In Barnes-Wallace v. City of San Diego, ( — F.3d —-, C.A.9, June 3, 2010), the United States Court of Appeals asked the California Supreme Court to decide state constitutional issues arising from a city’s lease of public lands to the Boy Scouts of America (“Boy Scouts”). The plaintiffs in this action allege that because the Boy Scouts do not allow atheists, agnostics or homosexuals to be volunteers or members, the city’s lease discriminates against them and is unconstitutional.
Facts
The Boy Scouts lease land from the City of San Diego (“City”) at which it operates youth recreational facilities. Lori and Lynn Barnes-Wallace are a same sex couple with a son. Michael and Valerie Breen are agnostics and have a son. Both couples want their sons to use the Boy Scouts’ facilities but allege that the Boy Scouts’ exclusionary policies toward people of their sexual orientation and religious beliefs deter them from so doing.
The Barnes-Wallaces and the Breens brought action against the City and the Boy Scouts alleging that leasing public land to an organization that excludes persons because of their religious beliefs or sexual orientations violates the federal Establishment Clause, the California Constitution’s “No Preference” and “No Aid” clauses, the federal and state equal protection clauses, and other state and local laws. The federal district court ruled that the leases violate the federal Establishment Clause and the California “No Aid” and “No Preference” clauses. The Boy Scouts appealed.
Action
The United States Court of Appeals found that this case “raises difficult questions of state constitutional law with potentially broad implications for California citizens’ civil and religious liberties. Considerations of comity and federalism favor the resolution of such questions by the State’s highest court rather than this court.”
Therefore, the United States Court of Appeals determined that before it may proceed, the California Supreme Court must first answer three questions of state constitutional law:
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 benefiting a “creed” or “sectarian purpose” in violation of the “No Aid” clause?
We will continue to monitor this case and report on the California Supreme Court findings.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Mona G. Ebrahimi | 916.321.4500