Metropolitan News-Enterprise


Monday, January 5, 2009


Page 3


Ninth Circuit Denies En Banc Rehearing in Suit Over Boy Scout Camp




The Ninth U.S. Circuit Court of Appeals Wednesday denied en banc rehearing of a panel’s request that the California Supreme Court decide whether the state Constitution allows public land to be leased to organizations that discriminate on the basis of religion or sexual orientation.

Over the dissent of six judges, who argued that the plaintiffs lack standing because they suffered no cognizable injury and that the panel had created bad law by allowing them to sue, the court left standing a certification order issued in June.

The order concerns a suit by agnostic and gay plaintiffs against the Desert Pacific Council of the Boy Scouts of America, which operates Camp Balboa in San Diego’s Balboa Park and the Youth Aquatic Center on Fiesta Island. Other than when Boy Scouts events are being held, the facilities, on land leased for a nominal amount, are open to the public.

The plaintiffs filed suit in 2000, arguing that because the Boy Scouts exclude atheists, agnostics, and homosexuals from membership, leasing public lands to the organization at below-market rates violates various provisions of federal, state, and city law. U.S. District Judge Napoleon A. Jones granted summary judgment to the plaintiffs, ruling that the leases violate the Establishment Clause of the U.S. Constitution and the state Constitution’s bans on government aid to religion and government preferences based on religion.

Following Jones’ decision, the city exercised its right to terminate the leases, although the scouts were allowed to stay on as month-to-month tenants, and agreed to settle by paying $950,000 in legal fees and costs to the local ACLU affiliate, which represents the plaintiffs.

The Boy Scouts, however, appealed, and in December 2006, the Ninth Circuit panel—consisting of Judges Marsha Berzon and Andrew Kleinfeld and Senior Judge William C. Canby Jr.—certified the state constitutional issues to the California Supreme Court.

Kleinfeld dissented, arguing that the plaintiffs lacked standing because they never tried to use the facilities and it was undisputed that if they wanted to, they could obtain access on the same terms as other members of the public.

Berzon and Canby, however, explained that the exclusion of certain groups from membership, combined with the fact that the Boy Scouts gave preference to their own members with respect to the use of the facilities, was a concrete injury that allowed the plaintiffs to sue.

The Boy Scouts moved for rehearing. This past June 11, the panel—again over Kleinfeld’s dissent—reiterated that the plaintiffs had standing, but for a different reason—that the plaintiffs’ choice not to use the facilities was made “because they are offended by the Boy Scouts’ exclusive, and publicly expressed disapproval, of lesbians, atheists, and agnostics.”

Yesterday, the court announced that a call for en banc rehearing failed to win the approval of a majority of unrecused active judges.

Judge Diarmuid F. O’Scannlain dissented, joined by Kleinfeld and Judges Carlos Bea, Consuelo Callahan, Jay Bybee, and Sandra Ikuta.

O’Scannlain called the plaintiffs’ theory of standing “unprecedented” and said “[i]t splits standing law at the seams, forcing open the courthouse doors to plaintiffs without concrete, particularized injuries.”

He mused:

“Does this mean that an animal rights activist may sue the owner of a hot

dog stand located on government property for buying beef from ranchers in violation of FDA health requirements, even if the activist has never visited the stand? Should the activist so much as allege that she wants to visit the stand but is offended by the stand owner’s implicit endorsement of how range cattle are treated in Kansas or by the owner’s reluctance to hire PETA activists, the majority, it seems to me, would roll out the red carpet.”

The case is Barnes-Wallace v. City of San Diego, 04-55732.


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