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

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation471 F.3d 1038
Docket NumberNo. 04-56167.,No. 04-55732.,04-55732.,04-56167.
PartiesMitchell 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.
Decision Date18 December 2006

COPYRIGHT MATERIAL OMITTED

Elvira Cacciavillani, Esq., David Blair-Loy, Esq., ACLU Foundation of San Diego & Imperial Counties, Mark W. Danis, Esq., Morrison & Foerster, LLP, M.E. Stephens, Esq., Stock Stephens, LLP, San Diego, CA, for Plaintiffs-Appellees.

George A. Davidson, Esq., Carla A. Kerr, Esq., Hughes, Hubbard & Reed, New York, NY, Charles Avrith, Esq., Alicia Mew, Esq., Hughes Hubbard & Reed, LLP, Los Angeles, CA, Scott H. Christensen, Esq., Hughes Hubbard & Reed LLP, Washington, DC, 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

We respectfully request the California Supreme Court to exercise its discretion and decide the certified questions presented below. See Cal. R. Ct. 29.8. 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 $1 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 requires 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 benefiting 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

The Desert Pacific Council is a nonprofit corporation chartered by The Boy Scouts of America to administer Scouting programs in the San Diego area. The Council must adhere to the Boy Scouts' policies and rules. These 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, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (holding that the Boy Scouts has a constitutional right to exclude homosexuals). The Boy Scouts maintains that agnosticism, atheism, and homosexuality are inconsistent with its goals and with the obligations of its 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 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.] As part of the Scout Oath, each member and volunteer must pledge to "do my best . . . [t]o do my duty to God and my country" and to remain "morally straight." [Id. 2005 ¶ 176.] Duty to God is placed first in the Oath because it is "the most important of all Scouting values." [Id. 2004 ¶ 170.] Members also must agree to uphold the "Scout Law," which provides that Scouts are "Reverent" and "Clean." [Id. 2005 ¶ 176-77.] 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." [Id. 1535.] The Boy Scouts instructs leaders to "be positive in their religious influence and . . . [to] encourage Scouts to earn the religious emblem of their faith." [Id. 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, parents must promise to assist their sons "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 the Boy Scouts' policies are discriminatory, and they refuse to condone such practices by allowing their children to join.

In the plaintiffs' hometown of San Diego, the Desert Pacific Council leases, occupies, and operates portions of two popular city parks extensively used by the plaintiff families. The Council leases from the City sixteen acres in Balboa Park known as Camp Balboa. Camp Balboa offers a "unique" urban camping opportunity in the "heart of the City." [Id. 1966 ¶ 7.] The site includes campgrounds, a swimming pool, an amphitheater, a program lodge, a picnic area, a ham radio room, restrooms and showers, and a camp ranger office. Under the original lease, the Council paid $1 per year in rent. In 2002 the parties entered into a new twenty-five-year lease, which requires the Desert Pacific Council to pay $1 in annual rent and a $2,500 annual administration fee, and to expend at least $1.7 million for capital improvements over seven years.

The Desert Pacific Council makes exclusive use of portions of Balboa Park for its own benefit. The Council has its headquarters on park property. From this facility it oversees its $3.7 million budget, manages its thirty employees, and processes applications for membership and leadership positions. The Council has a print shop on park land that it uses to print literature for its members. These portions of the park are unavailable for public use. The Council also controls Camp Balboa's reservations. It pencils in reservations as far in advance as it wishes and then advertises the pre-reserved times to its members. The Council can declare the camp "closed," determine how many people are going to attend the camps, and then open up only the unreserved facilities to the public.1

The Council also leases land on Fiesta Island in Mission Bay Park. In 1987, the City entered into a twenty-five-year, rent-free lease with the Desert Pacific Council for one-half acre of waterfront property on Fiesta Island. The City entered into this lease after the Desert Pacific Council approached it about building and operating an aquatic center on the island. The Council was awarded the lease on the condition that it expend $1.5 million to build the Youth Aquatic Center. The Council built and now operates the Aquatic Center, which offers boating, sailing, canoeing, and kayaking to San Diego youth.

Unlike Camp Balboa, the Aquatic Center has a formal first-come, first-served policy, but the policy has exceptions for Scout members. The Desert Pacific Council is permitted to reserve up to 75% of the facilities seven days in advance. The Council also hosts a members-only camp for four weeks each summer. The reservation books during camp say "YAC Closed for Summer Camp." The public cannot use the Aquatic Center during summer camp for water-based activities, but can reserve dormitories or other facilities the Scouts are not using.

The plaintiff families brought this action against the City of San Diego, the Boy Scouts, and the Desert Pacific Council, alleging that leasing public land to an organization that excludes persons because of their religious and sexual orientations violates the federal Establishment Clause, the California Constitution's No Preference2 and No Aid3 Clauses, the Federal and State Equal Protection Clauses, the San Diego Human Dignity...

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