Ninth Circuit sends San Diego Boy Scout case to Cal Supreme Court with "unprecedented" standing rulingBoy Scouts of America issued the following statement today:
Boy Scouts of America and San Diego-Imperial Council, Boy Scouts of America are disappointed that the United States Court of Appeals for the Ninth Circuit in Barnes-Wallace v. Boy Scouts of America has decided to send the case to the California Supreme Court to answer several questions of California constitutional law before the Ninth Circuit issues its ultimate decision. (Read the ruling here.)
Today’s decision from the Ninth Circuit denies review by the full court of a decision the Court issued in June. That decision concluded that plaintiffs, who never even tried to visit properties leased by Boy Scouts, have standing to sue to break the leases from the City of San Diego because they do not like Boy Scouts’ values.
In a dissenting opinion for six Ninth Circuit judges, Judge Diarmuid F. O’Scannlain concluded that the “unprecedented” standing ruling “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.”
The Ninth Circuit will now transfer the questions of California state law to the California Supreme Court and await a decision from that court before deciding the remainder of the case. “It is disappointing that after all these years, proceedings in the case are to be further extended, especially since, as the dissenting opinion of six judges so forcefully points out, none of the plaintiffs has suffered any injury or has any standing to sue,” said Boy Scouts attorney George A. Davidson.
The City of San Diego leases two park properties to San Diego-Imperial Council, Boy Scouts of America, which built a campground on one and a youth aquatic center on the other, each of which is open to the public. At Camp Balboa in Balboa Park, the Council built nine campsites, a swimming pool, and meeting facilities that are used by a wide-variety of groups in the San Diego area. In a 2001 renewal lease, San Diego-Imperial Council agreed to spend over $1.7 million of its funds to further improve Camp Balboa. At Fiesta Island in Mission Bay Park, the Council spent $2.5 million of its funds to build an aquatics facility at the urging of virtually all youth organizations in the metro San Diego area. The Youth Aquatic Center has a variety of aquatic equipment and watercraft, all of which are available for use by any youth group. Boy Scouts have paid millions of dollars to provide these facilities and services to the public while San Diego taxpayers pay nothing.
The City has over 100 leases to community organizations on similar terms as the leases to Boy Scouts. The Girl Scouts, for example, lease property for youth camping on park property adjacent to Boy Scouts’ Camp Balboa.
The ACLU filed the Barnes-Wallace lawsuit against Boy Scouts and the City of San Diego in 2000, just two months after the U.S. Supreme Court decision in Boy Scouts of America v. Dale holding that Boy Scouts have a constitutional right to select their members. The ACLU tried to force the City to discriminate against Boy Scouts because of their constitutionally-protected membership policies.
In 2004, the district court invalidated the leases on the theory that the City violated the Establishment Clause by leasing to the Council because Boy Scouts have a nonsectarian “duty to God” requirement for membership. The case has been on appeal to the Ninth Circuit since then. The U.S. Department of Justice, Civil Rights Division, as well as the States of Texas, Alabama, Kansas, Oklahoma, South Dakota, and Virginia, supported the Boy Scouts’ appeal.
Home
