Questions CertifiedThe Desert Pacific Council, a nonprofit corporation chartered by the Boy Scouts of America, leases land from the City of San Diego in Balboa Park and Mission Bay Park. The Council pays no rent for the Mission Bay property and one dollar per year in rent for the Balboa Park property. In return, the Council operates Balboa Park’s campground and Mission Bay Park’s Youth Aquatic Center. The campground and the Aquatic Center are public facilities, but the Council maintains its headquarters on the campground, and its members extensively use both facilities. The Boy Scouts of America — and in turn the Council — prohibit atheists, agnostics, and homosexuals from being members or volunteers and require members to affirm a belief in God.
The plaintiffs are users of the two Parks who are, respectively, lesbians and agnostics. They would use the land or facilities leased by the Desert Pacific Council but for the Council’s and Boy Scouts’ discriminatory policies.
We certify to the California Supreme Court the following questions:
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?
...
When Rosa Parks refused to ride in the back of a Montgomery bus one afternoon in 1955, she did so because she disagreed with a city government that let her make use of its services, but relegated her to second class status. When she and other African-American citizens decided to boycott the city’s bus lines, they did so because they would rather avoid these public facilities than be forced to interact with an institution that denigrated them and excluded them from full citizenship — while at the same time “tolerating” their presence in the back of the bus.Any comparison to the Jim Crow South may seem greatly overblown, and in most respects it certainly is. The Boy Scouts do not express disdain for homosexuals and atheists anywhere near as graphically or concretely as the Jim Crow South did blacks, and the Boy Scouts are only one group, not an entire society and governmental structure. And, on the merits, the issues here are entirely different from, and quite obviously nowhere near of the same magnitude of impact or historic significance as, those in the seminal desegregation cases.
But at this point — although the dissent carefully avoids so recognizing in excoriating my comparison — we are concerned only with standing: whether the Barnes-Wallace and Breen families have suffered an injury allowing them to be heard in court.
And in its nature, though certainly not its degree, the injury that the Barnes-Wallace and Breen families claim is much the same as that suffered by the plaintiffs in the bus desegregation cases. Just as African-Americans could ride on Montgomery’s buses, but not in the front, the Scouts permit Plaintiffs to make use of Camp Balboa and the Mission Bay Park Youth Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members. In either case, use of a valuable public facility is made contingent on acceptance of imposed second class status within a controlling organization’s social hierarchy.Judge Kleinfeld disagrees, viewing the injury Plaintiffs assert here as simply their “revulsion for
Boy Scouts” and “feelings of disagreement” with its beliefs. This assertion betrays a rather skewed view of which direction the revulsion actually flows in this case, and to what effect.1 One only need look at the Boy Scout Oath and Law — the dissent’s skepticism concerning the derogatory messages conveyed by parts of those liturgies notwithstanding — to see that requiring plaintiffs to deal with the Scouts in order to use Camp Balboa and the Mission Bay Park Youth Aquatic Center results in an injury which, in fact, is very real.
The offense Plaintiffs suffer comes from having to interact with a group that excludes them, on the basis of personal characteristics which that group denigrates and to which it ascribes moral opprobrium. The Boy Scouts Oath and Law contain many uplifting sentiments that contain no implicit criticisms and are in no way exclusionary. But the Boy Scouts also require their members to promise to be “morally straight” — and so exclude gays and lesbians, like the Barnes-Wallaces, from participation in the organization because the Scouts believe that homosexuality is incompatible with moral straightness and cleanliness. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 652 (2000) (quoting Scouts’ position that “homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed”). The Scouts also exclude atheists and agnostics, like the Breens, on the ground that “no member can develop into the best kind of citizen without recognizing an obligation to God.” Randall v. Orange County Council, Boy Scouts of Am., 17 Cal. 4th 736, 742 (1998) (citing the Scouts’ expectation that their leaders will convey this position to their members).
So let us be clear about the source of the “disagreement” here: The Scouts exclude people like the Breens and Barnes-Wallaces, because the Scouts believe them to possess characteristics that make them morally unclean and incapable of being the “best kind of citizen.” In other words, the reason the Scouts exclude the Breens and Barnes-Wallaces is not simply that they do not have the same beliefs or practice the same life styles; the reason is that, to the Scouts, the Breens and Barnes-Wallaces hold beliefs and practice life styles that are reprehensible and subject to deeply held, adverse moral judgments. To not take serious offense from such characterizations would require a better sense of humor than most of us possess.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/114925D626D65938882574660071FEE8/$file/0455732p.pdf?openelement
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