The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MITCHELL BARNES-WALLACE;
MAXWELL BREEN,
Plaintiffs-Appellees,
v. No. 04-55732
CITY OF SAN DIEGO,
Defendant, D.C. No.
CV-00-01726-
and NAJ/AJB
BOY SCOUTS OF AMERICA — DESERT
PACIFIC COUNCIL,
Defendant-Appellant.
MITCHELL BARNES-WALLACE;
MAXWELL BREEN; LORI BARNES-
No. 04-56167
WALLACE, Guardian Ad Litem;
LYNN BARNES-WALLACE, Guardian D.C. No.
Ad Litem; MICHAEL BREEN, CV-00-01726-
Guardian Ad Litem; VALERIE NAJ/AJB
BREEN, Guardian Ad Litem,
Plaintiffs-Appellants,
ORDER
CERTIFYING
v. QUESTIONS TO
THE SUPREME
CITY OF SAN DIEGO; BOY SCOUTS OF
COURT OF
AMERICA — DESERT PACIFIC
CALIFORNIA
COUNCIL,
Defendants-Appellees.
Filed June 3, 2010
7919
7920 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
Before: William C. Canby, Jr., Andrew J. Kleinfeld, and
Marsha S. Berzon, Circuit Judges.
ORDER
Once again, we respectfully request the California Supreme
Court to exercise its discretion and decide the certified ques-
tions presented below. See Cal. R. Ct. 8.548. We previously
certified these questions to the California Supreme Court in
an order that, in addition to certifying the questions, deter-
mined that the plaintiffs had standing to maintain this action.
Barnes-Wallace v. City of San Diego, 530 F.3d 776 (9th Cir.
2008). We stayed our certification order pending disposition
of a petition for rehearing en banc. That petition was denied
on December 31, 2008, and we directed the certification order
to be delivered to the California Supreme Court. Barnes-
Wallace, 551 F.3d 891 (9th Cir. 2008). The Boy Scout defen-
dants filed a petition for certiorari, however, challenging our
certification order’s ruling that the plaintiffs had standing to
maintain the action. Pet. for cert., 2009 WL 888298 (Mar. 31,
2009). The Supreme Court of California then entered an order
stating that our request for decision of certified questions was
“denied without prejudice and may be re-filed after the issue
of standing is finalized.” Order, April 1, 2009 (Cal. Sup. Ct.).
Upon receipt of the order of the Supreme Court of Califor-
nia, we stayed further proceedings in our court pending the
decision of the Supreme Court on the Boy Scouts’ petition for
certiorari, and the decision of the Supreme Court in Salazar
v. Buono, cert. granted, 129 S. Ct. 1313 (2009), which raised
a similar standing issue. Barnes-Wallace, 566 F.3d 851 (9th
Cir. 2009).
On April 28, 2010, the United States Supreme Court
decided Salazar v. Buono, 2010 WL 1687118 (U.S. Apr. 28,
2010), but a majority of the Court did not decide the relevant
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 7921
standing issue because it was foreclosed by an earlier lower-
court decision in the same litigation that the government did
not appeal. Salazar v. Buono, 2010 WL at * 8 (plurality opin-
ion). Shortly thereafter, the Supreme Court denied certiorari
in Boy Scouts v. Barnes-Wallace, 2010 WL 1740539 (May 3,
2010).
We conclude, therefore, that the issue of standing has
become finalized within the meaning of the order of the Cali-
fornia Supreme Court of April 1, 2009. In accordance with
that order, we take this opportunity to re-file our certification
of issues and request for decision by the California Supreme
Court. Our certification of issues remains the same as in the
previous submission; the discussion of standing has been
modified to reflect the developments described above.
The resolution of any one of the questions we certify could
determine the outcome of this appeal and no controlling Cali-
fornia precedent exists. See Cal. R. Ct. 8.548. We are aware
of the California Supreme Court’s demanding caseload and
recognize that our request adds to that load. But we feel com-
pelled to request certification because this case raises difficult
questions of state constitutional law with potentially broad
implications for California citizens’ civil and religious liber-
ties. Considerations of comity and federalism favor the reso-
lution of such questions by the State’s highest court rather
than this court.
