Amicus Curiae Brief — Boy Scouts of America v. Barnes-Wallace

Supreme Court, U.S.

FILED

MAY 4- 2009

No. 08-1222 CEFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

Boy SCOUTS OF AMERICA;

AND SAN DIEGO IMPERIAL COUNCIL,

Boy SCOUTS OF AMERICA,

Petitioners,

Ve

LORI & LYNN BARNES-WALLACE;

MITCHELL BARNES WALLACE;

MICHAEL AND VALERIE BREEN;

AND MAXWELL BREEN,

Respondents,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

to the Ninth Circuit

AMICUS CURIAE BRIEF OF THE

AMERICAN CIVIL RIGHTS UNION

IN SUPPORT OF PETITIONERS

PETER J. FERRARA

Counsel of Record

AMERICAN CIVIL RIGHTS UNION

1232 Pine Hill Rd.

Mclean, VA 22101

(703) 582-8466

Counsel for Amicus Curtae

American Civil Rights Union

WILSON-EPES PRINTING CO.,INC. — (202) 789-0096 ~— WASHINGTON,D C 20002

TABLE OF CONTENTS

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TABLE OF AUTHORITIES ........................:eeseeee

INTEREST OF THE AMICUS CURIAE. ............

STATEMENT OF THE CASE .......................020.

SUMMARY OF ARGUMENT ......00.000.00.0000.000..2..

REASONS FOR GRANTING THE WRIT..........

I. THE PLAINTIFFS DO NOT HAVE

STANDING UNDER THE PRECE-

DENTS OF THIS COURT, WHICH

REQUIRE CONCRETE INJURY-IN-

FACT NOT MERE OFFENSE .................

Il. THE NINTH CIRCUIT'S DECISION

WOULD LEAVE NO EFFECTIVE

DOCTRINE OF STANDING ...............0.....

Ill. THIS CASE PRESENTS CRUCIAL

QUESTIONS OF LAW REGARDING

THE FUNDAMENTAL DOCTRINE OF

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TABLE OF AUTHORITIES

CASES Page

Allen v. Wright, 468 U.S. 737 (1984) ........... 13, 20

Barnes-Wallace v. Boy Scouts of America,

275 F. Supp. 2d 1259 (S.D. Cal. 2003) ..... 5

Barnes-Wallace v. Boy Scouts of America,

471 F. 3d 1038 (9th Cir. 2006).................. 7

Barnes-Wallace v. City of San Diego, 530

F.3d 776 (9th Cir. 2008).................222.:eeeeee 2, 20

DaimlerChrysler Corp. v. Cuno, 547 US.

SSB (QOOG) .oissicusexsscuccvsensoncaseusnaeeaeeeaae 20

Diamond v. Charles, 476 U.S. 54 (1986) ..... 21

Lujan v. Defenders of Wildlife, 504 U.S.

BEG (LOGB). «.iccssescssssassunssesuanniseeaeeeaes 13

Raines v. Byrd, 521 U.S. 811 (1997)............ 20

Trunk v. City of San Diego, 568 F. Supp.

2d 1190 (S.D. Cad. SGP sicccsccsacscseecnseisuns 20

United States v. Students Challenging

Regulatory Agency Procedures (SCRAP),

412 U.S. GOD, GBF ChB ya sscorcevacsesssatnacneaes 21

Valley Forge Christian College v. Ameri-

cans United for Separation of Church &

State, Inc. 454 U.S. 464 (1982)................. 13, 14

CONSTITUTIONAL PROVISIONS

Article Ei, Sect. &, G8. S sccsccsaseseessaecaee 21

INTEREST OF THE AMICUS CURIAE'

The American Civil Rights Union (ACRU) is a non-

partisan legal policy organization dedicated to de-

fending all constitutional rights, not just those that

might be politically correct or fit a particular ideol-

ogy. It was founded in 1998 by long time Reagan pol-

icy advisor and architect of modern welfare reform

Robert B. Carleson, and since then has filed amicus

curiae briefs on constitutional law issues in cases all

over the country.

Those setting the organization’s policy as members

of the Policy Board are former U.S. Attorney General

Edwin Meese III; Pepperdine Law School Dean Ken-

neth W. Starr; former Assistant Attorney General for

Civil Rights William Bradford Reynolds; John M.

Olin Distinguished Professor of Economics at George

Mason University Walter Williams; former Harvard

University Professor, Dr. James Q. Wilson; Ambas-

sador Curtin Winsor, Jr.; and Dean Emeritus of the

UCLA Anderson School of Management J. Clayburn

LaForce.

