San Diego - Addressing the last outstanding issues in a lawsuit challenging the constitutionality of exclusive preferential leases for use of public park land between the Desert Pacific Council of the Boy Scouts and the City of San Diego, a federal district court has found that the lease for free use of aquatic park land on City- owned Fiesta Island is unconstitutional.

This ruling is added to a virtually identical ruling with respect to a lease for land in City-owned Balboa Park and becomes the final judgment in this case. The court said the city had violated the constitutional requirement of separation of church and state by granting these preferential and exclusive arrangements for use of public resources to the Boy Scouts, a self-described religious organization that discriminates on the basis of religious belief and sexual orientation.

The lawsuit was brought by the ACLU of San Diego & Imperial Counties, ACLU cooperating law firm Stock Stephens LLP, and their co-counsel Morrison & Foerster on behalf of an agnostic couple and a lesbian couple. "For four years our clients stood up to the City and to the Scouts because public parks should never be used for discrimination," says Mark Danis, partner with Morrison and Foerster. "Judge Jones correctly found that the City violated the separation of church and state by anointing a religious organization to lease Fiesta Island to the exclusion of all others.

Even the City has now done the right thing by settling this case and choosing to uphold its policies against discrimination and religious preference. This has been a long road, but we are gratified that the City's parks now are open to all San Diegans."

The court ruling cited a number of factors which led to its determination that the Fiesta Island lease process was not open and neutral. The fact that no bids from any other organizations were ever invited by the City, that no other organizations were involved in the lease negotiations, and that the Scouts were granted exemptions from the City's non-discrimination policy and other applicable City rules and policies all led the court to the conclusion that the City had violated the Establishment Clause of the federal constitution and No Aid and No Preference clauses of California constitution. These constitutional provisions require government to be neutral with respect to religion.

"Today, our clients, and all people who care about equality, have been vindicated," says ACLU volunteer attorney, M.E. Stephens of the law firm Stock Stephens, LLP.

"After a lengthy process, the court has ruled that the City of San Diego cannot make our clients second class citizens by providing public benefits to a discriminatory organization that excludes them. Now, all San Diegans can freely and equally enjoy all of San Diego's beautiful public parks."

The lawsuit was filed on behalf of two couples. The Breens are agnostic and the Barnes-Wallaces are lesbians. Both couples have sons of Scouting age and are excluded from participation in Scout programs. The court's action will trigger a clause in the Scouts' Balboa Park lease that provides for that lease to terminate on the day a court enters a final judgment invalidating the lease. Now that the court has ruled on all issues in the case, a final judgment has been entered. Under the terms of an earlier settlement agreement between the ACLU and the City, the City must now send the Scouts a letter notifying them of the termination of the Balboa Park lease.

"Today's decision affirms the fundamental principle that government may not favor a discriminatory religious organization," says ACLU legal director Jordan Budd. "When government endorses a particular religious viewpoint, as the City plainly has done through its preferential treatment of the Boy Scouts, it undermines the values of tolerance and inclusiveness that are at the core of our constitutional system."

The lawsuit is Barnes-Wallace v. Boy Scouts, case # 00cv1726J.

Written by the American Civil Liberties Union of San Diego & Imperial Counties