Rehearing and En Banc Review Sought In Boy Scouts Case

As previously reported, on December 18, 2006, in order to avoid deciding a federal constitutional question, the U.S. 9th Circuit Court of Appeals certified three questions to the California Supreme Court in Barnes-Wallace v. Boy Scouts of America. The lawsuit challenges the constitutionality of the City of San Diego's leasing, at nominal rentals, to the Boy Scouts city property on which the Scouts operate a campground and aquatic center. The 9th Circuit asked the California court to consider whether the leases, under state law, unconstitutionally provide support for a creed. However, on December 26, the 9th Circuit issued another order requesting the California Supreme Court to delay considering the certified questions because a 9th Circuit judge had filed a notice that might lead to en banc review. In a press release issued last week, the Boy Scouts revealed that they had filed a petition for rehearing and for en banc review with the 9th Circuit. The petition to the 9th Circuit (full text) argues that the panel majority's decision on standing was in conflict with controlling US Supreme Court decisions, and that it ignored the procedural posture of the case and failed to include the facts necessary for an informed resolution of the certified questions. [Thanks to How Appealing for the lead.]