Barnes-Wallace, Etal v. Boy Scouts of Am

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MITCHELL BARNES-WALLACE ; No. 04-55732

MAXWELL BREEN ; LORI BARNES-

WALLACE ; LYNN BARNES- D.C. No.

WALLACE ; MICHAEL BREEN ; CV-00-01726-

VALERIE BREEN , NAJ/AJB

Plaintiffs-Appellees,

v.

CITY OF SAN DIEGO ,

Defendant,

and

BOY SCOUTS OF AMERICA - DESERT

PACIFIC COUNCIL,

Defendant-Appellant.

2 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

MITCHELL BARNES-WALLACE ; No. 04-56167

MAXWELL BREEN ; LORI BARNES-

WALLACE , Guardian Ad Litem; D.C. No.

LYNN BARNES-WALLACE , Guardian 3:00-cv-01726-J-

Ad Litem; MICHAEL BREEN , AJB

Guardian Ad Litem; VALERIE

BREEN , Guardian Ad Litem,

Plaintiffs-Appellants, OPINION

v.

CITY OF SAN DIEGO ; BOY SCOUTS OF

AMERICA - DESERT PACIFIC

COUNCIL,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of California

Napoleon A. Jones, Jr., District Judge, Presiding

Argued and Submitted

June 20, 2011—Pasadena, California

Filed December 20, 2012

Before: William C. Canby, Jr., Andrew J. Kleinfeld,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Canby;

Concurrence by Judge Kleinfeld

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 3

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment and dismissal of a complaint

which alleged that two leases of land for one dollar per year

by the City of San Diego to the Desert Pacific Council, a

nonprofit corporation chartered by the Boy Scouts of

America, violated, among other things, provisions of the

California or federal Constitutions relating to the

Establishment of Religion or the denial of Equal Protection

of the Laws.

Plaintiffs alleged that they would use the land or facilities

leased by the Desert Pacific Council but for the Boy Scouts’

discriminatory policies, which prohibit atheists, agnostics,

and homosexuals from being members or volunteers and

require members to affirm a belief in God.

The panel held that the district court erred in ruling that

the City’s leases with the Boy Scouts violated the No Aid

Clause of the California Constitution. The panel determined

that the leases constitute, at most, indirect or incidental aid by

the City for a religious purpose, and the aid does not

otherwise violate the requirements established by the

Supreme Court of California to avoid invalidity under the No

Aid Clause.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

The panel also concluded that the leases do not violate

either the California No Preference Clause or the federal

Establishment Clause. The panel reversed the district court’s

grant of summary judgment to the plaintiffs, and remanded

with instructions to grant summary judgment to the Council

on these claims.

The panel affirmed the district court’s dismissal of

plaintiffs’ state and federal equal protection claims on the

ground that the plaintiffs lacked standing to maintain those

claims.

The panel also affirmed the district court’s dismissal of

plaintiffs’ claims for violation of the San Diego Human

Rights ordinance and for breach of contract.

Concurring, Judge Kleinfeld joined the majority but wrote

separately to note that this court erred in its previous opinion

addressing standing. See Barnes-Wallace v. City of San

Diego, 530 F.3d 776, 794 (9th Cir. 2008) (Kleinfeld, J.,

dissenting).

COUNSEL

Mark W. Danis, Morrison & Foerster, LLP, San Francisco,

California; M. Andrew Woodmansee, Morrison & Foerster,

LLP, San Diego, California, for Plaintiffs-Appellants–Cross-

Appellees.

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 5

Scott H. Christensen, Hughes Hubbard & Reed, LLP,

Washington, D.C.; George A. Davidson and Carla A. Kerr,

Hughes Hubbard & Reed, LLP, New York, New York, for

Defendants-Appellees–Cross-Appellants.

Sheldon T. Bradshaw, David K. Flynn, Eric W. Treene and

Angela Miller, United States Department of Justice, Civil

Rights Division, Washington, D.C., for Amicus Curiae

United States.

Paul Rosenzweig, Washington, D.C., for Amicus Curiae

American Legion.

Matthew F. Stowe, Office of the Attorney General, Austin,

Texas, for Amici Curiae States of Texas, Alabama, Kansas,

Oklahoma, South Dakota and Virginia.

Anthony R. Picarello, Jr., Derek L. Gaubatz and Roger T.

Severino, Washington, D.C., for Amicus Curiae The Becket

Fund for Religious Liberty.

John C. Eastman, Orange, California, for Amicus Curiae

Claremont Institute Center for Constitutional Jurisprudence.

Peter Ferrara, McLean, Virginia, for Amicus Curiae

American Civil Rights Union.

6 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

Eric Alan Isaacson, Michelle M. Ciccarelli and Alreen

Haeggquist, San Diego, California; Rev. Silvio Nardoni,

Glendale, California; Susan Kay Weaver, El Cajon,

California, for Amici Curiae Social Justice Committee and

Board of Trustees of the First Unitarian Universalist Church

of San Diego; its Ministers, the Rev. Arvid Straube and the

Rev. Julie Kain; its Director of Religious Education,

Elizabeth Motander Jones; the Unitarian Universalist

Legislative Ministry California; the Unitarian Universalist

Association of Congregations.

Angela Sierra, Office of the Attorney General for the State of

California, for Amicus Curiae State of California.

Ayesha N. Khan and Alex J. Luchenitser, Washington, D.C.,

for Amicus Curiae Americans United for Separation of

Church and State.

John H. Findley and Harold E. Johnson, Pacific Legal

Foundation, Sacramento, California, for Amici Curiae Pacific

Legal Foundation and Veterans of Foreign Wars.

Robert J. Muise and Julie Schotzbarger, Ann Arbor,

Michigan, for Amicus Curiae Thomas More Law Center.

Paul A. Hoffman, Santa Ana, California, for Amicus Curiae

Individual Rights Foundation.

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 7

OPINION

CANBY, Circuit Judge:

This appeal presents the primary question whether two

leases of land by the City of San Diego to the Desert Pacific

Council, a nonprofit corporation chartered by the Boy Scouts

of America, violate provisions of the California or federal

Constitutions relating to the Establishment of Religion or the

denial of Equal Protection of the Laws. Additional issues

concern claims that the Council’s actions as lessee violate the

San Diego Human Dignity Ordinance and that the Council

breached a nondiscrimination provision of the leases.

The Council pays one dollar per year rent for the Camp

Balboa property in Balboa Park and no rent for the Youth

Aquatic Center property on Fiesta Island in Mission Bay

Park. In return, the Council operates Camp Balboa and the

Youth Aquatic Center. Camp Balboa and the Youth Aquatic

Center are public facilities, but the Council maintains a non-

public, local administrative headquarters at Camp Balboa.

