Barnes-Wallace, Etal v. Boy Scouts of Am , 704 F.3d 1067 ( 2012 )

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.
2 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. Kleinfeld,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Canby;
Concurrence by Judge Kleinfeld
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 3
SUMMARY*
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
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).
COUNSEL
Mark W. Danis, Morrison & Foerster, LLP, San Francisco,
California; M. Andrew Woodmansee, Morrison & Foerster,
LLP, San Diego, California, for Plaintiffs-Appellants–Cross-
Appellees.
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 5
Scott H. Christensen, Hughes Hubbard & Reed, LLP,
Washington, D.C.; George A. Davidson and Carla A. Kerr,
Hughes Hubbard & Reed, LLP, New York, New York, for
Defendants-Appellees–Cross-Appellants.
Sheldon T. Bradshaw, David K. Flynn, Eric W. Treene and
Angela Miller, United States Department of Justice, Civil
Rights Division, Washington, D.C., for Amicus Curiae
United States.
Paul Rosenzweig, Washington, D.C., for Amicus Curiae
American Legion.
Matthew F. Stowe, Office of the Attorney General, Austin,
Texas, for Amici Curiae States of Texas, Alabama, Kansas,
Oklahoma, South Dakota and Virginia.
Anthony R. Picarello, Jr., Derek L. Gaubatz and Roger T.
Severino, Washington, D.C., for Amicus Curiae The Becket
Fund for Religious Liberty.
John C. Eastman, Orange, California, for Amicus Curiae
Claremont Institute Center for Constitutional Jurisprudence.
Peter Ferrara, McLean, Virginia, for Amicus Curiae
American Civil Rights Union.
6 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
Eric Alan Isaacson, Michelle M. Ciccarelli and Alreen
Haeggquist, San Diego, California; Rev. Silvio Nardoni,
Glendale, California; Susan Kay Weaver, El Cajon,
California, for Amici Curiae Social Justice Committee and
Board of Trustees of the First Unitarian Universalist Church
of San Diego; its Ministers, the Rev. Arvid Straube and the
Rev. Julie Kain; its Director of Religious Education,
Elizabeth Motander Jones; the Unitarian Universalist
Legislative Ministry California; the Unitarian Universalist
Association of Congregations.
Angela Sierra, Office of the Attorney General for the State of
California, for Amicus Curiae State of California.
Ayesha N. Khan and Alex J. Luchenitser, Washington, D.C.,
for Amicus Curiae Americans United for Separation of
Church and State.
John H. Findley and Harold E. Johnson, Pacific Legal
Foundation, Sacramento, California, for Amici Curiae Pacific
Legal Foundation and Veterans of Foreign Wars.
Robert J. Muise and Julie Schotzbarger, Ann Arbor,
Michigan, for Amicus Curiae Thomas More Law Center.
Paul A. Hoffman, Santa Ana, California, for Amicus Curiae
Individual Rights Foundation.
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 7
OPINION
CANBY, Circuit Judge:
This appeal presents the primary question whether two
leases of land by the City of San Diego to the Desert Pacific
Council, a nonprofit corporation chartered by the Boy Scouts
of America, violate provisions of the California or federal
Constitutions relating to the Establishment of Religion or the
denial of Equal Protection of the Laws. Additional issues
concern claims that the Council’s actions as lessee violate the
San Diego Human Dignity Ordinance and that the Council
breached a nondiscrimination provision of the leases.
The Council pays one dollar per year rent for the Camp
Balboa property in Balboa Park and no rent for the Youth
Aquatic Center property on Fiesta Island in Mission Bay
Park. In return, the Council operates Camp Balboa and the
Youth Aquatic Center. Camp Balboa and the Youth Aquatic
Center are public facilities, but the Council maintains a 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.
8 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
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.
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 9
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 1 maintain that agnosticism, atheism, and
homosexuality are inconsistent with their goals and with the
obligations of their members. See Randall v. Orange Cnty.
Council, Boy Scouts of Am., 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
1
W e use the term “Boy Scouts” to cover the Council and the Boy Scouts
of America collectively.
10 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
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
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 11
has leased 123 public properties to various nonprofit
organizations.2 One of these organizations is the Desert
Pacific Council, which leases, occupies, and operates portions
of Balboa Park and Mission Bay Park, two popular city parks.
Other portions of those parks are extensively used by the
plaintiff families.
One of the Council’s leases with the City is for
approximately eighteen acres in Balboa Park known as Camp
Balboa. Camp Balboa offers a “unique” urban camping
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
2
These organizations include indisputably religious and arguably
religious organizations (e.g., San Diego Calvary Korean Church, Point
Loma Community Presbyterian Church, 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).
12 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
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
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 13
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 properties charge fees for use, but there
is no evidence that the fees equal or exceed the cost of
maintaining the facilities.
The Boy Scouts primarily engage in camping and water
sports activities on the leased properties. However, some
Boy Scout members engage in voluntary religious activities,
such as religious services, on the leased properties. There are
now no religious symbols at either Camp Balboa or the Youth
Aquatic Center. At Camp Balboa, there was formerly an
outdoor meeting area that had signs saying “Scout Chapel”
and “[a] Scout is Reverent.”
D. The Plaintiffs’ Injury
The plaintiffs never applied to use Camp Balboa or the
Youth Aquatic Center; there is no evidence that the Council
actively excluded them. 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
14 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
condone the Boy Scouts’ exclusionary policies by seeking
permission from the Council to use the leased facilities, by
using the leased facilities subject to the Council’s possession
and control, or by paying fees to the Council for use of the
facilities. They had an aversion to the facilities and felt
unwelcome there because of the Boy Scouts’ policies that
discriminated against people like them.
