Barnes-Wallace v. City of San Diego

BERZON, Circuit Judge,

concurring:

When Rosa Parks refused to ride in the back of a Montgomery bus one afternoon in 1955, she did so because she disagreed with a city government that let her make use of its services, but relegated her to second class status. When she and other African-American citizens decided to boycott the city’s bus lines, they did so because they would rather avoid these public facilities than be forced to interact with an institution that denigrated them and excluded them from full citizenship — while at the same time “tolerating” their presence in the back of the bus.

Yet, when some of those citizens then sued the city of Montgomery, there was no argument then made that they lacked standing because the only injuries they asserted were merely the “psychological consequence [of] ... observation of conduct with which one disagrees.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 485, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); compare Browder v. Gayle, 142 F.Supp. 707, 711 (M.D.Ala.1956) (“[Plaintiffs, along with most other Negro citizens of the City of Montgomery, have ... re-*791framed from making use of the transportation facilities provided by Montgomery City Lines, Inc.”), aff'd, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956).

Any comparison to the Jim Crow South may seem greatly overblown, and in most respects it certainly is. The Boy Scouts do not express disdain for homosexuals and atheists anywhere near as graphically or concretely as the Jim Crow South did blacks, and the Boy Scouts are only one group, not an entire society and governmental structure. And, on the merits, the issues here are entirely different from, and quite obviously nowhere near of the same magnitude of impact or historic significance as, those in the seminal desegregation cases.

But at this point — although the dissent carefully avoids so recognizing in excoriating my comparison — we are concerned only with standing: whether the Barnes-Wallace and Breen families have suffered an injury allowing them to be heard in court. And in its nature, though certainly not its degree, the injury that the Barnes-Wallace and Breen families claim is much the same as that suffered by the plaintiffs in the bus desegregation cases. Just as African-Americans could ride on Montgomery’s buses, but not in the front, the Scouts permit Plaintiffs to make use of Camp Balboa and the Mission Bay Park Youth Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members. In either case, use of a valuable public facility is made contingent on acceptance of imposed second class status within a controlling organization’s social hierarchy.

Judge Kleinfeld disagrees, viewing the injury Plaintiffs assert here as simply their “revulsion for [the] Boy Scouts” and “feelings of disagreement” with its beliefs. This assertion betrays a rather skewed view of which direction the revulsion actually flows in this case, and to what effect.1 One only need look at the Boy Scout Oath and Law — the dissent’s skepticism concerning the derogatory messages conveyed by parts of those liturgies notwithstanding — to see that requiring plaintiffs to deal with the Scouts in order to use Camp Balboa and the Mission Bay Park Youth Aquatic Center results in an injury which, in fact, is very real.

The offense Plaintiffs suffer comes from having to interact with a group that excludes them, on the basis of personal characteristics which that group denigrates and to which it ascribes moral opprobrium. The Boy Scouts Oath and Law contain many uplifting sentiments that contain no implicit criticisms and are in no way exclusionary. But the Boy Scouts also require their members to promise to be “morally straight” — and so exclude gays and lesbians, like the Barnes-Wallaces, from participation in the organization because the Scouts believe that homosexuality is incompatible with moral straightness and cleanliness. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 652, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (quoting Scouts’ position that “homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in *792word and deed”). The Scouts also exclude atheists and agnostics, like the Breens, on the ground that “no member can develop into the best kind of citizen without recognizing an obligation to God.” Randall v. Orange County Council, Boy Scouts of Am., 17 Cal.4th 736, 742, 72 Cal.Rptr.2d 453, 952 P.2d 261 (1998) (citing the Scouts’ expectation that their leaders will convey this position to their members).

So let us be clear about the source of the “disagreement” here: The Scouts exclude people like the Breens and Barnes-Wallaces, because the Scouts believe them to possess characteristics that make them morally unclean and incapable of being the “best kind of citizen.” In other words, the reason the Scouts exclude the Breens and Barnes-Wallaces is not simply that they do not have the same beliefs or practice the same life styles; the reason is that, to the Scouts, the Breens and Barnes-Wallaces hold beliefs and practice life styles that are reprehensible and subject to deeply held, adverse moral judgments. To not take serious offense from such characterizations would require a better sense of humor than most of us possess.2

More importantly, there is not merely offense here but injury too. To use Camp Balboa and the Mission Bay Park Youth Aquatic Center, the Plaintiffs must not just observe the presence of the Boy Scouts, but also interact with, seek permission from, and, quite significantly, pay fees to, this same organization that believes them inferior in both morals and citizenship. Plaintiffs allege that in order to avoid such a situation, they and their children forgo use of the site, thereby giving up a basic interest that citizens possess in public land — the right to simply enter and enjoy its recreational environment. See, e.g., Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1396 (9th Cir.1992). Our case law is quite clear, of course, that avoidance of public land that one would otherwise visit and use is an injury that gives rise to standing. Buono v. Norton, 371 F.3d 543, 546-47 (9th Cir.2004).

