The Scouts, religion, and public space

Howard Bashman has links to several articles dealing with a recent argument, in the U.S. Court of Appeals for the Ninth Circuit, about a lower court's ruling that the Scouts are a "religious" organization and, therefore, San Diego's lease of camp space to the Scouts was unconstitutional.  (Here is Professor Friedman's post on the case, over at Religion Clause blog.)  Here is a bit from a news story in the San Diego Union-Tribune:

The case revolves around two elements of scouting: the organization's ban on gay troop leaders or members and its oath that requires a scout to “do my duty to God,” among other principles.

In his decision, Jones said the religious elements of scouting extend beyond the oath and include such things as saying grace before meals and having a program for religious emblems. He concluded that there was “overwhelming and uncontradicted” evidence that the scouts were a religious group.

Jones further decided that the city process of negotiating the lease was not a “religion-neutral” process – open to all – but instead gave exclusive treatment to the scouts. That meant the city effectively gave a preference to a religious group, he said.

The scouts argue that they are not a religious group. “The Boy Scouts of America has a fundamental element, a duty-to-God component,” said Robert Bork Jr., a spokesman for the national Boy Scouts of America and son of the former Supreme Court nominee. “But that does not make them a religious organization.”

In court papers, federal government lawyers support this position by describing the group as a “social and recreational youth organization dedicated to promoting good character, citizenship and personal fitness in boys.”