II. Procedural History
This case has a long procedural history. 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 orientations violates the
state and federal Establishment Clauses, the California
Constitution’s No Preference and No Aid Clauses, the state
and federal Equal Protection Clauses, the San Diego Human
Dignity Ordinance, and state contract law. The district court
found that the plaintiffs had standing as municipal taxpayers
for their constitutional claims. Both sides sought summary
judgment.
The district court held that the leases violated the federal
Establishment Clause and the California No Aid and No
Preference Clauses; it granted summary judgment for the
plaintiffs. 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 Youth
Aquatic Center leases. The City then notified the Council
that under the terms of the 2002 Camp Balboa lease, the term
tenancy was terminated and converted to a month-to-month
tenancy. The plaintiffs have since settled with the City. The
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 15
Scout defendants appealed the district court’s grant of
summary judgment.
In a prior decision, we determined that the Scout
defendants’ appeal was not moot and that the plaintiffs had
standing based on their personal harm and loss of recreational
enjoyment, but we rejected the district court’s finding that
they had standing as municipal taxpayers. Barnes-Wallace v.
City of San Diego, 530 F.3d 776, 783–87 (9th Cir. 2008). We
also certified three questions to the California Supreme Court
regarding whether the leases violated the California
Constitution’s No Aid and No Preference Clauses. Id. at 779.
The California Supreme Court initially denied our
certification request without prejudice to renewal after our
ruling on standing became final.
We denied the Scout defendants’ petition for rehearing en
banc of our decision on standing. See Barnes-Wallace v. City
of San Diego, 551 F.3d 891 (9th Cir. 2008). The Scout
defendants then filed a petition for certiorari, and we stayed
further proceedings pending the decision of the United States
Supreme Court on the petition. The United States Supreme
Court ultimately denied certiorari. See Boy Scouts of Am. v.
Barnes-Wallace, 130 S. Ct. 2401 (2010).
Our standing ruling having become final, we renewed our
certification request to the California Supreme Court, which
was declined. See Barnes-Wallace v. City of San Diego,
607 F.3d 1167 (9th Cir. 2010). Accordingly, the matter is
back before us to review the district court’s grant of summary
judgment in favor of the plaintiffs.
16 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
III. Jurisdictional Analysis
As a preliminary matter, we must determine whether we
have jurisdiction over this appeal. We have statutory
jurisdiction under 28 U.S.C. § 1291, but questions have been
raised whether the matter remains an actual case or
controversy, which is required for our constitutional
jurisdiction under Article III. See Harrison W. Corp. v.
United States, 792 F.2d 1391, 1392 (9th Cir. 1986).
Therefore, we address issues of mootness and standing before
proceeding further.
A. Mootness
The Scout defendants contend that the appeal is moot
because the two son plaintiffs, Mitchell Barnes-Wallace and
Maxwell Breen, have turned eighteen years old. The appeal
is not moot because the plaintiffs still have a “legally
cognizable interest for which the courts can grant a remedy.”
Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851,
854 (9th Cir. 1999). We previously held that the plaintiffs
have standing to pursue this action because they have “shown
both personal emotional harm and the loss of recreational
enjoyment, resulting from the Boy Scouts’ use and control of
Camp Balboa and the Aquatic Center.” Barnes-Wallace,
530 F.3d at 785. The plaintiffs continue to experience that
same injury.
In addition to the two son plaintiffs, the parents, Lori and
Lynn Barnes-Wallace and Michael and Valerie Breen, are
plaintiffs in their own right, and their injury is not premised
on injury to their children. The parent plaintiffs are barred
from being volunteers in the Boy Scouts because they are
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 17
homosexuals or agnostics respectively.3 The Barnes-
Wallaces and Breens submitted declarations asserting,
without contradiction by the Scout defendants, that they
would like to use Camp Balboa as a family, but they avoid
doing so because they are offended by the Boy Scouts’
exclusion, and publicly expressed disapproval, of lesbians,
atheists and agnostics. The record does not indicate that there
is an age restriction for use of Camp Balboa and, therefore,
the parent plaintiffs could continue to use Camp Balboa, with
or without their children, after Mitchell Barnes-Wallace and
Maxwell Breen turn eighteen years old.4
Moreover, individuals who are eighteen years old can be
members of the Boy Scouts, and can use the Youth Aquatic
Center and Camp Balboa. The Boy Scouts include a
“Venturing” program, which is open to young men and
women who are fourteen through twenty years of age. Scout
summer camps at the Youth Aquatic Center are available to
members of the Venturing program. The Youth Aquatic
Center lease allows youths up to eighteen years old to camp
and participate in aquatic activities. Quarterly reports
indicate that adults frequently use the Aquatic Center.
We conclude that the plaintiffs continue to have a legally
cognizable interest, and that “a favorable decision is likely to
3
The plaintiffs explicitly do not challenge the Boy Scouts’ right to hold
discriminatory views or arbitrarily limit their membership based on their
views; they object to the Boy Scouts’ management of the Park and Center
under the City Leases.
4
A former president of the Desert Pacific Council testified that the
campsites are available to “families” and “anybody who asks to reserve
them, first-come/first-serve.”
18 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
redress their injuries.” Barnes-Wallace, 530 F.3d at 784.
