Friday, December 21, 2012

Nominal-Rent Lease To Scouts of City Property Does Not Violate California No-Aid Bar, or Establishment Clause

In Barnes-Wallace v. City of San Diego, (9th Cir., Dec. 20, 2012), the U.S. 9th Circuit Court of Appeals rejected state and federal constitutional challenges to the city's leases of property for nominal or no rent to the Boy Scouts. The Boy Scouts bar youths or adults who are atheists, agnostics,or homosexuals from being members or volunteers.  One set of plaintiffs in the case is a lesbian couple, and the other plaintiffs are agnostics, so they cannot be Boy Scout volunteers.  As parents they refuse to allow their sons to become Boy Scout members because of these exclusionary policies, and refuse to allow their sons to use the property as members of the public so long as the Boy Scouts administer the properties.  Reversing the District Court, the 9th Circuit held that the leases do not violate the "No Aid" Clause of the California Constitution since any benefit to the Scout's religious purposes is merely incidental. (See prior related posting.) Nor do the leases violate the California "No Preference" Clause or the federal Establishment Clause. A reasonable observer "could not conclude that the City was engaged in religious indoctrination, or was defining aid recipients by reference to religion."  Finally the court rejected equal protection, statutory and contract claims. (See prior related posting.)

Judge Kleinfeld, concurring, would also have denied standing to plaintiffs, saying: "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."  The Los Angeles Times reports on the decision.