The Council’s members extensively use both the Camp and

the Center. The Boy Scouts, and accordingly the Council,

prohibit atheists, agnostics, and homosexuals from being

members or volunteers and require members to affirm a belief

in God.

The adult plaintiffs are users of Balboa Park and Mission

Bay Park who are either lesbians or agnostics. They and their

plaintiff sons would use the land or facilities leased by the

Desert Pacific Council but for the Boy Scouts’ discriminatory

policies.

8 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

We conclude that the Camp Balboa and Youth Aquatic

Center leases do not violate the No Aid Clause of the

California Constitution because the leases constitute, at most,

indirect or incidental aid by the City for a religious purpose,

and the aid does not otherwise violate the requirements

established by the Supreme Court of California to avoid

invalidity under the No Aid Clause.

We also conclude that the leases do not violate either the

California No Preference Clause or the state and federal

Establishment Clauses. We accordingly reverse the district

court’s grant of summary judgment to the plaintiffs, and

remand with instructions to grant summary judgment to the

Council on the state and federal constitutional claims.

We also affirm the district court’s dismissal of the

plaintiffs’ claims under the state and federal Equal Protection

Clauses.

Finally, we affirm the district court’s dismissal of the

plaintiffs’ claims of violation of the San Diego Human Rights

Ordinance and breach of contract.

I. Statement of Facts

In reviewing the summary judgment against the Council

and the Boy Scouts, we view any disputed facts in the light

most favorable to the Scout defendants, the non-moving

parties. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916,

922 (9th Cir. 2004). Our review of the record reveals,

however, that the underlying facts material to our decision are

undisputed; the parties differ in material ways only in regard

to the legal effect of those facts.

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 9

A. The Parties

The Desert Pacific Council is a nonprofit corporation

chartered by the Boy Scouts to administer Scouting programs

in the San Diego area. Both the Council and the Boy Scouts

of America are named as defendants. Congress chartered the

Boy Scouts of America “to promote . . . the ability of boys to

do things for themselves and others, to train them in

scoutcraft, and to teach them patriotism, courage,

self-reliance, and kindred virtues, using the methods that were

in common use by boy scouts on June 15, 1916.” 36 U.S.C.

§ 30902 (2012). 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 volunteers. 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 1 maintain that agnosticism, atheism, and

homosexuality are inconsistent with their goals and with the

obligations of their members. See Randall v. Orange Cnty.

Council, Boy Scouts of Am., 952 P.2d 261, 264–65 (Cal.

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

message”).

The Boy Scouts do not require Scouts to affiliate with any

outside religious group, and the Boy Scouts style themselves

as “absolutely nonsectarian.” According to both parties, the

1

W e use the term “Boy Scouts” to cover the Council and the Boy Scouts

of America collectively.

10 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

Council itself is “not a house of worship like a church or

synagogue, [but] it is a religious organization.” 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.” Duty

to God is placed first in the Oath as “the most important of all

Scouting values.” Members also must agree to uphold the

“Scout Law,” which provides that a Scout is “faithful in his

religious duties.” 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.” Boy Scout

leaders are instructed that they “can be positive in their

religious influence and can encourage Scouts to earn the

religious emblem of their faith.”

The plaintiffs Barnes-Wallaces are a lesbian couple, and

the plaintiffs Breens are agnostics. Because of their sexual

orientation and religious beliefs, they cannot be Boy Scout

volunteers. Both couples had plaintiff sons old enough to

join the Boy Scouts, and they would have liked their sons to

use the leased facilities, but the couples, as parents, refused

to give the approval required for membership. The

Barnes-Wallaces and the Breens object to the Boy Scouts’

policies as discriminatory, and they refuse to condone such

practices by allowing their sons to join the Boy Scouts. They

also refuse to use the leased facilities as members of the

public, so long as the Boy Scouts administer the properties.

B. The Leases

In accord with its long history of “permitting City

property to be used by nonprofit organizations for the

cultural, educational, and recreational enrichment of the

citizens of the City,” the plaintiffs’ home town of San Diego

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 11

has leased 123 public properties to various nonprofit

organizations.2 One of these organizations is the Desert

Pacific Council, which leases, occupies, and operates portions

of Balboa Park and Mission Bay Park, two popular city parks.

Other portions of those parks are extensively used by the

plaintiff families.

One of the Council’s leases with the City is for

approximately eighteen acres in Balboa Park known as Camp

Balboa. Camp Balboa offers a “unique” urban camping

opportunity in the “heart of the City.” 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. Under the original lease,

the Council paid one dollar per year in rent. In 2002, the City

and the Council entered into a new twenty-five-year lease,

which requires the Council to pay one dollar in annual rent

and a $2,500 annual administration fee. The lease also

requires the Council to maintain the property and to expend

at least $1.7 million for capital improvements over seven

years. The Council has landscaped, constructed recreational

facilities, and installed water and power on the property.

The Council also leases land from the City on Fiesta

Island in Mission Bay Park. In 1987, the City entered into a

2

These organizations include indisputably religious and arguably

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).

12 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

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 condition that it expend $1.5 million to build the

Youth Aquatic Center. It actually spent about $2.5 million to

build the Center, and now operates it. The facility offers the

use of kayaks, canoes, sail and row boats, and classroom

space to other youth groups at inexpensive rates.

The City negotiated these leases with the Council on an

exclusive basis, as it sometimes does with groups, religious

or secular, that it deems appropriate operators of a particular

piece of City property. Other organizations receive similar

terms. Some ninety-six of the City’s leases to nonprofits

(including nineteen leases to youth-oriented recreational

nonprofits) require no rent or rent less than the $2,500 fee the

Council pays, and at least fifty of them have terms of

twenty-five years or longer. Although they produce little to

no revenue, these leases save the City money by placing the

costs of maintenance and improvement upon the lessee

organizations. The City spends nothing on the properties

leased to the Council.

C. Occupancy of the Land

The Desert Pacific Council makes exclusive use of

portions of the Camp Balboa property for its own benefit.

The Council has its headquarters on park property. From this

facility it oversees its $3.7 million budget, manages its thirty

employees, and processes applications for membership and

leadership positions. The Council also has a print shop on

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 13

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 regularly used for Boy Scout activities. Those

portions also are available for use by non-member groups and

individuals, but the Council manages reservations of these

recreational facilities. Although Boy Scout entities have

priority in reserving space at the facilities, the Council has not

turned away any non-Scout group or individuals while

Scouting is in session, either at Camp Balboa or at the

Aquatic Center. Both properties charge fees for use, but there

is no evidence that the fees equal or exceed the cost of

maintaining the facilities.