Therefore, the appeal is not moot.5
B. Standing
The Scout defendants contend that we should reconsider
our prior decision that the plaintiffs have standing for their
constitutional claims based on the state and federal religion
clauses. See id. at 784–86. Under the law of the case
doctrine, we follow our prior decision “unless (1) the decision
is clearly erroneous and its enforcement would work a
manifest injustice; (2) intervening controlling authority
makes reconsideration appropriate; or (3) substantially
different evidence was adduced at a subsequent trial.”
Alaimalo v. United States, 645 F.3d 1042, 1049 (9th Cir.
2011). Our prior decision on standing was published,
however, and became the law of the circuit. The exceptions
to the law of the case doctrine are not exceptions to the rule
that, as a three-judge panel, we are bound by the law of the
circuit in the absence of a recognized exception to that rule.
Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012)
(en banc).
The Scout defendants primarily contend that
reconsideration is appropriate because of the Supreme
5
The Scout defendants also suggest that the appeal is moot because the
two son plaintiffs, Mitchell Barnes-W allace and Maxwell Breen, are
attending college outside of San Diego. Mitchell Barnes-W allace is
attending school in Los Angeles, California, and Maxwell Breen is
attending school in San Francisco, California. This fact, however, does
not preclude their interest in using Camp Balboa and the Youth Aquatic
Center during school breaks. Moreover, as discussed above, their parents
are also plaintiffs and have an injury independent of Mitchell Barnes-
W allace and Maxwell Breen.
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 19
Court’s intervening decision in Summers v. Earth Island
Institute, 555 U.S. 488 (2009). If Summers undermined our
published decision on standing in this case, it would present
a recognized exception to the law of the circuit rule.
Gonzalez, 677 F.3d at 389 n.4. We conclude, however, that
Summers does not undermine our prior ruling. In Summers,
conservation organizations filed suit to enjoin the U.S. Forest
Service from applying regulations that eliminated certain
notice and appeal rights with respect to projects in U.S.
National Forests nationwide. 555 U.S. at 490. The Court
held that the plaintiffs’ affidavit in support of standing was
insufficient, in part because it did not assert any “firm
intention” to visit project locations, stating only that one of
the plaintiffs “‘want[s] to’ go there.” Id. at 496 (alterations
in original).6 The Court reasoned that “[t]his vague desire to
return is insufficient to satisfy the requirement of imminent
injury: ‘Such ‘some day’ intentions – without any description
of concrete plans, or indeed any specification of when the
some day will be – do not support a finding of the ‘actual or
imminent’ injury that our cases require.’” Id. at 496 (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)).
Therefore, the Court concluded that the plaintiffs lacked
standing because they failed to identify any application of the
regulations that “threatens imminent and concrete harm.” Id.
at 495.
6
That affidavit in support of standing in Summers also included a
statement of the affiant’s intention to visit the National Forests in general.
555 U.S. at 495. The Supreme Court held that allegation insufficient,
stating: “Accepting an intention to visit the National Forests as adequate
to confer standing to challenge any Government action affecting any
portion of those forests would be tantamount to eliminating the
requirement of concrete, particularized injury in fact.” Id. at 496. The
allegations of the Barnes-W allaces and Breens in the present case suffer
from no such lack of specificity.
20 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
The Scout defendants argue that, like Summers, the
plaintiffs here do not allege any concrete plans to visit Camp
Balboa or the Youth Aquatic Center. However, we already
rejected this argument in our earlier decision, relying on
Lujan, the same authority cited in Summers. We determined
that “[t]his is not a case where the plaintiffs have no plan to
use the land in question.” Barnes-Wallace, 530 F.3d at 785
(citing Lujan, 504 U.S. at 564 (requiring “concrete plans” to
visit a place of environmental harm for a finding of actual and
imminent injury)). Summers accordingly does not support
reconsideration of our prior decision regarding standing.7
The Scout defendants also rely on this court’s intervening
decision in Caldwell v. Caldwell, 545 F.3d 1126 (9th Cir.
2008). Caldwell held that the plaintiff lacked standing to
raise an Establishment Clause claim arising out of her feeling
offended by the discussion of religious views on the
“Understanding Evolution” website created and maintained
by the University of California. Id. at 1132. Standing was
denied because the plaintiff’s objection was too “abstract”
and “tenuous.” Id. at 1132. Caldwell is distinguishable,
however, because, as we noted in our prior decision, the
plaintiffs here “are not bystanders expressing ideological
disapproval of the government’s conduct,” but rather have a
“personal interest in the land at issue.” Barnes-Wallace,
530 F.3d at 785–86. Moreover, Caldwell was before us when
we denied rehearing en banc of our standing decision; the
dissent from denial of rehearing en banc cited Caldwell.
Barnes-Wallace, 551 F.3d at 898 (O’Scannlain, J.,
dissenting). We therefore need not revisit Caldwell. Finally,
7
After Summers was decided, the Supreme Court denied the Boy Scout
defendants’ petition for certiorari to review our standing decision. Boy
Scouts v. Barnes-Wallace, 130 S. Ct. 2401 (2010).
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 21
we note that Caldwell, as a decision by a later three-judge
panel, cannot by its own force overrule this panel’s prior
opinion. See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir.
2010).
For all of these reasons, we decline the Scout defendants’
invitation to reconsider our prior decision regarding
standing.8
IV. The California No Aid Clause
The plaintiffs contend that the City’s leases to the Council
violate both the California and federal Constitutions.9 We
first determine whether the City’s leases violate the
California Constitution.10 See Kuba v. 1-A Agric. Ass’n,
387 F.3d 850, 856 (9th Cir. 2004) (“[F]ederal courts should
not decide federal constitutional issues when alternative
grounds yielding the same relief are available.”).