I. Questions Certified
The Desert Pacific Council, a nonprofit corporation char-
tered 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
7922 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
its headquarters on the campground, and its members exten-
sively use both facilities. The Boy Scouts of America — and
in turn the Council — prohibit atheists, agnostics, and homo-
sexuals from being members or volunteers and require mem-
bers to affirm a belief in God.
The plaintiffs are users of the two Parks who are, respec-
tively, 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 reli-
gious organization in violation of the No Preference
Clause in article I, section 4 of the California Constitu-
tion?
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?
The California Supreme Court is not bound by this court’s
presentation of the questions. We will accept a reformulation
of the questions and will accept the Supreme Court’s decision.
To aid the Supreme Court in deciding whether to accept the
certification, we provide the following statement of facts,
jurisdictional statement, and explanation.
II. Statement of Facts
Because the district court granted summary judgment
against it, we take the facts in the light most favorable to the
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 7923
non-moving party, the Desert Pacific Council. See Olsen v.
Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
A. The Parties
The Desert Pacific Council (the “Council”) is a nonprofit
corporation chartered by The Boy Scouts of America to
administer Scouting programs in the San Diego area. Con-
gress chartered the Boy Scouts of America “to promote . . .
the ability of boys to do things for themselves and others . . .
and to teach them patriotism, courage, self-reliance, and kin-
dred virtues.” 36 U.S.C. § 30902 (2006). While Scouting
focuses primarily on outdoor activity, the Boy Scouts’ rules
include a prohibition against allowing youths or adults who
are atheists, agnostics, or homosexuals to be members or vol-
unteers. Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 659-61
(2000) (holding that the Boy Scouts have a constitutional
right to exclude homosexuals). These rules bind the Council.
The Boy Scouts maintain that agnosticism, atheism, and
homosexuality are inconsistent with their goals and with the
obligations of their members. See Randall v. Orange County
Council, Boy Scouts of Am., 17 Cal. 4th 736, 742 (1998)
(reciting that, in defending its right to exclude atheists, the
Boy Scouts introduced “evidence intended to establish that
requiring the inclusion of nonbelievers . . . would interfere
with the organization’s efforts to convey its religious mes-
sage”).
The Boy Scouts do not require scouts to affiliate with any
religious organization, and the Boy Scouts style themselves
“absolutely nonsectarian.” [ER 309 (75:7-8), 1580, art. IX
§ 1, cl. 1; see also, e.g., ER 1527; ER 54 ¶ 185, ER 2007 ¶ 185.]1
1
The bracketed citations of ER and SER refer, respectively, to the
Excerpts of Record and the Supplemental Excerpts of Record filed by the
parties in this court. The references are included in this Order for the con-
venience of the California Supreme Court, should it choose to request this
court to furnish those Excerpts. See Cal. R. Ct. 8.548(c).
7924 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
The San Diego Boy Scouts are “not a house of worship like
a church or synagogue.” [ER 54 ¶ 185; ER 2007 ¶ 185.] Still,
the organization has a religious element. All members and
volunteers take an oath to “do my best . . . [t]o do my duty
to God and my country” and to remain “morally straight.”
[ER 2005 ¶ 176.] The organization’s mission is “to prepare
young people to make ethical choices over their lifetimes by
instilling in them the values of the Scout Oath and Law.” [ER
2003 ¶ 162.] Duty to God is placed first in the Oath as “the
most important of all Scouting values.” [ER 2004 ¶ 170.]
Members also must agree to uphold the “Scout Law,” which
provides that a Scout is “faithful in his religious duties.” [ER
2005 ¶ 177.] Membership and leadership applications contain
a “Declaration of Religious Principle,” which explains that
“no member can grow into the best kind of citizen without
recognizing an obligation to God.” [ER 1535.] The Boy
Scouts instruct leaders to “be positive in their religious influ-
ence and [to] encourage Scouts to earn the religious emblem
of their faith.” [ER 1527.]
The plaintiffs Barnes-Wallaces are a lesbian couple and the
plaintiffs Breens are agnostics. Because of their sexual and
religious orientations, they cannot be Boy Scout volunteers.
