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By Dan Levine
SAN FRANCISCO, Dec 20 (Reuters) - The Boy Scouts of America can lease public land from the City of San Diego for a cheap rate, even though the scouts prohibit atheists, agnostics and homosexuals from becoming members, a U.S. appeals court ruled.
In an opinion on Thursday, the 9th U.S. Circuit Court of Appeals in San Francisco said two leases held by an organization chartered by the scouts do not violate the constitutional separation of church and state.
The Boy Scouts policy of denying membership to gay scouts and scout leaders has prompted protests and lawsuits. In 2000, the organization won a 5-4 U.S. Supreme Court ruling allowing the organization to ban gays, whose conduct, the Boy Scouts argued, violated its values. The Scouts reaffirmed the policy earlier this year.
In San Diego, an organization chartered by the Boy Scouts leases portions of two popular city parks to provide children with an urban camping experience. In exchange for spending money developing facilities on the land, the Scouts pay virtually no rent.
A group of plaintiffs who are either lesbians or agnostics sued, saying they would use the land leased by the scouts but for the organization's discriminatory policies.
A lower court judge found the leases unconstitutional, but on Thursday a unanimous three judge 9th Circuit panel reversed the decision. The city has leased 123 parcels of land to nonprofit agencies, the overwhelming majority of which are secular in nature, the court wrote, and 96 of those leases require no payment of rent.
"The city's practice of leasing its lands is by no means occasional or targeted in favor of sectarian organizations," it wrote.
M. Andrew Woodmansee, an attorney for the plaintiffs, said they were reviewing the court's opinion and considering all options for further appeal.
Deron Smith, a spokesman for the Boy Scouts, said the organization would continue to focus on serving local communities. "We appreciate the court's thoughtful and comprehensive analysis of this matter," Smith said.
The case in the 9th Circuit is Barnes-Wallace vs. Boy Scouts of America, 04-56167. (Reporting By Dan Levine; editing by Andrew Hay and David Brunnstrom)