Barnes-Wallace v. Boy Scouts of America

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 December 18, 2006

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and
Marsha S. Berzon, Circuit Judges.
19465
19466 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
Order;
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. 29.8. 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 $1 per
year in rent for the Balboa Park property. In return, the Coun-
cil 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 requires mem-
bers to affirm a belief in God.

The plaintiffs are users of the two Parks who are, respec-
tively, lesbians and agnostics. They would use the land or
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19467
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 Prefer-
ence Clause in article 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

The Desert Pacific Council is a nonprofit corporation char-
tered by The Boy Scouts of America to administer Scouting
programs in the San Diego area. The Council must adhere to
the Boy Scouts’ policies and rules. These rules include a pro-
hibition 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 (2000) (holding
that the Boy Scouts has a constitutional right to exclude
homosexuals). The Boy Scouts maintains that agnosticism,
19468 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
atheism, and homosexuality are inconsistent with its goals and
with the obligations of its 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 inter-
fere with the organization’s efforts to convey its religious
message”). The organization’s mission is “to prepare young
people to make ethical choices over their lifetimes by instill-
ing in them the values of the Scout Oath and Law.” [ER 2003
¶ 162.] As part of the Scout Oath, each member and volunteer
must pledge to “do my best . . . [t]o do my duty to God and
my country” and to remain “morally straight.” [Id. 2005
¶ 176.] Duty to God is placed first in the Oath because it is
“the most important of all Scouting values.” [Id. 2004 ¶ 170.]
Members also must agree to uphold the “Scout Law,” which
provides that Scouts are “Reverent” and “Clean.” [Id. 2005
¶ 176-77.] Membership and leadership applications contain a
“Declaration of Religious Principle,” which explains that “no
member can grow into the best kind of citizen without recog-
nizing an obligation to God.” [Id. 1535.] The Boy Scouts
instructs leaders to “be positive in their religious influence
and . . . [to] encourage Scouts to earn the religious emblem
of their faith.” [Id. 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, parents must
promise to assist their sons “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 the Boy Scouts’ policies are discrimina-
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19469
tory, and they refuse to condone such practices by allowing
their children to join.

In the plaintiffs’ hometown of San Diego, the Desert
Pacific Council leases, occupies, and operates portions of two
popular city parks extensively used by the plaintiff families.
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.” [Id.
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.
Under the original lease, the Council paid $1 per year in rent.
In 2002 the parties entered into a new twenty-five-year lease,
which requires the Desert Pacific Council to pay $1 in annual
rent and a $2,500 annual administration fee, and to expend at
least $1.7 million for capital improvements over seven years.

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 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. The Council also controls Camp
Balboa’s reservations. It pencils in reservations as far in
advance as it wishes and then advertises the pre-reserved
times to its members. 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.1
1
For example, the Desert Pacific Council advertised camping dates for
all of 2002 in its Winter 2001 newsletter. In October 2002, it had already
reserved the campsites for its 2003 summer camp. The 2001 reservation
books show that the camp was closed during the Desert Pacific Council’s
spring and summer camps. Diagonal slashes or an “x” covered the reserva-
19470 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
The Council also leases land on Fiesta Island in Mission
Bay Park. In 1987, the City entered into a twenty-five-year,
rent-free lease with the Desert Pacific Council for one-half
acre of waterfront property on Fiesta Island. The City entered
into this lease after the Desert Pacific Council approached it
about building and operating an aquatic center on the island.
The Council was awarded the lease on the condition that it
expend $1.5 million to build the Youth Aquatic Center. The
Council built and now operates the Aquatic Center, which
offers boating, sailing, canoeing, and kayaking to San Diego
youth.

Unlike Camp Balboa, 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.” The public cannot use the
Aquatic Center during summer camp for water-based activi-
ties, but can reserve dormitories or other facilities the Scouts
are not using.

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 Preference2 and No Aid3 Clauses, the Fed-

tion books for these periods. The Council also reserved the entire camp-
ground for several days in February, March, and May 2001, and from
December 31, 2001 to January 5, 2002. At one time the Desert Pacific
Council informed non-Scout youth groups that they could make reserva-
tions not more than three months in advance and that the reservations
would be accepted only if they did not conflict with “other scheduled
Scouting functions.”
2
This Clause provides:
Free exercise and enjoyment of religion without discrimination or
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19471
eral and State Equal Protection Clauses, the San Diego
Human Dignity Ordinance, and state contract law. The district
court found the families 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 Cali-
fornia No Aid and No Preference Clauses and granted sum-
mary judgment in the families’ 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 families 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

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
the establishment of religion.
Cal. Const. art. I, sec. 4.
3
This Clause states:
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.
19472 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
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.