8
W e recognize that the standing of the Barnes-W allace plaintiffs, as
lesbians, to challenge the leases as violations of the California No Aid and
No Preference Clauses and of the state and federal Establishment Clauses
is tenuous. The Breens, as atheists, however, clearly qualify for standing
under our prior ruling. Because they have standing, we have jurisdiction
to proceed without the need to address any insufficiencies in the Barnes-
W allaces’ standing. See Comite de Jornaleros de Redondo Beach v. City
of Redondo Beach, 657 F.3d 936, 943–44 (9th Cir. 2011) (en banc).
9
W e review de novo the district court’s grant of summary judgment.
Olsen, 363 F.3d at 922.
10
W e reject the plaintiffs’ contention that the B oy Scouts waived any
challenge to the district court’s ruling on the California constitutional
clauses by not arguing the issues in their opening brief. The issues were
adequately presented in conjunction with the federal constitutional issues.
22 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
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 § 5.11
We construed this provision in our en banc decision of
Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002)
(en banc).12
More recently, the Supreme Court of California has
construed the No Aid Clause in a case addressing the validity
of a program under which a state entity authorized the
issuance of state bonds to fund educational facilities at
various educational institutions, including three that were
assumed to be “pervasively sectarian.” Cal. Statewide Cmtys.
Dev. Auth. v. All Persons Interested (“Statewide
11
The No Aid Clause is notably expansive and exhaustive. In relevant
part it states:
Neither the Legislature, nor any county, city and
county, township, 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, or help to support or sustain any school,
college, university, hospital, or other institution
controlled by any religious creed, church, or sectarian
denomination whatever; nor shall any grant or donation
of personal property or real estate ever be made by the
State, or any city, city and county, town, or other
municipal corporation for any religious creed, church,
or sectarian purpose whatever . . . .
Cal. Const. art. XVI § 5.
12
Paulson invalidated a sale by the City of San Diego of a plot of land
in M t. Soledad Natural Park that contained a large concrete Latin cross.
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 23
Communities”), 152 P.3d 1070 (Cal. 2007). This case, which
was decided after the district court entered its summary
judgment here, is crucial to our decision.
First, it is important to note that, despite the categorical
language of the No Aid Clause, the California Supreme Court
in Statewide Communities re-emphasized that the mere
conferring of some benefit on a sectarian organization does
not ipso facto violate the No Aid Clause. Id. at 1077.
Instead, Statewide Communities enunciated a four-part test
for determining whether aid – there, in the form of state
bonding authority furnished to a pervasively sectarian
institution – complies with the No Aid Clause:
(1) The bond program must serve the public
interest and provide no more than an
incidental benefit to religion; (2) the program
must be available to both secular and sectarian
institutions on an equal basis; (3) the program
must prohibit use of bond proceeds for
“religious projects”; and (4) the program must
not impose any financial burden on the
government.
Id. at 1077. We apply a parallel analysis to that in Statewide
Communities to the situation before us.
The Statewide Communities analysis makes it
unnecessary to belabor two threshold issues: (1) whether the
City’s leases constitute “Aid” to the Scout defendants, and (2)
if so, whether the Scout defendants are “sectarian” within the
meaning of the No Aid Clause. Statewide Communities
upheld a state program that clearly provided substantial
benefits to a pervasively sectarian institution. We assume for
24 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
purposes of our decision, without deciding, that the City’s
leases confer a benefit on the Boy Scouts and that the Boy
Scouts are a sectarian organization. We proceed, then, to
consider whether the City’s aid to the Scout defendants
complies with the requirements set forth in Statewide
Communities.
Like the California Supreme Court in Statewide
Communities, we address factors (2), (3), and (4) of its test
first before considering factor (1).
1. The City Made the Leases Available on an
“Equal Basis.”
The City’s benefit to the Scout defendants must be
available on an “equal basis” to those with religious and
secular objectives. See Statewide Communities, 152 P.3d at
1077; Paulson, 294 F.3d at 1131. For example, we have held
that an airport’s policy of renting commercial space to
religious organizations did not violate the No Aid Clause, in
part, because “there is no suggestion that all religions did not
have the same opportunity to rent space, or that groups with
views opposed to organized religion, or with any other social
or philosophical view, were denied that opportunity.”
Christian Sci. Reading Room Jointly Maintained v. City &
Cnty. of S. F., 784 F.2d 1010, 1014 (9th Cir. 1986).
Similarly, the California Court of Appeal held that a long-
term lease of land by a community college district to a
synagogue did not violate the No Aid Clause, in part, because
“religious and secular groups had equal opportunity to obtain
the government benefit.” Woodland Hills Homeowners Org.
v. L. A. Cmty. Coll. Dist., 266 Cal. Rptr. 767, 776 (Ct. App.
1990).
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 25
The district court (which did not have the benefit of
Statewide Communities at the time it ruled) and the plaintiffs
have taken the position that, in determining whether the
benefit was equally available to others, the focus must be on
the individual negotiation of the leases to the Boy Scouts.
Not everyone, the plaintiffs argue, had an opportunity to lease
the particular plots of land leased to the Boy Scouts.
Therefore, the argument goes, there was no equal access of
sectarian and secular entities to the properties.
