that the Boy Scouts of America is an outstanding organization that has positively affected the lives of many young men. However, in principle, I do not believe in leasing taxpayer land to an organization that discriminates."
In a prepared statement, new Councilmember Atkins, whose district includes Balboa Park, said, "I am opposed to discrimination in any form. Further, I believe the city needs to follow its established policy and requirements regarding leases of city-owned property."
Councilmembers know as well as opponents of the lease that on November 28, the Los Angeles City Council voted 11-0 to instruct all city departments to review their relationships with the scouts. Then, on December 5, the Los Angeles Police Commission counseled the Boy Scouts to end their discriminatory practices. The commission told the group that it might drop the scout-affiliated Explorer police-cadet program, which serves minority youths aged 14 to 21. The actions followed a warning by the Los Angeles City Attorney's office, which explained to city officials that any existing contracts with the Boy Scouts violated the city's antidiscrimination laws.
Talking about San Diego, Stephens says, "Not a single city of substance, not a single city that wants to be any kind of a player in the 21st Century is actually considering extending its relationship with a discriminatory organization. What we know is that the Boy Scouts have fought hard for their right to discriminate, so all hope of them coming around is lost."
Other cities have severed ties with the scouts since two recent court rulings upheld their right to discriminate. In 1998, the California Supreme Court ruled that the Boy Scouts are not a business and therefore are not subject to state antidiscrimination laws. In June, the U.S. Supreme Court ruled 5-4 that the Boy Scouts are a private, religious organization, thus sanctioning their antigay and anti-atheist policies.
Los Angeles, of course, is not alone. In response to the rulings, city and town councils, school districts, and private organizations all over the country have turned on the scouts. Most notably, a number of United Way chapters have decided to stop funding scout programs. In August, for example, the United Way of Massachusetts Bay, the largest of 30 United Way organizations in the state, redirected scout funding that amounted to $288,000. In California, United Ways in the Bay Area, Santa Cruz, and Silicon Valley have cut scout funding. Also, major corporations, like the Rhode Island-based drugstore chain CVS, stopped making annual donations to the scouts.
There has been a flurry of activity this December regarding the scouts' policy. School boards in Chicago and Madison, Wisconsin, voted either to sever their ties with the scouts entirely or to publicly denounce the organization's position. In Portland, Oregon, Wells Fargo and Portland General Electric both decided to cut scout funding. In Long Beach, Sheriff Lee Baca encouraged the Boy Scouts to agree to some sort of compromise that would allow him to support scout activities in good conscience. Churches, too, are condemning the scouts. In November, the United Congregational Church in Taunton, Massachusetts, rebuked the scouts' discriminatory practices. Even specific scout troops have defied the policy. For instance, Pack 43 of Corte Madera, in Marin County, sent a letter to the chief executive of the Irving, Texas-based Boy Scouts of America stating that it refused to discriminate based on sexual orientation. In October, the head of the Los Padres Council of the Boy Scouts, Leonard Lanzi, announced to Santa Barbara County supervisors, who were meeting to consider how to handle scout use of county land, that he was gay. The packed hearing room erupted in applause. (Ten days later, Lanzi was fired, and on December 6 he filed a discrimination suit against the Boy Scouts.)
Locally, as long ago as 1992, the Boy Scouts' refusal to let gays serve as troop leaders provoked the San Diego Police Department to sever its 25-year-old ties with the group and prompted the San Diego Human Relations Commission to call on the city to terminate its leases with the scouts.
Nevertheless, the San Diego City Council has continued to subsidize the scouts by leasing them land in Balboa Park for $1 per year and on Fiesta Island for free -- obviously far below market value. The ACLU filed its federal suit demanding that the city "terminate preferential lease agreements with the Boy Scouts for use of city park property." The lawsuit was filed on behalf of two families, the Breens and the Barnes-Wallaces, both of whom live in the city of San Diego. "The Breens," an ACLU statement explained at the time, "are agnostics who are unsure of the existence of God and who do not participate in organized religion." Their son, the suit claims, is "unable to take the Boy Scout oath, which avows a reverence for God," and so cannot participate as a scout on city land. The Barnes-Wallaces are a same-sex couple who also have a son.
"Even if the boys were able to avoid taking the scout oath...or revealing their parents' sexual orientation," the statement said, "each time the boys participated in scouting activities they would be reminded that their families are considered unfit by Boy Scout standards." What the suit claims, in other words, is that public land ceases to be open to all citizens when a discriminatory group sits on it.
San Diego's Howard Menzer, who is not a complainant in the case but who has spoken out on the issue before the city council, says that scout "standards" are no different from prejudice. Recalling the old South, and even Nazi Germany, Menzer says, "Right now, there's a sign outside scout headquarters, whether it's visible or not, that says, 'No gays allowed.' That's their standard, but it's really discrimination."
Menzer had been involved in scouting since 1945, locally since 1978. "I taught CPR to leaders so they could more safely take scouts into the woods," Menzer says. "I got out at the end of December 1999. I couldn't tolerate the situation anymore; I got tired of putting my head in the sand." Menzer says he was inspired by Eagle Scout Steven Cozza, the openly gay Petaluma boy who founded Scouting for All, a nonprofit organization made up of scouts, adult leaders, and concerned individuals "dedicated to ending the discrimination of the Boy Scouts of America towards gay, lesbian, bisexual, and transgendered youth and adults." Scouting for All advocates that the "Boy Scouts of America end its discrimination against girls and atheists."
The scouts do a lot of good for children, Menzer says, "However, discrimination is discrimination."
Cox disputes these arguments. First of all, he says, "To give the impression that everyone is coming down on us is not true. There is a vocal part of the public that is concerned, but by no means is it sweeping the country." Cox says he asked for the lease extension now so that he could reassure potential donors for building and improvement projects that the scouts will be staying on their land. Cox also says that after the suit was announced he received a lot of community support in the form of phone calls, letters, and money, including a generous check from a local businessman.
"The community is made up of all kinds of segments of folks," Cox argues. "The scouts are one segment. There are many other segments of practices and beliefs. For example, part of the city budget goes to groups that serve selective groups of the city. There are groups that serve just girls. There are groups that serve just veterans. Is that discriminatory? You bet it is. Why should the Boy Scouts be excluded from benefits? We choose not to have the homosexual lifestyle represented by our leaders. We're not violating the law. There's a difference between legal discrimination and illegal discrimination. The city position is that as long as the property is maintained according to the lease, there is no issue."
"Unfortunately," he adds, "it seems to be the politically correct cause of the day, and sometimes those things just pass. Most of our young people are under the age of puberty and don't know what we're talking about. It's only an issue for the adult part of the population that's trying to make it an issue."
Regarding the federal suit, Frank Devaney, the deputy city attorney litigating the case on behalf of the city, responds, "Our position is that this is a political issue, not a legal issue. The city council can, if they want to, sever ties, but it's not legally required to."
Stephens counters, "If it is indeed a political issue and not legal, then what in the world was the city council doing attempting to rule on these matters with the key member out of town? It was outrageous that they discussed this when Christine Kehoe was out of town."