The city of San Diego has decided that it’s time to cut its losses in the ongoing battle between the ACLU and the Boy Scouts of America (BSA) over the lease of public lands in Balboa Park. The ACLU filed suit against the Scouts in 2000, just months after the U.S. Supreme Court ruled that as a private organization that did not receive federal funding, the BSA could refuse to admit gays and atheists as troop members or leaders. The ACLU claimed that the BSA’s lease of 18 acres of public land in Balboa Park for one dollar a year showed favoritism toward a discriminatory religious organization.

In December of 2001, under the leadership of Mayor Dick Murphy, the city council voted to renew the BSA lease in Balboa Park for another 25 years — despite the pending lawsuit and the fact that the scouts’ current lease had not expired. After a lengthy discussion that included four hours of public comment both for and against the lease, the council voted, 6-3, to renew the lease. Only Toni Atkins, Ralph Inzunza and Donna Frye voted against the renewal.

Murphy rationalized his vote, saying that he did not agree with the Boy Scouts’ national policy against gays but that he supported renewing the lease because, “I am unwilling to punish 25,000 San Diego Boy Scouts in order to send a protest to national scout leaders in Texas.”

Donna Frye quoted the city’s very own human dignity ordinance as reason for her no vote. “It shall be the policy of the city council to consider for tenancy only those organizations whose memberships are open to the public and do not discriminate in any manner against any person.” In a nod to the Boy Scouts Oath, she went on to say, “When I joined this council I took an oath, an oath to uphold the laws of our city. To me, that means discrimination is unlawful and should not be subsidized. I will not be voting to renew the Boy Scouts lease in Balboa Park because that would violate my oath of office.”

In the two years since the council voted to renew the lease, the city attorney has worked alongside the Scouts, defending the lease in federal court only to have U.S. District Court Judge Napoleon Jones Jr. rule this past July, saying, “It is clear that the Boy Scouts of America’s strongly held private, discriminatory beliefs are at odds with values requiring tolerance and inclusion in the public realm.”

Jones added in his summary judgment that the City of San Diego’s lease of land to the BSA was in violation of the California State Constitution and the first amendment of the United States Constitution.

Now that the BSA appeal of that decision has failed in federal court, and with a decision still pending on the lease on Fiesta Island, the council has voted, 6-2, to settle with the ACLU and pull out of all future protests that the BSA may file on the lease issue. Under the agreement, San Diego will pay $790,000 of the ACLU’s legal fees — $160,000 in court costs.

“I am extremely pleased that the city decided to step out of this fight because I think we should not have been engaged in this from the very beginning,” Deputy Mayor Toni Atkins told the Gay and Lesbian Times. “Unfortunately, as a result of being in this fight for two years it will cost the taxpayers money. Frankly, had a majority of the council voted the way I voted in 2001 we would not be in the position where we would be writing a check to anyone.”

The two dissenting votes came from Mayor Dick Murphy and Jim Madaffer. Councilmember Brian Maienschein, who also voted in favor of the lease, was absent from council the day of the vote to settle with the ACLU.

“I disagreed with the settlement and voted against it,” Mayor Murphy said in his only released comments on the decision. “In my opinion, it is a bad idea both legally and financially.”

Madaffer, a scoutmaster, conceded that financially the vote to settle with the ACLU may be the correct one, but says he voted against it on principle.

“Potentially the city stood to end up paying millions more due to litigation costs the further down the road this suit goes,” Atkins noted. “On one hand the decision to settle with the ACLU had to do with the council, which was concerned with continuing to incur litigation and court costs in a case that seems very risky. We’re not sure the boy scouts will prevail.”

The Scouts have not settled, claiming that that their constitutional liberties are at stake. Already prepared to go to court later this year, the Scouts are heavily touting a letter of support from the U.S. Justice Department on the lease issue.

“Singling out the Boy Scouts for exclusion from such a program based on their viewpoint would raise serious First Amendment concerns,” wrote Eric W. Treene, special counsel for religious discrimination at the Justice Department, in response to a request for help from the Scouts. “The Civil Rights Division has an interest in participating in cases of this nature.”

George A. Davidson, the New York attorney representing the Scouts in the park dispute, says the Scouts deny any discriminatory practices and will argue that the city is now discriminating against the group because of its religious policies.

“The Boy Scouts cannot have it both ways. Having gone to great length to establish that discrimination against gays and non-believers is essential to their mission, and therefore protected by the First Amendment, they cannot now turn around and ask the people of San Diego to foot the bill for that discrimination,” said M.E. Stephens, the volunteer attorney representing the ACLU in the case.

The city council is already coming under fire for the decision to pull out of the lawsuit. Much of the local media attention has been focused on the nearly one million dollar settlement.

“I think everyone, because of the nature of the budget and our fiscal and financial situation here at the city, they spent most of their time asking about the money we are going to have to pay out,” Atkins said. “This is not an uncommon practice at the city to try to resolve potential lawsuits and litigation. We try to do this every single week. The money has become more of an issue than the nature of the policy issue.”

The council is also being hammered with calls from across the country from people who feel that the council should be fighting alongside the scouts to save the lease. Even conservative talk radio show host Roger Hedgecock has been urging listeners to protest the city council and donate money to the Boy Scouts to help the pay for the legal costs associated with the lawsuit.

“We are getting calls from all over the country,” Atkins said. “I looked at e-mails today from Florida, Ohio, Georgia, Louisiana and Washington to name just a few. We’re also getting calls from within the county, not just the city of San Diego, from people who are not happy with the council’s decision. This just shows you kind of the nature of this issue. It’s huge; the nation’s eyes are on San Diego right now. This is an extremely significant issue, not just in San Diego, but across the country.”

In response, the ACLU is asking residents from all council districts to contact their council representatives to thank them for the yes votes on the settlement decision.