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Appeals court: Boy Scouts can lease public land despite ban on gay members

SAN FRANCISCO -- A federal appeals court on Thursday said that two leases held by the Boy Scouts of America do not violate the constitutional separation of church and state, despite the Scouts' policies that prohibit atheists, agnostics and homosexuals from becoming members.

In San Diego, an organization chartered by the Boy Scouts leases portions of two popular city parks, and in exchange for spending money developing facilities on the land, the Scouts pay virtually no rent.

A lower court judge found the leases unconstitutional, but on Thursday a unanimous three judge panel on the U.S. Court of Appeals for the Ninth Circuit reversed that decision.

The city has leased 123 parcels to non-profit agencies, the overwhelming majority of which are secular in nature, the court wrote, and 96 of those leases require no payment of rent.

"The city's practice of leasing its lands is by no means occasional or targeted in favor of sectarian organizations," the court ruled.

“There is no evidence that the city’s purpose in leasing the subject properties to the Boy Scouts was to advance religion, and there is abundant evidence that its purpose was to provide facilities and services for youth activities,” wrote Judge William C. Canby Jr., appointed by former President Jimmy Carter, for the unanimous panel.

The decision stemmed from a lawsuit brought by a lesbian couple and an agnostic couple, who said the leases of public land to groups that discriminate violated both the state and federal constitutions.

M. Andrew Woodmansee, an attorney for the plaintiffs, said they were reviewing the court's opinion and considering all options for further appeal.
Deron Smith, a spokesman for the Boy Scouts, said the organization would continue to focus on serving local communities.

Toni Atkins, Majority Leader of the California Assembly, helped lead the fight against renewing the Boy Scouts lease at Balboa Park. The San Diego Democrat was unhappy with the appeals court decision.

“The court told the children of San Diego that discrimination against them and their families based on sexual orientation or religious practice is ‘incidental.’ I could not disagree more,” Atkins said.

“In the decade since this case was first filed, Americans have increasingly embraced LGBT families. Our government should do no less. However, just because a court says you can do something, doesn’t mean you should do it. I hope that the current city leadership will find ways to affirm the value of all boys and to welcome them in all taxpayer-funded parks.”

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