This approach to the issue of the City’s evenhandedness
is too narrow, in our view. It is undisputed that the City has
leased no less than 123 parcels of public property to all kinds
of nonprofit organizations, most but not all of which were
purely secular. The City’s practice of leasing its lands is by
no means occasional or targeted in favor of sectarian
organizations; it is multifarious and clearly confers a similar
benefit on both secular and religious organizations. It is true,
as the district court pointed out, that there is no written
specification uniformly governing all such leases. But in
view of the numbers and nature of the leases disclosed by the
record, we conclude that the City’s leases were “available to
both secular and sectarian institutions on an equal basis.” See
Statewide Communities, 152 P.3d at 1077.
2. The Leases Do Not Make City Funds Available
for “Religious Projects.”
Statewide Communities requires that a bonding program
prohibit the “use of bond proceeds for ‘religious projects.’”
Id. at 1077–78. This requirement does not transfer easily to
the context of the Boy Scouts leases, except in the literal
sense that no City funds go for religious projects at either
facility leased to the Boy Scouts because the City expends no
26 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
funds at all on the Boy Scouts or on the properties leased to
them.
It is true that the land leased by the City may be used
from time to time by the Boy Scouts for religious purposes.
But at least two precedents make clear that such use does not
run afoul of the No Aid Clause. Christian Science Reading
Room and Woodland Hills Homeowners involved rental or
leases of property on which religious activities, such as the
devotional reading of Christian Science texts or synagogue
services, undoubtedly occurred, but which were found not to
violate the No Aid Clause. See Christian Sci. Reading Room,
784 F.2d at 1015–16; Woodland Hills Homeowners, 266 Cal.
Rptr. at 774–76. Although these two decisions were issued
before Statewide Communities, they were decided after
California Educational Facilities Authority v. Priest,
526 P.2d 513 (Cal. 1974), on which Statewide Communities
heavily relied. We therefore do not interpret this funding
prohibition of Statewide Communities to invalidate
governmental leases to organizations that may use the leased
properties for religious purposes. Statewide Communities
made it clear that the sectarian institutions involved in that
case were entirely free to engage in religious exercise on the
property funded with bond proceeds; the requirement of the
No Aid Clause was simply that any funding received from the
state bond program not be used specifically to finance
“religious projects.” We find no violation of that requirement
here.
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 27
3. The City’s Leases Impose No Financial Burden
on the City.
In Statewide Communities, the California Supreme Court
held that the bond program at issue imposed no financial
burden on the state because all costs were funded solely by
the private purchasers of the bonds, there was no recourse
against the state for any bonded liability, and any costs to the
government of issuing the bonds were reimbursed by the
schools. See 152 P.3d at 1078. Some tax revenues were
eventually lost because of the tax-exempt status of the bonds,
but such general tax policies had never been held to violate
the No Aid Clause. Id. at 1078 n.7.
It is clear that the City’s leases to the Scout defendants do
not require the City to accept a financial burden. The City is
neither obligated to pay, nor pays, any funds in connection
with either of the leases at issue. It is true that the City has
granted long-term leases of valuable property at nominal or
no rent, but it requires and receives the benefit of expensive
improvement and management of the properties by the Boy
Scouts. Even if there is still a net benefit to the Boy Scouts,
the City does not undertake a liability of the kind that
Statewide Communities was guarding against. We conclude
that the leases are not a “financial burden” to the City within
the meaning of Statewide Communities.13
13
In their original briefing, the plaintiffs stated that the City’s long-term
leases for nominal or no rent violated the No Aid Clause provision
forbidding the “grant or donation of . . . real estate . . . for any . . .
sectarian purpose whatever.” Cal. Const. art. XVI § 5. They did not
further develop that argument, and we decline to address it.
28 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
4. The Benefits of the City’s Leases to the
Religious Purposes of the Scout Defendants
Are Merely Incidental.
We address finally the first of the four mandatory
requirements of Statewide Communities for viability of a
government benefit under the No Aid Clause: the “program
must serve the public interest and provide no more than an
incidental benefit to religion.” See 152 P.3d at 1077. There
is no question that the City’s leases serve the City’s public
purpose of encouraging nonprofit organizations to develop
cultural, educational, and recreational programs and facilities
for public use. The disputed question is whether the City’s
aid to the Scout defendants’ religion is merely incidental to
that public purpose. We conclude that the City’s aid to the
Scout defendants’ religious purposes is incidental.
In Statewide Communities, the California Supreme Court
held that a bond program’s considerable benefit to religion
was incidental so long as the sectarian schools offered a broad
curriculum in secular subjects, and the schools’ secular
classes consisted of information and coursework that was
neutral with respect to religion. See id. at 1079.
There is no dispute that the Scout defendants primarily
provide camping, water sports, and other outdoor youth
activities at Camp Balboa and the Youth Aquatic Center that
are typical of a secular camp facility. Participation in and
instruction in these activities are essentially neutral as to
religion, and qualify as the equivalent of a “broad curriculum
in secular subjects” that the California Supreme Court
required of educational institutions to pass muster under the
No Aid Clause. Id. at 1072. The Boy Scouts make these
activities available both to their own members and to others
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 29
who apply to use the facilities. The provision of those
services for members and others is a legitimate secular
interest of the City and is the City’s main purpose in granting
the leases. Any aid to religion is “incidental” in the common
meaning of that term.