1. Mootness

The plaintiffs argue that the appeal is moot as to the Balboa
Park lease because the City terminated the lease after the dis-
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
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. [ER 804.] The Council still occupies Camp Bal-
boa, and the permissibility of its tenancy remains at issue in
this appeal. Moreover, the City’s notice terminating the lease
indicated that, if the district court’s judgment is reversed, the
termination notice will be of no effect. The controversy with
regard to the Balboa Park lease is not moot.

2. Standing

The Boy Scouts challenges 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 injuries in fact traceable to the Scout defen-
dants’ conduct that a favorable decision is likely to redress.
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19473
See Lujan, 504 U.S. at 560-61. The Barnes-Wallaces and the
Breens submitted declarations asserting, without contradiction
by the Scout defendants, that they used the parks and would
like to use the facilities of the Scouts. They claim to have
inferior access because their sexual orientation or agnostic
beliefs precludes their becoming members. Such an “inability
to unreservedly use public land suffices as [an] injury-in-
fact.” Buono v. Norton, 371 F.3d 543, 547 (9th Cir. 2004); see
Separation of Church & State Committee v. City of Eugene,
93 F.3d 617, 619 n.2 (9th Cir. 1996) (per curiam) (finding
standing because plaintiffs “alleged that the cross prevented
them from freely using the area on and around” the location
of the cross); Ellis v. City of La Mesa, 990 F.2d 1518, 1523
(9th Cir. 1993) (explaining that “standing may be based on
finding that the plaintiff has been injured due to his or her not
being able to freely use public areas”).

We conclude that no rational trier of fact could find that the
plaintiffs had access to the leased facilities that was equal to
that enjoyed by Scout members. Even construing the facts
favorably for the Scout defendants, the evidence shows they
have preferential — and at times exclusive — use of the
leased parklands.4

The Scout defendants contend that the plaintiffs would
have been able to use the Camp Balboa facilities if they had
applied. There are two overflow campsites, the Scouts state,
and “[t]here’s always someplace in Camp Balboa to . . . fit
somebody in.” [SER 624-25.] They claim its members “never
use 100% of the available space at Camp Balboa” and that
other facilities, such as the swimming pool, can be used dur-
ing their camps. The Boy Scouts’ argument mistakenly
assumes that access to Camp Balboa is equal because the
campground is not closed for the Scouts’ exclusive use. The
4
For a detailed description of the Scouts’ preferential use of the leased
parklands, see supra pp. 19469-70.
19474 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
public’s access to the parkland is unequal because it is not on
as favorable terms as that of the Boy Scouts.

The families also have unequal access to the Fiesta Island
Aquatic Center. Again, the Boy Scouts mistakenly assumes
that the public has equal access to the Aquatic Center because
it is not completely closed to nonmembers. The Desert Pacific
Council’s control of the reservations allows it to gain exclu-
sive access to the most sought-after facilities.

Neither the Breens nor the Barnes-Wallaces tried to gain
access to Camp Balboa or the Aquatic Center, but this fact
does not preclude standing. The families knew they would be
subject to unequal or discriminatory treatment, and they did
not have to subject themselves to such treatment to incur an
injury. See Ne. Fl. Chapter of Associated Gen. Contractors of
Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993); Bou-
man v. Block, 940 F.2d 1211, 1221 (9th Cir. 1991). Their
injury was the denial of equal treatment that resulted from a
combination of the Boy Scouts’ exclusion of atheists, agnos-
tics, and homosexuals and the Scouts’ preferential use of
Camp Balboa and the Aquatic Center. See Ne. Fl. Chapter,
508 U.S. at 666 (explaining that the injury is “the denial of
equal treatment resulting from the imposition of the barrier”).
Accordingly, they were not required to attempt to use the por-
tions of the park the Desert Pacific Council exclusively occu-
pies or to make a reservation during Scout camp. See Int’l
Broth. of Teamsters v. United States, 431 U.S. 324, 365
(1977) (stating that a discriminatory employment policy can
deter “those who are aware of it” from applying for jobs).

3. The Families’ Alternative Theories of Standing

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
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19475
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 (1982) (requiring the plain-
tiffs to show a personal injury suffered “as a consequence of
the alleged constitutional error”) (emphasis omitted).