The absence of giant crosses or massive Boy Scout emblems in this case, of which the dissent makes much, is simply a 51-foot tall red herring. To return to my historical analogy, suppose that, during the civil rights movement era, a municipality permitted a local White Citizens Council, which opposed desegregation and extension of voting rights to blacks, to operate on public land a recreation center, which African-American families could, for a fee paid to the Council, get permission from the Council to use. Would those families lack an injury-in-fact if they avoided using those facilities in order to avoid this direct interaction with an organization whose policy, otherwise, is to exclude and demean them? And would the answer differ depending on whether or not the Council erected a billboard on the property endorsing “Segregation Forever”? 3

*793The obviousness of the answer to this question is reflected in the long series of First Amendment cases illustrating that, when plaintiffs are required to choose between either paying a fee to an organization with which they disagree or forgoing an interest to which they are entitled, the existence of an injury-in-fact is simply taken as a given. See, e.g., Keller v. State Bar of Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990) (plaintiff required as a condition of law practice to pay dues to state bar with whose political activities it disagreed); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) (plaintiff required as a condition of employment to pay dues to union with which it disagreed). As here, the decisive element in those cases was the direct injury to the plaintiffs interests generated in part by the requirement of interaction with a group with which one did not want to associate, not the mere fact of a disagreement with the defendant organization. True, these cases and others like them ultimately concluded that there are circumstances in which mandatory association is permitted and devised limited remedies for those circumstances in which it is not. See, e.g., Abood, 431 U.S. at 237-40, 97 S.Ct. 1782. But for present purposes, the salient point is that the legal system recognized the complaint of the plaintiffs in those cases — that they should not have to associate with and pay fees to an organization with which they disagreed to have access to commonly available benefits — as one which the plaintiffs were entitled to raise in court, and to which they were entitled a judicial answer.

For all these reasons, the dissent’s suggestion that our granting standing in this case means that anyone who disagrees with the beliefs of any other group to which the City of San Diego leases property could bring similar litigation is entirely overblown. To succeed on the standing theory the majority adopts, such would-be plaintiffs would have to show (1) that on the property leased to that group by the city there is some site or facility which the individual plaintiffs could have and would have visited and used, were it not for (2) that group having an exclusionary policy that directly and personally affects the plaintiffs, and (3) that use of the property would require interaction with the group, such as paying fees for use of the facility, and perception of its symbols. Cf. Allen v. Wright, 468 U.S. 737, 756-57 & n. 22, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Moreover, even if standing were so established, to prevail in their suit the plaintiffs would still have to prove that the defendant group’s adherence to this policy means that the city’s leasing it the property violates the state or federal constitution.

I am entirely unconvinced that allowing such cases to be litigated in court will, as the dissent suggests, “undermine free speech and freedom of association.” Instead, providing the plaintiffs with their day in court will ensure that when government turns the public’s property over to private groups, it does so in accordance with relevant constitutional requirements. We certify the merits issues raised in this case to the California Supreme Court because the question of what the California Constitution requires in this case is one best answered by the state’s Supreme Court. What I do not doubt, however, is that Plaintiffs here have demonstrated sufficient standing to raise it.

Accordingly, I concur in the majority order.

. The dissent criticizes plaintiffs for bringing this case "under the guise that their own feelings and disagreements make them feel excluded." The sociological term for the tendency to attribute fault for injuries experienced by members of a subordinated group to the group itself is “blaming the victim.” See, e.g., William Ryan, Blaming the Victim (Vintage, 1976); cf. Hernandez v. Ashcroft, 345 F.3d 824, 836 (9th Cir.2003) (noting that "lay understandings of [the causes of] domestic violence” are "frequently comprised of myths, misconceptions, and victim blaming attitudes” (internal quotation marks omitted)).

. "I don't care to belong to any club that will have me as a member.'' Arthur Sheekman, The Groucho Letters (1967) (quoting Groucho Marx); see also Allen v. National Video, Inc., 610 F.Supp. 612, 617 (S.D.N.Y.1985) (paraphrasing same).

. As this example suggests, Judge Kleinfeld's complaint that it is inappropriate to compare Boy Scout emblems to symbols of white supremacy misses my point entirely: The absence or presence on public land of symbols of exclusion, whether racial, religious or otherwise, is not the focus of the standing issue in this case. Plaintiffs' injury here comes from the requirement of having to directly interact with, and pay fees to the Boy Scouts — the actual excluders, themselves — in order to use this land. And the dissent’s representation to the contrary notwithstanding, Plaintiffs’ avoidance of this land is not a reaction to what they "imagine the Boy Scouts feel about them." Instead, it is a response to the Scouts' actual policy of excluding gays and atheists, which is a matter of *793legal record, not bare speculation. See, e.g., Dale, 530 U.S. at 652, 120 S.Ct. 2446; Randall, 17 Cal.4th at 742, 72 Cal.Rptr.2d 453, 952 P.2d 261 (1998).