Metropolitan News-Enterprise


Monday, May 18, 2009


Page 1


Ninth Circuit Stays Appeal Over Use of City Land for Scout Camp


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday stayed an appeal in a years-long dispute over whether the state Constitution allows public land to be leased to organizations that discriminate on the basis of religion or sexual orientation.

A three-judge panel, noting that the California Supreme Court had declined to answer a certified question that might have resolved the case, said it would await action by the U.S. Supreme Court before Barnes-Wallace v. City of San Diego, 04-55732, can go forward.

The plaintiffs, who identify themselves as being agnostic or gay, want to evict the Desert Pacific Council of the Boy Scouts of America from Camp Balboa in San Diego’s Balboa Park and the Youth Aquatic Center on Fiesta Island, also in San Diego, for which the scouts pay nominal rent to the city. 

Other than when Boy Scouts events are being held, the facilities, on land leased for a nominal amount, are open to the public.


Establishment Clause Claim

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. The city agreed to settle out of the case 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 over Kleinfeld’s dissent.


Rehearing Denied

Last June, the panel denied rehearing, explaining that the plaintiffs suffered cognizable harm because their 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.”

In January, the Ninth Circuit denied en banc rehearing, but 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.”


Writ Requested

On March 31, the Boy Scouts asked the U.S. Supreme Court for a writ of certiorari. Shortly thereafter, the state high court declined to get involved, but  said it would consider a renewed request if the standing issue is finally resolved in the plaintiffs’ favor.

In its order Friday, the Ninth Circuit panel said the appeal would be stayed pending the outcome of the scouts’ certiorari petition and of another case on the Supreme Court docket, Buono v. Salazar, No. 08-472.

The Supreme Court agreed in February to hear Buono, a challenge to legislation requiring the Interior Department to swap a one-acre site containing a cross in the Mojave Desert National Preserve for five acres of privately owned land nearby, thus allowing the cross to remain in place without violating the Establishment Clause.

The lower courts held that the swap was unconstitutional and violated an injunction by Senior U.S. District Judge Robert Timlin of the Central District of California, requiring the government to remove the cross, which was erected as a war memorial in the 1930s.

The government argues that the plaintiff, a retired National Park Service employee who was once assistant superintendent of the preserve but no longer lives in the state, lacks standing. It contends that his objection is merely ideological—he said he does not believe that a symbol of a particular religion should be allowed on government property if symbols of other religions are excluded—and that this is insufficient to create a case or controversy under Article III of the Constitution. 


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