Barnes-Wallace v. Boy Scouts of America ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MITCHELL BARNES-WALLACE; 
MAXWELL BREEN,
Plaintiffs-Appellees,
v. No. 04-55732
CITY OF SAN DIEGO,
Defendant,  D.C. No.
CV-00-01726-
and NAJ/AJB
BOY SCOUTS OF AMERICA - DESERT
PACIFIC COUNCIL,
Defendant-Appellant.

MITCHELL BARNES-WALLACE; 
MAXWELL BREEN; LORI BARNES-
No. 04-56167
WALLACE, Guardian Ad Litem;
LYNN BARNES-WALLACE, Guardian D.C. No.
Ad Litem; MICHAEL BREEN, CV-00-01726-
Guardian Ad Litem; VALERIE NAJ/AJB
BREEN, Guardian Ad Litem,
Plaintiffs-Appellants,
 ORDER
CERTIFYING
v. QUESTIONS TO
THE SUPREME
CITY OF SAN DIEGO; BOY SCOUTS OF
COURT OF
AMERICA - DESERT PACIFIC
CALIFORNIA
COUNCIL,
Defendants-Appellees.

Filed June 11, 2008
Before: William C. Canby, Jr., Andrew J. Kleinfeld, and
Marsha S. Berzon, Circuit Judges.
6587
6588 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
Order;
Concurrence by Judge Berzon;
Dissent by Judge Kleinfeld
ORDER
We respectfully request the California Supreme Court to
exercise its discretion and decide the certified questions pre-
sented below. See Cal. R. Ct. 8.548. The resolution of any one
of these questions could determine the outcome of this appeal
and no controlling California precedent exists. See id. We are
aware of the California Supreme Court’s demanding caseload
and recognize that our request adds to that load. But we feel
compelled to request certification because this case raises dif-
ficult questions of state constitutional law with potentially
broad implications for California citizens’ civil and religious
liberties. Considerations of comity and federalism favor the
resolution of such questions by the State’s highest court rather
than this court.
I. Questions Certified
The Desert Pacific Council, a nonprofit corporation char-
tered by the Boy Scouts of America, leases land from the City
of San Diego in Balboa Park and Mission Bay Park. The
Council pays no rent for the Mission Bay property and one
dollar per year in rent for the Balboa Park property. In return,
the Council operates Balboa Park’s campground and Mission
Bay Park’s Youth Aquatic Center. The campground and the
Aquatic Center are public facilities, but the Council maintains
its headquarters on the campground, and its members exten-
sively use both facilities. The Boy Scouts of America — and
in turn the Council — prohibit atheists, agnostics, and homo-
sexuals from being members or volunteers and require mem-
bers to affirm a belief in God.
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6589
The plaintiffs are users of the two Parks who are, respec-
tively, lesbians and agnostics. They would use the land or
facilities leased by the Desert Pacific Council but for the
Council’s and Boy Scouts’ discriminatory policies.
We certify to the California Supreme Court the following
questions:
1. Do the leases interfere with the free exercise and
enjoyment of religion by granting preference for a religious
organization in violation of the No Preference Clause in arti-
cle I, section 4 of the California Constitution?
2. Are the leases “aid” for purposes of the No Aid Clause
of article XVI, section 5 of the California Constitution?
3. If the leases are aid, are they benefitting a “creed” or
“sectarian purpose” in violation of the No Aid Clause?
The California Supreme Court is not bound by this court’s
presentation of the questions. We will accept a reformulation
of the questions and will accept the Supreme Court’s decision.
To aid the Supreme Court in deciding whether to accept the
certification, we provide the following statement of facts,
jurisdictional analysis, and explanation.
II. Statement of Facts
Because the district court granted summary judgment
against it, we take the facts in the light most favorable to the
non-moving party, the Desert Pacific Council. See Olsen v.
Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
A. The Parties
The Desert Pacific Council (the “Council”) is a nonprofit
corporation chartered by The Boy Scouts of America to
administer Scouting programs in the San Diego area. Con-
6590 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
gress chartered the Boy Scouts of America “to promote . . .
the ability of boys to do things for themselves and others . . .
and to teach them patriotism, courage, self-reliance, and kin-
dred virtues.” 36 U.S.C. § 30902 (2006). 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 vol-
unteers. 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 maintain that agnosticism, atheism, and
homosexuality are inconsistent with their goals and with the
obligations of their members. See Randall v. Orange County
Council, Boy Scouts of Am., 17 Cal. 4th 736, 742 (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 mes-
sage”).
The Boy Scouts do not require scouts to affiliate with any
religious organization, and the Boy Scouts style themselves
“absolutely nonsectarian.” [ER 309 (75:7-8), 1580, art. IX
§ 1, cl. 1; see also, e.g., ER 1527; ER 54 ¶ 185, ER 2007 ¶ 185.]1
The San Diego Boy Scouts are “not a house of worship like
a church or synagogue.” [ER 54 ¶ 185; ER 2007 ¶ 185.] Still,
the organization has a religious element. 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.”
[ER 2005 ¶ 176.] The organization’s mission is “to prepare
young people to make ethical choices over their lifetimes by
instilling in them the values of the Scout Oath and Law.” [ER
1
The bracketed citations of ER and SER refer, respectively, to the
Excerpts of Record and the Supplemental Excerpts of Record filed by the
parties in this court. The references are included in this Order for the con-
venience of the California Supreme Court, should it choose to request this
court to furnish those Excerpts. See Cal. R. Ct. 8.548(c).
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6591
2003 ¶ 162.] Duty to God is placed first in the Oath as “the
most important of all Scouting values.” [ER 2004 ¶ 170.]
Members also must agree to uphold the “Scout Law,” which
provides that a Scout is “faithful in his religious duties.” [ER
2005 ¶ 177.] 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.” [ER 1535.] The Boy
Scouts instruct leaders to “be positive in their religious influ-
ence and [to] encourage Scouts to earn the religious emblem
of their faith.” [ER 1527.]
The plaintiffs Barnes-Wallaces are a lesbian couple and the
plaintiffs Breens are agnostics. Because of their sexual and
religious orientations, they cannot be Boy Scout volunteers.
Both couples have sons old enough to join the Boy Scouts,
and they would like their sons to use the leased facilities, but
the parents refuse to give the approval required for member-
ship. As part of the membership application, a parent must
promise to assist his or her son “in observing the policies of
the Boy Scouts of America . . . [to] serve as his adult partner
and participate in all meetings and approve his advancement.”
[Id. 1533.] The application also includes the Scout Law and
the Declaration of Religious Principle. The Barnes-Wallaces
and the Breens believe that the Boy Scouts’ policies are dis-
criminatory, and they refuse to condone such practices by
allowing their children to join the Boy Scouts.
B. The Leases
In accord with its long history of “encourag[ing] nonprofit
organizations to develop cultural, educational, and recre-
ational programs” on the City property, the plaintiffs’ home
town of San Diego has leased 123 public properties to various
nonprofit organizations.2 [SER 10, 36.] One of these organiza-
2
These organizations include religious organizations (e.g., San Diego
Calvary Korean Church, Point Loma Community Presbyterian Church,
6592 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
tions is the Desert Pacific Council, which leases, occupies,
and operates portions of two popular city parks. Other por-
tions of those parks are extensively used by the plaintiff fami-
lies. Under the original lease, the Council paid one dollar per
year in rent. In 2002 the parties entered into a new twenty-
five-year lease, which requires the Desert Pacific Council to
pay one dollar in annual rent and a $2,500 annual administra-
tion fee.
