Barnes-Wallace v. Boy Scouts of America

• Decision Date: 31 July 2003
• Docket Number: No. 00-CV-1726-J(AJB).,00-CV-1726-J(AJB).
• Citation: 275 F.Supp.2d 1259
• Parties: Lori & Lynn BARNES-WALLACE, et al., Plaintiffs, v. BOY SCOUTS OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Southern District of California

275 F.Supp.2d 1259

Lori & Lynn BARNES-WALLACE, et al., Plaintiffs, v. BOY SCOUTS OF AMERICA, et al., Defendants.

No. 00-CV-1726-J(AJB).

United States District Court, S.D. California.

July 31, 2003.

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Jordan Charles Budd, ACLU Foundation of San Diego and Imperial Counties, Mark Danis, M. Andrew Woodmansee, Shannon M. Dailey, Morrison & Foerster LLP, M.E. Stephens, Stock & Stephens LLP, San Diego, CA, for Mitchell Barnes-Wallace, Maxwell Breen, plaintiffs.

John Peter Mullen, Office of the City Attorney, Civil Division, San Diego, CA, Theresa A Kristovich, Hughe,s Hubbard and Reed, Los Angeles, CA, George A. Davidson, Carla A. Kerr, Hughes, Hubbard and Reed, New York City, Scott H. Christensen, Hughes, Hubbard and Reed, Washington, DC, for City of San Diego, Boy Scouts of America — Desert Pacific Council, defendants.

ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT

JONES, District Judge.

In 2000, the Boy Scouts of America prevailed in its efforts to exclude from its membership an accomplished assistant scoutmaster because he identified himself as gay in public at a non-Scouting event. The United States Supreme Court held that the Boy Scouts of America, as a private, expressive organization, had a federal constitutional right to exclude from its membership individuals whose inclusion would "significantly affect the Boy Scouts' ability to advocate public or private viewpoints." Boy Scouts of America v. Dale, 530 U.S. 640, 650, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). Those protected, private viewpoints include an anti-homosexual, anti-agnostic and anti-atheist stance. In addition to holding these views, the Boy Scouts displays intolerance toward individuals who identify themselves as homosexual, agnostic or atheist by denying membership to or revoking the membership of gay and nonbelieving individuals. Despite its long-held discriminatory views, the organization has maintained a long-standing relationship with public entities including local and state governments. Id. at 651-53, 120 S.Ct. 2446; Boy Scouts of America v. Wyman, 335 F.3d 80 (2d Cir.2003)(holding that the state did not violate the Boy Scouts' free speech rights by terminating the organization's 30-year participation in a workplace charitable campaign because of its discriminatory membership policy). At issue here is the City of San Diego's long-term lease of prized public parklands to the Boy Scouts. After Dale, it is clear that the Boy Scouts of America's strongly held private, discriminatory beliefs are at odds with values requiring tolerance and inclusion in the public realm, and lawsuits like this one are the predictable fallout from the Boy Scouts' victory before the Supreme Court.

In this case, Plaintiffs, a lesbian and an agnostic couple and their Boy Scout-aged sons, assert that the City's long-term lease of public parkland to the Boy Scouts is (1) an unconstitutional establishment of religion under the federal and state constitutions, U.S. Const. Am. 1, 14, 42 U.S.C. § 1983; Cal. Const., Art. 1 § 4; (2) violates the state constitution's prohibition against the provision of financial support for religion, Cal. Const., Art. XVI § 5; (3) violates their equal protection rights under the federal and state constitutions, U.S. Const., Am. 14, 42 U.S.C. § 1983, Cal. Const. Art. 1 § 7; and (4) violates the City's common law duty to maintain public parkland for the benefit of the general public. Plaintiffs seek a permanent injunction rescinding the leases.

Plaintiffs Lori and Lynn Barnes-Wallace and their son and Michael and Valerie Breen and their son (hereinafter, "the Plaintiffs") filed their Cross Motion for Summary Judgment. Defendants City of San Diego (hereinafter, "the City") and Desert-Pacific Council, Boy Scouts of America (hereinafter, "BSA-DPC") have also filed separate Cross Motions for Summary Judgment. Each of the motions is fully-briefed and came on regularly for hearing on March 10, 2003. Mark Danis, Andrew Woodmansee, Jordan Budd and M.E. Stephens appeared on behalf of Plaintiffs. John Mullen appeared on behalf of the City, and George Davidson and Scott Christensen appeared on behalf of the Boy Scouts. After hearing oral argument, the Court took the motions under submission.

Background

One must be heterosexual and swear a belief in a formal deity to be a member or adult leader in the Boy Scouts. Pls.' SSUMF ¶ 18. Although fully aware of the BSA-DPC's discriminatory membership policy, the City leases to it two parcels of public parkland. BSA-DPC Resp. to Pls.' SSUMF ¶ 2. The parkland is prized community- and nation-wide. Balboa Park is considered to be the "urban jewel" in the San Diego park system and the "Heart of the City." BSA-DPC's Resp. to Pls.' SSUMF ¶ 4. Mission Bay Park is a unique aquatic recreational resource of major significance and proportions. Id. ¶ 21.

The City first leased the 18 acre Balboa Park parcel to the BSA-DPC for $1.00 per year in 1957. Id. ¶ 8. The purpose of the lease was to construct, operate and maintain a Boy Scout Headquarters and to conduct such exercises thereon as are in keeping with the principle and practices of Boy Scouting, without discrimination as to race, color, or creed. Pls.' SSUMF ¶ 9. The lease further provided that "the public in general shall not be excluded from said premises except at such times as their presence will conflict with the program of Boy Scouting." BSA-DPC's Resp. to Pls.' SSUMF ¶ 9.

Eight years before the Balboa Parkland lease was to expire, and in the midst of this litigation, the BSA-DPC requested that it and the City negotiate an extension of the lease. Id. ¶ 10. The City's exclusive negotiations with the BSA-DPC culminated in the December 4, 2001 vote by the City Council approving a 25-year lease (hereinafter, "the 2002 lease") for a nominal sum and annual administrative fee beginning January 1, 2002 with an option to renew for an additional 15-year term. Id. ¶¶ 12, 14. The 2002 lease includes a nondiscrimination clause prohibiting the BSA-DPC from discriminating against persons based on, among other things, religion and sexual orientation. Id. ¶ 15. The City agrees that the nondiscrimination clause is understood to apply only to BSA-DPC's regulation of access to the property by non-Scouting individuals and entities. BSA-DPC's Resp. to Pls.' SSUMF ¶ 17.

In 1987, the City also entered into a 25-year lease with the BSA-DPC for a half acre parcel of public parkland located on Fiesta Island in Mission Bay Park for no charge. Id. ¶ 24. The BSA-DPC constructed an aquatic facility that offers a variety of aquatic-related youth activities. Id. ¶¶ 24, 25. The lease also contains the same nondiscrimination clause that appears in the 2002 Balboa Park lease. As with the 2002 Balboa Park lease, the City construes the nondiscrimination clause to apply to the BSA-DPC's regulation of access to the property by non-Scouting individuals and entities. Id. ¶ 28.

Discussion

I. Legal standard

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). One of the principle purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). Thus, "[d]isputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden in two ways: by presenting evidence that negates an essential element of the nonmoving party's case, or by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23, 106 S.Ct. 2548. "The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir.2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient.")....