Nor have the families suffered a direct injury caused by the
requirement that they pay a fee to the Desert Pacific Council
to use Camp Balboa or Fiesta Island. It is undisputed that user
fees are deposited into the Council’s general operating fund
and therefore may be used for purposes other than the admin-
istration and upkeep of the parklands. Nonetheless, the fami-
lies’ injury is “conjectural or hypothetical” because they never
paid the fee to the Boy Scouts. Lujan, 504 U.S. at 560 (cita-
tion omitted). Moreover, there is no showing that the fee con-
veys a net benefit to the Boy Scouts; on the contrary, the costs
of maintaining the facilities exceed the user fees.

Finally, we disagree with the district court and conclude
that the families do not have standing as municipal taxpayers
because they have not suffered a “direct dollars-and-cents
injury.” Doremus v. Bd. of Educ. of Hawthorne, 342 U.S. 429,
434 (1952). The families characterize the leases as tax expen-
ditures, but the Supreme Court recently held that “state tax-
payers have no standing under Article III to challenge . . .
state . . . spending decisions simply by virtue of their status
as taxpayers.” DaimlerChrysler Corp. v. Cuno, 126 S. Ct.
1854, 1864 (2006).5 The Court reasoned that the taxpayers
5
The district court did not have the benefit of DaimlerChrysler at the
time it ruled that the plaintiffs had taxpayer standing.
19476 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
lacked standing to challenge a state tax break, in part because
it was unclear whether the tax breaks would “deplete the trea-
sury” and thus cause the taxpayers to suffer an “actual or
imminent” injury. Id. at 1862 (internal quotations omitted).
This rationale applies equally to the municipal taxpayer chal-
lenge in this case. Cammack v. Waihee, 932 F.2d 765, 770
(9th Cir. 1991). The families’ injury is not actual or imminent
because it is unclear whether San Diego is expending tax dol-
lars to support the leased property.

The leases are more reasonably characterized as a potential
loss of municipal revenues, but even this loss is not particular-
ized enough to create standing. There is no evidence that, if
the leases were invalidated, the City would use the land to
generate revenue. See id. at 1862 (finding the plaintiff taxpay-
ers’ alleged injury too conjectural because it depended on leg-
islators’ responses to the tax breaks). The City’s Director of
Real Estate testified that “[t]he City would likely seek another
lessee to operate a recreational facility . . . under similar terms
and conditions in the existing . . . lease . . . [because the] City
Council has never had a policy of using the . . . property in
a manner that maximizes the revenue that potentially could be
generated by this site.” [SER 4 ¶ 12.) Thus, the families have
not suffered an injury to their pocketbook, as is necessary for
taxpayer standing.

IV. Explanation of Certification

1. The Need to Avoid Federal Constitutional
Questions

We are bound to resolve the families’ state constitutional
claims before reaching their federal constitutional challenges.
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 decision of the fed-
eral issue.” City of Mesquite v. Aladdin’s Castle, Inc., 455
U.S. 283, 295 (1982). Yet any interpretation by this court of
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19477
the State’s constitutional clauses, unlike an interpretation by
the California Supreme Court, cannot be authoritative. See
Bartoni-Corsi Produce, Inc. v. Wells Fargo Bank, N.A., 130
F.3d 857, 861 (9th Cir. 1997).

2. 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.
These clauses affect the delicate relationship between the gov-
ernment and religion, and any interpretation of these clauses
has significant public policy ramifications.

a. 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. Super. Ct., 32 Cal. 4th 527, 562 (2004). We
therefore cannot accurately estimate from existing California
Supreme Court cases how that Court would apply the No
Preference Clause to the case before us. Nor can we with con-
fidence look to federal caselaw interpreting the federal Free
Exercise or Establishment Clauses, because those provisions
are narrower than California’s clause. See Sands v. Morongo
Unified Sch. Dist. 53 Cal. 3d 863, 910 (1991) (Mosk, J., con-
curring) (stating that the No Preference Clause “is without
parallel in the federal Constitution”); Vernon v. City of Los
Angeles, 27 F.3d 1385, 1395 (9th Cir. 1994) (noting that the
California Constitution “prohibits any appearance that the
government has allied itself with one specific religion” and
19478 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
that California courts have interpreted the No Preference
Clause “as being broader than the Establishment Clause of the
First Amendment”).