The Boy Scouts primarily engage in camping and water

sports activities on the leased properties. However, some

Boy Scout members engage in voluntary religious activities,

such as religious services, on the leased properties. There are

now no religious symbols at either Camp Balboa or the Youth

Aquatic Center. At Camp Balboa, there was formerly an

outdoor meeting area that had signs saying “Scout Chapel”

and “[a] Scout is Reverent.”

D. The Plaintiffs’ Injury

The plaintiffs never applied to use Camp Balboa or the

Youth Aquatic Center; there is no evidence that the Council

actively excluded them. 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

14 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

condone the Boy Scouts’ exclusionary policies by seeking

permission from the Council to use the leased facilities, by

using the leased facilities subject to the Council’s possession

and control, or by paying fees to the Council for use of the

facilities. They had an aversion to the facilities and felt

unwelcome there because of the Boy Scouts’ policies that

discriminated against people like them.

II. Procedural History

This case has a long procedural history. 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 orientations violates the

state and federal Establishment Clauses, the California

Constitution’s No Preference and No Aid Clauses, the state

and federal Equal Protection Clauses, the San Diego Human

Dignity Ordinance, and state contract law. The district court

found that the plaintiffs had standing as municipal taxpayers

for their constitutional claims. Both sides sought summary

judgment.

The district court held that the leases violated the federal

Establishment Clause and the California No Aid and No

Preference Clauses; it granted summary judgment for the

plaintiffs. 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 Youth

Aquatic Center leases. The City then notified the Council

that under the terms of the 2002 Camp Balboa lease, the term

tenancy was terminated and converted to a month-to-month

tenancy. The plaintiffs have since settled with the City. The

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 15

Scout defendants appealed the district court’s grant of

summary judgment.

In a prior decision, we determined that the Scout

defendants’ appeal was not moot and that the plaintiffs had

standing based on their personal harm and loss of recreational

enjoyment, but we rejected the district court’s finding that

they had standing as municipal taxpayers. Barnes-Wallace v.

City of San Diego, 530 F.3d 776, 783–87 (9th Cir. 2008). We

also certified three questions to the California Supreme Court

regarding whether the leases violated the California

Constitution’s No Aid and No Preference Clauses. Id. at 779.

The California Supreme Court initially denied our

certification request without prejudice to renewal after our

ruling on standing became final.

We denied the Scout defendants’ petition for rehearing en

banc of our decision on standing. See Barnes-Wallace v. City

of San Diego, 551 F.3d 891 (9th Cir. 2008). The Scout

defendants then filed a petition for certiorari, and we stayed

further proceedings pending the decision of the United States

Supreme Court on the petition. The United States Supreme

Court ultimately denied certiorari. See Boy Scouts of Am. v.

Barnes-Wallace, 130 S. Ct. 2401 (2010).

Our standing ruling having become final, we renewed our

certification request to the California Supreme Court, which

was declined. See Barnes-Wallace v. City of San Diego,

607 F.3d 1167 (9th Cir. 2010). Accordingly, the matter is

back before us to review the district court’s grant of summary

judgment in favor of the plaintiffs.

16 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

III. Jurisdictional Analysis

As a preliminary matter, we must determine whether we

have jurisdiction over this appeal. We have statutory

jurisdiction under 28 U.S.C. § 1291, but questions have been

raised whether the matter remains an actual case or

controversy, which is required for our constitutional

jurisdiction under Article III. See Harrison W. Corp. v.

United States, 792 F.2d 1391, 1392 (9th Cir. 1986).

Therefore, we address issues of mootness and standing before

proceeding further.

A. Mootness

The Scout defendants contend that the appeal is moot

because the two son plaintiffs, Mitchell Barnes-Wallace and

Maxwell Breen, have turned eighteen years old. The appeal

is not moot because the plaintiffs still have a “legally

cognizable interest for which the courts can grant a remedy.”

Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851,

854 (9th Cir. 1999). We previously held that the plaintiffs

have standing to pursue this action because they have “shown

both personal emotional harm and the loss of recreational

enjoyment, resulting from the Boy Scouts’ use and control of

Camp Balboa and the Aquatic Center.” Barnes-Wallace,

530 F.3d at 785. The plaintiffs continue to experience that

same injury.

In addition to the two son plaintiffs, the parents, Lori and

Lynn Barnes-Wallace and Michael and Valerie Breen, are

plaintiffs in their own right, and their injury is not premised

on injury to their children. The parent plaintiffs are barred

from being volunteers in the Boy Scouts because they are

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 17

homosexuals or agnostics respectively.3 The Barnes-

Wallaces and Breens submitted declarations asserting,

without contradiction by the Scout defendants, that they

would like to use Camp Balboa as a family, but they avoid

doing so because they are offended by the Boy Scouts’

exclusion, and publicly expressed disapproval, of lesbians,

atheists and agnostics. The record does not indicate that there

is an age restriction for use of Camp Balboa and, therefore,

the parent plaintiffs could continue to use Camp Balboa, with

or without their children, after Mitchell Barnes-Wallace and

Maxwell Breen turn eighteen years old.4

Moreover, individuals who are eighteen years old can be

members of the Boy Scouts, and can use the Youth Aquatic

Center and Camp Balboa. The Boy Scouts include a

“Venturing” program, which is open to young men and

women who are fourteen through twenty years of age. Scout

summer camps at the Youth Aquatic Center are available to

members of the Venturing program. The Youth Aquatic

Center lease allows youths up to eighteen years old to camp

and participate in aquatic activities. Quarterly reports

indicate that adults frequently use the Aquatic Center.

We conclude that the plaintiffs continue to have a legally

cognizable interest, and that “a favorable decision is likely to

3

The plaintiffs explicitly do not challenge the Boy Scouts’ right to hold

discriminatory views or arbitrarily limit their membership based on their

views; they object to the Boy Scouts’ management of the Park and Center

under the City Leases.

4

A former president of the Desert Pacific Council testified that the

campsites are available to “families” and “anybody who asks to reserve

them, first-come/first-serve.”

18 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

redress their injuries.” Barnes-Wallace, 530 F.3d at 784.

Therefore, the appeal is not moot.5

B. Standing

The Scout defendants contend that we should reconsider

our prior decision that the plaintiffs have standing for their

constitutional claims based on the state and federal religion

clauses. See id. at 784–86. Under the law of the case

doctrine, we follow our prior decision “unless (1) the decision

is clearly erroneous and its enforcement would work a

manifest injustice; (2) intervening controlling authority

makes reconsideration appropriate; or (3) substantially

different evidence was adduced at a subsequent trial.”

Alaimalo v. United States, 645 F.3d 1042, 1049 (9th Cir.

2011). Our prior decision on standing was published,

however, and became the law of the circuit. The exceptions

to the law of the case doctrine are not exceptions to the rule

that, as a three-judge panel, we are bound by the law of the

circuit in the absence of a recognized exception to that rule.

Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012)

(en banc).

The Scout defendants primarily contend that

reconsideration is appropriate because of the Supreme

5

The Scout defendants also suggest that the appeal is moot because the

two son plaintiffs, Mitchell Barnes-W allace and Maxwell Breen, are

attending college outside of San Diego. Mitchell Barnes-W allace is

attending school in Los Angeles, California, and Maxwell Breen is

attending school in San Francisco, California. This fact, however, does

not preclude their interest in using Camp Balboa and the Youth Aquatic

Center during school breaks. Moreover, as discussed above, their parents

are also plaintiffs and have an injury independent of Mitchell Barnes-

W allace and Maxwell Breen.

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 19

Court’s intervening decision in Summers v. Earth Island

Institute, 555 U.S. 488 (2009). If Summers undermined our

published decision on standing in this case, it would present

a recognized exception to the law of the circuit rule.

Gonzalez, 677 F.3d at 389 n.4. We conclude, however, that

Summers does not undermine our prior ruling. In Summers,

conservation organizations filed suit to enjoin the U.S. Forest

Service from applying regulations that eliminated certain

notice and appeal rights with respect to projects in U.S.

National Forests nationwide. 555 U.S. at 490. The Court

held that the plaintiffs’ affidavit in support of standing was

insufficient, in part because it did not assert any “firm

intention” to visit project locations, stating only that one of

the plaintiffs “‘want[s] to’ go there.” Id. at 496 (alterations

in original).6 The Court reasoned that “[t]his vague desire to

return is insufficient to satisfy the requirement of imminent

injury: ‘Such ‘some day’ intentions – without any description

of concrete plans, or indeed any specification of when the

some day will be – do not support a finding of the ‘actual or

imminent’ injury that our cases require.’” Id. at 496 (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)).

Therefore, the Court concluded that the plaintiffs lacked

standing because they failed to identify any application of the

regulations that “threatens imminent and concrete harm.” Id.

at 495.

6

That affidavit in support of standing in Summers also included a

statement of the affiant’s intention to visit the National Forests in general.

555 U.S. at 495. The Supreme Court held that allegation insufficient,

stating: “Accepting an intention to visit the National Forests as adequate

to confer standing to challenge any Government action affecting any

portion of those forests would be tantamount to eliminating the

requirement of concrete, particularized injury in fact.” Id. at 496. The

allegations of the Barnes-W allaces and Breens in the present case suffer

from no such lack of specificity.

20 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

The Scout defendants argue that, like Summers, the

plaintiffs here do not allege any concrete plans to visit Camp

Balboa or the Youth Aquatic Center. However, we already

rejected this argument in our earlier decision, relying on

Lujan, the same authority cited in Summers. We determined

that “[t]his is not a case where the plaintiffs have no plan to

use the land in question.” Barnes-Wallace, 530 F.3d at 785

(citing Lujan, 504 U.S. at 564 (requiring “concrete plans” to

visit a place of environmental harm for a finding of actual and

imminent injury)). Summers accordingly does not support

reconsideration of our prior decision regarding standing.7

The Scout defendants also rely on this court’s intervening

decision in Caldwell v. Caldwell, 545 F.3d 1126 (9th Cir.

2008). Caldwell held that the plaintiff lacked standing to

raise an Establishment Clause claim arising out of her feeling

offended by the discussion of religious views on the

“Understanding Evolution” website created and maintained

by the University of California. Id. at 1132. Standing was

denied because the plaintiff’s objection was too “abstract”

and “tenuous.” Id. at 1132. Caldwell is distinguishable,

however, because, as we noted in our prior decision, the

plaintiffs here “are not bystanders expressing ideological

disapproval of the government’s conduct,” but rather have a

“personal interest in the land at issue.” Barnes-Wallace,

530 F.3d at 785–86. Moreover, Caldwell was before us when

we denied rehearing en banc of our standing decision; the

dissent from denial of rehearing en banc cited Caldwell.

Barnes-Wallace, 551 F.3d at 898 (O’Scannlain, J.,

dissenting). We therefore need not revisit Caldwell. Finally,

7

After Summers was decided, the Supreme Court denied the Boy Scout

defendants’ petition for certiorari to review our standing decision. Boy

Scouts v. Barnes-Wallace, 130 S. Ct. 2401 (2010).

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 21

we note that Caldwell, as a decision by a later three-judge

panel, cannot by its own force overrule this panel’s prior

opinion. See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir.

2010).

For all of these reasons, we decline the Scout defendants’

invitation to reconsider our prior decision regarding

standing.8

IV. The California No Aid Clause

The plaintiffs contend that the City’s leases to the Council

violate both the California and federal Constitutions.9 We

first determine whether the City’s leases violate the

California Constitution.10 See Kuba v. 1-A Agric. Ass’n,

387 F.3d 850, 856 (9th Cir. 2004) (“[F]ederal courts should

not decide federal constitutional issues when alternative

grounds yielding the same relief are available.”).

8

W e recognize that the standing of the Barnes-W allace plaintiffs, as

lesbians, to challenge the leases as violations of the California No Aid and

No Preference Clauses and of the state and federal Establishment Clauses

is tenuous. The Breens, as atheists, however, clearly qualify for standing

under our prior ruling. Because they have standing, we have jurisdiction

to proceed without the need to address any insufficiencies in the Barnes-

W allaces’ standing. See Comite de Jornaleros de Redondo Beach v. City

of Redondo Beach, 657 F.3d 936, 943–44 (9th Cir. 2011) (en banc).

9

W e review de novo the district court’s grant of summary judgment.

Olsen, 363 F.3d at 922.

10

W e reject the plaintiffs’ contention that the B oy Scouts waived any

challenge to the district court’s ruling on the California constitutional

clauses by not arguing the issues in their opening brief. The issues were

adequately presented in conjunction with the federal constitutional issues.

22 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

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 § 5.11

We construed this provision in our en banc decision of

Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002)

(en banc).12

More recently, the Supreme Court of California has

construed the No Aid Clause in a case addressing the validity

of a program under which a state entity authorized the

issuance of state bonds to fund educational facilities at

various educational institutions, including three that were

assumed to be “pervasively sectarian.” Cal. Statewide Cmtys.

Dev. Auth. v. All Persons Interested (“Statewide

11

The No Aid Clause is notably expansive and exhaustive. In relevant

part 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 . . . .

Cal. Const. art. XVI § 5.

12

Paulson invalidated a sale by the City of San Diego of a plot of land

in M t. Soledad Natural Park that contained a large concrete Latin cross.

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 23

Communities”), 152 P.3d 1070 (Cal. 2007). This case, which

was decided after the district court entered its summary

judgment here, is crucial to our decision.