Both couples have sons old enough to join the Boy Scouts,
and they would like their sons to use the leased facilities, but
the parents refuse to give the approval required for member-
ship. As part of the membership application, a parent must
promise to assist his or her son “in observing the policies of
the Boy Scouts of America . . . [to] serve as his adult partner
and participate in all meetings and approve his advancement.”
[Id. 1533.] The application also includes the Scout Law and
the Declaration of Religious Principle. The Barnes-Wallaces
and the Breens believe that the Boy Scouts’ policies are dis-
criminatory, and they refuse to condone such practices by
allowing their children to join the Boy Scouts.
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 7925
B. The Leases
In accord with its long history of “encourag[ing] nonprofit
organizations to develop cultural, educational, and recre-
ational programs” on the City property, the plaintiffs’ home
town of San Diego has leased 123 public properties to various
nonprofit organizations.2 [SER 10, 36.] One of these organiza-
tions is the Desert Pacific Council, which leases, occupies,
and operates portions of two popular city parks. Other por-
tions of those parks are extensively used by the plaintiff fami-
lies. Under the original lease, the Council paid one dollar per
year in rent. In 2002 the parties entered into a new twenty-
five-year lease, which requires the Desert Pacific Council to
pay one dollar in annual rent and a $2,500 annual administra-
tion fee.
The City negotiated this lease with the Council on an exclu-
sive basis, as it sometimes does with groups, religious or sec-
ular, that it deems to be appropriate operators of a particular
piece of City property. [ER 843-44, 850 (132:8-23); SER 433-
34, 592 (135:7-20), 1168, 1172-73, 1175, 1182-83, 1185-86,
1189.] Other organizations receive similar terms. Some
ninety-six of the City’s leases to non-profits (including nine-
teen leases to youth-oriented recreational non-profits) require
no rent or rent less than the $2,500 fee the Council pays, and
fifty of them have terms twenty-five years or longer. [SER
12-15, 27-29.] Although they produce little to no revenue,
these leases save the City some money by placing the costs
of maintenance and improvement upon the lessee organiza-
2
These organizations include religious organizations (e.g., San Diego
Calvary Korean Church, Point Loma Community Presbyterian Church,
Jewish Community Center, Salvation Army), organizations concerned
with children or the elderly (e.g., Camp Fire, Girl Scouts, ElderHelp, Little
League), organizations that limit their membership or services on the basis
of race or ethnicity (e.g., Vietnamese Federation of San Diego, Black
Police Officers Association), and art museums and similar institutions
(e.g., San Diego Art Institute, Old Globe Theater) [SER 11, 14, 27-29].
7926 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
tions. [SER 204-05.] The City spends nothing on the proper-
ties leased to the Council. [SER 3 ¶ 9, 5 ¶ 17.]
The Council leases from the City sixteen acres in Balboa
Park known as Camp Balboa. Camp Balboa offers a “unique”
urban camping opportunity in the “heart of the City.” [ER
1966 ¶ 7.] The site includes campgrounds, a swimming pool,
an amphitheater, a program lodge, a picnic area, a ham radio
room, restrooms and showers, and a camp ranger office. The
lease requires the Council to maintain the property and to
expend at least $1.7 million for capital improvements over
seven years. [ER 820.] The Boy Scouts have landscaped, con-
structed recreational facilities, and installed water and power
on the property. [SER 217 ¶ 17.]
Similarly, under the Fiesta Island lease, the Boy Scouts
spent approximately $2.5 million to build the Youth Aquatic
Center [SER 215 ¶ 10, 1084 ¶ 19]. The facility offers the use
of kayaks, canoes, sail and row boats, and classroom space to
other youth groups at inexpensive rates. [SER 215-16 ¶¶ 10-
11.]
C. Occupancy of the Land
The Desert Pacific Council makes exclusive use of portions
of Balboa Park for its own benefit. The Council has its head-
quarters on park property. From this facility it oversees its
$3.7 million budget, manages its thirty employees, and pro-
cesses applications for membership and leadership positions.
The Council also has a print shop on park land that it uses to
print literature for its members. These portions of the park are
unavailable for public use.
Other portions of Camp Balboa and the Youth Aquatic
Center are available for use by non-member groups, but the
Council manages reservations of these recreational facilities.