Although state intermediate appellate courts have construed
the No Preference Clause, this case’s unique facts would
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 (1987); Fem-
inist Women’s Health Ctr., Inc. v. Philibosian, 157 Cal. App.
3d 1076, 1092 (1984). For example, the families 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 deter-
mining Establishment Clause questions, see County of Alle-
gheny v. ACLU Greater Pittsburgh Chapter, 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 interpreting the No Pref-
erence Clause “view the issue from the perspective of the
minority,” see Sands, 53 Cal. 3d at 915 (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.

b. The No Aid Clause

No controlling precedent exists in regard to the No Aid
Clause either. This Clause prohibits the City from “mak[ing]
an appropriation, or pay[ing] 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 § 5. To
assess whether the leases violate the No Aid Clause, we must
determine whether the leases are aid and, if so, whether the
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19479
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 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.

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
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. We are reluctant to
embark on a refinement of the meaning of those terms without
the authoritative assistance 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:
19480 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
David Blair-Loy
Elvira Cacciavillani
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA 92138-7131

Mark W. Danis
Morrison & Foerester, LLP
12531 High Bluff Drive Suite 100
San Diego, CA 92130-2040

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 Amer-
ica 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 29.8(c) and (d),
the Clerk of this Court shall submit copies of all relevant
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19481
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
pending final action by the California Supreme Court.

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.

KLEINFELD, Circuit Judge:

I respectfully dissent from the portion of the order conclud-
ing that the plaintiffs have standing under Article III. Because
the plaintiffs lack standing, the case should be dismissed.
However, assuming that there is standing, I concur in the por-
tions of the order certifying questions to the Supreme Court
of California.

The reason that the plaintiffs lack standing to sue the City
and the Boy Scouts is that their only claimed harm from the
Boy Scouts’ religiosity is that it offends them. Neither they
nor their sons have ever sought to join the Boy Scouts or use
the facilities managed by the Boy Scouts. Although the plain-
tiffs are offended that, at some times of the year, a lot of (pre-
sumably reverent) Boy Scouts will be there, plaintiffs do not
claim that they have ever been excluded, nor even that they
want to camp at the same place, or camp at all. If the Boy
Scouts were a church (which they are not), plaintiffs would be
like someone offended because it was harder to get reserva-
tions at a hotel that hosts the church group’s annual conven-
19482 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
tion, even though (1) they could have still made reservations,
and (2) they did not want to stay at a hotel that hosted the
church group.

The complaint avers that the lesbian plaintiffs “refuse” to
participate in Boy Scouts and “will not permit” their son to
participate because of what they understand to be the Scouts’
views on sex. The same is true of the agnostic plaintiffs on
account of the Scouts’ views on God. They do not say that
they or their son has been or will be barred from use of the
San Diego facilities at issue. They allege no concrete personal
injury1 to themselves at all, beyond the offense to their senti-
ments. In their declaration, the plaintiffs say they “avoid” the
Boy Scout area of Balboa Park because they “feel a strong
aversion” to it. What plaintiffs do not say is that they ever
tried to get reservations in the Boy Scout area of the park, or
that they ever even wanted to. Rather, they “refuse to apply
for use of the property” because they “feel degraded.”

The closest plaintiffs get to claiming any “concrete injury”
to themselves is suggesting that what they feel “degraded” by
is that the Boy Scouts block out some time for Boy Scout
activities, and that their reservations would have to be sched-
uled around Boy Scout reservations. But they do not claim
that they have ever tried to make reservations, or ever would
try to make reservations in the areas to which they “feel a
strong aversion,” or that, if they did they try, they could not
get such reservations.

In their declaration, the lesbian plaintiffs say “we would not
even contemplate affiliating ourselves with the Scouts, just as
a Jewish person would not affiliate with a neo-Nazi group.”
There is nothing neo-Nazi about the Boy Scouts. Most Jews
would also decline to affiliate with a perfectly well behaved
1
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(“[P]laintiff must have suffered an ‘injury in fact’ — an invasion of a
legally protected interest which is . . . concrete and particularized . . . .”).
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19483
Episcopalian church, Democrats would decline to affiliate
with the Republican Club and Republicans would decline to
affiliate with the Democratic Club. Not wanting to affiliate
does not imply that the group has harmed any legally pro-
tected interest of those who decline to join or be around them.

Likewise, the agnostic parents “purposely avoid” the Boy
Scout area, but do not claim that they are excluded by any-
thing but their own feelings. They claim that they would like
to have their daughter participate in aquatic programs “but . . .
object to having them exposed to the Boy Scouts’ religious
tenets and activities.” They too allege no “concrete injury”
beyond the one to their feelings. They claim that their use is
“inferior” because the Boy Scouts have the “role of gatekeep-
er.” That would matter, if they sought to get through the gate.
But they do not allege that they ever have or ever would try
to pass through the gate, or that the Boy Scouts would keep
them out if they did. They do not say that they could not sign
their daughter up, just that they don’t want to because she
would be exposed to Boy Scout thinking.

