Barnes–Wallace v. City of San Diego

• Decision Date: 20 December 2012
• Docket Number: Nos. 04–55732,04–56167.,s. 04–55732
• Citation: 704 F.3d 1067
• Parties: Mitchell BARNES–WALLACE; Maxwell Breen; Lori Barnes–Wallace; Lynn Barnes–Wallace; Michael Breen; Valerie 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

704 F.3d 1067

Mitchell BARNES–WALLACE; Maxwell Breen; Lori Barnes–Wallace; Lynn Barnes–Wallace; Michael Breen; Valerie 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.

Argued and Submitted June 20, 2011.

Filed Dec. 20, 2012.

Mark W. Danis, Morrison & Foerster, LLP, San Francisco, CA; M. Andrew Woodmansee, Morrison & Foerster, LLP, San Diego, CA, for Plaintiffs–Appellants–Cross–Appellees.

Scott H. Christensen, Hughes Hubbard & Reed, LLP, Washington, D.C.; George A. Davidson and Carla A. Kerr, Hughes Hubbard & Reed, LLP, New York, NY, for Defendants–Appellees–Cross–Appellants.

Sheldon T. Bradshaw, David K. Flynn, Eric W. Treene and Angela Miller, United States Department of Justice, Civil Rights Division, Washington, D.C., for Amicus Curiae United States.

Paul Rosenzweig, Washington, D.C., for Amicus Curiae American Legion.

Matthew F. Stowe, Office of the Attorney General, Austin, TX, for Amici Curiae States of Texas, Alabama, Kansas, Oklahoma, South Dakota and Virginia.

Anthony R. Picarello, Jr., Derek L. Gaubatz and Roger T. Severino, Washington, D.C., for Amicus Curiae The Becket Fund for Religious Liberty.

John C. Eastman, Orange, CA, for Amicus Curiae Claremont Institute Center for Constitutional Jurisprudence.

Peter Ferrara, McLean, VA, for Amicus Curiae American Civil Rights Union.

Eric Alan Isaacson, Michelle M. Ciccarelli and Alreen Haeggquist, San Diego, CA; Rev. Silvio Nardoni, Glendale, CA; Susan Kay Weaver, El Cajon, CA, for Amici Curiae Social Justice Committee and Board of Trustees of the First Unitarian Universalist Church of San Diego; its Ministers, the Rev. Arvid Straube and the Rev. Julie Kain; its Director of Religious Education, Elizabeth Motander Jones; the Unitarian Universalist Legislative Ministry California; the Unitarian Universalist Association of Congregations.

Angela Sierra, Office of the Attorney General for the State of California, for Amicus Curiae State of California.

Ayesha N. Khan and Alex J. Luchenitser, Washington, D.C., for Amicus Curiae Americans United for Separation of Church and State.

John H. Findley and Harold E. Johnson, Pacific Legal Foundation, Sacramento, CA, for Amici Curiae Pacific Legal Foundation and Veterans of Foreign Wars.

Robert J. Muise and Julie Schotzbarger, Ann Arbor, MI, for Amicus Curiae Thomas More Law Center.

Paul A. Hoffman, Santa Ana, CA, for Amicus Curiae Individual Rights Foundation.

Appeal from the United States District Court for the Southern District of California, Napoleon A. Jones, Jr., District Judge, Presiding. D.C. Nos. CV–00–01726–NAJ/AJB, 3:00–cv–01726–J–AJB.

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

Opinion by Judge CANBY; Concurrence by Judge KLEINFELD.

OPINION

CANBY, Circuit Judge:

This appeal presents the primary question whether two leases of land by the City of San Diego to the Desert Pacific Council, a nonprofit corporation chartered by the Boy Scouts of America, violate provisions of the California or federal Constitutions relating to the Establishment of Religion or the denial of Equal Protection of the Laws. Additional issues concern claims that the Council's actions as lessee violate the San Diego Human Dignity Ordinance and that the Council breached a nondiscrimination provision of the leases.