This case is of interest to the ACRU because we

want to ensure that the constitutional rights of

groups that advocate traditional values like the Boy

Scouts are fully protected, and that the crucial legal

doctrine of standing is fully maintained.

' Peter Ferrara authored this bricf for the American Civil

Rights Union (ACRU). No counsel for either party authored the

brief in whole or in part and no one apart from the ACRU made

a monetary contribution to the preparation or submission of this

brief. All parties have consented to the filing of this brief, and

were timely notified.

2

STATEMENT OF THE CASE*

Since the mid-1950s, the San Diego Imperial Coun-

cil, Boy Scouts of America (hereafter “San Diego Boy

Scouts”) has operated Camp Balboa in Balboa Park

in the center of the city, under a long term lease with

the City of San Diego. Camp Balboa includes camp-

grounds, a swimming pool, an amphitheater, a

program lodge, a picnic area, a ham radio room,

restrooms, showers, archery programs, and a camp

ranger office, all built and maintained by the San Di-

ego Boy Scouts. Barnes-Wallace v. City of San Diego,

530 F.3d 776, 781 (9th Cir. 2008); SER 217, para. 18.

The Ninth Circuit adds, “The Boy Scouts have

landscaped, constructed recreational facilities, and

installed water and power on the property. [SER 217,

para. 17].” App. B, 26a. The current lease requires

the Scouts to spend at least $1.7 million for capital

improvements on the property over just seven years.

App. B, 26a.

The City entered into this lease as part of a general

policy of leasing public property to non-profits who

then bear the costs, rather than the taxpayers, of op-

erating facilities for the public. As the Ninth Circuit

observed, “[T]hese leases save the City some money

by placing the costs of maintenance and improve-

ments upon the lessee organizations. [SER 204-05)”

App. B, 26a. Pursuant to this policy, the City has en-

tered into at least 123 leases with such non-profits as

* In the citations throughout this brief, “ER___” refers to the

fourteen-volume “Excerpts of Record” submitted to the Ninth

Circuit by Plaintiffs on January 3, 2005. “SER__” refers to the

five-volume “Supplemental Excerpts of Record” submitted by

the Boy Scouts on February 14, 2005. Numbers followed by “a”

refer to pages in the bound Appendix submitted by Petitioners

with their Petition for a Writ of Certiorari.

3

the San Diego Calvary Korean Church, Point Loma

Community Presbyterian Church, the Jewish Com-

munity Center, the Vietnamese Federation, the Black

Police Officers Association, and ElderHelp. 530 F. 3d

at 797; (SER 10, 36).

In the mid-1980s, 42 youth serving organizations

in San Diego joined to ask the City to enter into

another, similar lease with the San Diego Boy Scouts

to build and operate a youth aquatic center on Fiesta

Island, because they believed the Scouts were the

best equipped to do so. (ER 3289-90; SER 3, para. 12,

1047-52, 1065-79, 1082, 1133, 1137-41.) The City en-

tered into this recommended lease in 1987, and the

San Diego Boy Scouts built a Youth Aquatic Center

on the leased land with $2.5 million of its own funds.

(SER 215, 1047-49, 1051-52, 1065-79, 1082, 1084

para. 19, 1137-41; App. B, 27a) The Scouts maintain

programs at the Center for kayaks, canoes, sailboats,

rowboats, and swimming. (SER 215-16, paras. 10-11.)

The record establishes the following facts without

dispute in regard to the Scout operation of these two

properties:

—The City leased Camp Balboa and the Youth

Aquatic Center to the San Diego Boy Scouts for

the entirely secular purpose of advancing youth

recreation, and not for any religious purpose.

(SER 51, 422).

—The City spends no money on the two leased

properties. (SER 3 para. 9, 5 para. 17.) The San

Diego Boy Scouts have built, operated, and main-

tained the properties at a cost to them of millions

of dollars. (ER 732, 820; SER 215 para. 10; SER

1084, para. 19.) The Scouts even pay the City a

$2,500 administrative fee under the Camp Bal-

4

boa lease to cover the City’s costs of administer-

ing the lease. (App. B 25a). Consequently, in the

operation of these leases, the Boy Scoucs are sub-

sidizing the City, rather than the City subsidiz-

ing the Boy Scouts. That is a result intended by

the Scouts as part of their charitable mission.

—The San Diego Boy Scouts administer both

Camp Balboa and the Youth Aquatic Center open

to the public on a first-come, first-served basis,

and the general public utilizes both facilities ex-

tensively. (SER 216 paras. 11, 13, 217 para. 18,

218, para. 19, 295 (118:16-119:14), 307 (67:13-

19), 317 (249:11-15), 617 (64:8-18); ER 2266-

2296). Even when the San Diego Boy Scouts

were using the properties for Boy Scout events,

numerous other youth groups have used the

properties at the same time, and no non-Scout

group has been turned away even at these times.