Campsites at Camp Balboa are available on a first-come, first-
served basis. [SER 295, 307, 617-18.] Thus, if the plaintiffs
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 7927
were to use the land, they would have to do so subject to the
Council’s oversight. The Council can declare the camp
“closed,” determine how many people are going to attend the
camps, and then open up only the unreserved facilities to the
public. Nonetheless, numerous other groups have camped in
the campsites while camp was in session, and the San Diego
Boy Scouts have not turned any non-Scout group away from
Camp Balboa during that time. [SER 291 (171:3-6); see also
SER 624 (156:16-157:16); 291 (170:13-15)]. The Camp
charges a small fee for camping, but the revenue from fees is
insufficient to cover the cost of maintaining the camp facili-
ties. [SER 218].
The Council also leases land from the City on Fiesta Island
in Mission Bay Park. In 1987, the City entered into a twenty-
five-year, rent-free lease with the Desert Pacific Council for
one-half acre of waterfront property on Fiesta Island. The City
entered into this lease after the Desert Pacific Council
approached it about building and operating an aquatic center
on the island. The Council was awarded the lease on the con-
dition that it expend $1.5 million to build the Youth Aquatic
Center. At a cost of about $2.5 million [SER 1084 ¶ 19], the
Council built and now operates the Aquatic Center, which
offers boating, sailing, canoeing, and kayaking to San Diego
youth.
As at Camp Balboa, reservations to use the Youth Aquatic
Center are made through the Council. The Aquatic Center has
a formal first-come, first-served policy, but the policy has
exceptions for Scout members. The Desert Pacific Council is
permitted to reserve up to 75% of the facilities seven days in
advance. The Council also hosts a members-only camp for
four weeks each summer. The reservation books during camp
say “YAC Closed for Summer Camp,” although the Boy
Scouts’ use of the Aquatic Center during those weeks is not
exclusive. [SER 216-17, 317.] While the public cannot use the
Aquatic Center during summer camp for water-based activi-
ties, it can reserve dormitories or other facilities the Scouts
7928 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
are not using. In practice, non-members often use portions of
the facilities more than members do. [SER 216-18.] The San
Diego Boy Scouts have not turned away any non-Scout group
while Scouting is in session, either at Camp Balboa or at the
Aquatic Center. [SER 291 (170:13-15, 171:3-6), 315 (227:11-
14).] The Center charges fees for use, but there is no evidence
that the fees equal or exceed the cost of maintaining the facili-
ties.
There are no religious symbols either at Camp Balboa or at
the Youth Aquatic Center.
D. The Plaintiffs’ Injury
The plaintiffs never applied to use the Youth Aquatic Cen-
ter or Camp Balboa; there is no evidence that the Council
actively excluded them. [SER 235-36 (104:24-106:10), 244
(91:25-93:23), 251-52 (33:2-35:10).] Rather, they testified
that the Council’s occupation and control of the land deterred
them from using the land at all. The plaintiffs desired to make
use of the recreational facilities at Camp Balboa and the
Youth Aquatic Center, but not under the Council’s authority.
As a result, they actively avoided the land. They refused to
condone the Boy Scouts’ exclusionary policies by seeking
permission from the Boy Scouts to use the leased facilities or
by using the leased facilities subject to the Boy Scouts’ own-
ership and control. [ER 85, 370-71; SER 252 (35:12-15; 36:2-
5).] They had an aversion to the facilities and felt unwelcome
there because of the Boy Scouts’ policies that discriminated
against people like them. [ER 369; SER 254 (74:4-10)].
The plaintiff families brought this action against the City of
San Diego, the Boy Scouts, and the Desert Pacific Council,
alleging that leasing public land to an organization that
excludes persons because of their religious and sexual orienta-
tions violates the federal Establishment Clause, the California
Constitution’s No Preference3 and No Aid4 Clauses, the fed-
3
This Clause provides, in relevant part:
Free exercise and enjoyment of religion without discrimination or
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 7929
eral and state Equal Protection Clauses, the San Diego Human
Dignity Ordinance, and state contract law. The district court
found the plaintiffs had standing as municipal taxpayers and
then allowed them to file an amended complaint. Both parties
sought summary judgment. The court found that the leases
violated the federal Establishment Clause and the California
No Aid and No Preference Clauses and granted summary
judgment in the plaintiffs’ favor. Barnes-Wallace v. Boy
Scouts of Am., 275 F. Supp. 2d 1259, 1276-80 (S.D. Cal.
