A lesbian couple and an agnostic couple in San Diego have legal standing to sue the Boy Scouts to force the group to stop using prime city land for camping and other scouting activities.

The US Supreme Court on Monday let stand an earlier ruling by the Ninth US Circuit Court of Appeals, which sided with the two couples. The couples object to Boy Scout policies that exclude boys and adults who are atheists, agnostics, or homosexuals.

In refusing to take up the Boy Scouts’ appeal, the high court action returns the case to the San Francisco-based Ninth Circuit.

The action follows last week’s high court decision in a similar case involving objections to an eight-foot-tall cross on public land in the Mojave National Preserve.

In that case, the court found that a former National Park Service employee had a legal right to file a lawsuit challenging the presence of the cross on public land as an unconstitutional endorsement of religion by government.

But the court also ruled that a federal judge had been too quick to dismiss a congressional plan to convert the public land around the cross into a private parcel in exchange for similar land elsewhere. The court went on to say that not every display of a religious symbol on public land violates the First Amendment’s establishment clause.

The details of the case

In the San Diego case, a federal judge has ruled that a $1-a-year lease arrangement between the City of San Diego and the Boy Scouts for a Boy Scout-run campground and aquatic center violated the establishment clause.

The judge ruled that the Boy Scouts were the equivalent of a religious group, in part because the Boy Scout oath urges its members to do their “duty to God and [their] country.”

The Boy Scouts have been the target of a series of similar lawsuits seeking to drive the organization from public lands and public facilities because of its anti-gay policies.

In 2000, the Supreme Court ruled that the Boy Scouts had a First Amendment right to associate with like-minded individuals in a group that promoted certain religious and moral views – including that homosexuality was immoral.

Personal injury or contrived claim?

At issue in Boy Scouts v. Barnes-Wallace was whether the two couples had established a right to file their lawsuit by showing that the legal action was based on more than just a policy dispute.

Under federal court rules, a plaintiff in a lawsuit must show that he or she has suffered a concrete, personal injury rather that a mere difference of opinion.

The Boy Scout campsite and aquatic center were built by the scouting organization for an estimated $4.9 million. In addition to providing scouts with a place to camp and participate in water activities, the facilities are also open to the public for a fee.

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 parks.

Lawyers for the couples say their clients are personally affected by the Boy Scout leases because the required public access fees “amount to a toll payable to a discriminatory, religious organization to use public property.”

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.”

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.

Fireworks in the Ninth Circuit

Although the Supreme Court dismissed the case without comment, the issue sparked vigorous debate when it was decided earlier at the Ninth Circuit.

“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,” wrote Judge Diarmuid O’Scannlain in a dissent. He added 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.”

In a concurrence to the Ninth Circuit opinion, Judge Marsha Berzon rejected suggestions that the dispute was a minor “disagreement.”

She wrote: “There is not merely offense here but injury too. To use Camp Balboa and the Mission Bay Park Youth Aquatic Center, the plaintiffs must not just observe the presence of the Boy Scouts, but also interact with, seek permission from, and quite significantly, pay fees to, this same organization that believes them inferior in both morals and citizenship.”

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