The City negotiated this lease with the Council on an exclu-
sive basis, as it sometimes does with groups, religious or sec-
ular, that it deems to be appropriate operators of a particular
piece of City property. [ER 843-44, 850 (132:8-23); SER 433-
34, 592 (135:7-20), 1168, 1172-73, 1175, 1182-83, 1185-86,
1189.] Other organizations receive similar terms. Some
ninety-six of the City’s leases to non-profits (including nine-
teen leases to youth-oriented recreational non-profits) require
no rent or rent less than the $2,500 fee the Council pays, and
fifty of them have terms twenty-five years or longer. [SER
12-15, 27-29.] Although they produce little to no revenue,
these leases save the City some money by placing the costs
of maintenance and improvement upon the lessee organiza-
tions. [SER 204-05.] The City spends nothing on the proper-
ties leased to the Council. [SER 3 ¶ 9, 5 ¶ 17.]
The Council leases from the City sixteen acres in Balboa
Park known as Camp Balboa. Camp Balboa offers a “unique”
urban camping opportunity in the “heart of the City.” [ER
1966 ¶ 7.] 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. The
Jewish Community Center, Salvation Army), organizations concerned
with children or the elderly (e.g., Camp Fire, Girl Scouts, ElderHelp, Little
League), organizations that limit their membership or services on the basis
of race or ethnicity (e.g., Vietnamese Federation of San Diego, Black
Police Officers Association), and art museums and similar institutions
(e.g., San Diego Art Institute, Old Globe Theater) [SER 11, 14, 27-29].
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6593
lease requires the Council to maintain the property and to
expend at least $1.7 million for capital improvements over
seven years. [ER 820.] The Boy Scouts have landscaped, con-
structed recreational facilities, and installed water and power
on the property. [SER 217 ¶ 17.]
Similarly, under the Fiesta Island lease, the Boy Scouts
spent approximately $2.5 million to build the Youth Aquatic
Center [SER 215 ¶ 10, 1084 ¶ 19]. The facility offers the use
of kayaks, canoes, sail and row boats, and classroom space to
other youth groups at inexpensive rates. [SER 215-16 ¶¶ 10-
11.]
C. Occupancy of the Land
The Desert Pacific Council makes exclusive use of portions
of Balboa Park for its own benefit. The Council has its head-
quarters on park property. From this facility it oversees its
$3.7 million budget, manages its thirty employees, and pro-
cesses 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 available for use by non-member groups, but the
Council manages reservations of these recreational facilities.
Campsites at Camp Balboa are available on a first-come, first-
served basis. [SER 295, 307, 617-18.] Thus, if the plaintiffs
were to use the land, they would have to do so subject to the
Council’s oversight. The Council can declare the camp
“closed,” determine how many people are going to attend the
camps, and then open up only the unreserved facilities to the
public. Nonetheless, numerous other groups have camped in
the campsites while camp was in session, and the San Diego
Boy Scouts have not turned any non-Scout group away from
Camp Balboa during that time. [SER 291 (171:3-6); see also
SER 624 (156:16-157:16); 291 (170:13-15)]. The Camp
6594 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
charges a small fee for camping, but the revenue from fees is
insufficient to cover the cost of maintaining the camp facili-
ties. [SER 218].
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 con-
dition that it expend $1.5 million to build the Youth Aquatic
Center. At a price of about $2.5 million [SER 1084 ¶ 19], the
Council built and now operates the Aquatic Center, which
offers boating, sailing, canoeing, and kayaking to San Diego
youth.
As at Camp Balboa, reservations to use the Youth Aquatic
Center are made through the Council. The Aquatic Center has
a formal first-come, first-served policy, but the policy has
exceptions for Scout members. The Desert Pacific Council is
permitted to reserve up to 75% of the facilities seven days in
advance. The Council also hosts a members-only camp for
four weeks each summer. The reservation books during camp
say “YAC Closed for Summer Camp,” although the Boy
Scouts’ use of the Aquatic Center during those weeks is not
exclusive. [SER 216-17, 317.] While the public cannot use the
Aquatic Center during summer camp for water-based activi-
ties, it can reserve dormitories or other facilities the Scouts
are not using. In practice, non-members often use portions of
the facilities more than members do. [SER 216-18.] The 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. [SER 291 (170:13-15, 171:3-6), 315 (227:11-
14).] The Center charges fees for use, but there is no evidence
that the fees equal or exceed the cost of maintaining the facili-
ties.
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6595
There are no religious symbols either at Camp Balboa or at
the Youth Aquatic Center.
D. The Plaintiffs’ Injury
The plaintiffs never applied to use the Youth Aquatic Cen-
ter or Camp Balboa; there is no evidence that the Council
actively excluded them. [SER 235-36 (104:24-106:10), 244
(91:25-93:23), 251-52 (33:2-35:10).] Rather, they testified
that the Council’s occupation and control of the land deterred
them from using the land at all. The plaintiffs desired to make
use of the recreational facilities at Camp Balboa and the
Youth Aquatic Center, but not under the Council’s authority.
As a result, they actively avoided the land. They refused to
condone the Boy Scouts’ exclusionary policies by seeking
permission from the Boy Scouts to use the leased facilities or
by using the leased facilities subject to the Boy Scouts’ own-
ership and control. [ER 85, 370-71; SER 252 (35:12-15; 36:2-
5).] They had an aversion to the facilities and felt unwelcome
there because of the Boy Scouts’ policies that discriminated
against people like them. [ER 369; SER 254 (74:4-10)].
The plaintiff families brought this action against the City of
San Diego, the Boy Scouts, and the Desert Pacific Council,
alleging that leasing public land to an organization that
excludes persons because of their religious and sexual orienta-
tions violates the federal Establishment Clause, the California
Constitution’s No Preference3 and No Aid4 Clauses, the fed-
3
This Clause provides, in relevant part:
Free exercise and enjoyment of religion without discrimination or
preference are guaranteed. This liberty of conscience does not
excuse acts that are licentious or inconsistent with the peace or
safety of the State. The Legislature shall make no law respecting
an establishment of religion.
Cal. Const. art. I, sec. 4.
4
This Clause states:
6596 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
eral and state Equal Protection Clauses, the San Diego Human
Dignity Ordinance, and state contract law. The district court
found the plaintiffs had standing as municipal taxpayers and
then allowed them to file an amended complaint. Both parties
sought summary judgment. The court found that the leases
violated the federal Establishment Clause and the California
No Aid and No Preference Clauses and granted summary
judgment in the plaintiffs’ favor. Barnes-Wallace v. Boy
Scouts of Am., 275 F. Supp. 2d 1259, 1276-80 (S.D. Cal.
2003). In the amended final judgment, the court enjoined the
Balboa Park and Fiesta Island leases. The City then notified
the Council that under the terms of the 2002 Balboa Park
lease, the term tenancy was terminated and converted to a
month-to-month tenancy. The plaintiffs have since settled
with the City. The Scout defendants appealed the district
court’s ruling.
III. Jurisdictional Analysis
Before proceeding further, we must satisfy ourselves that
we have jurisdiction over this appeal. We have statutory juris-
diction over the appeal under 28 U.S.C. § 1291, but the par-
ties have presented challenges to the existence of a case or
controversy that is essential to our constitutional jurisdiction
under Article III. See Harrison W. Corp. v. United States, 792
F.2d 1391, 1392 (9th Cir. 1986). We address these issues as
threshold matters.
A. Mootness
The plaintiffs argue that the appeal is moot as to the Balboa
Park lease because the City terminated the lease after the dis-
Neither the legislature, nor any county, city and county, town-
ship, school district, or other municipal corporation, shall ever
make an appropriation, or pay from any public fund whatever, or
grant anything to or in aid of any religious sect, church, creed, or
sectarian purpose . . . .
Cal. Const. art. XVI, sec. 5.
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6597
trict court’s final judgment. The appeal is not moot because
the Desert Pacific Council still has “a legally cognizable inter-
est for which the courts can grant a remedy.” Alaska Ctr. for
the Env’t v. U.S. Forest Service, 189 F.3d 851, 854 (9th Cir.
