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Barnes-Wallace v. City of San Diego

December 20, 2012

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; BOYSCOUTS OF AMERICA - DESERT PACIFIC COUNCIL, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, Jr., District Judge, Presiding D.C. No. CV-00-01726-NAJ/AJB

The opinion of the court was delivered by: Canby, Circuit Judge

FOR PUBLICATION

Argued and Submitted June 20, 2011-Pasadena, California

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Canby; Concurrence by Judge Kleinfeld

SUMMARY*fn1

Civil Rights

The panel affirmed in part and reversed in part the district court's summary judgment and dismissal of a complaint which alleged that two leases of land for one dollar per year by the City of San Diego to the Desert Pacific Council, a nonprofit corporation chartered by the Boy Scouts of America, violated, among other things, provisions of the California or federal Constitutions relating to the Establishment of Religion or the denial of Equal Protection of the Laws.

Plaintiffs alleged that they would use the land or facilities leased by the Desert Pacific Council but for the Boy Scouts' discriminatory policies, which prohibit atheists, agnostics, and homosexuals from being members or volunteers and require members to affirm a belief in God.

The panel held that the district court erred in ruling that the City's leases with the Boy Scouts violated the No Aid Clause of the California Constitution. The panel determined that 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.

The panel also concluded that the leases do not violate either the California No Preference Clause or the federal Establishment Clause. The panel reversed the district court's grant of summary judgment to the plaintiffs, and remanded with instructions to grant summary judgment to the Council on these claims.

The panel affirmed the district court's dismissal of plaintiffs' state and federal equal protection claims on the ground that the plaintiffs lacked standing to maintain those claims.

The panel also affirmed the district court's dismissal of plaintiffs' claims for violation of the San Diego Human Rights ordinance and for breach of contract.

Concurring, Judge Kleinfeld joined the majority but wrote separately to note that this court erred in its previous opinion addressing standing. See Barnes-Wallace v. City of San Diego, 530 F.3d 776, 794 (9th Cir. 2008) (Kleinfeld, J., dissenting).

OPINION

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 non-public, 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 (2000) (holding that the Boy Scouts have a constitutional right to exclude homosexuals). These rules bind the Council. The Boy Scouts*fn2 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., 952 P.2d 261, 264--65 (Cal. 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.*fn3 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 opportunity in the "heart of the City." 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 one dollar per year in rent. In 2002, the City and the Council entered into a new twenty-five-year lease, which requires the Council to pay one dollar in annual rent and a $2,500 annual administration fee. The lease also requires the Council to maintain the property and to expend at least $1.7 million for capital improvements over seven years. The Council has landscaped, constructed recreational facilities, and installed water and power on the property.

The Council also leases land from the City 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. It actually spent about $2.5 million to build the Center, and now operates it. The facility offers the use of kayaks, canoes, sail and row boats, and classroom space to other youth groups at inexpensive rates.

The City negotiated these leases with the Council on an exclusive basis, as it sometimes does with groups, religious or secular, that it deems appropriate operators of a particular piece of City property. Other organizations receive similar terms. Some ninety-six of the City's leases to nonprofits (including nineteen leases to youth-oriented recreational nonprofits) require no rent or rent less than the $2,500 fee the Council pays, and at least fifty of them have terms of twenty-five years or longer. Although they produce little to no revenue, these leases save the City money by placing the costs of maintenance and improvement upon the lessee organizations. The City spends nothing on the properties leased to the Council.

C. Occupancy of the Land

The Desert Pacific Council makes exclusive use of portions of the Camp Balboa property 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 also 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.

Other portions of Camp Balboa and the Youth Aquatic Center are regularly used for Boy Scout activities. Those portions also are available for use by non-member groups and individuals, but the Council manages reservations of these recreational facilities. Although Boy Scout entities have priority in reserving space at the facilities, the Council has not turned away any non-Scout group or individuals while Scouting is in session, either at Camp Balboa or at the Aquatic Center. Both ...


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