Barnes-Wallace, Etal v. Boy Scouts of Am

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MITCHELL BARNES-WALLACE ; No. 04-55732

MAXWELL BREEN ; LORI BARNES-

WALLACE ; LYNN BARNES- D.C. No.

WALLACE ; MICHAEL BREEN ; CV-00-01726-

VALERIE BREEN , NAJ/AJB

Plaintiffs-Appellees,

v.

CITY OF SAN DIEGO ,

Defendant,

and

BOY SCOUTS OF AMERICA - DESERT

PACIFIC COUNCIL,

Defendant-Appellant. BARNES-WALLACE V . BOY SCOUTS OF AMERICA

MITCHELL BARNES-WALLACE ; No. 04-56167

MAXWELL BREEN ; LORI BARNES-

WALLACE , Guardian Ad Litem; D.C. No. LYNN BARNES-WALLACE , Guardian 3:00-cv-01726-J- Ad Litem; MICHAEL BREEN , AJB Guardian Ad Litem; VALERIE BREEN , Guardian Ad Litem, Plaintiffs-Appellants, OPINION

v.

CITY OF SAN DIEGO ; BOY SCOUTS 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

Argued and Submitted June 20, 2011—Pasadena, California

Filed December 20, 2012

Before: William C. Canby, Jr., Andrew J.…

Opinion by Judge CANBY; Concurrence by Judge KLEINFELD.

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 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…

concurring:

I join the majority opinion. I write separately only to note that we erred in the previous opinion (by which we are now bound) addressing standing. The plaintiffs allege absolutely no cognizable harm to themselves. They simply have a preference. The plaintiffs’ views about the Boy Scouts’ institutional positions do not establish standing, because no concrete harm flows to plaintiffs as a result of the Boy Scouts’ views. My views on standing were set forth in my dissent in Barnes-Wallace v. City of San Diego, 530 F.3d 776, 794 (9th Cir.2008) (Kleinfeld, J., dissenting). Revulsion for a group so intense that one cannot bear to be on property they manage cannot, in a tolerant society, be deemed harm sufficiently concrete as to confer standing to sue.