1999). The City did not terminate the Desert Pacific Council’s
tenancy, but rather converted it to a month-to-month, hold-
over tenancy. The Council still occupies Camp Balboa, and
the permissibility of its tenancy remains at issue in this
appeal. Moreover, the City’s notice terminating the lease indi-
cated that, if the district court’s judgment is reversed, the ter-
mination notice will be of no effect. The controversy with
regard to the Balboa Park lease is not moot.
B. Standing
The Boy Scouts challenge the standing of plaintiffs to bring
this action. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (explaining that standing is a component of the
case-or-controversy requirement). Because the case was
decided on summary judgment in the district court, the plain-
tiffs had the burden of showing by uncontroverted facts that
they had standing to challenge the leases. See id. at 561. We
conclude that the plaintiffs have sustained that burden, but we
base standing on a different ground from that adopted by the
district court.
The Barnes-Wallaces and the Breens have standing to pur-
sue their claims because uncontroverted evidence shows that
they suffered injury-in-fact traceable to the Scout defendants’
conduct, and that a favorable decision is likely to redress their
injuries. See Lujan, 504 U.S. at 560-61. The Barnes-Wallaces
and the Breens submitted declarations asserting, without con-
tradiction by the Scout defendants, that they would like to use
Camp Balboa and the Aquatic Center, but that they avoid
doing so because they are offended by the Boy Scouts’ exclu-
sion, and publicly expressed disapproval, of lesbians, atheists
and agnostics. The plaintiffs also object to the Boy Scouts’
control of access to the facilities, noting that their use of the
6598 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
land would require “go[ing] through” the Boy Scouts and
passing by symbols of its presence and dominion.
We have held that comparable restrictions on plaintiffs’ use
of land constitute redressable injuries for the purposes of Arti-
cle III standing. Our Establishment Clause cases have recog-
nized an injury-in-fact when a religious display causes an
individual such distress that she can no longer enjoy the land
on which the display is situated. In Buono v. Norton, the
plaintiff, a practicing Roman Catholic, was so offended by the
“establishment” of a cross on public land that he avoided
passing through or visiting the land. 371 F.3d 543, 546-47
(9th Cir. 2004). We concluded that Buono’s “inability to
unreservedly use public land” constituted an injury-in-fact,
reasoning that Buono’s avoidance of the land was a personal
injury suffered “as a consequence of the alleged constitutional
error.” Id. at 547 (internal quotation marks omitted); see also
Ellis v. La Mesa, 990 F.2d 1518, 1523 (9th Cir. 1993) (finding
standing where plaintiffs avoided using land on which cross
was displayed).
Similarly, 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. As in Buono, they have alleged injuries
beyond “the psychological consequence presumably produced
by observation of conduct with which [they] disagree[ ],”
because their inhibition interferes with their personal use of
the land. Valley Forge Christian Coll. v. Am. United for Sepa-
ration of Church & State, 454 U.S. 464, 485 (1982). Indeed,
the plaintiffs’ emotional injuries are stronger than those of the
Catholic plaintiff in Buono, because they belong to the very
groups excluded and disapproved of by the Boy Scouts, and
because they would be confronted with symbols of the Boy
Scouts’ belief system if they used or attempted to gain access
to Balboa Park and the Aquatic Center.
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6599
We also have found standing, in environmental cases, when
plaintiffs’ enjoyment of land would suffer because of treat-
ment of the land or events occurring on the land. See Alaska
Wildlife Alliance v. Jensen, 108 F.3d 1065, 1068 (9th Cir.
1997) (plaintiffs “demonstrate aesthetic and recreational harm
that will support standing” when noise, trash, and wakes of
vessels in national park diminished plaintiffs’ enjoyment of
the land); Ocean Advocates v. U.S. Army Corps of Eng’rs,
402 F.3d 846, 860 (9th Cir. 2005) (holding that plaintiff orga-
nization suffered injury from increased risk of oil spill that
would impair its aesthetic or recreational enjoyment of a
stretch of Alaskan coastline). The plaintiffs’ enjoyment of the
Council-operated facilities is similarly threatened by the Boy
Scouts’ presence and activities. The plaintiffs are faced with
the choice of not using Camp Balboa and the Aquatic Center,
which they wish to use, or making their family excursions
under the dominion of an organization that openly rejects
their beliefs and sexual orientation. This is not a case where
the plaintiffs have no plan to use the land in question. See
Lujan, 504 U.S. at 564 (requiring “concrete plans” to visit
place of environmental harm for a finding of actual and immi-
nent injury). The plaintiffs accordingly have alleged a con-
crete recreational loss.
We conclude that, even with the facts construed favorably
to the Scout defendants, the plaintiffs have shown both per-
sonal emotional harm and the loss of recreational enjoyment,
resulting from the Boy Scouts’ use and control of Camp Bal-
boa and the Aquatic Center. These injuries, which are likely
to be redressed by a favorable decision, satisfy the standing
requirements of Article III of the Constitution.
The Scout defendants argue that, as in Valley Forge, the
plaintiffs’ alleged injuries are based on abstract “feelings” and
“beliefs” about the Boy Scouts, and therefore are inadequate
to confer standing. We conclude that Valley Forge does not
control this case. The Valley Forge plaintiffs, who resided in
Maryland and Virginia, learned through a news release of a
6600 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
transfer of federal land in Pennsylvania to a sectarian college.
They attempted to challenge the transfer in federal court. Val-
ley Forge, 454 U.S. at 487. They did not purport to have an
interest in using the land at issue. See id. at 486 (“We simply
cannot see that respondents have alleged an injury of any
kind, economic or otherwise, sufficient to confer standing.”)
(emphasis in original). In contrast, the Breens and Barnes-
Wallaces reside in San Diego, where Camp Balboa and the
Aquatic Park are located, and have expressed a desire to make
personal use of the facilities operated by the Council. They
can hardly be characterized as individuals who “roam the
country in search of governmental wrongdoing.” Id. at 487;
see also Allen v. Wright, 468 U.S. 737, 755-56 (1984).5 More-
over, the plaintiffs here are lesbians and agnostics, members
of the classes of individuals excluded and publicly disap-
proved of by the Boy Scouts. They are not bystanders
expressing ideological disapproval of the government’s con-
duct. The plaintiffs’ personal interest in the land at issue, and
the personal nature of their objection to the Scout defendants’
use of the land, take this case outside of the scope of Valley
Forge.6
5
In Allen, the Supreme Court held that a stigmatic injury caused by
racial discrimination could support standing only if the plaintiffs person-
ally had been or were likely to be subject to the challenged discrimination.
Allen, 468 U.S. at 755-56. The injury of which the Barnes-Wallaces and
Breens complain is the offensiveness of having to deal with the Boy
Scouts in order to use park facilities that they wish to use, and would use,
but for the control of the Boy Scouts over those facilities. We conclude
that this injury is sufficiently immediate to these plaintiffs to permit stand-
ing under the rationale of Allen.
