Barnes-Wallace v. City of San Diego
| Decision Date | 31 December 2008 |
| Docket Number | No. 04-56167.,No. 04-55732.,04-55732.,04-56167. |
| Citation | 551 F.3d 891 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Reed, LLP, Los Angeles, CA, for Defendant-Appellant.
Before: WILLIAM C. CANBY, JR., ANDREW J. KLEINFELD, and MARSHA S. BERZON, Circuit Judges.
ORDER
Judge Berzon has voted to deny the petition for en banc rehearing of the Certification Order filed June 11, 2008, and Judge Canby has so recommended. Judge Kleinfeld has voted to grant en banc rehearing.
The petition for en banc rehearing has been circulated to the full court. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed R.App. P. 35. Judges Gould, Tallman, Clifton and N.R. Smith were recused.
The petition for rehearing en banc is denied. The Clerk of this Court is instructed to transmit the Order Certifying Questions, filed June 11, 2008, to the Supreme Court of California as directed under Section V of that Order. The earlier order of December 18, 2006, certifying questions to the California Supreme Court was withdrawn by this court on June 11, 2008.
This case shall continue to be withdrawn from submission until further order of this Court.
O'SCANNLAIN, Circuit Judge, dissenting from the denial of rehearing en banc, joined by KLEINFELD, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges:
Today, our court promulgates an astonishing new rule of law for the nine Western States. Henceforth, a plaintiff who claims to feel offended by the mere thought of associating with people who hold different views has suffered a legally cognizable injury-in-fact. No other circuit has embraced this remarkable innovation, which contradicts nearly three decades of the Supreme Court's standing jurisprudence. In practical effect, the three-judge panel majority's unprecedented theory creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court. I must respectfully, but vigorously, dissent from our failure to rehear this case en banc.
For nominal rent, the City of San Diego leases portions of two public parks to the Desert Pacific Council, which is a "nonprofit corporation chartered by the Boy Scouts of America." Barnes-Wallace v. City of San Diego, 530 F.3d 776, 779 (9th Cir.2008). The Boy Scouts operate Camp Balboa in Balboa Park, which "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." Id. at 781. The Boy Scouts also operate a Youth Aquatic Center on Fiesta Island, which "offers the use of kayaks, canoes, sail and row boats, and classroom space to other youth groups at inexpensive rates." Id. Importantly, "[t]here are no religious symbols either at Camp Balboa or at the Youth Aquatic Center." Id. at 782.
For limited times, the Boy Scouts use the leased areas for their own events, but otherwise keep the areas open to the general public. Although the Boy Scouts' membership policies exclude homosexuals and agnostics, the Boy Scouts do not discriminate on the basis of sexual orientation or religion in administering the leased parklands.1 A homosexual or an agnostic may use the lands leased to the Boy Scouts on the same terms as everybody else. Indeed, "[t]he San Diego Boy Scouts have not turned away any non-Scout group while Scouting is in session, either at Camp Balboa or at the Aquatic Center." Id. at 782.
Nevertheless, a lesbian couple with a son and an agnostic couple with a daughter challenged the leases under the religion clauses of the United States and California Constitutions. The families did not have any of the traditional bases of standing: they did not compete for the leases, try to participate in any Boy Scout activities on the leased land, or even use or try to use the land for their own purposes (although they did use the portions of the parks that the Boy Scouts did not use). Rather, the families based standing on the claim that although they wanted to use the public land and could use it without interference from the Boy Scouts, they nevertheless declined to use it, because they would be offended by the Boy Scouts' views on sexuality and religion if they did.
The majority initially rejected the families' psychological injury claim, holding:
The Breens' and the Barnes-Wallaces' purposeful avoidance of the parklands leased by the Boy Scouts as a protest against the Scouts' exclusionary policies is not a sufficient injury. We have held that people can suffer a direct injury from the need to avoid large religious displays, such as giant crosses or life-size biblical scenes. ... But there are no displays in either Camp Balboa or the Aquatic Center that would be so overwhelmingly offensive that families who do not share the Scouts' religious views must avoid them. See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) () (emphasis omitted).
Barnes-Wallace v. City of San Diego, 471 F.3d 1038, 1045-46 (9th Cir.2006). The panel allowed the case to proceed on alternate standing grounds.
Then, on rehearing, the majority reversed itself and adopted the theory it had initially rejected. It concluded that "the Breens and Barnes-Wallaces have avoided Camp Balboa and the Aquatic Center because they object to the Boy Scouts' presence on, and control of, the land: They do not want to view signs posted by the Boy Scouts or interact with the Boy Scouts' representatives in order to gain access to the facilities." Id. at 784. The Article III injury-in-fact, according to the majority, was the Breens' and the Barnes-Wallaces' "offen[se]" at "the Boy Scouts' exclusion, and publicly expressed disapproval, of lesbians, atheists and agnostics," their "aversion to the facilities," and their "fe[elings of] unwelcome[ness] there because of the Boy Scouts' policies that discriminated against people like them." Id. at 783, 784. Having satisfied itself that it had jurisdiction, the panel then certified the California constitutional law questions to the California Supreme Court.2
Writing for herself in a separate concurrence, Judge Berzon compared the Breens and the Barnes-Wallaces' plight to Rosa Parks' refusal to ride in the back of segregated buses. According to Judge Berzon: "Just as African-Americans could ride on Montgomery's buses, but not in the front, the Scouts permit Plaintiffs to make use of Camp Balboa and the Mission Bay Park Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members." Id. at 791. Judge Kleinfeld dissented.
This case is most notable for what it does not involve. There is no economic injury here; the families did not compete with the Boy Scouts for the leases. Nor did the families try to join the Boy Scouts or to participate in Boy Scout activities in the parks. Thus, they cannot claim that they were excluded from anything. Most critically, the families did not even try to use, for their own purposes, the portions of the parks that the Boy Scouts control. Thus, they cannot even claim that they suffered any psychological injury as a result of associating with the Boy Scouts. Rather, the claim here is that the families are psychologically injured by the thought of associating with the Boy Scouts; they contend that they would be offended by the Boy Scouts' views if they chose to use the parks.
That is an unprecedented theory. It splits standing law at the seams, forcing open the courthouse doors to plaintiffs without concrete, particularized injuries. Henceforth, a plaintiff need only assert that he would be offended if he chose to interact with someone whose beliefs offend him. 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.
An example from Judge Kleinfeld's dissent from the panel's decision sharpens the issue: If a Jewish plaintiff challenges a government lease to the Protestant Church to operate a non-discriminatory recreational facility that the plaintiff has never visited, may the Jewish plaintiff base standing on the grounds that the Protestant Church prevents...
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Barnes–Wallace v. City of San Diego
...became final. We denied the Scout defendants' petition for rehearing en banc of our decision on standing. See Barnes–Wallace v. City of San Diego, 551 F.3d 891 (9th Cir.2008). The Scout defendants then filed a petition for certiorari, and we stayed further proceedings pending the decision o......
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Barnes-wallace v. City Of San Diego, 04-55732
...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 pla......