Barnes-Wallace v. City of San Diego

530 F.3d 776

Mitchell BARNES-WALLACE; Maxwell Breen, Plaintiffs-Appellees, v. CITY OF SAN DIEGO, Defendant, and Boy Scouts of America-Desert Pacific Council, Defendant-Appellant.

Mitchell Barnes-Wallace; Maxwell Breen; Lori Barnes-Wallace, Guardian Ad Litem; Lynn Barnes-Wallace, Guardian Ad Litem; Michael Breen, Guardian Ad Litem; Valerie Breen, Guardian Ad Litem, Plaintiffs-Appellants, v. City of San Diego; Boy Scouts of America-Desert Pacific Council, Defendants-Appellees.

No. 04-55732.

No. 04-56167.

United States Court of Appeals, Ninth Circuit.

Filed June 11, 2008.

David Blair-Loy, Elvira Cacciavillani, ACLU Foundation of San Diego and Imperial Counties, for Plaintiffs-Appellees.

John Peter Mullen, San Diego City Attorney's Office, San Diego, CA, for Defendant/Defendants-Appellees.

Charles Avrith, Alicia Mew, Hughes, Hubbard & Reed, LLP, Los Angeles, CA, Scott H. Christensen, Hughes, Hubbard & Reed, LLP, Washington, DC, George A. Davidson, Hughes, Hubbard & Reed, LLP, New York, NY, for Defendant-Appellant/Defendants-Appellees.

Jordan C. Budd, ACLU Foundation of San Diego and Imperial Counties, Mark W. Danis, M. Andrew Woodmansee, Morrison & Foerster, LLP, M.E. Stephens, Stock, Stephens, LLP, San Diego, CA, for Plaintiffs-Appellees/Plaintiffs-Appellants.

Carla A. Kerr, Hughes, Hubbard & Reed, LLP, New York, NY, for Defendants-Appellees.

Before: WILLIAM C. CANBY, JR., ANDREW J. KLEINFELD, and MARSHA S. BERZON, Circuit Judges.

Order; Concurrence by Judge BERZON; Dissent by Judge KLEINFELD

ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF CALIFORNIA

ORDER

The petition of Defendants-Appellees for panel rehearing is GRANTED. The certification order filed in this case on December 18, 2006, is withdrawn. A new certification order with accompanying concurrence and dissent is filed contemporaneously with the filing of this order. Subsequent petitions for rehearing or rehearing en banc may be filed.

The pending petition of defendants-appellees for rehearing en banc is dismissed as moot. No other petitions for panel or en banc hearing have been filed.

ORDER

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.

II. Statement of Facts

Because the district court granted summary judgment against it, we take the facts in the light most favorable to the non-moving party, the Desert Pacific Council. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).

A. The Parties

The Desert Pacific Council (the "Council") is a nonprofit corporation chartered by The Boy Scouts of America to administer Scouting programs in the San Diego area. Congress chartered the Boy Scouts of America "to promote ... the ability of boys to do things for themselves and others ... and to teach them patriotism, courage, self-reliance, and kindred virtues." 36 U.S.C. § 30902 (2006). While Scouting focuses primarily on outdoor activity, the Boy Scouts' rules include a prohibition against allowing youths or adults who are atheists, agnostics, or homosexuals to be members or volunteers. Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 659-61, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (holding that the Boy Scouts have a constitutional right to exclude homosexuals). These rules bind the Council. The Boy Scouts maintain that agnosticism, atheism, and homosexuality are inconsistent with their goals and with the obligations of their members. See Randall v. Orange County Council, Boy Scouts of Am., 17 Cal.4th 736, 742, 72 Cal.Rptr.2d 453, 952 P.2d 261 (1998) (reciting that, in defending its right to exclude atheists, the Boy Scouts introduced "evidence intended to establish that requiring the inclusion of nonbelievers ... would interfere with the organization's efforts to convey its religious message").

The Boy Scouts do not require scouts to affiliate with any religious organization, and the Boy Scouts style themselves "absolutely nonsectarian." [ER 309 (75:7-8), 1580, art. IX § 1, cl. 1; see also, e.g., ER 1527; ER 54 ¶ 185, ER 2007 ¶ 185.]¹ The San Diego Boy Scouts are "not a house of worship like a church or synagogue." [ER 54 ¶ 185; ER 2007 ¶ 185.] Still, the organization has a religious element. All members and volunteers take an oath to "do my best ... [t]o do my duty to God and my country" and to remain "morally straight." [ER 2005 ¶ 176.] The organization's mission is "to prepare young people to make ethical choices over their lifetimes by instilling in them the values of the Scout Oath and Law." [ER 2003 ¶ 162.] Duty to God is placed first in the Oath as "the most important of all Scouting values." [ER 2004 ¶ 170.] Members also must agree to uphold the "Scout Law," which provides that a Scout is "faithful in his religious duties." [ER 2005 ¶ 177.] Membership and leadership applications contain a "Declaration of Religious Principle," which explains that "no member can grow into the best kind of citizen without recognizing an obligation to God." [ER 1535.] The Boy Scouts instruct leaders to "be positive in their religious influence and [to] encourage Scouts to earn the religious emblem of their faith." [ER 1527.]

The plaintiffs Barnes-Wallaces are a lesbian couple and the plaintiffs Breens are agnostics. Because of their sexual and religious orientations, they cannot be Boy Scout volunteers. Both couples have sons old enough to join the Boy Scouts, and they would like their sons to use the leased facilities, but the parents refuse to give the approval required for membership. As part of the membership application, a parent must promise to assist his or her son "in observing the policies of the Boy Scouts of America ... [to] serve as his adult partner and participate in all meetings and approve his advancement." [Id. 1533.] The application also includes the Scout Law and the Declaration of Religious Principle. The Barnes-Wallaces and the Breens believe that the Boy Scouts' policies are discriminatory, and they refuse to condone such practices by allowing their children to join the Boy Scouts.

B. The Leases

In accord with its long history of "encourag[ing] nonprofit organizations to develop cultural, educational, and recreational programs" on the City property, the plaintiffs' home town of San Diego has leased 123 public properties to various nonprofit organizations.² [SER 10, 36.] One of these organizations is the Desert Pacific Council, which leases, occupies, and operates portions of two popular city parks. Other portions of those parks are extensively used by the plaintiff families. Under the original lease, the Council paid one dollar per year in rent. In 2002 the parties entered into a new twenty-five-year lease, which requires the Desert Pacific Council to pay one dollar in annual rent and a $2,500 annual administration fee.

The City negotiated this lease with the Council on an exclusive basis, as it sometimes does with groups, religious or secular, that it deems to be appropriate operators of a particular piece of City property. [ER 843-44, 850 (132:8-23); SER 433-34, 592 (135:7-20), 1168, 1172-73, 1175, 1182-83, 1185-86, 1189.] Other organizations receive similar terms. Some ninety-six of the City's leases to non-profits (including nineteen leases to youth-oriented recreational non-profits) require no rent or rent less than the $2,500 fee the Council pays, and fifty of them have terms twenty-five years or longer. [SER 12-15, 27-29.] Although they produce little to no revenue, these leases save...