6
The dissent to this order points out that we originally rejected this the-
ory of standing on the ground that no obvious religious displays were pres-
ent at the Camp or Aquatic Center. The majority of the panel concludes,
however, that the earlier reasoning was incorrect. Psychological injury can
be caused by symbols or activities other than large crosses. See Heckler
v. Mathews, 465 U.S. 728, 739-40 (1984) (holding that stigma of discrimi-
nation confers standing even though remedy may confer no material bene-
fit). Here, the psychological injury is generated primarily not by plaintiffs’
own beliefs but by the Boy Scouts’ disapproval of the plaintiffs and people
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6601
C. The Plaintiffs’ Alternative Theories of Standing
We reject the plaintiffs’ other theories of standing: the the-
ory that they have standing as taxpayers and the theory that
they suffered injury from the Council’s policy of preferential
access to the leased property. We disagree with the district
court and conclude that the plaintiffs do not have standing as
municipal taxpayers because they have not suffered a “direct
dollars-and-cents injury.” Doremus v. Bd. of Educ. of Haw-
thorne, 342 U.S. 429, 434 (1952). The plaintiffs characterize
the nominal-rent leases as tax expenditures, but the Supreme
Court recently made clear that a government’s forgoing of
revenue is not the equivalent of an expenditure. Daimler-
Chrysler Corp. v. Cuno, 126 S. Ct. 1854, 1862 (2006).7 The
Court rested its holding in part on the fact that the plaintiff
taxpayers’ injury was not “actual or imminent” because the
tax break—designed to stimulate the economy—would not
necessarily lower government revenues. Id. at 1862. Simi-
larly, this court has held that municipal taxpayers must show
an expenditure of public funds to have standing. Doe v. Madi-
son Sch. Dist. No. 321, 177 F.3d 789, 793-97 (9th Cir. 1999);
Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir. 1991). The
plaintiffs’ injury is not actual or imminent because it is
unclear whether San Diego loses money by charging nominal
rent but requiring lessees to maintain and improve the leased
property.
The leases are more reasonably characterized as a potential
loss of municipal revenues, but even this loss is not definite
like them. As Buono points out, the problem with standing in Valley Forge
was not the nature of the psychological injury but “the absence of any per-
sonal injury at all.” Buono, 371 F.3d at 547. A psychological injury that
is generated by demeaning actions directed at the plaintiffs and that causes
the plaintiff to avoid a public area that he wishes to use is sufficient to
overcome that problem and confer standing. See id.7
The district court did not have the benefit of DaimlerChrysler at the
time it ruled that the plaintiffs had taxpayer standing.
6602 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
enough to create municipal taxpayer standing. There is no evi-
dence that, if the leases were invalidated, the City would use
the land to generate revenue. See DaimlerChrysler, 126 S. Ct.
at 1862 (finding the plaintiff taxpayers’ alleged injury too
conjectural because it depended on legislators’ responses to
the tax breaks in question). For example, the City’s Director
of Real Estate testified that “[t]he City would likely seek
another lessee to operate a recreational facility . . . under simi-
lar terms and conditions in the existing [Youth Aquatic Cen-
ter] lease . . . [because the] City Council has never had a
policy of using the [Youth Aquatic Center] property in a man-
ner that maximizes the revenue that potentially could be gen-
erated by this site.” [SER 4 ¶ 12.] More generally, the
Director stated that “the City has not historically sought to
obtain market rent from nonprofit lessees of dedicated park-
land.” Without a definite expenditure of municipal funds,
plaintiffs do not have standing as municipal taxpayers. Daim-
lerChrysler, 126 S. Ct. at 1862; Cammack, 932 F.2d at 770-
71.
Nor can the plaintiffs claim standing on the basis of the
Council’s policy of granting preferential access to the Boy
Scouts. Even if the Council excludes other groups in favor of
Boy Scouts—a disputed fact here—the plaintiffs cannot show
injury from this policy. The plaintiffs have insisted that they
would not use the facilities while the Boy Scouts are lessees.
The plaintiffs never contacted the Boy Scouts about using the
facilities, and they admitted they knew little or nothing about
the Boy Scouts’ policies regarding access to the facilities.
Without any plans to apply for access, the plaintiffs cannot
show actual and imminent injury from a discriminatory policy
of denying access. See Lujan, 504 U.S. at 564.
Moreover, the injury that we have concluded the plaintiffs
did suffer cannot be redressed by correcting this access pol-
icy. As long as the Council as an organization maintains poli-
cies that exclude from participation and demean people in the
plaintiffs’ position, no amount of evenhanded access to the
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6603
leased facilities will redress the plaintiffs’ injury: emotional
and recreational harm arising out of the Council’s control and
administration of public land that the plaintiffs wish to use. It
is this injury, and not the alleged Boy Scouts’ policy of pref-
erential access to the facilities it operates, that supports plain-
tiffs’ standing to maintain their claims under the federal and
state religion clauses.8
IV. Explanation of Certification
A. The Need to Avoid Federal Constitutional
Questions
“[F]ederal courts should not decide federal constitutional
issues when alternative grounds yielding the same relief are
available.” See Kuba v. 1-A Agric. Assoc., 387 F.3d 850, 856
(9th Cir. 2004). If the California Constitution provides an
independent basis for relief, then there is “no need for deci-
sion of the federal issue.” City of Mesquite v. Aladdin’s Cas-
tle, Inc., 455 U.S. 283, 295 (1982). Yet any interpretation by
this court of the State’s constitutional clauses, unlike an inter-
pretation by the California Supreme Court, cannot be authori-
tative. See Bartoni-Corsi Produce, Inc. v. Wells Fargo Bank,
N.A. (In re Bartoni-Corsi Produce, Inc.), 130 F.3d 857, 861
(9th Cir. 1997).
B. The Need for Certification
We certify three issues to the California Supreme Court
because they require interpretation of the state constitution’s
religion clauses beyond that found in state or federal cases.
8
The dissent asserts that “[t]he Boy Scouts are entitled to gather
together freely and reinforce the views they share.” The complaint, how-
ever, does not challenge the right of the Boy Scouts to associate and share
views; it challenges only their entitlement to manage a portion of the
City’s parks. Our discussion here relates only to whether the plaintiffs can
bring this challenge, not to whether their claim ultimately will be found
meritorious.
6604 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
These clauses affect the delicate relationship between the gov-
ernment and religion, and any interpretation of these clauses
has significant public policy ramifications.
1. The No Preference Clause
The No Preference Clause states in part that “[f]ree exer-
cise and enjoyment of religion without discrimination or pref-
erence are guaranteed.” Cal. Const. art. 1 § 4. The California
Supreme Court “has never had occasion to definitively con-
strue” this clause. E. Bay Asian Local Dev. Corp. v. Califor-
nia, 24 Cal. 4th 693, 719 (2000). Having not yet been faced
with a case that requires it “to declare the scope and proper
interpretation” of the clause, it has found no necessity to set
the boundaries of the clause. See Catholic Charities of Sacra-
mento, Inc. v. Superior Court, 32 Cal. 4th 527, 562 (2004).
We therefore cannot accurately estimate from existing Cali-
fornia Supreme Court cases how that Court would apply the
No Preference Clause to the case before us. It is true that, in
a case involving exemptions from a landmark preservation
law for religious institutions, the California Supreme Court
held that, because the challenged action passed the federal
Establishment Clause test set forth in Lemon v. Kurtzman, 403
U.S. 602 (1971), it also complied with California’s No Prefer-
ence Clause. E. Bay Asian Local Dev. Corp., 24 Cal. 4th at
719; see also Paulson v. Abdelnour, 145 Cal. App. 4th 400,
434 (2006). It is not at all clear, however, whether the Boy
Scouts’ management of the park facilities complies with the
Lemon test, and we follow the rule of not deciding federal
constitutional questions when state law may be determinative.
We know of no authority compelling the California courts to
address the Lemon test in every challenge brought under the
No Preference Clause. Any independent determination of a
No Preference Clause issue by the California Supreme Court
would be conclusive on this court and this litigation.
Although state intermediate appellate courts have construed
the No Preference Clause, the unique facts of this case would
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6605
require us to go beyond these decisions. See, e.g., Woodland
Hills Homeowners Org. v. Los Angeles Cmty. Coll. Dist., 218
Cal. App. 3d 79, 93-95 (1990); Okrand v. City of Los Angeles,
207 Cal. App. 3d 566, 571-72 (1989); Bennett v. Livermore
Unified Sch. Dist., 193 Cal. App. 3d 1012, 1016, 1024 (1987);
Feminist Women’s Health Ctr., Inc. v. Philibosian, 157 Cal.