2003). In the amended final judgment, the court enjoined the
Balboa Park and Fiesta Island leases. The City then notified
the Council that under the terms of the 2002 Balboa Park
lease, the term tenancy was terminated and converted to a
month-to-month tenancy. The plaintiffs have since settled
with the City. The Scout defendants appealed the district
court’s ruling.
III. Jurisdiction
We have statutory jurisdiction over this appeal under 28
U.S.C. § 1291, but the parties presented challenges to the
existence of a case or controversy that is essential to our con-
stitutional jurisdiction under Article III. See Harrison W.
Corp. v. United States, 792 F.2d 1391, 1392 (9th Cir. 1986).
preference are guaranteed. This liberty of conscience does not
excuse acts that are licentious or inconsistent with the peace or
safety of the State. The Legislature shall make no law respecting
an establishment of religion.
Cal. Const. art. I, sec. 4.
4
This Clause states:
Neither the legislature, nor any county, city and county, town-
ship, 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. . . .
Cal. Const. art. XVI, sec. 5.
7930 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
We ruled on those challenges in our prior certification order,
Barnes-Wallace v. City of San Diego, 530 F.3d 776 (9th Cir.
2008). First, we held that the City’s termination of the Balboa
Park Lease did not moot that controversy because the Desert
Pacific Council still retained a month-to-month tenancy, and
because the termination itself was contingent on the outcome
of this appeal. Id. at 783-84. Second, we held that the plain-
tiffs had standing to maintain this action because they suf-
fered an injury-in-fact caused by the Boy Scouts’ activities.
Id. at 784-86. En banc review of that standing decision was
denied, 551 F.3d 891 (9th Cir. 2008), and the Supreme Court
denied certiorari, 2010 WL 1740539 (U.S. May 3, 2010).
Thus the challenges to this court’s jurisdiction have been
rejected, and we proceed with this certification and request for
decision.
IV. Explanation of Certification
1. The Need to Avoid Federal Constitutional
Questions
“[F]ederal courts should not decide federal constitutional
issues when alternative grounds yielding the same relief are
available.” See Kuba v. 1-A Agric. Assoc., 387 F.3d 850, 856
(9th Cir. 2004). If the California Constitution provides an
independent basis for relief, then there is “no need for deci-
sion of the federal issue.” City of Mesquite v. Aladdin’s Cas-
tle, Inc., 455 U.S. 283, 295 (1982). Yet any interpretation by
this court of the State’s constitutional clauses, unlike an inter-
pretation by the California Supreme Court, cannot be authori-
tative. See Bartoni-Corsi Produce, Inc. v. Wells Fargo Bank,
N.A. (In re Bartoni-Corsi Produce, Inc.), 130 F.3d 857, 861
(9th Cir. 1997).
2. The Need for Certification
We certify three issues to the California Supreme Court
because they require interpretation of the state constitution’s
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 7931
religion clauses beyond that found in state or federal cases.
These clauses affect the delicate relationship between the gov-
ernment and religion, and any interpretation of these clauses
has significant public policy ramifications.
a. The No Preference Clause
The No Preference Clause states in part that “[f]ree exer-
cise and enjoyment of religion without discrimination or pref-
erence are guaranteed.” Cal. Const. art. 1 § 4. The California
Supreme Court “has never had occasion to definitively con-
strue” this clause. E. Bay Asian Local Dev. Corp. v. Califor-
nia, 24 Cal. 4th 693, 719 (2000). Having not yet been faced
with a case that requires it “to declare the scope and proper
interpretation” of the clause, it has found no necessity to set
the boundaries of the clause. See Catholic Charities of Sacra-
mento, Inc. v. Superior Court, 32 Cal. 4th 527, 562 (2004).
