The ACLU remembers Barnes-Wallace v. City of San Diego and the fight against the Boy Scouts’ discrimination against LGBTQ families

By Edward Sifuentes

Earlier this year, the Boys Scouts of America announced a significant step towards becoming more inclusive. It said in a statement on Jan. 30 that transgender children would finally be able to join the nation’s largest and most widely recognized youth scouting organization.

The move follows other important announcements by the Boy Scouts in recent years, including the 2013 decision to admit openly gay scouts and 2015 decision to welcome openly gay scout leaders.

These civil rights advances did not come without a fight. The Boys Scouts of America was sued repeatedly by many groups and individuals over the years, including the ACLU of San Diego and Imperial Counties in 2000.

In that case, the ACLU argued that the subsidized leases the City of San Diego was providing to the Boy Scouts at Balboa Park and Fiesta Island were unconstitutional because the nonprofit did not allow gays and atheists to join.

For decades, the Boys Scouts of America banned gays saying “we believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts.”

Despite its blatant discrimination against gays and others, the City of San Diego granted the Boy Scouts exclusive use of 18 acres of prime property in Balboa Park for $1 a year since 1957, and free use of the aquatic facility on the city-owned Fiesta Island in Mission Bay through preferential leases since 1987.

The ACLU lawsuit was filed on behalf of two San Diego families, the Breens and the Barnes-Wallaces and their scout-age sons. The Breens, agnostics who did not participate in organized religion, and the Barnes-Wallaces, a same-sex couple were avid users of Balboa Park - except the area under Boy Scout control. Their sons wanted to be scouts, but couldn’t join - Max Breen, because he was be unable to take the Boy Scout oath, which avows a reverence for God; Mitchell Barnes-Wallace, because his parents were lesbians whom the Scouts did not consider to be "morally clean." The ACLU argued that the leases violated Constitution’s Establishment Clause and Equal Protection Clause “by endorsing, supporting, and promoting defendants’ discrimination.”

In July 2003, Federal District Court Judge Napoleon Jones ruled that the Balboa Park lease violated First Amendment guarantees of separation of church and state. But when the case was appealed to the Ninth Circuit in 2012, the court reversed the decision in favor of the Boy Scouts, ruling “[t]here is no evidence 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.”

The following year, the plaintiffs decided not to appeal the ruling, ending the suit. Even so, the mounting pressure of lawsuits like it and more progressive cultural norms led to changes in Boys Scouts policies.

The Boys Scouts’ decision to welcome transgender youth is a huge step and worthy of celebration. But the organization still unjustly discriminates against atheist and agnostic youth – a reminder that the struggle continues, as does the ACLU’s efforts to advance the rights of marginalized individuals now and in the future.

Edward Sifuentes is Senior Communications Strategist for the ACLU of San Diego and Imperial Counties.