App. 3d 1076, 1092 (1984). For example, the plaintiff fami-
lies challenge the process by which the leases were obtained,
but no California court has identified the perspective from
which we should scrutinize these processes to determine
whether there has been a forbidden preference. The United
States Supreme Court adopts the perspective of a reasonable
observer when determining Establishment Clause questions,
see County of Allegheny v. ACLU, Greater Pittsburgh Chap-
ter, 492 U.S. 573, 635 (1989) (O’Connor, J., concurring in
part and concurring in the judgment), but at least one Justice
of the California Supreme Court has urged that courts inter-
preting the No Preference Clause “view the issue from the
perspective of the minority.” Sands v. Morongo Unified Sch.
Dist., 53 Cal. 3d 863, 915-16 (Cal. 1991) (Arabian, J., concur-
ring). Thus, we seek certification so that the California
Supreme Court, rather than this federal court, can chart the
proper course through these unresolved areas.
2. The No Aid Clause
The absence of controlling precedent in regard to the No
Aid Clause presents us with an even greater problem, in part
because that clause is without a parallel in the United States
Constitution. The No Aid Clause prohibits the City from
“mak[ing] an appropriation, or pay[ing] from any public fund
whatever, or grant[ing] anything to or in aid of any religious
sect, church, creed, or sectarian purpose . . . .” Cal. Const. art.
XVI § 5. To assess whether the leases violate the No Aid
Clause, we must determine whether the leases are aid and, if
so, whether the City supports a creed or sectarian purpose by
granting the aid to the Boy Scouts. The California Supreme
Court has not been called upon to define “aid” in a manner
6606 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
that applies to the circumstances of this case. Nor has it been
required to establish what is a “creed” or “sectarian purpose”
to which aid cannot be given.
In its most recent decision construing the No Aid Clause,
California Statewide Communities Development Auth. v. All
Persons Interested in Validity of a Purchase Agreement, 152
P.3d 1070 (Cal. 2007), the California Supreme Court held that
the clause did not invalidate a public bond program that facili-
tated the raising of private money to benefit sectarian institu-
tions. Id. at 1081. It had long been established that such aid
could be given to religiously affiliated colleges so long as the
funds were not used for religious purposes. The question for
decision in Statewide Communities was whether the same rule
applied to institutions that were “pervasively sectarian.” Id. at
1072. No definition of “pervasively sectarian” was required,
because the parties assumed for purposes of the case that the
institutions in question were pervasively sectarian. Id. For the
same reason, it was unnecessary to define precisely a “creed”
or “sectarian purpose.” The bond arrangement was held not to
violate the No Aid Clause so long as the institutions did not
use the bond proceeds for sectarian purposes and met certain
other requirements, including the offering of a sufficiently
broad curriculum of secular subjects. Id. at 1077, 1081. The
Statewide Communities decision does not assist us, however,
in determining whether the City’s leases to the Boy Scouts
violate the No Aid Clause, because the California Supreme
Court emphasized that no public funds or real estate passed to
the sectarian institutions. Id. at 1076. Statewide Communities
therefore does not affect the need for certification in this case.
The facts of this case also require us to go beyond the
framework set forth in our own decision of Paulson v. City of
San Diego, 294 F.3d 1124 (9th Cir. 2002) (en banc), for inter-
preting the No Aid Clause. Paulson concerned a No Aid
Clause challenge to a municipal government’s sale of public
land containing a cross to a sectarian organization. Paulson
concluded that the No Aid Clause “prohibits the government
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6607
from (1) granting a benefit in any form (2) to any sectarian
purpose (3) regardless of the government’s secular purpose
(4) unless the benefit is properly characterized as indirect,
remote, or incidental.” Id. at 1131. Whether the City granted
a benefit to the Scout defendants for the advancement of a
creed or sectarian purpose is a very different and more chal-
lenging question than that presented in Paulson. Resolution of
this issue would require expanding our interpretation of Cali-
fornia cases. An expansion or contraction of the definitions of
“aid,” “creed,” or “sectarian purpose” could have a substantial
impact upon Californians’ liberties and the administration of
their public lands. We are reluctant to embark on a refinement
of the meaning of those terms without the authoritative assis-
tance of the California Supreme Court. We thus ask that Court
to exercise its discretion and decide whether the leases are aid
and whether this aid benefits a creed or sectarian purpose.
V. Administrative Information
The names and addresses of counsel for Lori, Lynn, and
Mitchell Barnes-Wallace and Michael, Valerie, and Maxwell
Breen are:
David Blair-Loy
Elvira Cacciavillani
ACLU Foundation of San Diego & Imperial Coun-
ties
P.O. Box 87131
San Diego, CA 92138-7131
Mark W. Danis
Morrison & Foerster, LLP
12531 High Bluff Drive Suite 100
San Diego, CA 92130-2040
6608 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
M. E. Stephens
Stock Stephens, LLP
110 West C Street Suite 1810
San Diego, CA 92101
The names and addresses of counsel for Boy Scouts
of America and the Desert Pacific Council, Boy
Scouts of America are:
George A. Davidson
Carla A. Kerr
Hughes, Hubbard & Reed
1 Battery Park Plaza
New York, NY 10004
Charles Avrith
Alicia Mew
Hughes, Hubbard & Reed
350 S. Grand Ave. 36th Floor
Los Angeles, CA 90071-3442
Scott H. Christensen
Hughes, Hubbard & Reed
1775 I Street, N.W.
Washington, DC 20006-5040
As required by California Rules of Court 8.548(c) and (d),
the Clerk of this Court shall submit copies of all relevant
briefs and an original and ten (10) copies of this Order to the
Supreme Court of California with a certificate of service on
the parties.
VI. Stay and Withdrawal from Submission
All further proceedings in this case in this court are stayed,
except for petitions for rehearing or rehearing en banc, or sua
sponte calls for en banc rehearing, relating to this certification
order. The Clerk will not transmit this order to the California
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6609
Supreme Court for its consideration until time has run for any
such petitions or calls and, if any such petitions or calls are
made, until proceedings relating to such petitions or calls have
been completed.
This case is withdrawn from submission until further order
of this court. The parties shall notify the Clerk of this Court
within one week after the California Supreme Court accepts
or rejects certification, and again within one week if that
Court renders an opinion.
BERZON, Circuit Judge, concurring:
When Rosa Parks refused to ride in the back of a Mont-
gomery bus one afternoon in 1955, she did so because she dis-
agreed with a city government that let her make use of its
services, but relegated her to second class status. When she
and other African-American citizens decided to boycott the
city’s bus lines, they did so because they would rather avoid
these public facilities than be forced to interact with an insti-
tution that denigrated them and excluded them from full citi-
zenship — while at the same time “tolerating” their presence
in the back of the bus.
Yet, when some of those citizens then sued the city of
Montgomery, there was no argument then made that they
lacked standing because the only injuries they asserted were
merely the “psychological consequence [of] . . . observation
of conduct with which one disagrees.” Valley Forge Christian
Coll. v. Ams. United for Separation of Church & State, 454
U.S. 464, 485 (1982); compare Browder v. Gayle, 142 F.
Supp. 707, 711 (M.D. Ala. 1956) (“[P]laintiffs, along with
most other Negro citizens of the City of Montgomery, have
. . . refrained from making use of the transportation facilities
provided by Montgomery City Lines, Inc.”), aff’d, 352 U.S.
903 (1956).
6610 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
Any comparison to the Jim Crow South may seem greatly
overblown, and in most respects it certainly is. The Boy
Scouts do not express disdain for homosexuals and atheists
anywhere near as graphically or concretely as the Jim Crow
South did blacks, and the Boy Scouts are only one group, not
an entire society and governmental structure. And, on the
merits, the issues here are entirely different from, and quite
obviously nowhere near of the same magnitude of impact or
historic significance as, those in the seminal desegregation
cases.