It is also incidental in the legal sense of Statewide
Communities. It is true that we assume for purposes of
decision that, in granting the leases for secular purposes, the
City confers a benefit on the Boy Scouts, and that the Boy
Scouts are a sectarian organization. But the facts that the
Scouts receive a benefit and are a religious organization do
not by themselves amount to a violation of the No Aid
Clause; the educational institutions that benefited quite
considerably in Statewide Communities were assumed to be
pervasively sectarian. It is further true that, in teaching
camping, outdoorsmanship, and aquatic activities, the Boy
Scouts may express religious sentiments but, because the
requirements of Statewide Communities are otherwise met,
“the expression of a religious viewpoint in otherwise secular
classes will provide a benefit to religion that is merely
incidental to the . . . primary purpose of promoting secular
education.” Id. We conclude, therefore, that any benefit
conferred on the religion of the Boy Scouts by the City’s
leases is “merely incidental” within the meaning of Statewide
Communities.
Accordingly, because they meet all four requirements of
Statewide Communities, the leases do not violate the No Aid
Clause of the California Constitution.
30 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
V. The California No Preference and Establishment
Clauses.
Article I, section 4 of the California Constitution
provides: “Free exercise and enjoyment of religion without
discrimination or preference are guaranteed. . . . The
Legislature shall make no law respecting an establishment of
religion.” The plaintiffs invoked both of these No Preference
and Establishment Clauses in their complaint.
The California Supreme Court has held that the
Establishment Clause of the California Constitution creates
no broader protection against the establishment of religion
than the Establishment Clause of the United States
Constitution. E. Bay Asian Local Dev. Corp. v. California,
13 P.3d 1122, 1138 (Cal. 2000). That Court has further held
that a governmental action that satisfies the test of Lemon v.
Kurtzman, 403 U.S. 602 (1971), for permissibility under the
federal Establishment Clause necessarily passes muster under
the California No Preference Clause. E. Bay, 13 P.3d at
1139. Accordingly, we need not separately analyze the
plaintiffs’ claims under these state constitutional provisions
because our disposition of this case requires us to address the
plaintiffs’ federal Establishment Clause claims.
VI. The Establishment Clause of the United States
Constitution.
The district court held that the leases of Balboa Park and
Fiesta Island to the Boy Scouts violated the federal
Establishment Clause. The primary reason paralleled the
district court’s reason for finding a violation of the state No
Aid Clause: the leases were exclusively negotiated with the
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 31
Boy Scouts, and secular organizations were not given a full
opportunity to negotiate leases for those particular lands.
As in the case of the state constitutional claims, we
conclude that the district court gave insufficient weight to the
fact that the City had leased portions of city lands to 123
nonprofit organizations, the great majority of which were
secular in nature. See Bd. of Educ. of Kiryas Joel Vill. Sch.
Dist. v. Grumet, 512 U.S. 687, 704 (1994) (stating that the
Supreme Court has “frequently relied explicitly on the
general availability of any benefit provided religious groups
or individuals in turning aside Establishment Clause
challenges”). In light of that fact, and the other indications of
the purpose and effect of the Boy Scouts’ leases, we conclude
that those leases did not violate the federal Establishment
Clause.
The traditional test applied by the Supreme Court to
determine whether governmental action violates the
Establishment Clause was set forth in Lemon, 403 U.S. at
612–13. To be constitutional, the government conduct at
issue must: (1) have a secular purpose, (2) have a primary
effect that neither advances nor inhibits religion, and (3) not
foster an excessive government entanglement with religion.
Id. In Agostini v. Felton, 521 U.S. 203, 232–33 (1997), the
Court placed a gloss on this formulation, stating that the
factors used to determine the “effect” of a challenged action
were similar to those used to determine whether there was an
excessive entanglement.
The Lemon test has recently led a checkered existence. In
two relatively recent Establishment Clause cases, the
Supreme Court reached differing results under distinct tests
of constitutionality. In Van Orden v. Perry, 545 U.S. 677
32 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
(2005), the Court held that the display of a monument
inscribed with the Ten Commandments on the grounds of the
Texas capitol did not violate the Establishment Clause. The
plurality opinion stated that the Lemon test was “not useful in
dealing with the sort of passive monument that Texas has
erected on its Capitol grounds.” Id. at 686. Justice Breyer’s
concurring opinion also declined to apply the Lemon test. Id.
at 703–04 (Breyer, J., concurring). On the other hand, in
McCreary County v. ACLU, 545 U.S. 844 (2005), the Court
held that the display of lone copies of the Ten
Commandments on the walls of two courthouses violated the
Establishment Clause because the placement of the displays
clearly evidenced a religious purpose, thus failing the first
prong of the Lemon test.
We subsequently discussed the impact of these cases in
Card v. City of Everett, 520 F.3d 1009 (9th Cir. 2008). We
came to two conclusions: (1) “that the three-part test set forth
in Lemon and modified in Agostini remains the general rule
for evaluating whether an Establishment Clause violation
exists”; and (2) that the Lemon test does not apply “to
determine the constitutionality of some longstanding plainly
religious displays that convey a historical or secular message
in a non-religious context.” Id. at 1016. Because our case
generally does not fit within this second category, we apply
the Lemon-Agostini test.
In determining the purpose of a challenged governmental
action, we adopt the viewpoint of an objective observer,
McCreary, 545 U.S. at 862, familiar with the history of the
practice at issue, Newdow v. Rio Linda Union School District,
597 F.3d 1007, 1037–38 (9th Cir. 2010). The result here is
clear. There is no evidence that the City’s purpose in leasing
the subject properties to the Boy Scouts was to advance
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 33
religion, and there is abundant evidence that its purpose was
to provide facilities and services for youth activities. Indeed,
the plaintiffs do not seriously argue that the City’s intentions
were forbidden. The first prong of the Lemon test is satisfied.