First, it is important to note that, despite the categorical

language of the No Aid Clause, the California Supreme Court

in Statewide Communities re-emphasized that the mere

conferring of some benefit on a sectarian organization does

not ipso facto violate the No Aid Clause. Id. at 1077.

Instead, Statewide Communities enunciated a four-part test

for determining whether aid – there, in the form of state

bonding authority furnished to a pervasively sectarian

institution – complies with the No Aid Clause:

(1) The bond program must serve the public

interest and provide no more than an

incidental benefit to religion; (2) the program

must be available to both secular and sectarian

institutions on an equal basis; (3) the program

must prohibit use of bond proceeds for

“religious projects”; and (4) the program must

not impose any financial burden on the

government.

Id. at 1077. We apply a parallel analysis to that in Statewide

Communities to the situation before us.

The Statewide Communities analysis makes it

unnecessary to belabor two threshold issues: (1) whether the

City’s leases constitute “Aid” to the Scout defendants, and (2)

if so, whether the Scout defendants are “sectarian” within the

meaning of the No Aid Clause. Statewide Communities

upheld a state program that clearly provided substantial

benefits to a pervasively sectarian institution. We assume for

24 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

purposes of our decision, without deciding, that the City’s

leases confer a benefit on the Boy Scouts and that the Boy

Scouts are a sectarian organization. We proceed, then, to

consider whether the City’s aid to the Scout defendants

complies with the requirements set forth in Statewide

Communities.

Like the California Supreme Court in Statewide

Communities, we address factors (2), (3), and (4) of its test

first before considering factor (1).

1. The City Made the Leases Available on an

“Equal Basis.”

The City’s benefit to the Scout defendants must be

available on an “equal basis” to those with religious and

secular objectives. See Statewide Communities, 152 P.3d at

1077; Paulson, 294 F.3d at 1131. For example, we have held

that an airport’s policy of renting commercial space to

religious organizations did not violate the No Aid Clause, in

part, because “there is no suggestion that all religions did not

have the same opportunity to rent space, or that groups with

views opposed to organized religion, or with any other social

or philosophical view, were denied that opportunity.”

Christian Sci. Reading Room Jointly Maintained v. City &

Cnty. of S. F., 784 F.2d 1010, 1014 (9th Cir. 1986).

Similarly, the California Court of Appeal held that a long-

term lease of land by a community college district to a

synagogue did not violate the No Aid Clause, in part, because

“religious and secular groups had equal opportunity to obtain

the government benefit.” Woodland Hills Homeowners Org.

v. L. A. Cmty. Coll. Dist., 266 Cal. Rptr. 767, 776 (Ct. App.

1990).

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 25

The district court (which did not have the benefit of

Statewide Communities at the time it ruled) and the plaintiffs

have taken the position that, in determining whether the

benefit was equally available to others, the focus must be on

the individual negotiation of the leases to the Boy Scouts.

Not everyone, the plaintiffs argue, had an opportunity to lease

the particular plots of land leased to the Boy Scouts.

Therefore, the argument goes, there was no equal access of

sectarian and secular entities to the properties.

This approach to the issue of the City’s evenhandedness

is too narrow, in our view. It is undisputed that the City has

leased no less than 123 parcels of public property to all kinds

of nonprofit organizations, most but not all of which were

purely secular. The City’s practice of leasing its lands is by

no means occasional or targeted in favor of sectarian

organizations; it is multifarious and clearly confers a similar

benefit on both secular and religious organizations. It is true,

as the district court pointed out, that there is no written

specification uniformly governing all such leases. But in

view of the numbers and nature of the leases disclosed by the

record, we conclude that the City’s leases were “available to

both secular and sectarian institutions on an equal basis.” See

Statewide Communities, 152 P.3d at 1077.

2. The Leases Do Not Make City Funds Available

for “Religious Projects.”

Statewide Communities requires that a bonding program

prohibit the “use of bond proceeds for ‘religious projects.’”

Id. at 1077–78. This requirement does not transfer easily to

the context of the Boy Scouts leases, except in the literal

sense that no City funds go for religious projects at either

facility leased to the Boy Scouts because the City expends no

26 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

funds at all on the Boy Scouts or on the properties leased to

them.

It is true that the land leased by the City may be used

from time to time by the Boy Scouts for religious purposes.

But at least two precedents make clear that such use does not

run afoul of the No Aid Clause. Christian Science Reading

Room and Woodland Hills Homeowners involved rental or

leases of property on which religious activities, such as the

devotional reading of Christian Science texts or synagogue

services, undoubtedly occurred, but which were found not to

violate the No Aid Clause. See Christian Sci. Reading Room,

784 F.2d at 1015–16; Woodland Hills Homeowners, 266 Cal.

Rptr. at 774–76. Although these two decisions were issued

before Statewide Communities, they were decided after

California Educational Facilities Authority v. Priest,

526 P.2d 513 (Cal. 1974), on which Statewide Communities

heavily relied. We therefore do not interpret this funding

prohibition of Statewide Communities to invalidate

governmental leases to organizations that may use the leased

properties for religious purposes. Statewide Communities

made it clear that the sectarian institutions involved in that

case were entirely free to engage in religious exercise on the

property funded with bond proceeds; the requirement of the

No Aid Clause was simply that any funding received from the

state bond program not be used specifically to finance

“religious projects.” We find no violation of that requirement

here.

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 27

3. The City’s Leases Impose No Financial Burden

on the City.

In Statewide Communities, the California Supreme Court

held that the bond program at issue imposed no financial

burden on the state because all costs were funded solely by

the private purchasers of the bonds, there was no recourse

against the state for any bonded liability, and any costs to the

government of issuing the bonds were reimbursed by the

schools. See 152 P.3d at 1078. Some tax revenues were

eventually lost because of the tax-exempt status of the bonds,

but such general tax policies had never been held to violate

the No Aid Clause. Id. at 1078 n.7.

It is clear that the City’s leases to the Scout defendants do

not require the City to accept a financial burden. The City is

neither obligated to pay, nor pays, any funds in connection

with either of the leases at issue. It is true that the City has

granted long-term leases of valuable property at nominal or

no rent, but it requires and receives the benefit of expensive

improvement and management of the properties by the Boy

Scouts. Even if there is still a net benefit to the Boy Scouts,

the City does not undertake a liability of the kind that

Statewide Communities was guarding against. We conclude

that the leases are not a “financial burden” to the City within

the meaning of Statewide Communities.13

13

In their original briefing, the plaintiffs stated that the City’s long-term

leases for nominal or no rent violated the No Aid Clause provision

forbidding the “grant or donation of . . . real estate . . . for any . . .

sectarian purpose whatever.” Cal. Const. art. XVI § 5. They did not

further develop that argument, and we decline to address it.

