Barnes-Wallace v. City of San Diego and Boy Scouts of America

• Court: U.S. Court of Appeals for the Ninth Circuit
• AU’s Role: Amicus
• AU's Involvement Began: April 2005
• Status: Ongoing

Description

The City of San Diego leases large parcels of prime parkland to the Boy Scouts of America at nominal rates. The Boy Scouts discriminate in membership and employment against atheists and agnostics by requiring scouts and leaders to profess a belief in God. A federal district court held that the leases were unconstitutional because the Boy Scouts are a religious organization and San Diego’s leasing process was not neutral. The Boy Scouts appealed to the U.S. Court of Appeals for the Ninth Circuit. In April 2005, we filed an amicus brief arguing that the district court’s decision should be affirmed on the ground that San Diego’s leases to the Boy Scouts constitute significant governmental aid to invidious religious discrimination, thus violating the Establishment and Equal Protection Clauses. On December 18, 2006, the Ninth Circuit held that the case was justiciable, but did not address the merits. Instead, the panel certified to the California Supreme Court three questions that "require interpretation of the state constitution’s religion clauses beyond that found in state or federal cases." The Ninth Circuit asked the state supreme court whether the leases run afoul of the "No Preference" or "No Aid" Clauses of the California Constitution. On June 11, 2008, in response to a petition for panel and en banc rehearing, the Ninth Circuit issued an amended opinion that continues to certify the three questions to the California Supreme Court. The Ninth Circuit denied the Boy Scouts’ second petition for rehearing en banc. The California Supreme Court declined to address the certified questions, without prejudice to resubmission of them after the issue of standing is resolved. On March 31, 2009, the Boy Scouts petitioned the U.S. Supreme Court to review the case.

Most Recent Developments

The Court has deferred deciding whether to review the case, presumably until it decides the Buono v. Salazar case, discussed separately on our website.

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