(CN) – The full 9th Circuit refused to reconsider its decision granting a lesbian couple and an agnostic couple standing in a constitutional challenge to San Diego’s practice of leasing public park land to the Boy Scouts of America.
Judge O’Scannlain, dissenting from the denial of rehearing en banc, said the three-judge panel ruling “splits standing law at the seams, forcing open the courthouse doors to plaintiffs without concrete, particularized injuries.”
The plaintiff families are free to use a campground at Balboa Park and an aquatic center in Mission Bay Park, which are leased by Desert Pacific Council, a nonprofit chartered by the Boy Scouts. The plaintiffs never competed for the leases, nor tried to participate in any Boy Scout-sponsored activities or even use the leased land.
Instead, they anchored their standing on the claim that, although they could use the land, they haven’t because they would be offended by the Boy Scouts’ views on sexuality and religion.
The majority initially rejected this psychological injury claim, but later reversed itself and certified three constitutional law questions to the California Supreme Court. The 9th Circuit withdrew its certification order on June 11, 2008.
A petition for rehearing en banc failed to receive a majority of the votes.
Judge O’Scannlain wrote a dissenting opinion, joined by Judges Kleinfeld, Bybee, Callahan, Bea and Ikuta.
“This case is notable for what it does not involve,” O’Scannlain wrote. “There is no economic injury here … (The families) cannot even claim that they suffered any psychological injury as a result of associating with the Boy Scouts. Rather, the claim here is that the families are psychologically injured by the thought of associating with the Boy Scouts.
“In practical effect, the three-judge panel majority’s unprecedented theory creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court.”