28 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

4. The Benefits of the City’s Leases to the

Religious Purposes of the Scout Defendants

Are Merely Incidental.

We address finally the first of the four mandatory

requirements of Statewide Communities for viability of a

government benefit under the No Aid Clause: the “program

must serve the public interest and provide no more than an

incidental benefit to religion.” See 152 P.3d at 1077. There

is no question that the City’s leases serve the City’s public

purpose of encouraging nonprofit organizations to develop

cultural, educational, and recreational programs and facilities

for public use. The disputed question is whether the City’s

aid to the Scout defendants’ religion is merely incidental to

that public purpose. We conclude that the City’s aid to the

Scout defendants’ religious purposes is incidental.

In Statewide Communities, the California Supreme Court

held that a bond program’s considerable benefit to religion

was incidental so long as the sectarian schools offered a broad

curriculum in secular subjects, and the schools’ secular

classes consisted of information and coursework that was

neutral with respect to religion. See id. at 1079.

There is no dispute that the Scout defendants primarily

provide camping, water sports, and other outdoor youth

activities at Camp Balboa and the Youth Aquatic Center that

are typical of a secular camp facility. Participation in and

instruction in these activities are essentially neutral as to

religion, and qualify as the equivalent of a “broad curriculum

in secular subjects” that the California Supreme Court

required of educational institutions to pass muster under the

No Aid Clause. Id. at 1072. The Boy Scouts make these

activities available both to their own members and to others

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 29

who apply to use the facilities. The provision of those

services for members and others is a legitimate secular

interest of the City and is the City’s main purpose in granting

the leases. Any aid to religion is “incidental” in the common

meaning of that term.

It is also incidental in the legal sense of Statewide

Communities. It is true that we assume for purposes of

decision that, in granting the leases for secular purposes, the

City confers a benefit on the Boy Scouts, and that the Boy

Scouts are a sectarian organization. But the facts that the

Scouts receive a benefit and are a religious organization do

not by themselves amount to a violation of the No Aid

Clause; the educational institutions that benefited quite

considerably in Statewide Communities were assumed to be

pervasively sectarian. It is further true that, in teaching

camping, outdoorsmanship, and aquatic activities, the Boy

Scouts may express religious sentiments but, because the

requirements of Statewide Communities are otherwise met,

“the expression of a religious viewpoint in otherwise secular

classes will provide a benefit to religion that is merely

incidental to the . . . primary purpose of promoting secular

education.” Id. We conclude, therefore, that any benefit

conferred on the religion of the Boy Scouts by the City’s

leases is “merely incidental” within the meaning of Statewide

Communities.

Accordingly, because they meet all four requirements of

Statewide Communities, the leases do not violate the No Aid

Clause of the California Constitution.

30 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

V. The California No Preference and Establishment

Clauses.

Article I, section 4 of the California Constitution

provides: “Free exercise and enjoyment of religion without

discrimination or preference are guaranteed. . . . The

Legislature shall make no law respecting an establishment of

religion.” The plaintiffs invoked both of these No Preference

and Establishment Clauses in their complaint.

The California Supreme Court has held that the

Establishment Clause of the California Constitution creates

no broader protection against the establishment of religion

than the Establishment Clause of the United States

Constitution. E. Bay Asian Local Dev. Corp. v. California,

13 P.3d 1122, 1138 (Cal. 2000). That Court has further held

that a governmental action that satisfies the test of Lemon v.

Kurtzman, 403 U.S. 602 (1971), for permissibility under the

federal Establishment Clause necessarily passes muster under

the California No Preference Clause. E. Bay, 13 P.3d at

1139. Accordingly, we need not separately analyze the

plaintiffs’ claims under these state constitutional provisions

because our disposition of this case requires us to address the

plaintiffs’ federal Establishment Clause claims.

VI. The Establishment Clause of the United States

Constitution.

The district court held that the leases of Balboa Park and

Fiesta Island to the Boy Scouts violated the federal

Establishment Clause. The primary reason paralleled the

district court’s reason for finding a violation of the state No

Aid Clause: the leases were exclusively negotiated with the

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 31

Boy Scouts, and secular organizations were not given a full

opportunity to negotiate leases for those particular lands.

As in the case of the state constitutional claims, we

conclude that the district court gave insufficient weight to the

fact that the City had leased portions of city lands to 123

nonprofit organizations, the great majority of which were

secular in nature. See Bd. of Educ. of Kiryas Joel Vill. Sch.

Dist. v. Grumet, 512 U.S. 687, 704 (1994) (stating that the

Supreme Court has “frequently relied explicitly on the

general availability of any benefit provided religious groups

or individuals in turning aside Establishment Clause

challenges”). In light of that fact, and the other indications of

the purpose and effect of the Boy Scouts’ leases, we conclude

that those leases did not violate the federal Establishment

Clause.

The traditional test applied by the Supreme Court to

determine whether governmental action violates the

Establishment Clause was set forth in Lemon, 403 U.S. at

612–13. To be constitutional, the government conduct at

issue must: (1) have a secular purpose, (2) have a primary

effect that neither advances nor inhibits religion, and (3) not

foster an excessive government entanglement with religion.

Id. In Agostini v. Felton, 521 U.S. 203, 232–33 (1997), the

Court placed a gloss on this formulation, stating that the

factors used to determine the “effect” of a challenged action

were similar to those used to determine whether there was an

excessive entanglement.

The Lemon test has recently led a checkered existence. In

two relatively recent Establishment Clause cases, the

Supreme Court reached differing results under distinct tests

of constitutionality. In Van Orden v. Perry, 545 U.S. 677

32 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

(2005), the Court held that the display of a monument

inscribed with the Ten Commandments on the grounds of the

Texas capitol did not violate the Establishment Clause. The

plurality opinion stated that the Lemon test was “not useful in

dealing with the sort of passive monument that Texas has

erected on its Capitol grounds.” Id. at 686. Justice Breyer’s

concurring opinion also declined to apply the Lemon test. Id.

at 703–04 (Breyer, J., concurring). On the other hand, in

McCreary County v. ACLU, 545 U.S. 844 (2005), the Court

held that the display of lone copies of the Ten

Commandments on the walls of two courthouses violated the

Establishment Clause because the placement of the displays

clearly evidenced a religious purpose, thus failing the first

prong of the Lemon test.

We subsequently discussed the impact of these cases in

Card v. City of Everett, 520 F.3d 1009 (9th Cir. 2008). We

came to two conclusions: (1) “that the three-part test set forth

in Lemon and modified in Agostini remains the general rule

for evaluating whether an Establishment Clause violation

exists”; and (2) that the Lemon test does not apply “to

determine the constitutionality of some longstanding plainly

religious displays that convey a historical or secular message

in a non-religious context.” Id. at 1016. Because our case

generally does not fit within this second category, we apply

the Lemon-Agostini test.