But at this point — although the dissent carefully avoids so
recognizing in excoriating my comparison — we are con-
cerned only with standing: whether the Barnes-Wallace and
Breen families have suffered an injury allowing them to be
heard in court. And in its nature, though certainly not its
degree, the injury that the Barnes-Wallace and Breen families
claim is much the same as that suffered by the plaintiffs in the
bus desegregation cases. Just as African-Americans could ride
on Montgomery’s buses, but not in the front, the Scouts per-
mit Plaintiffs to make use of Camp Balboa and the Mission
Bay Park Youth Aquatic Center, but do not allow them to be
members of their organization and participate in the activities
conducted at the camps for members. In either case, use of a
valuable public facility is made contingent on acceptance of
imposed second class status within a controlling organiza-
tion’s social hierarchy.
Judge Kleinfeld disagrees, viewing the injury Plaintiffs
assert here as simply their “revulsion for [the] Boy Scouts”
and “feelings of disagreement” with its beliefs. This assertion
betrays a rather skewed view of which direction the revulsion
actually flows in this case, and to what effect.1 One only need
1
The dissent criticizes plaintiffs for bringing this case “under the guise
that their own feelings and disagreements make them feel excluded.” The
sociological term for the tendency to attribute fault for injuries experi-
enced by members of a subordinated group to the group itself is “blaming
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6611
look at the Boy Scout Oath and Law — the dissent’s skepti-
cism concerning the derogatory messages conveyed by parts
of those liturgies notwithstanding — to see that requiring
plaintiffs to deal with the Scouts in order to use Camp Balboa
and the Mission Bay Park Youth Aquatic Center results in an
injury which, in fact, is very real.
The offense Plaintiffs suffer comes from having to interact
with a group that excludes them, on the basis of personal char-
acteristics which that group denigrates and to which it
ascribes moral opprobrium. The Boy Scouts Oath and Law
contain many uplifting sentiments that contain no implicit
criticisms and are in no way exclusionary. But the Boy Scouts
also require their members to promise to be “morally straight”
— and so exclude gays and lesbians, like the Barnes-
Wallaces, from participation in the organization because the
Scouts believe that homosexuality is incompatible with moral
straightness and cleanliness. See Boy Scouts of Am. v. Dale,
530 U.S. 640, 652 (2000) (quoting Scouts’ position that “ho-
mosexual conduct is inconsistent with the requirement in the
Scout Oath that a Scout be morally straight and in the Scout
Law that a Scout be clean in word and deed”). The Scouts
also exclude atheists and agnostics, like the Breens, on the
ground that “no member can develop into the best kind of citi-
zen without recognizing an obligation to God.” Randall v.
Orange County Council, Boy Scouts of Am., 17 Cal. 4th 736,
742 (1998) (citing the Scouts’ expectation that their leaders
will convey this position to their members).
So let us be clear about the source of the “disagreement”
here: The Scouts exclude people like the Breens and Barnes-
the victim.” See, e.g., William Ryan, Blaming the Victim (Vintage, 1976);
cf. Hernandez v. Ashcroft, 345 F.3d 824, 836 (9th Cir. 2003) (noting that
“lay understandings of [the causes of] domestic violence” are “frequently
comprised of myths, misconceptions, and victim blaming attitudes” (inter-
nal quotation marks omitted)).
6612 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
Wallaces, because the Scouts believe them to possess charac-
teristics that make them morally unclean and incapable of
being the “best kind of citizen.” In other words, the reason the
Scouts exclude the Breens and Barnes-Wallaces is not simply
that they do not have the same beliefs or practice the same life
styles; the reason is that, to the Scouts, the Breens and
Barnes-Wallaces hold beliefs and practice life styles that are
reprehensible and subject to deeply held, adverse moral judg-
ments. To not take serious offense from such characteriza-
tions would require a better sense of humor than most of us
possess.2
More importantly, there is not merely offense here but
injury too. To use Camp Balboa and the Mission Bay Park
Youth Aquatic Center, the Plaintiffs must not just observe the
presence of the Boy Scouts, but also interact with, seek per-
mission from, and, quite significantly, pay fees to, this same
organization that believes them inferior in both morals and
citizenship. Plaintiffs allege that in order to avoid such a situ-
ation, they and their children forgo use of the site, thereby
giving up a basic interest that citizens possess in public land
— the right to simply enter and enjoy its recreational environ-
ment. See, e.g., Fund for Animals, Inc. v. Lujan, 962 F.2d
1391, 1396 (9th Cir. 1992). Our case law is quite clear, of
course, that avoidance of public land that one would other-
wise visit and use is an injury that gives rise to standing.
Buono v. Norton, 371 F.3d 543, 546-47 (9th Cir. 2004).
The absence of giant crosses or massive Boy Scout
emblems in this case, of which the dissent makes much, is
simply a 51-foot tall red herring. To return to my historical
analogy, suppose that, during the civil rights movement era,
a municipality permitted a local White Citizens Council,
2
“I don’t care to belong to any club that will have me as a member.”
Arthur Sheekman, The Groucho Letters (1967) (quoting Groucho Marx);
see also Allen v. National Video, Inc., 610 F. Supp. 612, 617 (S.D.N.Y.
1985) (paraphrasing same).
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6613
which opposed desegregation and extension of voting rights
to blacks, to operate on public land a recreation center, which
African-American families could, for a fee paid to the Coun-
cil, get permission from the Council to use. Would those fam-
ilies lack an injury-in-fact if they avoided using those
facilities in order to avoid this direct interaction with an orga-
nization whose policy, otherwise, is to exclude and demean
them? And would the answer differ depending on whether or
not the Council erected a billboard on the property endorsing
“Segregation Forever”?3
The obviousness of the answer to this question is reflected
in the long series of First Amendment cases illustrating that,
when plaintiffs are required to choose between either paying
a fee to an organization with which they disagree or forgoing
an interest to which they are entitled, the existence of an
injury-in-fact is simply taken as a given. See, e.g., Keller v.
State Bar of Cal., 496 U.S. 1 (1990) (plaintiff required as a
condition of law practice to pay dues to state bar with whose
political activities it disagreed); Abood v. Detroit Bd. of
Educ., 431 U.S. 209 (1977) (plaintiff required as a condition
of employment to pay dues to union with which it disagreed).
As here, the decisive element in those cases was the direct
injury to the plaintiff’s interests generated in part by the
requirement of interaction with a group with which one did
3
As this example suggests, Judge Kleinfeld’s complaint that it is inap-
propriate to compare Boy Scout emblems to symbols of white supremacy
misses my point entirely: The absence or presence on public land of sym-
bols of exclusion, whether racial, religious or otherwise, is not the focus
of the standing issue in this case. Plaintiffs’ injury here comes from the
requirement of having to directly interact with, and pay fees to the Boy
Scouts — the actual excluders, themselves — in order to use this land.
And the dissent’s representation to the contrary notwithstanding, Plain-
tiffs’ avoidance of this land is not a reaction to what they “imagine the
Boy Scouts feel about them.” Instead, it is a response to the Scouts’ actual
policy of excluding gays and atheists, which is a matter of legal record,
not bare speculation. See, e.g., Dale, 530 U.S. at 652; Randall, 17 Cal. 4th
at 742 (1998).
6614 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
not want to associate, not the mere fact of a disagreement with
the defendant organization. True, these cases and others like
them ultimately concluded that there are circumstances in
which mandatory association is permitted and devised limited
remedies for those circumstances in which it is not. See, e.g.,
Abood, 431 U.S. at 237-40. But for present purposes, the
salient point is that the legal system recognized the complaint
of the plaintiffs in those cases — that they should not have to
associate with and pay fees to an organization with which
they disagreed to have access to commonly available benefits
— as one which the plaintiffs were entitled to raise in court,
and to which they were entitled a judicial answer.
