9th Circuit Re-Certifies Issues To California High Court In Boy Scout Case

In a case with a complicated procedural history, the U.S. 9th Circuit Court of Appeals has once again certified three questions of state constitutional law to the California Supreme Court in a case challenging leasing (at nominal or no rent) of camp ground and aquatic center space by the city of San Diego, California to the Boy Scouts. Plaintiffs object to the Scouts' exclusion of atheists, agnostics and homosexuals as volunteers or members. The 9th Circuit hopes that resolution of the state law issues will prevent its having to decide the federal Establishment Clause claim raised by plaintiffs. In Barnes-Wallace v. Boy Scouts of America, (9th Cir., June 3, 2010), the court recounts this history:

We previously certified these questions to the California Supreme Court in an order that ... determined that the plaintiffs had standing to maintain this action.... We stayed our certification order pending disposition of a petition for rehearing en banc. That petition was denied ... and we directed the certification order to be delivered to the California Supreme Court.... The Boy Scout defendants filed a petition for certiorari, however, challenging our certification order's ruling that the plaintiffs had standing.... The Supreme Court of California then entered an order stating that our request for decision of certified questions was "denied without prejudice and may be re-filed after the issue of standing is finalized."

...[W]e stayed further proceedings in our court pending the decision of the Supreme Court on the Boy Scouts’ petition for certiorari, and the decision of the Supreme Court in Salazar v. Buono ... which raised a similar standing issue.

On April 28, 2010, the United States Supreme Court decided Salazar v. Buono, ... but a majority of the Court did not decide the relevant standing issue.... Shortly thereafter, the Supreme Court denied certiorari in Boy Scouts v. Barnes-Wallace....

We conclude, therefore, that the issue of standing has become finalized within the meaning of the order of the California Supreme Court.... In accordance with that order, we take this opportunity to re-file our certification of issues and request for decision by the California Supreme Court.

The questions certified to the California Supreme Court are:

1. Do the leases interfere with the free exercise and enjoyment of religion by granting preference for a religious organization in violation of the No Preference Clause in 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?

Courthouse News Service reports on the 9th Circuit's action.