Robert Knight

The Ninth Circuit U.S. Court of Appeals in San Francisco has a well-earned reputation as the hippiest, dippiest, most-reversed appellate court in these United States.

It’s where the Pledge of Allegiance gets scrutinized for possible eradication, at least, the “under God” part. But every so often, the Court gets something right.

On December 22, a unanimous Ninth Circuit panel reversed a federal district judge’s order to evict the Boy Scouts from their longtime camp and local headquarters in San Diego’s Balboa Park. The ruling came in a case filed by the American Civil Liberties Union (ACLU) in 2001 on behalf of a lesbian couple and an agnostic couple, who basically accused the Boy Scouts of holding traditional values.

In 2003, federal District Judge Napoleon A. Jones Jr. ruled that the Boy Scouts were a religious organization  and therefore ineligible for a public lease.  Judge Jones somehow ignored the Supreme Court’s Dale decision in 2000 upholding the Scouts’ right to their own moral standards.  He also ignored the First Amendment’s religious freedom guarantee.

Facing mounting legal costs, the weasel San Diego City Council bailed in 2004, agreeing to pay their tormentors nearly $1 million in legal fees.  The Scouts stayed on the property and fought on, and although the Scouts finally prevailed, the Ninth Circuit’s opinion makes it clear that the case should have been tossed on arrival, not hanging over the Scouts for 11 years like a sword of Damocles.  None of the plaintiffs or their children ever actually tried to use the facilities and had no demonstrable “harm.”

The Court initially erred in concluding that the Scouts had barred the plaintiffs from using the property – giving the couples standing – and the case went forward. However, the plaintiffs admitted that they had not tried to use the facilities because they break out in hives if they’re within a canoe’s length of anyone in a neckerchief.  They didn’t put it this way, but that’s the gist. 

In a concurring opinion, the Ninth’s Judge Andrew J. Kleinfeld wrote, “Revulsion for a group so intense that one cannot bear to be on property they manage cannot, in a tolerant society, be deemed harm sufficiently concrete as to confer standing to sue.”

That’s a relief, because otherwise, people could sue every time they’re annoyed by someone with a contrary opinion. Come to think of it, that’s pretty much the Left’s overall approach to dismantling the First Amendment in the name of “tolerance.”


Robert Knight

Robert Knight is an author, senior fellow for the American Civil Rights Union and a frequent contributor to Townhall.