The Council pays one dollar per year rent for the Camp Balboa property in Balboa Park and no rent for the Youth Aquatic Center property on Fiesta Island in Mission Bay Park. In return, the Council operates Camp Balboa and the Youth Aquatic Center. Camp Balboa and the Youth Aquatic Center are public facilities, but the Council maintains a nonpublic, local administrative headquarters at Camp Balboa. The Council's members extensively use both the Camp and the Center. The Boy Scouts, and accordingly the Council, prohibit atheists, agnostics, and homosexuals from being members or volunteers and require members to affirm a belief in God.

The adult plaintiffs are users of Balboa Park and Mission Bay Park who are either lesbians or agnostics. They and their plaintiff sons would use the land or facilities leased by the Desert Pacific Council but for the Boy Scouts' discriminatory policies.

We conclude that the Camp Balboa and Youth Aquatic Center leases do not violate the No Aid Clause of the California Constitution because the leases constitute, at most, indirect or incidental aid by the City for a religious purpose, and the aid does not otherwise violate the requirements established by the Supreme Court of California to avoid invalidity under the No Aid Clause.

We also conclude that the leases do not violate either the California No Preference Clause or the state and federal Establishment Clauses. We accordingly reverse the district court's grant of summary judgment to the plaintiffs, and remand with instructions to grant summary judgment to the Council on the state and federal constitutional claims.

We also affirm the district court's dismissal of the plaintiffs' claims under the state and federal Equal Protection Clauses.

Finally, we affirm the district court's dismissal of the plaintiffs' claims of violation of the San Diego Human Rights Ordinance and breach of contract.

I. Statement of Facts

In reviewing the summary judgment against the Council and the Boy Scouts, we view any disputed facts in the light most favorable to the Scout defendants, the non-moving parties. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004). Our review of the record reveals, however, that the underlying facts material to our decision are undisputed; the parties differ in material ways only in regard to the legal effect of those facts.

A. The Parties

The Desert Pacific Council is a nonprofit corporation chartered by the Boy Scouts to administer Scouting programs in the San Diego area. Both the Council and the Boy Scouts of America are named as defendants. Congress chartered the Boy Scouts of America “to promote ... the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods that were in common use by boy scouts on June 15, 1916.” 36 U.S.C. § 30902 (2012). 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 ¹ maintain that agnosticism, atheism, and homosexuality are inconsistent with their goals and with the obligations of their members. See Randall v. Orange Cnty. Council, Boy Scouts of Am., 17 Cal.4th 736, 72 Cal.Rptr.2d 453, 952 P.2d 261, 264–65 (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 outside religious group, and the Boy Scouts style themselves as “absolutely nonsectarian.” According to both parties, the Council itself is “not a house of worship like a church or synagogue, [but] it is a religious organization.” 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.” Duty to God is placed first in the Oath as “the most important of all Scouting values.” Members also must agree to uphold the “Scout Law,” which provides that a Scout is “faithful in his religious duties.” 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.” Boy Scout leaders are instructed that they “can be positive in their religious influence and can encourage Scouts to earn the religious emblem of their faith.”

The plaintiffs Barnes–Wallaces are a lesbian couple, and the plaintiffs Breens are agnostics. Because of their sexual orientation and religious beliefs, they cannot be Boy Scout volunteers. Both couples had plaintiff sons old enough to join the Boy Scouts, and they would have liked their sons to use the leased facilities, but the couples, as parents, refused to give the approval required for membership. The Barnes–Wallaces and the Breens object to the Boy Scouts' policies as discriminatory, and they refuse to condone such practices by allowing their sons to join the Boy Scouts. They also refuse to use the leased facilities as members of the public, so long as the Boy Scouts administer the properties.

B. The Leases

In accord with its long history of “permitting City property to be used by nonprofit organizations for the cultural, educational, and recreational enrichment of the citizens of the City,” the plaintiffs' home town of San Diego has leased 123 public properties to various nonprofit organizations.² One of these organizations is the Desert Pacific Council, which leases, occupies, and operates portions of Balboa Park and Mission Bay Park, two popular city parks. Other portions of those parks are extensively used by the plaintiff families.

One of the Council's leases with the City is for approximately eighteen acres in Balboa Park known as Camp Balboa. Camp Balboa offers a “unique” urban camping...