SAN FRANCISCO (CN) – The 9th Circuit has once again asked the California Supreme Court to decide if San Diego’s practice of leasing public park land to the Boy Scouts of America interferes with religious and civil rights, given the Scouts’ policy barring atheists, agnostics and homosexuals from joining or volunteering.
A three-judge panel said it wasn’t comfortable interpreting the state Constitution’s religion and antidiscrimination clauses, because doing so would have “significant public policy ramifications.”
The case has a complicated and winding history. It stems from a lawsuit filed by an agnostic couple and a lesbian couple who claimed the leases blocked them from enjoying a campground in Balboa Park and an aquatic center in Mission Bay Park.
The Desert Pacific Council, a nonprofit chartered by the Scouts, pays $1 annually to lease the campground, and nothing to rent the aquatic center. The organizations have built several facilities on the park land, most of which are free and open to the public. They have also spent millions on upkeep as part of their lease requirement.
A federal judge in Los Angeles ruled that the leases violated federal and state laws because of the Scouts’ discriminatory policy.
In December 2006, the 9th Circuit deferred to the state high court, asking it to decide if the leases interfere with religious freedom and civil rights. It also asked the justices if the organizations were receiving government “aid” for “sectarian purposes.”
The organizations hold themselves as nonsectarian, but the Scouts’ “Declaration of Religious Principle” states that “no member can grow into the best kind of citizen without recognizing an obligation to God.”
Significantly, the panel’s certification order established that the couples have standing to sue, an issue that has since generated heated debate. The couples have sons who are old enough to join the Scouts, but they admittedly never tried to join or volunteer. They claimed to have been deterred by the Scouts’ biased policy.
The court stayed its certification order in June 2008, pending a petition for a rehearing before a larger panel. The decision not to review the panel decision — specifically its view on standing — drew a sharp dissent from Judge Diarmuid O’Scannlain.
“This case is notable for what it does not involve,” he wrote in a dissent joined by four other judges. “There is no economic injury here … Rather, the claim here is that the families are psychologically injured by the thought of associating with the Boy Scouts” (original emphasis).
He continued: “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.”
The 9th Circuit again certified its questions to the California Supreme Court, but the justices refused to answer them pending resolution of the ongoing issue of standing. The Boy Scouts had challenged the couples’ standing in their petition to the U.S. Supreme Court.
The nation’s high court turned down the Scouts’ appeal, but agreed to hear Salazar v. Buono, which raised a similar standing issue. This April, the justices ruled that a World War I memorial cross could stay on federal land.
But the 9th Circuit said the Salazar decision “did not address the relevant standing issue,” so it deemed the issue resolved and once again certified its questions to the California Supreme Court.
“[T]his case raises difficult questions of state constitutional law with potentially broad implications for California citizens’ civil and religious liberties,” the recent order states. “Considerations of comity and federalism favor the resolution of such questions by the State’s highest court rather than this court.”
The order was signed by Judges William Canby, Marsha Berzon and Andrew Kleinfeld.