In determining the purpose of a challenged governmental

action, we adopt the viewpoint of an objective observer,

McCreary, 545 U.S. at 862, familiar with the history of the

practice at issue, Newdow v. Rio Linda Union School District,

597 F.3d 1007, 1037–38 (9th Cir. 2010). The result here is

clear. There is no evidence that the City’s purpose in leasing

the subject properties to the Boy Scouts was to advance

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 33

religion, and there is abundant evidence that its purpose was

to provide facilities and services for youth activities. Indeed,

the plaintiffs do not seriously argue that the City’s intentions

were forbidden. The first prong of the Lemon test is satisfied.

In a combined Agostini approach to the second and third

prongs of the Lemon test, we examine “(i) whether

governmental aid results in government indoctrination; (ii)

whether recipients of the aid are defined by reference to

religion; and (iii) whether the aid creates excessive

governmental entanglement with religion.” Card, 520 F.3d

at 1015.

We are satisfied that a reasonable observer familiar with

San Diego’s leasing practices, as well as with the events

surrounding the leasing of Camp Balboa and the Aquatic

Center and the actual administration of the leased properties,

could not conclude that the City was engaged in religious

indoctrination, or was defining aid recipients by reference to

religion. The facts that the City has leased 123 parcels to

nonprofit agencies, the overwhelming majority of which are

secular in nature, and that 96 of those leases require no

payment of rent (although in some cases there is a small

administrative fee), tend to negate any indoctrination or

distribution of aid by reference to religion.14 Instead, they

14

The plaintiffs invoke Community H ouse, Inc. v. City of Boise

(Community House I), 490 F.3d 1041 (9th Cir. 2007), in which we held

that a $1-per-year lease of a homeless shelter to a religious organization

that conducted religious indoctrination was sufficient to support a

preliminary injunction as an Establishment Clause violation. Our later

discussion in Community House, Inc. v. City of Boise (Community House

II), 623 F.3d 945 (9th Cir. 2010), however, addressed the question

whether such a subsidized lease offered on the same rental terms as those

offered to other nonprofit groups would violate the Establishment Clause.

34 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

suggest that favorable City leases “are allocated on the basis

of criteria that neither favor nor disfavor religion.” Agostini,

521 U.S. at 232. Moreover, in the actual management of the

leased properties, the City is not involved at all, and

consequently cannot be seen to be involved or entangled in

any religious activities of the Boy Scouts.15

We conclude, therefore, that the City’s leases to the Boy

Scouts do not violate the federal or California Establishment

Clauses, or the California No Preference Clause.

W e cited with approval a Fourth Circuit case, Fairfax Covenant Church

v. Fairfax County School Board., 17 F.3d 703 (4th Cir. 1994), that held it

to be a violation of the Free Exercise and Free Speech Clauses to charge

religious organizations commercial rental rates while charging other

nonprofit organizations a subcommercial rent. 623 F.3d at 971. W e then

ruled that the defendants in Community House were entitled to qualified

immunity because, if it was an Establishment Clause violation to charge

a religious organization the same subsidized rental charged another

nonprofit organization, the violation was not clearly established. Id. at

971–73. W e do not regard the Community House cases as conflicting with

our holding today.

15

For the same reason, an objective observer familiar with the history

of the City’s leasing projects could not view the Boy Scouts leases as an

“endorsement” of religion by the City. Nothing in the City’s overall

leasing policy can reasonably be regarded as “appearing to take a position

on questions of religious belief or . . . ‘making adherence to a religion

relevant in any way to a person’s standing in the political community.’”

Cnty. of Allegheny v. ACLU, 492 U.S. 573, 594 (1989) (quoting Lynch v.

Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring)); see also

Newdow, 597 F.3d at 1037–38.

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 35

VII. The State and Federal Equal Protection

Clauses.

The plaintiffs’ complaint alleged that the City’s leases

violated the federal and state Equal Protection Clauses “by

endorsing, supporting, and promoting defendants’

discrimination based on sexual orientation and religious non-

belief in the provision of access to and use of leased public

parklands.”16 The district court did not address the merits of

this claim because it had granted the plaintiffs relief under the

state and federal religion clauses. It accordingly dismissed

the equal protection claims as moot. The plaintiffs argue that,

if their religious claims are denied here (as they are), the

dismissal of the equal protection claims should be reversed,

and the matter remanded to the district court for it to address

those claims. We agree that, by reason of our disposition of

the other claims, the equal protection claims are no longer

moot. We conclude, however, that the plaintiffs cannot

succeed on their equal protection claims, and we accordingly

affirm the district court’s dismissal of those claims.

“[I]n order for a state action to trigger equal protection

review at all, that action must treat similarly situated persons

disparately.” Silveira v. Lockyer, 312 F.3d 1052, 1088 (9th

Cir. 2002), abrogated on other grounds by District of

Columbia v. Heller, 554 U.S. 570 (2008). The pleadings and

declarations of the plaintiffs make it abundantly clear that

they have never attempted to use the facilities and

accordingly have not been treated differently from other

members of the public (or indeed treated at all) with regard to

16

W ith exceptions not relevant here, California treats the state and

federal Equal Protection Clauses as embodying an identical guarantee.

See Connerly v. State Pers. Bd., 112 Cal. Rptr. 2d 5, 19 (Ct. App. 2001).

36 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

the leased properties, either by the City or by the Boy Scouts

with the imprimatur of the City.

It is true that, in our earlier decision, we held that the

plaintiffs had established sufficient “injury in fact” to create

a case or controversy giving us Article III jurisdiction over

their claims. See Barnes-Wallace, 530 F.3d at 785. That

injury was a lack of access to Camp Balboa and the Aquatic

Center because of the repugnance of the Boy Scouts’ policies

to the plaintiffs. While that “injury in fact” is sufficient to

invoke our jurisdiction, it does not of its own weight establish

the plaintiffs’ entitlement to relief for a violation of the state

and federal Equal Protection Clauses. “[E]ven when the

plaintiff has alleged injury sufficient to meet the ‘case or

controversy’ requirement, th[e Supreme] Court has held that

the plaintiff generally must assert his own legal rights and

interests . . . .” Warth v. Seldin, 422 U.S. 490, 499 (1975). A

successful claim under the Equal Protection Clauses, unlike

one under the Establishment Clause, requires the

governmental actor to have discriminated against the

plaintiff, in the absence of special circumstances permitting

reliance on rights of third parties. See Powers v. Ohio,

499 U.S. 400, 410–11 (1991). Thus the plaintiffs here must

show that the City, or the Boy Scouts with the City’s

imprimatur, treated the plaintiffs differently from some other

individuals. This they have failed to do.