(SER 291 (170:13-15, 171:3-6, 315 (227:11-14). See

also SER 624 (156:16-157:16); 291 (170:13-15).

—<As the Ninth Circuit stated, “There are no reli-

gious symbols either at Camp Balboa or at the

Youth Aquatic Center.” 530 F.3d at 782 (28a).

—The plaintiffs have conceded that the San Di-

ego Boy Scouts “is not a house of worship like a

church or a synagogue,” and that the “Boy Scouts

of America is not a religious sect.” (ER 54 para.

185; see ER 2007 para. 185). The Boy Scouts are

also “absolutely non-sectarian.” (ER 1580, art.

IX, Sect. 1, cl. 1; SER 273 (227:1-6), 274 (230:20-

231:1), 309 (75:7-8).

—The San Diego Boy Scouts have not engaged in

discrimination against any individual in viola-

tion of the leases, which prohibit discrimination

3

on the basis of religion or sexual orientation in

operating the leased properties.* Barnes- Wallace

v. Boy Scouts of America, 275 F. Supp. 2d 1259,

1282 (S.D. Cal. 2003). Indeed, the San Diego Boy

Scouts have never turned anyone away from ei-

ther Camp Balboa or the Youth Aquatic Center.

530 F. 3d at 782-783.

Members and adult volunteers of the Boy Scouts

are not required to affiliate with any particular reli-

gious faith, organization, or denomination. (ER 309

(75:7-8), 1580, art. IX sect. 1, cl. 1; App. B, 23a; see

also, ER 1527; ER 54 para. 185, ER 2007 para. 185.)

Nationally, the Boy Scouts include boys and adult

leaders of every faith, and those not associated with

any organized religion. But boys must promise to do

their duty to God and be reverent in accordance with

the Scout Oath and Scout Law in order to be Boy

Scout members.

The Scout Oath states,

“On my honor I will do my best

To do my duty to God and my country

and to obey the Scout Law;

To help other people at all times;

To keep myself physically strong,

Mentally awake and morally straight.

3 In writing for the 6 judges dissenting from the denial of

rehearing en banc by the Ninth Circuit below, Justice

O’Scannlain correctly stated that,

“Although the Boy Scouts’ membership policies exclude

homosexuals and agnostics, the Boy Scouts do not

discriminate on the basis of sexual orientation or religion

in administering the leased parklands. A homosexual or

agnostic may use the lands leased to the Boy Scouts on the

same terms as everybody else.” (App. A, 4a-5a).

6

(SER 745, 764.) The Scout Law states that a Scout is

trustworthy, loyal, helpful, friendly, courteous, kind,

obedient, cheerful, thrifty, brave, clean, and reverent.

(SER 745.)

Based on these principles, by national rule the Boy

Scouts do not accept atheists, agnostics, or homosex-

uals as members or adult leaders. App. B, 22a.

The Barnes-Wallace Plaintiffs are a lesbian couple

and their minor male child. 530 F. 3d at 780. (24a).

The Breen Plaintiffs are an agnostic couple and their

minor male child. Jd. (24a). They brought suit

against the San Diego Boy Scouts, the Boy Scouts of

America and the City alleging that they are offended

by the above values and beliefs of the Boy Scouts.

Because of their aversion and revulsion concerning

these values and beliefs, they could not bear to even

try to use facilities “subject to the Boy Scouts’ owner-

ship and control.” App. B, 29a. (ER 85, 370-71; SER

252 (35:12-15; 36:2-5). They seek to force the City to

terminate the leases with the San Diego Boy Scouts

and lease the facilities on which the Scouts have

spent millions of their own funds to another nonprofit

organization that they may find acceptable. (ER 604;

SER 241 (75:7-24); 234 (55:17-21); 252 (36:14-20);

247-249 (98:5-106:22)).

Plaintiffs allege that the leases violate the Fstab-

lishment Clauses of the U.S. and California Constitu-

tions, among other claims. (ER 602-604).

Not one of the Plaintiffs has ever even tried to use

Camp Balboa or the Youth Aquatic Center. 530 F. 3d

at 782 (29a). That means that not one of the Plain-

tiffs has ever been denied use of the facilities by the

San Diego Boy Scouts. In fact, under the policies of

the San Diego Boy Scouts in administering the prop-

7

erties, as discussed above, the Plaintiffs have always

been welcome to the use of either property on the

same terms and conditions as everyone else.