The lesbian and agnostic plaintiffs’ declarations establish
that they have strong negative feelings about the Boy Scouts.
But feelings do not confer standing.2 Federal courts have no
judicial power in the absence of a “case or controversy,”3
2
See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 209
225 (1974) (“We have no doubt about the sincerity of respondents’ stated
objectives and the depth of their commitment to them. But the essence of
standing ‘is not a question of motivation but of the possession of the requi-
site . . . interest that is, or is threatened to be, injured by the unconstitu-
tional conduct.’ ”) (quoting Doremus v. Board of Education, 342 U.S. 429,
435 (1952)). See also Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464, 486 (1982)(“ ‘[T]hat
concrete adverseness which sharpens the presentation of issues,’ Baker v.
Carr, 369 U.S. 186, 204 (1962), is the anticipated consequence of pro-
ceedings commenced by one who has been injured in fact; it is not a per-
missible substitute for the showing of injury itself.”)
3
See U.S. Const., art. III, §2, cl. 1.
19484 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
which does not exist unless the plaintiffs have “standing.”4
And standing requires a “concrete injury,”5 which must be
“actual or imminent, not conjectural or hypothetical.”6

This case is much like Valley Forge Christian College v.
Americans United for the Separation of Church and State,7 in
that the plaintiffs have not established a concrete injury. In
Valley Forge, the federal government had given away public
land to a church college, treating the public benefit of the
church college as a 100% setoff to the property’s appraised
value.8 The plaintiffs, who did not share the religious views
of the church, objected.9 After disposing of plaintiffs’ claim
to have standing as taxpayers,10 the Court went on to address
plaintiffs’ claim to have standing because of the injury to the
plaintiffs’ right to have the government refrain from violating
the Establishment Clause.11 In the course of rejecting this
claim, the Court squarely rejected the sufficiency of “psycho-
logical injury” of the sort claimed by the plaintiffs in the case
at bar:

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
4
Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464, 471 (1982).
5
Baranowicz v. Commisioner of Internal Revenue, 432 F.3d 972, 973
(9th Cir. 2005) (quoting Knisley v. Network Associates, Inc., 312 F.3d
1123, 1126 (9th Cir. 2002)(citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992))).
6
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992).
7
Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464 (1982).
8
Id. at 467-68.
9
Id. at 469.
10
Id. at 482.
11
Id. at 482-487.
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19485
which one disagrees. That is not an injury sufficient
to confer standing under Art. III, even though the
disagreement is phrased in constitutional terms. . . .
[S]tanding is not measured by the intensity of the lit-
igant’s interest or the fervor of his advocacy.12

We are bound by the Supreme Court’s holding in Valley
Forge that psychological injury of this sort is insufficiently
concrete to confer standing.

The way that the plaintiffs establish standing to the majori-
ty’s satisfaction is by showing that if they wanted access to
the Boy Scout areas of Balboa Park, they would be subject to
priorities in favor of the Boy Scouts.13 This is not a persuasive
position factually, at least on the record before us. True, as the
majority says, the Boy Scouts have management offices at the
park. But management and maintenance buildings would be
closed to the general public no matter who did the manage-
ment. True, as the majority says, the Boy Scouts block out
reservations for certain times. But the record establishes that
non-Boy Scouts can use the park even at those times. The
pool is occasionally blocked off, but every public pool is
unavailable to all the people some of the time, and some of
the people all the time, as during girls’ swim, boys’ swim,
adult swim, physical rehabilitation swim, town swimming les-
sons, and “everybody out of the pool” time.

For purposes of argument, though, let us assume that dur-
ing certain desirable times, no one but Boy Scouts can use at
least some of the facilities. According to the record, even dur-
ing the Boy Scouts’ special camping periods or swim periods,
12
Id. at 485-86. The Supreme Court so concluded despite the fact that
some of the plaintiffs lived near the college. It noted that proximity was
not “sufficient to establish that [a plaintiff] has suffered, or is threatened
with, an injury other than their belief that the transfer violated the Consti-
tution. See id. at 487, n.23.
13
Order 19472-74.
19486 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
portions of the facilities are blocked from Boy Scout use and
reserved for the general public, although the pool becomes
unavailable at times. The most that the plaintiffs complain of
is that if they wanted to go to the Boy Scouts area or the pool,
they could not do so on equal terms with the Boy Scouts. But
they do not want to go to these places. If the Boy Scouts
really do exclude non-Scouts at desirable times, there ought
to be some potential palintiffs who have been excluded or
would be if they tried to get in, and would therefore have suf-
fered concrete injury from the Boy Scouts’ gatekeeping role.
These plaintiffs are not among them.