We therefore cannot accurately estimate from existing Cali-
fornia Supreme Court cases how that Court would apply the
No Preference Clause to the case before us. It is true that, in
a case involving exemptions from a landmark preservation
law for religious institutions, the California Supreme Court
held that, because the challenged action passed the federal
Establishment Clause test set forth in Lemon v. Kurtzman, 403
U.S. 602 (1971), it also complied with California’s No Prefer-
ence Clause. E. Bay Asian Local Dev. Corp., 24 Cal. 4th at
719; see also Paulson v. Abdelnour, 145 Cal. App. 4th 400,
434 (2006). It is not at all clear, however, whether the Boy
Scouts’ management of the park facilities complies with the
Lemon test, and we follow the rule of not deciding federal
constitutional questions when state law may be determinative.
We know of no authority compelling the California courts to
address the Lemon test in every challenge brought under the
No Preference Clause. Any independent determination of a
No Preference Clause issue by the California Supreme Court
would be conclusive on this court and this litigation.
Although state intermediate appellate courts have construed
the No Preference Clause, the unique facts of this case would
7932 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
require us to go beyond these decisions. See, e.g., DiLoreto v.
Board of Educ., 74 Cal.App.4th 267, 278, 87 Cal.Rptr.2d 791,
798-99 (1999); Woodland Hills Homeowners Org. v. Los
Angeles Cmty. Coll. Dist., 218 Cal. App. 3d 79, 93-95 (1990);
Okrand v. City of Los Angeles, 207 Cal. App. 3d 566, 571-72
(1989); Bennett v. Livermore Unified Sch. Dist., 193 Cal.
App. 3d 1012, 1016, 1024 (1987); Feminist Women’s Health
Ctr., Inc. v. Philibosian, 157 Cal. App. 3d 1076, 1092 (1984).
For example, the plaintiff families challenge the process by
which the leases were obtained, but no California court has
identified the perspective from which we should scrutinize
these processes to determine whether there has been a forbid-
den preference. The United States Supreme Court adopts the
perspective of a reasonable observer when determining Estab-
lishment Clause questions, see County of Allegheny v. ACLU,
Greater Pittsburgh Chapter, 492 U.S. 573, 635 (1989)
(O’Connor, J., concurring in part and concurring in the judg-
ment), but at least one Justice of the California Supreme
Court has urged that courts interpreting the No Preference
Clause “view the issue from the perspective of the minority.”
Sands v. Morongo Unified Sch. Dist., 53 Cal. 3d 863, 915-16
(Cal. 1991) (Arabian, J., concurring). Thus, we seek certifica-
tion so that the California Supreme Court, rather than this fed-
eral court, can chart the proper course through these
unresolved areas.
b. The No Aid Clause
The absence of controlling precedent in regard to the No
Aid Clause presents us with an even greater problem, in part
because that clause is without a parallel in the United States
Constitution. The No Aid Clause prohibits the City from
“mak[ing] an appropriation, or pay[ing] from any public fund
whatever, or grant[ing] anything to or in aid of any religious
sect, church, creed, or sectarian purpose . . . .” Cal. Const. art.
XVI § 5. To assess whether the leases violate the No Aid
Clause, we must determine whether the leases are aid and, if
so, whether the City supports a creed or sectarian purpose by
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 7933
granting the aid to the Boy Scouts. The California Supreme
Court has not been called upon to define “aid” in a manner
that applies to the circumstances of this case. Nor has it been
required to establish what is a “creed” or “sectarian purpose”
to which aid cannot be given.
In its most recent decision construing the No Aid Clause,
California Statewide Communities Development Auth. v. All
Persons Interested in Validity of a Purchase Agreement, 152
P.3d 1070 (Cal. 2007), the California Supreme Court held that
the clause did not invalidate a public bond program that facili-
tated the raising of private money to benefit sectarian institu-
tions. Id. at 1081. It had long been established that such aid
could be given to religiously affiliated colleges so long as the
funds were not used for religious purposes. The question for
decision in Statewide Communities was whether the same rule
applied to institutions that were “pervasively sectarian.” Id. at
1072. No definition of “pervasively sectarian” was required,
because the parties assumed for purposes of the case that the
institutions in question were pervasively sectarian. Id. For the
same reason, it was unnecessary to define precisely a “creed”
or “sectarian purpose.” The bond arrangement was held not to
violate the No Aid Clause so long as the institutions did not
use the bond proceeds for sectarian purposes and met certain
other requirements, including the offering of a sufficiently
broad curriculum of secular subjects. Id. at 1077, 1081. The
Statewide Communities decision does not assist us, however,
in determining whether the City’s leases to the Boy Scouts
violate the No Aid Clause, because the California Supreme
Court emphasized that no public funds or real estate passed to
the sectarian institutions. Id. at 1076. Statewide Communities
therefore does not affect the need for certification in this case.
