In Barnes-Wallace v. City of San Diego, Nos. 04-55732 and 04-56167, 2012 WL 6621341 (9th Cir. Dec. 20, 2012), the court ruled that San Diego’s long-term lease of public park land to the Desert Pacific Council of the Boy Scouts of America for nominal rent and minimum capital improvements did not violate the federal Establishment Clause, California Constitution’s No Preference and No Aid Clauses, federal and state Equal Protection Clauses, municipal ordinance or state contract law.
San Diego leased 123 public properties to a wide variety of nonprofits. The city entered into two 25-year leases with the Scouts: one for Camp Balboa in exchange for the Scouts maintaining the property, paying an administration fee and expending at least $1.7 million for capital improvements, and another for Fiesta Island, where the Scouts were to expend at least $1.5 million, but actually spent $2.5 million to build the Youth Aquatic Center. The Scouts allowed any non-Scout group or individuals to use the parks, but Scouts prohibit atheists, agnostics and homosexuals from being members or volunteers and require members to affirm a belief in God.
The plaintiffs, who are lesbian and agnostic parents, as well as their scouting-aged sons, sued the municipality and the Scouts, contending that the leases were invalid and did not apply to use the camp facilities because they “refused to condone the Boy Scout’s exclusionary policies.” The district court granted summary judgment, but the Ninth Circuit reversed, finding that the plaintiffs’ decision not to apply to use the facilities prevented them from stating claims for violations of the Equal Protection Clause, municipal human dignity ordinance or nondiscrimination provisions in the leases. The Scouts argued that the appeal was moot and the defendants lacked standing, but the court disagreed, in part because the matter was already decided and law of the case.
The Ninth Circuit ruled there was no violation of the Blaine amendment or “no aid clause” of the California Constitution. Cal. Const. art. XVI, §5. It states:
Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the State or any city, city and county, town, or other municipal corporation for any religious creed, church or sectarian purpose whatever …
The court did not reach the real estate provision in this clause due to waiver. It found there is no violation of the California no-aid clause when: (1) there is no more than incidental benefit to religion; (2) the program is available to both secular and sectarian institutions on an equal basis; (3) the program does not use public proceeds for “religious projects”; and (4) the program does not impose any financial burden on the government. The court assumed incidental benefit to the Scouts and that the Scouts are a sectarian organization, but found that, although the city negotiated the long-term leases exclusively with the Scouts, the city’s overall lease practice was evenhanded. The court likewise determined that public proceeds were used primarily for secular camp activities and the leases did not impose a financial burden on the city because the Scouts had to make improvements and manage the property, saving the city from the related expenses.
For similar reasons, the court ruled that the state and federal Establishment Clause were also satisfied under the modified Lemon test. Lemon v. Kurtzman, 403 U.S. 602 (1971), modified by Agostini v. Felton, 521 U.S. 203 (1997). The court found that the city’s purpose in entering into the leases was to provide facilities and services for youth activities and that a reasonable observer familiar with the city’s leasing practices would conclude that they are evenhanded and do not result in religious indoctrination. It remanded the case to the district court to enter summary judgment in favor of the Scouts on these claims.
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