The district court denied summary judgment on

the issue of standing even though it concluded that,

“Plaintiffs refusal to use the public parklands pre-

vents them from establishing a direct injury in fact,”

(206a). The court ruled that the case could never-

theless proceed based on the theory of standing as

municipal taxpayers (216a). When the court later

granted summary judgment on the merits for the

Plaintiffs, it did not address the issue of standing,

whether as municipal taxpayers or otherwise. In

fact, municipal taxpayer standing is not available to

the Plaintiffs because, as mentioned above, the un-

disputed record shows that the City spends no tax-

payer funds on the properties leased to the San Diego

Boy Scouts.

On appeal, the Ninth Circuit at first ruled on the

issue of standing that Plaintiffs’ “purposeful avoid-

ance of the parklands leased by the Boy Scouts as a

protest against the Scouts’ exclusionary policies is

not a sufficient injury.” Barnes-Wallace v. Boy Scouts

of America, 471 F. 3d 1038, 1045 (9th Cir. 2006)(85a-

86a). It also recognized that Plaintiffs could not have

standing as municipal taxpayers because the evi-

dence showed that tax dollars did not support the

properties leased by the Scouts, correcting the mis-

take made by the district court. Jd. at 1046 (86a-

87a). But the court stili ruled contrary to undisputed

evidence, this time mistakenly concluding 2-1 that

the Plaintiffs had standing because they were denied

equal access to Camp Balboa and the Youth Aquatic

Center. Id. at 1044-45.

8

The panel recognized this error* and granted re-

hearing, with the majority reversing itself and

adopting the standing theory it had at first rejected.

The majority concluded this time that Plaintiffs had

standing because they were “offended” by the Boy

Scouts traditional values and beliefs as described

above, thereby suffering an “aversion to the facili-

ties”, and feeling “unwelcome there.” 530 F. 3d at

783, 784 (29a).

The Scouts sought en banc review on the grounds

that this theory of standing was contrary to the es-

tablished precedents of this Court. But the Ninth

Circuit denied review, 6 judges dissenting.

SUMMARY OF ARGUMENT

The Plaintiffs’ basis for standing in this case is that

they are “offended” by the traditional moral values

espoused by the Boy Scouts. Consequently, they felt

that they could not bear to even try to use the facili-

ties leased to the San Diego Boy Scouts. As the

Ninth Circuit explained below, “The injury .. . is the

offensiveness of having to deal with the Boy Scouts in

order to use park facilities.” 530 F. 3d at 785 n.5

(36a).

Consequently, in this case there is nothing more for

standing than avoidance of a place, by the Plaintiffs,

because of people there, the Boy Scouts, who hold dif-

ferent views. As Judge O’Scannlain explained in dis-

sent below,

“the [Plaintiffs] based standing on the claim that

although they wanted to use public land and

* The Plaintiffs were never denied equal access to the leased

facilities. (SER 216 paras. 11, 13, 217, para. 18, 218, para. 19,

295 (118:16-119:14), 307 (67:13-19), 317 (249:11-15)).

9

could use it without interference from the Boy

Scouts, they nevertheless declined to use it, be-

cause they would be offended by the Boy Scouts

views on sexuality and religion if they did.”

App. A, 5a. He adds,

“the claim here is that the [Plaintiffs] are psy-

chologically injured by the thought of associating

with the Boy Scouts; they contend that they

would be offended by tiie Boy Scouts’ views if

they chose to use the parks.

App. A, 8a.

This does not remotely amount to standing under

the precedents of this Court, which have long held

that the mere psychological harm of feeling offended

does not provide standing. An actual, concrete, in-

jury-in-fact is required.

The doctrine of standing is fundamental to our

whole system of government, demarking the boun-

dary between the role of the judiciary on the one

hand, and democratic decisionmaking on the other.

A robust standing doctrine keeps the federal courts

limited to actual cases involving the application of

the law to well-defined, individual disputes, and out

of political questions involving the weighing of com-

peting values to decide what the law should be, which

is the role of democratically elected legislatures.

Yet, the decision of the Ninth Circuit below effec-

tively leaves no substance to the doctrine of standing.

This is why this case presents fundamentally impor-

tant, crucial questions of law that should be decided

by this Court.

Moreover, upholding the standing doctrine of the

Ninth Circuit below would say to those that hold tra-

10

ditional moral and religious views that holding those

views is itself a basis for granting standing to sue

them. This would constitute a major burden on the

freedom of the American people to choose their own

views and values, and act to uphold and propagate

them. It would constitute viewpoint discrimination

in violation of the Free Speech Clause, religious dis-

crimination in violation of the Freedom of Religion

Clause, and, unless any views that anyone found ob-

jectionable conferred a basis for standing, a violation

of the Equal Protection Clause as well.