In a combined Agostini approach to the second and third
prongs of the Lemon test, we examine “(i) whether
governmental aid results in government indoctrination; (ii)
whether recipients of the aid are defined by reference to
religion; and (iii) whether the aid creates excessive
governmental entanglement with religion.” Card, 520 F.3d
at 1015.
We are satisfied that a reasonable observer familiar with
San Diego’s leasing practices, as well as with the events
surrounding the leasing of Camp Balboa and the Aquatic
Center and the actual administration of the leased properties,
could not conclude that the City was engaged in religious
indoctrination, or was defining aid recipients by reference to
religion. The facts that the City has leased 123 parcels to
nonprofit agencies, the overwhelming majority of which are
secular in nature, and that 96 of those leases require no
payment of rent (although in some cases there is a small
administrative fee), tend to negate any indoctrination or
distribution of aid by reference to religion.14 Instead, they
14
The plaintiffs invoke Community H ouse, Inc. v. City of Boise
(Community House I), 490 F.3d 1041 (9th Cir. 2007), in which we held
that a $1-per-year lease of a homeless shelter to a religious organization
that conducted religious indoctrination was sufficient to support a
preliminary injunction as an Establishment Clause violation. Our later
discussion in Community House, Inc. v. City of Boise (Community House
II), 623 F.3d 945 (9th Cir. 2010), however, addressed the question
whether such a subsidized lease offered on the same rental terms as those
offered to other nonprofit groups would violate the Establishment Clause.
34 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
suggest that favorable City leases “are allocated on the basis
of criteria that neither favor nor disfavor religion.” Agostini,
521 U.S. at 232. Moreover, in the actual management of the
leased properties, the City is not involved at all, and
consequently cannot be seen to be involved or entangled in
any religious activities of the Boy Scouts.15
We conclude, therefore, that the City’s leases to the Boy
Scouts do not violate the federal or California Establishment
Clauses, or the California No Preference Clause.
W e cited with approval a Fourth Circuit case, Fairfax Covenant Church
v. Fairfax County School Board., 17 F.3d 703 (4th Cir. 1994), that held it
to be a violation of the Free Exercise and Free Speech Clauses to charge
religious organizations commercial rental rates while charging other
nonprofit organizations a subcommercial rent. 623 F.3d at 971. W e then
ruled that the defendants in Community House were entitled to qualified
immunity because, if it was an Establishment Clause violation to charge
a religious organization the same subsidized rental charged another
nonprofit organization, the violation was not clearly established. Id. at
971–73. W e do not regard the Community House cases as conflicting with
our holding today.
15
For the same reason, an objective observer familiar with the history
of the City’s leasing projects could not view the Boy Scouts leases as an
“endorsement” of religion by the City. Nothing in the City’s overall
leasing policy can reasonably be regarded as “appearing to take a position
on questions of religious belief or . . . ‘making adherence to a religion
relevant in any way to a person’s standing in the political community.’”
Cnty. of Allegheny v. ACLU, 492 U.S. 573, 594 (1989) (quoting Lynch v.
Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring)); see also
Newdow, 597 F.3d at 1037–38.
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 35
VII. The State and Federal Equal Protection
Clauses.
The plaintiffs’ complaint alleged that the City’s leases
violated the federal and state Equal Protection Clauses “by
endorsing, supporting, and promoting defendants’
discrimination based on sexual orientation and religious non-
belief in the provision of access to and use of leased public
parklands.”16 The district court did not address the merits of
this claim because it had granted the plaintiffs relief under the
state and federal religion clauses. It accordingly dismissed
the equal protection claims as moot. The plaintiffs argue that,
if their religious claims are denied here (as they are), the
dismissal of the equal protection claims should be reversed,
and the matter remanded to the district court for it to address
those claims. We agree that, by reason of our disposition of
the other claims, the equal protection claims are no longer
moot. We conclude, however, that the plaintiffs cannot
succeed on their equal protection claims, and we accordingly
affirm the district court’s dismissal of those claims.
“[I]n order for a state action to trigger equal protection
review at all, that action must treat similarly situated persons
disparately.” Silveira v. Lockyer, 312 F.3d 1052, 1088 (9th
Cir. 2002), abrogated on other grounds by District of
Columbia v. Heller, 554 U.S. 570 (2008). The pleadings and
declarations of the plaintiffs make it abundantly clear that
they have never attempted to use the facilities and
accordingly have not been treated differently from other
members of the public (or indeed treated at all) with regard to
16
W ith exceptions not relevant here, California treats the state and
federal Equal Protection Clauses as embodying an identical guarantee.
See Connerly v. State Pers. Bd., 112 Cal. Rptr. 2d 5, 19 (Ct. App. 2001).
36 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
the leased properties, either by the City or by the Boy Scouts
with the imprimatur of the City.
It is true that, in our earlier decision, we held that the
plaintiffs had established sufficient “injury in fact” to create
a case or controversy giving us Article III jurisdiction over
their claims. See Barnes-Wallace, 530 F.3d at 785. That
injury was a lack of access to Camp Balboa and the Aquatic
Center because of the repugnance of the Boy Scouts’ policies
to the plaintiffs. While that “injury in fact” is sufficient to
invoke our jurisdiction, it does not of its own weight establish
the plaintiffs’ entitlement to relief for a violation of the state
and federal Equal Protection Clauses. “[E]ven when the
plaintiff has alleged injury sufficient to meet the ‘case or
controversy’ requirement, th[e Supreme] Court has held that
the plaintiff generally must assert his own legal rights and
interests . . . .” Warth v. Seldin, 422 U.S. 490, 499 (1975). A
successful claim under the Equal Protection Clauses, unlike
one under the Establishment Clause, requires the
governmental actor to have discriminated against the
plaintiff, in the absence of special circumstances permitting
reliance on rights of third parties. See Powers v. Ohio,
499 U.S. 400, 410–11 (1991). Thus the plaintiffs here must
show that the City, or the Boy Scouts with the City’s
imprimatur, treated the plaintiffs differently from some other
individuals. This they have failed to do.
