The Ninth District Circuit Court has thrown out the Boy Scouts’ appeal of a ruling that declared the Boy Scouts’ lease of land in Balboa Park unconstitutional. The ACLU originally sued the city and the Boy Scouts over the Balboa Park lease in August 2000 because of the Scouts’ discriminatory policy. In July, U.S. District Judge Napoleon Jones Jr. ruled that the Boy Scouts’ lease of the 18-acre Camp Balboa violated the constitutional separation of church and state.

Jones said there was “overwhelming and uncontradicted evidence” showing that the Scouts are a religious organization. But he refused to rule on the legality of the Scouts’ free use of a half-acre on Fiesta Island, saying he hadn’t seen enough evidence to make a ruling.

In a preemptive move, the Scouts filed what is called an interlocutary appeal, an appeal on a single issue in the middle of the ongoing case. The Ninth District Court dismissed the suit last week, calling it premature, because the issue of Fiesta Island had not been decided. Traditionally, such an appeal does not carry much weight, but the dismissal does add to the validity of the ACLU’s stance in the case.

“On a couple of different levels, it means that it was an unnecessary delay tactic on the part of the Scouts,” M.E. Stephens, a member of the ACLU’s trial team told the Gay and Lesbian Times. “That’s sort of level one, and level two is … the appeal was premature and because it was premature we filed a motion to dismiss and the court granted our motion. So it terminated the appeal and it sends it back to the trial court to finish up the remaining issues that Judge Jones has not yet ruled on.”

The San Diego City Council had voted to stay out of the interlocutary appeal, but will be participating in the remainder of the trial regarding Fiesta Island and the issues of equal protection that still have to be decided in the case.

The case now returns to Judge Jones, who will set a trial date to decide on the remaining issues. If he rules against the Scouts again, they will likely appeal the two issues and are likely to return to the Ninth Circuit. Despite the possibility of an appeal though, the ACLU team is looking at the decision as a victory that moves them one step closer to their final goal.

“It does feel like it’s in the final leg,” Stephens said. “We had a huge victory in that Judge Jones has already ruled the Balboa Park lease unconstitutional. That’s a significant victory; hopefully it signals where we’re going in terms of the trial. Between that and having our motion to dismiss granted, it’s a good holiday gift.”