ADF Alliance Alert

Religion Clause Blog reports: “The complex journey through the courts continues in a challenge to the City of San Diego’s leasing, at nominal rentals, to the Boy Scouts city property on which the Scouts operate a campground and aquatic center.”

The plaintiffs claim they avoid using the parks in question because they are “offended by the Boy Scouts’ exclusion, and publicly expressed disapproval, of lesbians, atheists and agnostics.” Is offended observer status sufficient to confer federal standing to sue?

Yesterday’s 3-1 opinion certifying several questions to the California Supreme Court is here: Barnes-Wallace v. Boy Scouts, No. 04-55732 (9th Cir., June 11, 2008).

The majority opinion by Judge Canby Jr. joined by Judge Berzen begins:

We respectfully request the California Supreme Court to exercise its discretion and decide the certified questions presented below. See Cal. R. Ct. 8.548. The resolution of any one of these questions could determine the outcome of this appeal and no controlling California precedent exists. See id. We are aware of the California Supreme Court’s demanding caseload and recognize that our request adds to that load. But we feel compelled to request certification because this case raises difficult questions of state constitutional law with potentially broad implications for California citizens’ civil and religious liberties.

Considerations of comity and federalism favor the resolution of such questions by the State’s highest court rather than this court.

I. Questions Certified

The Desert Pacific Council, a nonprofit corporation chartered by the Boy Scouts of America, leases land from the City of San Diego in Balboa Park and Mission Bay Park. The Council pays no rent for the Mission Bay property and one dollar per year in rent for the Balboa Park property. In return, the Council operates Balboa Park’s campground and Mission Bay Park’s Youth Aquatic Center. The campground and the Aquatic Center are public facilities, but the Council maintains its headquarters on the campground, and its members extensively use both facilities. The Boy Scouts of America — and in turn the Council — prohibit atheists, agnostics, and homosexuals from being members or volunteers and require members to affirm a belief in God.

The plaintiffs are users of the two Parks who are, respectively, lesbians and agnostics. They would use the land or facilities leased by the Desert Pacific Council but for the Council’s and Boy Scouts’ discriminatory policies.

We certify to the California Supreme Court the following questions:

1. Do the leases interfere with the free exercise and enjoyment of religion by granting preference for a religious organization in violation of the No Preference Clause in article I, section 4 of the California Constitution?

2. Are the leases “aid” for purposes of the No Aid Clause of article XVI, section 5 of the California Constitution?

3. If the leases are aid, are they benefitting a “creed” or “sectarian purpose” in violation of the No Aid Clause?

The California Supreme Court is not bound by this court’s presentation of the questions. We will accept a reformulation of the questions and will accept the Supreme Court’s decision. To aid the Supreme Court in deciding whether to accept the certification, we provide the following statement of facts, jurisdictional analysis, and explanation.

Circuit Judge Kleinfeld dissented from the majority and wrote:

I respectfully dissent.

We issued a previous order in this case.1 I dissented, on the ground that the plaintiffs lacked standing.2 The Boy Scouts petitioned for rehearing, and the majority now issues an order with a quite different standing analysis. Without standing, there is no federal jurisdiction, and no authority to certify. Surprisingly, the majority now bases standing on a theory the majority expressly rejected the last time around.

The new theory is that the plaintiffs would like to use the parks but “avoid doing so because they are offended by the Boy Scouts’ exclusion, and publicly expressed disapproval, of lesbians, atheists and agnostics.”3 The theory is that the plaintiffs suffer “emotional harm and the loss of recreational enjoyment”4 because they “do not want to view signs posted by the Boy Scouts or interact with the Boy Scouts’ representatives in order to gain access to the facilities.”

Perhaps I need say no more than that the majority expressly rejected this very theory the last time around, and rightly so. Here is what the majority said last time about the theory it adopts this time . . . That was correct and that should be the end of the case. To assist the reader, I will speak a little more extensively than the majority did last time on why the psychological theory is mistaken, and the cases distinguished last time were correctly distinguished . . .

Here is the Boy Scout oath that the Barnes-Wallaces say makes them “feel degraded.”

Scout Oath or Promise
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.

Those who disagree with religion of any sort, patriotism, altruism, physical fitness, mental alertness, or honesty as virtues would not want to take this oath, but no one has to take the oath or know what it says to use the park. Here is the Boy Scout Law that generations of Scouts have been required to memorize, and that the Breens swear makes them feel “disturbed” and “offended,”

Scout Law
A Scout is trustworthy, loyal,
helpful, friendly, courteous, kind,
obedient, cheerful, thrifty, brave,
clean, and reverent.

One who rejects any of these as virtues, not just reverence, would not want to follow the Boy Scout Law, but no one has to honor or even know of the oath in order to use the park . . .

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