The plaintiffs contend, however, that they are treated less

favorably than others because members of the Boy Scouts,

which they cannot join, have preferential access to the leased

properties. It is of course true that, when the government

imposes a discriminatory barrier making it more difficult for

members of a group to obtain a benefit (such as a government

contract), the injury of unequal opportunity to compete

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 37

confers standing. See Ne. Fla. Chap. of the Associated Gen.

Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993).

But a plaintiff seeking to challenge such a barrier must

“demonstrate that it is able and ready to bid on contracts.” Id.

The plaintiffs here are not able and ready to apply for access

to Camp Balboa and the Aquatic Center because the

membership policies of the Boy Scouts make it repugnant for

the plaintiffs to apply to any facility operated by them.

Indeed, we addressed this claim of the plaintiffs in our

earlier decision, in a passage that bears repeating. We said:

Nor can the plaintiffs claim standing on

the basis of the Council’s policy of granting

preferential access to the Boy Scouts. Even if

the Council excludes other groups in favor of

the Boy Scouts – a disputed fact here – the

plaintiffs cannot show injury from this policy.

The plaintiffs have insisted that they would

not use the facilities while the Boy Scouts are

lessees. The plaintiffs never contacted the

Boy Scouts about using the facilities, and they

admitted they knew little or nothing about the

Boy Scouts’ policies regarding access to the

facilities. Without any plans to apply for

access, the plaintiffs cannot show actual and

imminent injury from a discriminatory policy

of denying access. See Lujan, 504 U.S. at

564.

Moreover, the injury that we have

concluded the plaintiffs did suffer cannot be

redressed by correcting this access policy. As

long as the Council as an organization

38 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

maintains policies that exclude from

participation and demean people in the

plaintiffs’ position, no amount of evenhanded

access to the leased facilities will redress the

plaintiffs’ injury: emotional and recreational

harm arising out of the Council’s control and

administration of public land that the

plaintiffs wish to use. It is this injury, and not

the alleged Boy Scouts’ policy of preferential

access to the facilities it operates, that

supports plaintiffs’ standing . . . under the

federal and state religion clauses.

Barnes-Wallace, 530 F.3d at 787 (footnote omitted).

We conclude, therefore, that the plaintiffs have failed to

show a violation of the federal or state Equal Protection

Clauses.

VIII. The San Diego Human Dignity Ordinance.

The Barnes-Wallaces challenge the district court’s

dismissal of their claim under the San Diego Human Dignity

Ordinance. The Ordinance makes it unlawful for any person

to discriminate in the availability of City facilities or facilities

supported by the City on the basis of an individual’s sexual

orientation or gender identity. San Diego Mun. Code

§ 52.9606(a)(1), (3).

For essentially the same reason just discussed with regard

to the equal protection issue, the Barnes-Wallaces cannot

establish a viable claim for relief under the Human Dignity

Ordinance. That ordinance forbids discriminating against

individuals using city-supported facilities on the basis of

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 39

sexual orientation and provides relief to persons “aggrieved”

by the failure to provide such access. See id. § 52.9609(a).

As we have explained, the Barnes-Wallaces never attempted

to use the Camp Balboa or Aquatic Center Facilities, and

accordingly suffered no discrimination in a denial of those

services. They thus have not alleged any violation of the

Ordinance affecting them. The district court did not err in

dismissing their claim.

IX. The Breach of Contract Claim.

The City’s lease for Camp Balboa contained the following

clause:

7.4 Nondiscrimination. LESSEE agrees not to

discriminate in any manner against any person

or persons on account of race, color, religion,

gender, sexual orientation, medical status,

national origin, age, marital status, or physical

disability in LESSEE’S use of the premises,

including but not limited to the providing of

goods, services, facilities, privileges,

advantages, and accommodations, and the

obtaining and holding of employment.

The lease for the Aquatic Center contains an identical

provision except that it omits “sexual orientation” and

“medical status” in the list of prohibited grounds of

discrimination. The plaintiffs contend that the Boy Scouts

breached these provisions, and that they are entitled to sue to

require enforcement.

We assume for purposes of decision, without deciding,

that the plaintiffs can qualify as third-party beneficiaries of

40 BARNES-WALLACE V . BOY SCOUTS OF AMERICA

the nondiscrimination clauses in the two leases. See Lucas v.

Bechtel Corp., 800 F.2d 839, 848 (9th Cir. 1986) (assuming,

without deciding, that a third party was the intended

beneficiary of a contract governed by the Labor-Management

Relations Act).17 On the merits, however, the plaintiffs have

utterly failed to present a viable claim of breach of contract.

The plaintiffs never attempted to use any of the facilities of

Camp Balboa or the Aquatic Center. The Boy Scouts

consequently were never given an opportunity to perform or

to breach any contractual duty to these plaintiffs. The district

court accordingly did not err in dismissing the contract

claims.

X. Conclusion

The district court erred in ruling that the City’s leases

with the Boy Scouts violated the California No Aid Clause,

the California No Preference Clause, and the federal

Establishment Clause. The summary judgment in favor of the

plaintiffs on these claims is reversed, and the matter is

remanded to the district court with instructions to enter

summary judgment in favor of the Scout defendants on these

claims.

The district court’s dismissal of the plaintiffs’ state and

federal equal protection claims is affirmed on the ground that

the plaintiffs lack standing to maintain those claims.

17

The district court held that the plaintiffs could not sue as third party

beneficiaries of the lease provisions. W e do not address this issue

because the plaintiffs’ contractual claims so clearly fail on the merits.

BARNES-WALLACE V . BOY SCOUTS OF AMERICA 41

The rulings of the district court dismissing the plaintiffs’

claims for violation of the San Diego Human Rights

ordinance and for breach of contract are affirmed.

AFFIRMED in part; REVERSED in part; and

REMANDED with instructions.

KLEINFELD, Circuit Judge, concurring:

I join the majority opinion. I write separately only to note

that we erred in the previous opinion (by which we are now

bound) addressing standing. The plaintiffs allege absolutely

no cognizable harm to themselves. They simply have a

preference. The plaintiffs’ views about the Boy Scouts’

institutional positions do not establish standing, because no

concrete harm flows to plaintiffs as a result of the Boy

Scouts’ views. My views on standing were set forth in my

dissent in Barnes-Wallace v. City of San Diego, 530 F.3d 776,

794 (9th Cir. 2008) (Kleinfeld, J., dissenting). Revulsion for

a group so intense that one cannot bear to be on property they

manage cannot, in a tolerant society, be deemed harm

sufficiently concrete as to confer standing to sue.