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Like the Grinch who stole Christmas, the ACLU is trying its best to prevent San Diego youths from enjoying camping and other outdoor activities at Camp Balboa and the Youth Aquatic Center, facilities run by the Desert Pacific Council of the Boy Scouts of America on land leased from the city of San Diego. In June 2000, the U.S. Supreme Court ruled against the ACLU in Boy Scouts of America v. Dale after a decade of harassing litigation, upholding the Boy Scouts’ right to hold and enforce beliefs as an organization. Instead of leaving the Boy Scouts alone, the ACLU, in concert with local gay rights activists, took a different tack. In August 2000, just two months after the Dale decision was issued, the ACLU commenced a vindictive lawsuit to kick the Boy Scouts out of Balboa Park and off of Fiesta Island.

The ACLU’s latest position is that, as punishment for professing a belief in God, the Boy Scouts must be evicted from public property. Unfortunately, and incredibly, the ACLU has managed to convince a federal district judge to accept its extremist position, and in a pair of decisions — the first issued on July 31, 2003, and the second on April 12, 2004 — U.S. District Judge Napoleon Jones became the first jurist in America to rule that a city must discriminate against a non-profit organization for professing a belief in God. What would the Founding Fathers think?

Judge Jones’ ruling will undoubtedly be reversed on appeal, but at great expense to the Boy Scouts, who have been abandoned by a feckless and cowardly city council, which caved into the ACLU in the middle of the case and agreed to pay the ACLU’s “pro bono” attorneys nearly a million dollars in costs and fees. The Boy Scouts will have to sell a lot of popcorn to overcome the ACLU’s taxpayer-funded war chest, yet may not be able to recover its own attorneys fees from the ACLU when it ultimately prevails. Only San Diego Mayor Dick Murphy and Councilman Jim Madaffer courageously voted against this quisling settlement.

I must confess to having a personal interest in this litigation. I am active as a volunteer in my sons’ Cub Scout pack and Boy Scout troop. I have camped overnight at Balboa Park. Last summer, I spent a week with my older son’s Boy Scout troop at summer camp on Fiesta Island, enjoying the facilities at the Youth Aquatic Center, which was financed (unlike Petco Park, without taxpayer funding), built, and operated by the Desert Pacific Council. Using boats, instructors and equipment provided by the Desert Pacific Council, the boys learned how to sail, canoe, kayak and safely operate a motorboat. They swam, earned merit badges and performed skits and sang songs around a campfire at night. For a week they enjoyed the outdoors and each other’s camaraderie, without television, PlayStations, MTV or Discmans. They interacted with diverse visitors from other cities and states. They had a great time, as users of the Youth Aquatic Center (which is open to the public) have for more than a decade.

Other than the staff leading the boys in non-denominational grace before meals, a nonsectarian ritual as casual and inoffensive as the reference to God on our currency, in our Pledge of Allegiance, in the Declaration of Independence, and on many public buildings and monuments, I witnessed nothing that week that any rational person would characterize as “religious.” It was simply Boy Scout summer camp, an experience as wholesome and American as apple pie.

Judge Jones’ ruling, however, rests on the remarkable premise (argued by the ACLU) that the Boy Scouts — solely because of their belief in God — is a “religious organization,” and that by allowing the Scouts to lease a half-acre parcel on Fiesta Island to operate the Youth Aquatic Center, on the same economic terms extended to other nonprofit groups, the city of San Diego is “advancing religion” and “religious indoctrination.” Therefore, Judge Jones concluded, the lease is invalid and the Scouts must be evicted, despite having invested millions of dollars in capital improvements.

With all due respect to Judge Jones, this position is absurd, and amounts to intolerance of and discrimination against religious belief, an affront to the First Amendment unsupported by Supreme Court precedent. As the U.S. Department of Justice succinctly stated, “The Boy Scouts of America is not a church, and canoeing, kayaking and swimming are not religious activities.”

Tellingly, Judge Jones refused to allow the DOJ’s Civil Rights Division to file a “friend of the court” brief in support of the Boy Scouts, ruling that the federal agency entrusted with enforcing the nation’s civil rights laws did not have a sufficient interest in the lawsuit to warrant filing a brief.

The Justice Department will join the Boy Scouts in seeking reversal of Judge Jones’ outrageous decision, which threatens the principles of tolerance and pluralism that undergird a free society. In the meantime, the Boy Scouts will have to allocate their limited resources to defend the ACLU’s frivolous and mean-spirited litigation, at the expense of serving its youth members.

In an Orwellian slip, Jordan Budd, the ACLU’s legal director in San Diego, reportedly said that the Boy Scouts “could resolve the issue and stay on Fiesta Island and in Balboa Park if they changed their policy,” i.e., if they abandoned their belief in God and opposition to homosexuality. This is a blatant (and despicable) attempt to coerce an organization to repudiate views that are protected by the First Amendment and shared by an overwhelming majority of the public.

According to the ACLU, only groups who profess “acceptable” beliefs have civil rights; those who don’t (such as the Boy Scouts) must be ostracized and treated like pariahs, at least until they abandon their core principles. Bullying timid local governments into submission smacks of censorship — a Taliban-like intolerance for opposing points of view. For reasons that I cannot fathom, the ACLU, which zealously defends the free speech rights of reprehensible groups such as the KKK, the Nazis, and the North American Man/Boy Love Association, is on a crusade against the Boy Scouts, one of this country’s most venerable and worthwhile organizations, solely because it professes a belief in God. The ACLU’s dubious victory before Judge Jones will be short-lived, because the Constitution does not condone viewpoint discrimination, nor does it permit people of faith to be relegated to second-class citizenship. When will the ACLU stop picking on the Boy Scouts and recognize that, as Justice William O. Douglas stated in 1954, “We are a religious people whose institutions presuppose a Supreme Being”?

Judge Jones conceded that his ruling “does not question the benefit provided by the Boy Scouts to the City of San Diego and the community at large resulting from the Fiesta Island lease. The BSA-DPC constructed and maintained a youth aquatic center at its own expense on public parkland.” What is so important about preventing kids from enjoying what the Boy Scouts have to offer? Is the ACLU so hostile to religious belief that they would prefer to have children hanging out at the shopping mall, exposed to the influence of gangs and drugs, rather than camping, swimming and canoeing at facilities operated by the Boy Scouts? If the ACLU succeeds in kicking the Boy Scouts off of Fiesta Island (and out of Balboa Park), the people of San Diego will be worse off, and the youths who enjoy those facilities — not just the Boy Scouts, but users of the Youth Aquatic Center such as the YMCA, Girl Scouts, Sea Camp, Camp Fire Girls and area high schools — will suffer the most.

This litigation must be seen for what it really is — an attempt by a small but very vocal atheist (or agnostic) minority to impose its ultra-secularized, religion-free will on a predominantly religious majority. The ACLU, despite its lofty rhetoric and noble-sounding name, is trying to stifle all forms of religious expression, and to drive dissenters from the public square. The Boy Scouts are in the ACLU’s crosshairs today, but tomorrow it could be the Salvation Army, religious charities, or your local church or synagogue. It is not just the Boy Scouts, but all Americans who cherish freedom, that have a stake in this fight.

Mark Pulliam is an attorney in private practice in San Diego.

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