The plaintiffs contend, however, that they are treated less
favorably than others because members of the Boy Scouts,
which they cannot join, have preferential access to the leased
properties. It is of course true that, when the government
imposes a discriminatory barrier making it more difficult for
members of a group to obtain a benefit (such as a government
contract), the injury of unequal opportunity to compete
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 37
confers standing. See Ne. Fla. Chap. of the Associated Gen.
Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993).
But a plaintiff seeking to challenge such a barrier must
“demonstrate that it is able and ready to bid on contracts.” Id.
The plaintiffs here are not able and ready to apply for access
to Camp Balboa and the Aquatic Center because the
membership policies of the Boy Scouts make it repugnant for
the plaintiffs to apply to any facility operated by them.
Indeed, we addressed this claim of the plaintiffs in our
earlier decision, in a passage that bears repeating. We said:
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
the 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 policy. As
long as the Council as an organization
38 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
maintains policies that exclude from
participation and demean people in the
plaintiffs’ position, no amount of evenhanded
access to the 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 preferential
access to the facilities it operates, that
supports plaintiffs’ standing . . . under the
federal and state religion clauses.
Barnes-Wallace, 530 F.3d at 787 (footnote omitted).
We conclude, therefore, that the plaintiffs have failed to
show a violation of the federal or state Equal Protection
Clauses.
VIII. The San Diego Human Dignity Ordinance.
The Barnes-Wallaces challenge the district court’s
dismissal of their claim under the San Diego Human Dignity
Ordinance. The Ordinance makes it unlawful for any person
to discriminate in the availability of City facilities or facilities
supported by the City on the basis of an individual’s sexual
orientation or gender identity. San Diego Mun. Code
§ 52.9606(a)(1), (3).
For essentially the same reason just discussed with regard
to the equal protection issue, the Barnes-Wallaces cannot
establish a viable claim for relief under the Human Dignity
Ordinance. That ordinance forbids discriminating against
individuals using city-supported facilities on the basis of
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 39
sexual orientation and provides relief to persons “aggrieved”
by the failure to provide such access. See id. § 52.9609(a).
As we have explained, the Barnes-Wallaces never attempted
to use the Camp Balboa or Aquatic Center Facilities, and
accordingly suffered no discrimination in a denial of those
services. They thus have not alleged any violation of the
Ordinance affecting them. The district court did not err in
dismissing their claim.
IX. The Breach of Contract Claim.
The City’s lease for Camp Balboa contained the following
clause:
7.4 Nondiscrimination. LESSEE agrees not to
discriminate in any manner against any person
or persons on account of race, color, religion,
gender, sexual orientation, medical status,
national origin, age, marital status, or physical
disability in LESSEE’S use of the premises,
including but not limited to the providing of
goods, services, facilities, privileges,
advantages, and accommodations, and the
obtaining and holding of employment.
The lease for the Aquatic Center contains an identical
provision except that it omits “sexual orientation” and
“medical status” in the list of prohibited grounds of
discrimination. The plaintiffs contend that the Boy Scouts
breached these provisions, and that they are entitled to sue to
require enforcement.
We assume for purposes of decision, without deciding,
that the plaintiffs can qualify as third-party beneficiaries of
40 BARNES-WALLACE V . BOY SCOUTS OF AMERICA
the nondiscrimination clauses in the two leases. See Lucas v.
Bechtel Corp., 800 F.2d 839, 848 (9th Cir. 1986) (assuming,
without deciding, that a third party was the intended
beneficiary of a contract governed by the Labor-Management
Relations Act).17 On the merits, however, the plaintiffs have
utterly failed to present a viable claim of breach of contract.
The plaintiffs never attempted to use any of the facilities of
Camp Balboa or the Aquatic Center. The Boy Scouts
consequently were never given an opportunity to perform or
to breach any contractual duty to these plaintiffs. The district
court accordingly did not err in dismissing the contract
claims.
X. Conclusion
The district court erred in ruling that the City’s leases
with the Boy Scouts violated the California No Aid Clause,
the California No Preference Clause, and the federal
Establishment Clause. The summary judgment in favor of the
plaintiffs on these claims is reversed, and the matter is
remanded to the district court with instructions to enter
summary judgment in favor of the Scout defendants on these
claims.
The district court’s dismissal of the plaintiffs’ state and
federal equal protection claims is affirmed on the ground that
the plaintiffs lack standing to maintain those claims.
17
The district court held that the plaintiffs could not sue as third party
beneficiaries of the lease provisions. W e do not address this issue
because the plaintiffs’ contractual claims so clearly fail on the merits.
BARNES-WALLACE V . BOY SCOUTS OF AMERICA 41
The rulings of the district court dismissing the plaintiffs’
claims for violation of the San Diego Human Rights
ordinance and for breach of contract are affirmed.
AFFIRMED in part; REVERSED in part; and
REMANDED with instructions.
KLEINFELD, Circuit Judge, 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.