The Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, Michigan, and the Alliance Defense Fund (ADF) joined forces to file a friend of the court brief asking the United States Supreme Court to overturn a decision by the Ninth Circuit Court of Appeals penalizing San Diego Boy Scouts because of their “morally straight” values.
At issue in the case are leases from the City of San Diego allowing the San Diego Boy Scouts to build and operate campgrounds and an aquatic center for use by the Scouts and the public. Lesbian and agnostic couples, who had never visited the facilities, sued the Scouts on a claim that they felt offended by the fact that the City leases the public property to a “morally straight” organization such as the Boy Scouts. There were no religious symbols at the facilities.
Richard Thompson, President and Chief Counsel of the Thomas More Law Center commented, “We are pleased to join forces with ADF in this is important case to protect the Boy Scouts of America. Radical homosexuals are attempting to use every means possible to destroy the Scouts despite a recent U.S. Supreme Court decision that recognized their First Amendment right to have a morally-based policy excluding homosexual involvement.”
According to the Scout Oath, a Boy Scout is “to do duty to God and country… and to keep morally straight.” The lawsuit against the Scouts was brought by a self-proclaimed “agnostic” couple and a lesbian couple.
The initial three-judge panel of the Ninth Circuit that heard the case dismissed the lawsuit, finding that the couples lacked standing to sue because “offended observers” do not have a real injury in fact. That decision was subsequently reviewed by an en banc panel of the Ninth Circuit, which reversed in favor of the agnostic and lesbian couples. The Boy Scouts are asking the Supreme Court to review the decision.
In their friend of the court brief, TMLC and ADF argued that the Ninth Circuit’s permissive standing rule, which is essentially a permissive ideological standing rule since the agnostics and lesbians suing the Scouts never “observed” anything, represents a new threat for faith-based organizations that choose to cooperate with the government in establishing public benefit programs. Litigants in the Ninth Circuit can now challenge programs like San Diego’s with nothing more than general offense at a tenet of an organization’s mission. So long as a person feels unwelcome by the private groups’ beliefs – without any exposure to religious symbols or denial of any services – he can sue to have the program declared unconstitutional.
According to their brief, TMLC and ADF argued that the ideological standing authorized by the Ninth Circuit’s decision would significantly impact faith-based groups’ cooperation with government to provide much needed social services. Consequently, the overarching effect of the Ninth Circuit’s decision is a new type of hostility to religion, where government excludes religious groups from programs simply because officials fear being sued. This new hostility is a significant public detriment because it erodes faith-based groups’ provision of much-needed public services. The brief concluded by noting that the permissive standing rule adopted by the Ninth Circuit combined with the unpredictable Establishment Clause jurisprudence of the Supreme Court forces government to steer away from cooperative efforts with faith-based organizations to the public detriment.