Opinion

Barnes-Wallace, Etal v. Boy Scouts of Am

  • 704 F.3d 1067
  • 2012 WL 6621341
Court
Court of Appeals for the Ninth Circuit
Filed
Dec 20, 2012
Status
Published
Author
Kleinfeld
On the bench
Canby, Kleinfeld, Berzon
Cited by
12 cases
Authority
More cited than 0.0%

holding that the lease of public land to Boy Scouts was incidental and not in violation of the No Aid Clause where the services the Scouts provided were “essentially neutral to religion” and the equivalent to a “broad curriculum in secular subjects”

How later courts described this case

  • holding that the lease of public land to Boy Scouts was incidental and not in violation of the No Aid Clause where the services the Scouts provided were “essentially neutral to religion” and the equivalent to a “broad curriculum in secular subjects”
  • “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.”
  • to establish standing, a plaintiff seeking to challenge a discriminatory barrier making it more difficult for members of a group to obtain a benefit, such as a government contract, must demonstrate that they were able and ready to bid on the contract at issue
  • “[I]t is important to note that, despite the categorical language of the No Aid Clause, the California Supreme Court [has] ... re-emphasized that the mere conferring of some benefit on a sectarian organization does not ipso facto violate the No Aid Clause.”

Written by the judges who cited it.

The opinion

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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