Barnes-wallace v. City Of San Diego, 04-55732

607 F.3d 1167

Mitchell BARNES-WALLACE; Maxwell Breen, Plaintiffs-Appellees,

v.CITY OF SAN DIEGO, Defendant,andBoy 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.

Nos. 04-55732, 04-56167.

United States Court of Appeals Ninth Circuit.

June 3, 2010.

John David Blair-Loy, Esquire, Legal Director, David Blair-Loy, Elvira Cacciavillani, Esquire, Aclu Foundation of San Diego and Imperial Counties, Mark W. Danis, Esquire, Morrison & Foerster LLP, Mattheus E. Stephens, Esquire Stock Stephens, LLP, San Diego, CA, for Plaintiff-Appellee.

George Frederick Schaefer, Esquire, City Attorney's Office, San Diego, CA, for Defendant.

Scott H. Christensen, Hughes Hubbard & Reed, LLP, Washington, DC, George A. Davidson, Esquire, Carla A. Kerr, Litigation Counsel, Hughes, Hubbard & Reed, New York, NY, Rita M. Haeusler, Esquire, Alicia Mew, Esquire, Hughes Hubbard & Reed, LLP, Los Angeles, CA, for Defendant-Appellant.

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

ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF CALIFORNIA

ORDER

Once again, we respectfully request the California Supreme Court to exercise its discretion and decide the certified questions presented below. See Cal. R. Ct. 8.548. We previously certified these questions to the California Supreme Court in an order that, in addition to certifying the questions, determined that the plaintiffs had standing to maintain this action. Barnes-Wallace v. City of San Diego, 530 F.3d 776 (9th Cir.2008). We stayed our certification order pending disposition of a petition for rehearing en banc. That petition was denied on December 31, 2008, and we directed the certification order to be delivered to the California Supreme Court. Barnes-Wallace, 551 F.3d 891 (9th Cir.2008). The Boy Scout defendants filed a petition for certiorari, however, challenging our certification order's ruling that the plaintiffs had standing to maintain the action. Pet. for cert., 2009 WL 888298 (Mar. 31, 2009). The Supreme Court of California then entered an order stating that our request for decision of certified questions was “denied without prejudice and may be re-filed after the issue of standing is finalized.” Order, April 1, 2009 (Cal.Sup.Ct.).

Upon receipt of the order of the Supreme Court of California, we stayed further proceedings in our court pending the decision of the Supreme Court on the Boy Scouts' petition for certiorari, and the decision of the Supreme Court in Salazar v. Buono, cert. granted, --- U.S. ----, 129 S.Ct. 1313, 173 L.Ed.2d 582 (2009), which raised a similar standing issue. Barnes-Wallace v. City of San Diego, 566 F.3d 851 (9th Cir.2009).

On April 28, 2010, the United States Supreme Court decided Salazar v. Buono, --- U.S. ----, 130 S.Ct. 1803, 176 L.Ed.2d 634 (2010), but a majority of the Court did not decide the relevant standing issue because it was foreclosed by an earlier lower-court decision in the same litigation that the government did not appeal. Salazar v. Buono, at 1814 (plurality opinion). Shortly thereafter, the Supreme Court denied certiorari in Boy Scouts v. Barnes-Wallace, --- U.S. ----, 130 S.Ct. 2401, --- L.Ed.2d ---- (2010).

We conclude, therefore, that the issue of standing has become finalized within the meaning of the order of the California Supreme Court of April 1, 2009. In accordance with that order, we take this opportunity to re-file our certification of issues and request for decision by the California Supreme Court. Our certification of issues remains the same as in the previous submission; the discussion of standing has been modified to reflect the developments described above.

The resolution of any one of the questions we certify could determine the outcome of this appeal and no controlling California precedent exists. See Cal. R. Ct. 8.548. 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 statement, 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...