These plaintiffs have never tried, and do not want to try, to
use the facilities so long as the Boy Scouts are there. They
find the Boy Scout area “offensive,” “stressful,” and “not a
safe place.” They do not, and would not, go to the pool,
because they don’t want their children “exposed to the Boy
Scouts’ religious views.” They concede that “[e]ven if the
City put on a . . . program there, [they] wouldn’t send their
children.” The consequence of the Boy Scouts’ presence is
not that the plaintiffs cannot go there, but rather that they do
not want to. That is precisely the psychological harm that Val-
ley Forge holds is inadequate to establish standing.

Though unequal treatment is an injury,14 standing requires
a concrete injury to the challenger. That means not only that
there is unequal treatment, but also that the unequal treatment
affects the challenger. The plaintiffs’ declarations do not
establish that they have been or would be victimized by the
alleged inequality. I do not think that the record establishes
concrete unequal treatment, because the Boy Scouts assidu-
ously avoid excluding non-Scouts even during peak Scout
times (except for the swimming pool for three weeks). The
plaintiffs allegations to the contrary are “no more than an
14
Order 19474 (quoting Ne. Fla. Chapter of Associated Gen. Contrac-
tors of Am. v. City of Jacksonville, 508 U.S. 666 (1993)).
 BARNES-WALLACE v. BOY SCOUTS OF AMERICA 19487
ingenious academic exercise in the conceivable.”15 In essence,
their argument is an argument contrary to fact: if they wanted
to use the facilities that they do not want to use because they
do not like being around the Boy Scouts, they might have to
schedule their use of the park around the Boy Scouts’ times,
if the Boy Scouts’ reservation priority made space unavail-
able, which it doesn’t.

It is not a concrete harm that someone else gets to go first
if the plaintiff does not want to go at all. “The federal courts
were simply not constituted as ombudsmen of the general wel-
fare.”16 For us to have a “case or controversy,” a sine qua non
of our power to do anything about a wrong, the plaintiff must
suffer a “concrete injury” on account of the wrong. Inequality
in making campground reservations and in gaining access to
a pool does not injure someone who does not want to camp
or swim there because of the unpleasantness of being in the
presence of people with contrary beliefs about sex or God.
The plaintiffs’ injury, that if they wanted to use the Boy Scout
area they would have to do so on unequal terms, is too “con-
jectural or hypothetical” to confer standing.17

These plaintiffs complain about not wanting to go to a
place where the Boy Scouts are, not about being unable to get
in. In the cases of ours involving crosses on public land that
the majority cites, the plaintiffs actually would visit and drive
in locations but for the religious symbols.18 Here, the most the
15
United States v. S.C.R.A.P, 412 U.S. 669, 688 (1972).
16
Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464, 487 (1982).
17
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992)
(“[P]laintiff must have suffered an ‘injury in fact’ — an invasion of a
legally protected interest which is . . . actual or imminent, not conjectural
or hypothetical.”)(quotations omitted).
18
See Buono v. Norton, 371 F.3d 543, 546-47 (9th Cir. 2004) (Plaintiff
“regularly visits the Preserve” and “will tend to avoid Sunrise Rock on his
visits as long as the cross remains standing, even though traveling [that
way] is often the most convenient means of access to the Preserve.”); Ellis
v. City of La Mesa, 990 F.2d 1518, 1523 (9th Cir. 1993) (“[The plaintiffs]
avoid two public parks in San Diego which they would otherwise
use.”)(emphasis added).
19488 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
plaintiffs say is that if the Boy Scouts had different views, the
plaintiffs would “like to be able to” camp in the Boy Scout
area, not that they would; the declarations do not even claim
that plaintiffs are campers (or swimmers). Lawyers write
these affidavits carefully, so if the plaintiffs could truthfully
say they would camp, not just that they would like to be able
to camp, they would have said so.

Difficulty in getting a reservation at a hotel because of a
convention is not a concrete injury to a person who does not
want to be there because the guests at the convention are
repulsive to him. For much the same reason, plaintiffs have
not shown that they suffered or were in danger of imminently
suffering a concrete injury.
 PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2006 Thomson/West.