For all these reasons, the dissent’s suggestion that our
granting standing in this case means that anyone who dis-
agrees with the beliefs of any other group to which the City
of San Diego leases property could bring similar litigation is
entirely overblown. To succeed on the standing theory the
majority adopts, such would-be plaintiffs would have to show
(1) that on the property leased to that group by the city there
is some site or facility which the individual plaintiffs could
have and would have visited and used, were it not for (2) that
group having an exclusionary policy that directly and person-
ally affects the plaintiffs, and (3) that use of the property
would require interaction with the group, such as paying fees
for use of the facility, and perception of its symbols. Cf. Allen
v. Wright, 468 U.S. 737, 756-57 & n.22 (1984). Moreover,
even if standing were so established, to prevail in their suit the
plaintiffs would still have to prove that the defendant group’s
adherence to this policy means that the city’s leasing it the
property violates the state or federal constitution.
I am entirely unconvinced that allowing such cases to be
litigated in court will, as the dissent suggests, “undermine free
speech and freedom of association.” Instead, providing the
plaintiffs with their day in court will ensure that when govern-
ment turns the public’s property over to private groups, it
does so in accordance with relevant constitutional require-
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6615
ments. We certify the merits issues raised in this case to the
California Supreme Court because the question of what the
California Constitution requires in this case is one best
answered by the state’s Supreme Court. What I do not doubt,
however, is that Plaintiffs here have demonstrated sufficient
standing to raise it.
Accordingly, I concur in the majority order.
KLEINFELD, Circuit Judge:
I respectfully dissent.
We issued a previous order in this case.1 I dissented, on the
ground that the plaintiffs lacked standing.2 The Boy Scouts
petitioned for rehearing, and the majority now issues an order
with a quite different standing analysis. Without standing,
there is no federal jurisdiction, and no authority to certify.
Surprisingly, the majority now bases standing on a theory
the majority expressly rejected the last time around. The new
theory is that the plaintiffs would like to use the parks but
“avoid doing so because they are offended by the Boy Scouts’
exclusion, and publicly expressed disapproval, of lesbians,
atheists and agnostics.”3 The theory is that the plaintiffs suffer
“emotional harm and the loss of recreational enjoyment”4
because 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.”5
1
Barnes-Wallace v. City of San Diego, 471 F.3d 1038 (9th Cir. 2006).
2
Id. at 1049 (Kleinfeld, J., dissenting).
3
Order certifying question to the Supreme Court of California at 6597,
Barnes-Wallace v. City of San Diego, No. 04-55732.
4
Id. at 6599.
5
Id. at 6598.
6616 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
Perhaps I need say no more than that the majority expressly
rejected this very theory the last time around, and rightly so.
Here is what the majority said last time about the theory it
adopts this time:
We reject the families’ other theories of standing.
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. See, e.g., Buono, 371 F.3d at
549 (five to eight-foot-tall cross); SCSC, 93 F.3d at
619 (fifty-one-foot-tall cross); Ellis, 990 F.2d at
1520 (thirty-six-foot and forty-three-foot-tall
crosses); Kreisner v. City of San Diego, 1 F.3d 775,
777 (9th Cir.1993) (ten by fourteen-foot displays
containing life-size statuary of 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) (requiring the
plaintiffs to show a personal injury suffered “as a
consequence of the alleged constitutional error”)
(emphasis omitted).6
That was correct and that should be the end of the case. To
assist the reader, I will speak a little more extensively than the
majority did last time on why the psychological theory is mis-
taken, and the cases distinguished last time were correctly dis-
tinguished.
6
Barnes-Wallace, 471 F.3d at 1045-46.
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6617
The overarching authority for this standing issue is the
Supreme Court decision in Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.7
The Court granted certiorari in that case to reject “the unusu-
ally broad and novel view of standing” that the lower court
had applied in Establishment Clause cases.8 In Valley Forge,
advocacy groups challenged a government decision to give
excess government real estate for free to the Assemblies of
God to operate a Christian college. The Court expressly
rejected the psychological injury theory argued in that case
and ours. The Court held that “psychological” injury caused
by “observation” of “conduct with which one disagrees” is
“not an injury sufficient to confer standing under Art. III,”9
They fail to identify any personal injury suffered by
them as a consequence of the alleged constitutional
error, other than the psychological consequence pre-
sumably produced by observation of conduct with
which one disagrees. That is not an injury sufficient
to confer standing under Art. III, even though the
disagreement is phrased in constitutional terms.10
It is not enough, under controlling authority, that plaintiffs
have an interest in the conduct they challenge. For them to
have standing, they need a “legally protected interest.”11
Under Valley Forge, “psychological consequence,”12 even
when strongly felt, is not what Lujan v. Defenders of Wildlife
calls a “legally protected interest”13 and “standing is not mea-
7
Valley Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464 (1982).
8
Id. at 470.
9
Id. at 485.
10
Id.11
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
12
Valley Forge, 454 U.S. at 485.
13
Lujan, 504 U.S. at 560.
6618 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
sured by the intensity of the litigant’s interest or the fervor of
his advocacy.”14
The majority now distinguishes Valley Forge on the theory
that the plaintiffs in that case did not want to use the land and
the plaintiffs in this case do.15 The ratio decidendi of Valley
Forge does not support this distinction. Valley Forge holds
that “psychological” injury caused by “observation” of “con-
duct with which one disagrees” is not a concrete injury to a
legally protected interest sufficient to confer standing, and
that is what the plaintiffs allege. Thus being there and seeing
the offending conduct does not confer standing.
In Valley Forge, the Court saw no significance to the fact
that one of the advocacy groups objecting to this giveaway of
federal land near Philadelphia had members who lived in Penn-
sylvania.16 But suppose that the distinction would make a dif-
ference, as when environmental advocacy groups have
standing or not depending on whether they have members
who use the land affected by the proposed federal action.17
There still needs to be a concrete injury to a legally protected
interest, and in our case there is nothing but avoidance of a
place because of people there who hold different views.
The authorities the majority relies on today (having distin-
guished them last time) are our gigantic cross cases, primarily
Buono v. Norton18 and Ellis v. City of La Mesa.19 Buono
applied Separation of Church & State Committee v. City of
Eugene,20 which had held that a 51-foot-tall neon-illuminated
14
Valley Forge, 454 U.S. at 486.
15
Order certifying question to the Supreme Court of California at 6599-
6600, Barnes-Wallace v. City of San Diego, No. 04-55732.
16
Valley Forge, 454 U.S. at 487 n.23.
17
See Lujan, 504 U.S. at 560.
18
Buono v. Norton, 371 F.3d 543 (9th Cir. 2004).
19
Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir. 1993).
20
Separation of Church & State Committee v. City of Eugene, 93 F.3d
617 (9th Cir. 1996).
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6619
cross on the crest of a hill in a city park violated the Establish-
ment Clause.21 In Buono the cross in Mojave National Pre-
serve was five to eight feet tall on a prominent rock
outcropping rising 15 to 20 feet above grade. It appeared
“likely that the Sunrise Rock cross will project a message of
government endorsement to a reasonable observer” of a par-
ticular religious belief.22 The plaintiff had standing because he
regularly visited the preserve and took an inconvenient road
to avoid viewing the prominent cross on government property.23
Buono holds that the “inhibition” from using public land
“as a consequence of the alleged constitutional error” created
by the cross goes beyond a mere psychological injury. This
holding has boundaries, among them the facts of Buono and
the holding in Valley Forge. Buono distinguishes “the psycho-
logical consequence presumably produced by observation of
conduct with which it disagrees,” and a psychological conse-
quence is all plaintiffs establish in this case.24
In Ellis, there were three crosses, one 36 feet high on top
of a mountain, one 43 feet high in a city park, and a picture
of the mountaintop cross on the city insignia.25 The plaintiffs
avoided the locations, missed the spectacular view from the
mountaintop, and one claimed that he declined to invite busi-
ness clients to the city because the cross offended them. We
held that the plaintiffs who would have visited the public
areas but for the crosses had standing because their access to
public property was interfered with by the crosses. The major-
ity applies the same theory here. Applying these cases,
though, to a case where there is no gigantic cross, is an unjus-
tified extension of their holdings.
