Yet the latest suit against the Boy Scouts for having principles.
A pair of couples, one lesbian and another agnostic, challenged a lease the Scouts signed with the city of San Diego allowing them to operate recreational facilities on park land. They said the deal violated the Establishment Clause because of the Scouts' professed reverence of God. In addition, they said they were averse to using the facilities because of the Scouts' stated policy of excluding gays and atheists.
The district court agreed during pretrial motions and the Scouts appealed. In June, a 9th Circuit panel led by Judge Marsha Berzon granted standing to the plaintiffs, over the objections of Judge Andrew Kleinfeld. Senior Judge William Canby Jr. tilted the decision against the Scouts.
"Just as African-Americans could ride on Montgomery's buses, but not in the front, the Scouts permit plaintiffs to make use of Camp Balboa and the Mission Bay Park Youth Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members," Berzon wrote. "In either case, use of a valuable public facility is made contingent on acceptance of imposed second-class status within a controlling organization's social hierarchy."
The panel certified questions to the California Supreme Court, but that had to wait for the en banc vote. A group of conservatives -- led by Judge Diarmuid O'Scannlain -- protested the full court's denial.
There's an interesting legal theory at play: the right not to have your feelings hurt.
Lawsuits should only be available to plaintiffs with concrete injury, O'Scannlain wrote.
"Rather, the claim here is that the families are psychologically injured by the thought of associating with the Boy Scouts; they contend that they would be offended by the Boy Scouts' views if they chose to use the parks," he wrote. "This is an unprecedented theory."
If I use a park and there's an anti-Bush protest, I would be offended. If a bunch of atheists held a camp that specifically excluded Christians, I might be offended. If the Catholic church held a fun day in the park that excluded protestants, I might be offended. But you don't have a right to an umbrage-free existence. At least, not yet.
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