Other cities have rejected agreements with the Scouts, while San Diego bucked the trend and embraced their Scouts agreement. Meanwhile, the federal government has gotten involved in the San Diego vs. the Scouts drama. What gives? “San Diego is an extremely unusual posture for the case, because in the other cases the cities have rejected the Scouts and in San Diego the Scouts were embraced, at least before the time of the settlement,” says ACLU allied attorney M.E. Stephens of the Federal Court trial that eventually decided that the Boy Scouts of America’s lease with the City of San Diego was unconstitutional. “The city has since gotten on the right side of the issue, but prior to that the posture was unusual because the city was embracing the Scouts as opposed to rejecting them. In most of the other cases it’s the Scouts suing to get back their subsidies, whereas here we had to sue to end the subsidy.”

San Diego was indeed bucking a trend started by cities like Los Angeles, San Francisco, Minneapolis and Boston – all cities that publicly denounced discrimination and severed ties with the Boy Scouts of America over their Supreme Court-awarded right to discriminate.

“All of the 21st century cities, as we report to be, have rejected the Scouts discrimination,” says Stephens, adding that in America’s Finest City, “they are in a position of holding on to the subsidy and not having to fight to get it back.”

More importantly, what San Diego did was provide the Scouts with a test case in the event that their lease was terminated as a result of a court decision.

In his opening arguments before the Ninth District Federal Court, George Davidson, of the New York-based Hughs, Hubbard and Reed law firm that defended the Boy Scouts before the Supreme Court, set the stage for a test case and appeal. Davidson made the point that it was only fair that the city negotiate with the Boy Scouts because they also have agreements with Jewish groups and the Salvation Army, both of which discriminate on religious grounds, as well as with the Girl Scouts which, he added, discriminates based on gender.

Since Judge Napoleon Jones’ ruling that began the termination of the City of San Diego’s lease with the Scouts, Davidson has vowed to appeal the decision, claiming that the court and the city are now in violation of the Scouts’ First Amendment rights to freedom of religion and their right to discriminate.

Siding with the Scouts in the battle to retain their lease is none other than the U.S. Department of Justice.

“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.”

The Department of Justice specifically cited a case in Illinois that involved the federal government as a defendant in a local lawsuit against the Boy Scouts of America.

“I think, at least from the Department of Justice [DOJ] and the President’s standpoint, I think they do have a political agenda that they are trying to insert themselves into the litigation,” Stephens has said of the involvement of the DOJ in the case. “I obviously couldn’t have the faintest idea what President Bush is thinking, but you know it seems to me that he is trying to press and protect his faith-based initiatives ideas.”

It seems it wouldn’t be the first time the President made a play to secure the rights of an organization that openly discriminates to receive federal funds under the guise of his faith-based initiatives.

In 2001, while Bush was trying to shore up support for his faith-based initiatives, the Washington Post published a Salvation Army document that said the White House had “committed” to changing the eligibility criteria for federal funding in order to shield religious groups like the Boy Scouts and Salvation Army from state and local laws prohibiting anti-gay hiring practices.

“This kind of backroom deal, this quid pro quo arrangement that would allow religious organizations to circumvent civil rights laws enacted by elected officials in state and local municipalities is reprehensible,” commented Winnie Stachelberg, political director of the Human Rights Campaign, when the news broke.

The document suggested that the Salvation Army believed the assurance of funding had been given in exchange for its promise to support Bush’s proposed faith-based initiatives. The faith-based initiative would allow religious groups to compete for $24 billion in new federal grants and tax deductions for charitable institutions that provide services, such as drug and alcohol abuse treatment, job-training, housing and after-school programs.

The Salvation Army was looking for assurances that state and local governments would not be able to restrict organizations with anti-gay hiring practices, including the Boy Scouts of America, from receiving federal grants.

“I think that what it is all about [is] Bush’s faith-based initiatives and wanting to protect the legal basis to do those,” Stephens added. “Because the Scouts are a religious organization, he’s got to protect them in order to continue pushing the religious agenda under the smokescreen so that it looks secular, but in fact isn’t.”