21
Id. at 618.
22
Buono, 371 F.3d at 549.
23
Id. at 547.
24
Buono, 371 F.3d at 547 (quoting Valley Forge, 454 U.S. at 485).
25
Ellis, 990 F.2d at 1520.
6620 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
The majority was correct the last time, when it distin-
guished the gigantic cross cases. Previously, it held that “[t]he
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 . . .
[because] 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.” I agree.
In our gigantic cross cases, the government maintained
what amounted to a shrine for a particular religion on public
land. Since time immemorial, shrines have been erected on
hills and mountaintops.26 A huge cross on a hill or mountain-
top would appear to a reasonable objective observer to be a
shrine. People not sharing the religious views represented by
the cross become visitors to another religion’s shrine. On pub-
lic lands, we are all owners, none of us are mere guests. Even
if the Boy Scout emblem were 51 feet tall, illuminated by
neon, and at the crest of a hill (none of which is true), no rea-
sonable observer would think that the Boy Scout emblem cre-
ated a shrine to a major religion or sexual preference. A
gigantic cross on a mountaintop carries religious significance
that a herd of 11 year old boys camping out and swimming
does not.
Unlike a cross, neither a Boy Scout, nor the Boy Scout
emblem (an eagle with a shield on a fleur-de-lis), nor a sign
saying “Boy Scouts,” is the central symbol of any religion or
sexual preference. One would have no idea that the Boy
Scouts even had any views about religion or sex without
doing research. And even if one did, one would, as the peti-
tion for rehearing demonstrates, learn that sex and religion are
but an incidental part of scouting. If one reads the Boy Scout
Handbook to find out whether the Boy Scouts are primarily
oriented around sexual and religious teachings, one will be
26
See, e.g., 1 Samuel 9:9-13; 1 Kings 3:2.
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6621
disappointed to find that there are more pages about knot
tying than sex and religion combined, and that most of what
Boy Scouts learn about and do involves camping, boating,
hiking, swimming, and charitable activities.
Here is the Boy Scout oath that the Barnes-Wallaces say
makes them “feel degraded.”
Scout Oath or Promise
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
Those who disagree with religion of any sort, patriotism,
altruism, physical fitness, mental alertness, or honesty as vir-
tues would not want to take this oath, but no one has to take
the oath or know what it says to use the park. Here is the Boy
Scout Law that generations of Scouts have been required to
memorize, and that the Breens swear makes them feel “dis-
turbed” and “offended,”
Scout Law
A Scout is trustworthy, loyal,
helpful, friendly, courteous, kind,
obedient, cheerful, thrifty, brave,
clean, and reverent.
One who rejects any of these as virtues, not just reverence,
would not want to follow the Boy Scout Law, but no one has
to honor or even know of the oath in order to use the park.
Many generations of Boy Scouts have committed the whole
oath to memory, as they must to get their Tenderfoot badge.
Without memorizing the Scout Law or looking it up, one
would not even know that it included a non-sectarian refer-
ence to religion. By contrast, a gigantic cross on a mountain-
6622 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
top requires no research to let the visitor know that he is
visiting a Christian shrine.
There is a distinction between a prominent display of an
unambiguous religious symbol on public land and groups with
myriad viewpoints working with government to facilitate pub-
lic use of lands. San Diego, like many municipalities, leases
property to many non-profit groups: San Diego Calvary
Korean Church, Point Loma Community Presbyterian
Church, the Jewish Community Center, the Vietnamese Fed-
eration, the Black Police Officers Association, and ElderHelp.
No doubt people can be found in San Diego who do not like
Koreans, Presbyterians, Jews, Vietnamese, Blacks, and old
people, and who disagree with the beliefs people in these
groups share. Their feelings of disagreement or dislike should
not be treated as the “concrete injury” that is “an invasion of
a legally protected interest” required for standing.27
27
Judge Berzon almost concedes that her “comparison to the Jim Crow
South may seem greatly overblown.” Indeed it does. Comparing the feel-
ings of lesbians or atheists in San Francisco who object to the Boy Scouts
managing a municipal facility, even though they have full, open, and
totally nondiscriminatory access, to the treatment of black people in the
Jim Crow South is worse than overblown. It is obscene.
It is beyond me how anyone old enough to recall when they separated
us in Delaware on the train from New York to Washington, D.C., can use
the Jim Crow laws as an analogy to the Boy Scouts managing facilities in
Balboa Park. Black people were not allowed access, generally south of the
Delaware-Pennsylvania state line, to diners, restaurants, water fountains,
the front of the bus, and the front of railroad cars until the civil rights
movement awakened America to the injustice of racial exclusion in the
1950’s and 1960’s. Gays, lesbians and atheists have access identical to
everyone elses’ in the public spaces at issue in this case. They just don’t
want to use it because of their offended feelings.
Judge Berzon concedes in footnote 3 that “[t]he absence or presence on
public land of symbols of exclusion, whether racial, religious or otherwise,
is not the focus of the standing issue in this case,” yet the only standing
case she cites in her concurrence, Buono v. Norton, 371 F.3d 543 (9th Cir.
2004), turns precisely on the presence of a cross on public land. Judge
Berzon’s other case citations, Fund for Animals, Inc. v. Lujan, 962 F.2d
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 6623
There is a distinction important to our liberties between
having a legally protected interest and having an interest in
not being offended. Some people may feel “degraded” or “of-
fended” because of the Boy Scouts’ positions on reverence
and sexuality but so long as their access is unimpaired, the
feeling is no stronger a basis for standing than the feelings
others may have about atheists or lesbians managing the facil-
ity. By treating the Barnes-Wallaces and Breens revulsion for
Boy Scouts and consequent avoidance of a place the Boy
Scouts manage as conferring standing, we extend standing to
a claim that precedent does not support. And we assist in a
campaign to destroy by litigation an association of people
because of their viewpoints. A feeling of revulsion for others
who have different beliefs, so strong that one feels degraded
or excluded if they are present, does not confer standing.
Granting standing to the Barnes-Wallaces and the Breens
undermines freedom of speech and freedom of association.
The Boy Scouts are entitled to gather together freely and rein-
force the views they share. The Barnes-Wallaces and the
Breens can use the facilities that the Boy Scouts manage with-
out agreeing to the Boy Scouts’ views, and without the quiet
and respectful politeness we all exercise in the presence of
another religion’s shrines.
1391, 1396 (9th Cir. 1992), Keller v. State Bar of California, 496 U.S. 1(1990), Abood v. Detroit Board of Education, 431 U.S. 209, 240 (1977),
and Allen v. Wright, 468 U.S. 737, 756-57 and n. 22 (1984), are also ill-
fitting, as any intrepid scholar will discover.
It is crucial to the majority’s argument to call the Boy Scouts “the
excluders,” but at Balboa Park, they do not exclude. The exclusion, to con-
fer standing, must be from a facility to which one desires access. The Pres-
byterian Church, would, I should think, exclude me from employment as
a minister, because I am Jewish, but if they managed a recreational facility
open to all without discrimination as the Boy Scouts do, their ministry
exclusion would not give me standing to challenge their park management
contract. Exclusion from something else entirely, employment as a minis-
ter, does not confer standing to challenge any relationship the government
has with the organization.
6624 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
One virtue not in the Boy Scout law, doubtless because in
a free society it is taken for granted, is tolerance. The Boy
Scouts must and do display tolerance for gay, lesbian, atheist,
and agnostic users of the facilities that they manage for the
city. A free country requires that groups with differing views,
such as the plaintiffs and the Boy Scouts, nevertheless have
to display tolerance for each other. Granting standing to one
because the presence of the other revolts them, under the
guise that their own feelings and disagreements make them
feel excluded, threatens all our liberties.
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