Due to the hoopla over same-sex marriage, the media overlooked the Boy Scouts of America (BSA) defeat at the 9th Circuit Court of Appeals on June 11.

The Scouts had requested that the appellate court toss out the lawsuit filed against the City of San Diego and the BSA by a lesbian couple with two children and a self-declared agnostic family. Instead, the court certified to the California Supreme Court the question of whether the City of San Diego has violated the California Constitution by continuing to lease land at nominal cost to the BSA, which the Federal District Court, in 2003, found violated the federal Constitution because it gave direct aid to a religious group.

As a result of the 2003 decision, the City of San Diego settled with the plaintiffs and ended the lease agreement with the BSA. However, it continued to allow the BSA a month-to-month tenancy of 16 acres of Camp Balboa and the Mission Bay Park Youth Aquatic Center, for which the BSA manages reservations.

The BSA maintains that the camp sites are available to all and that it has not refused anyone a reservation, contending that, therefore, the families are “not suffering an injury.”

But two justices found that highly objectionable and injurious.

“Just as African Americans could ride on Montgomery’s buses, but not in the front, the Scouts permit [the lesbian and agnostic families] to make use of the Camp … but do not allow them to be members of their organization and participate in the activities conducted at the campus for members. In either case, use of a valuable public facility is made contingent on acceptance of imposed second-class status with a controlling organization’s social hierarchy,” wrote Justice Marsha S. Berzon.

“The offense [GLBT and non-religious people] suffer comes from having to interact with a group that excludes them, on the basis of personal characteristics which that group denigrates and to which it ascribes moral opprobrium.”

The court majority view is that gays and lesbians would hardly feel welcome at Camp Balboa and rightfully feel offended at the exclusion of gays and lesbians, since the families’ use of the land would require “passing by symbols of [the BSA’s] presence and dominion,” as the families asserted in their claim. Consequently, the court rejected the BSA’s argument that the two families involved are not injured.

Last year, the California Supreme Court ruled unanimously that the BSA’s policy of excluding gays meant the City of Berkeley was within its right to cancel its subsidy for berthing privileges at the city-run marina. And it doesn’t help the BSA that the Supreme Court has ruled same-sex families are entitled to equal treatment under the California State Constitution.

My concern is that the BSA and others will begin to press the City of San Diego to do what it did when it learned it could not keep the infamous cross atop Mt. Soledad. Rather than move the cross and correct the constitutional violation, the city sold it to a private group and then to the federal government. So don’t be surprised to see the Council sell Camp Balboa to a non-profit group that would continue to operate it as a park. And don’t be surprised if that group is the BSA.

Instead, City Attorney Mike Aguirre should declare the BSA’s presence “a public nuisance” and seek a court order removing it.