The decision of the California Court of Appeal in Paulson v.
Abdelnour, 145 Cal.App.4th at 434-37, 51 Cal.Rptr.3d at
601-03, is also distinguishable because it involved a transfer
of land and a monument to the federal government, totally
divesting the city of any control of any kind over the property.
7934 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
The facts of this case also require us to go beyond the
framework set forth in our own decision of Paulson v. City of
San Diego, 294 F.3d 1124 (9th Cir. 2002) (en banc), for inter-
preting the No Aid Clause. Paulson concerned a No Aid
Clause challenge to a municipal government’s sale of public
land containing a cross to a sectarian organization. Paulson
concluded that the No Aid Clause “prohibits the government
from (1) granting a benefit in any form (2) to any sectarian
purpose (3) regardless of the government’s secular purpose
(4) unless the benefit is properly characterized as indirect,
remote, or incidental.” Id. at 1131. Whether the City granted
a benefit to the Scout defendants for the advancement of a
creed or sectarian purpose is a very different and more chal-
lenging question than that presented in Paulson. Resolution of
this issue would require expanding our interpretation of Cali-
fornia cases. An expansion or contraction of the definitions of
“aid,” “creed,” or “sectarian purpose” could have a substantial
impact upon Californians’ liberties and the administration of
their public lands. We are reluctant to embark on a refinement
of the meaning of those terms without the authoritative assis-
tance of the California Supreme Court. We thus ask that Court
to exercise its discretion and decide whether the leases are aid
and whether this aid benefits a creed or sectarian purpose.
V. Administrative Information
If our request for decision is granted, we designate the
Barnes-Wallaces and the Breens to be deemed petitioners.
The names and addresses of counsel for Lori, Lynn, and
Mitchell Barnes-Wallace and Michael, Valerie, and Maxwell
Breen are:
David Blair-Loy
Elvira Cacciavillani
ACLU Foundation of San Diego & Imperial Coun-
ties
P.O. Box 87131
San Diego, CA 92138-7131
BARNES-WALLACE v. BOY SCOUTS OF AMERICA 7935
Mark W. Danis
M. Andrew Woodmansee
Morrison & Foerster, LLP
12531 High Bluff Drive Suite 100
San Diego, CA 92130-2040
M. E. Stephens
Stock Stephens, LLP
110 West C Street Suite 1810
San Diego, CA 92101
The names and addresses of counsel for Boy Scouts of
America and the Desert Pacific Council, Boy Scouts of Amer-
ica are:
George A. Davidson
Carla A. Kerr
Hughes, Hubbard & Reed
1 Battery Park Plaza
New York, NY 10004
Charles Avrith
Alicia Mew
Hughes, Hubbard & Reed
350 S. Grand Ave. 36th Floor
Los Angeles, CA 90071-3442
Scott H. Christensen
Hughes, Hubbard & Reed
1775 I Street, N.W.
Washington, DC 20006-5040
As required by California Rules of Court 8.548(c) and (d),
the Clerk of this Court shall submit copies of all relevant
briefs and an original and ten (10) copies of this Order to the
Supreme Court of California with a certificate of service on
the parties.
7936 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
VI. Stay and Withdrawal from Submission
All further proceedings in this case in this court are stayed.
This case is withdrawn from submission until further order of
this court. The parties shall notify the Clerk of this Court
within one week after the California Supreme Court accepts
or rejects certification and, if that Court accepts certification,
again within one week after that Court renders an opinion.
KLEINFELD, Circuit Judge, concurring:
I continue to dissent from the portion of the order filed on
June 11, 2008 holding that the plaintiffs have standing for
Article III purposes. My view stated in my dissent to that
order is that they do not.
Without standing, there is no federal jurisdiction, and thus
no authority to certify. However, assuming that there is stand-
ing, I concur in the order certifying questions to the California
Supreme Court.