REASONS FOR GRANTING THE WRIT

I. THE PLAINTIFFS DO NOT HAVE STAND-

ING UNDER THE PRECEDENTS OF THIS

COURT, WHICH REQUIRE CONCRETE

INJURY-IN-FACT NOT MERE OFFENSE.

The Plaintiffs’ basis for standing in this case is that

they are “offended” by the traditional moral values

espoused by the Boy Scouts, and consequently feel an

“aversion” to the facilities leased to the Scouts. As

the Ninth Circuit explained it, the Plaintiffs felt that

they had to avoid “Camp Balboa and the Aquatic

Center because they object to the Boy Scouts pres-

ence on, and control of, the land: They do not want to

view signs posted by the Boy Scouts or interact with

the Boy Scouts representatives in order to gain access

to the facilities.” 530 F. 3d at 784 (33a). Or, as the

Ninth Circuit further explained, “The injury ... is

the offensiveness of having to deal with the Boy

Scouts in order to use park facilities.” 530 F. 3d at

785 n.5 (36a).

But as discussed above, there are no religious sym-

bols or signs posted either at Camp Balboa or at the

Youth Aquatic Center. As the Ninth Circuit itself

11

found, “[T]here are no displays in either Camp Bal-

boa or the Aquatic Center that would be so over-

whelmingly offensive that families who do not share

the Scouts’ religious views must avoid them.” 471 F.

3d at 1045 (85a-86a). The only symbol on the “signs

posted by the Boy Scouts” is the Scout badge, which

includes an eagle, a shield with stars and stripes, and

a fleur-de-lis, similar to the official seals in many fed-

eral courts. (SER 746; ER 3717 para. 57).

Nor have the Plaintiffs provided any evidence that

they would be exposed to any religious expression or

conduct merely by interacting with Scout officials in-

volved in administering the properties. There is no

record of any complaints lodged with anyone regard-

ing such religious activity by any Scout administrator

at Camp Balboa or the Youth Aquatic Center. These

Scout officials are involved in overseeing outdoor ac-

tivities such as camping, swimming, canoeing,

kayaking, and archery, not religious advocacy.

Moreover, the Scouts have long administered both

facilities open to the general public, including the

Plaintiffs, on a first-come, first-served basis, without

engaging in discrimination of any sort against visi-

tors, without, indeed, ever turning anyone away, and

many, many youths who are not members of the Boy

Scouts have used the facilities on this basis. Plain-

tiffs themselves not only have not been excluded from

Camp Balboa, none of them has ever even tried to use

either facility.

As Judge O’Scannlain wrote for 6 judges dissenting

from the denial of en banc rehearing below,

“The [Plaintiffs] did not have any of the tradi-

tional bases of standing: they did not compete for

the leases, try to participate in any Boy Scout ac-

tivities on the leased land, or even use or try to

12

use the land for their own purposes... .Rather,

the [Plaintiffs] based standing on the claim that

although they wanted to use public land and

could use it without interference from the Boy

Scouts, they nevertheless declined to use it, be-

cause they would be offended by the Boy Scouts

views on sexuality and religion if they did.”

App. A, 5a.

Judge O’Scannlain added,

“This case is most notable for what it does not

involve. There is no economic injury here; the

[Plaintiffs] did not compete with the Boy Scouts

for the lease. Nor did the families try to join the

Boy Scouts or to participate in Boy Scout activi-

ties in the parks. Thus, they cannot claim that

they were excluded from anything. Most criti-

cally, the families did not even try to use, for

their own purposes, the portions of the parks

that the Boy Scouts control. Thus, they cannot

even claim that they suffered any psychological

injury as a result of associating with the Boy

Scouts. Rather, the claim here is that the fami-

lies are psychologically injured by the thought of

associating with the Boy Scouts; they contend

that they would be offended by the Boy Scouts’

views if they chose to use the parks.

App. A, 8a.

Indeed, as Judge Kleinfeld recognized in dissent

below, in this case “there is nothing but avoidance of

a place [by the Plaintiffs] because of people there who

hold different views.” 530 F. 3d at 795 (60a). The

panel majority below claimed that Plaintiffs suffered

“both emotional harm and the loss of recreational

enjoyment.” Jd. at 785 (35a). But they did not suffer

13

any loss of recreational enjoyment caused by the Boy

Scouts. That was caused by the Plaintiffs themselves

in refusing to use the facilities open to them. Quite

to the contrary, it was the Boy Scouts who spent mil-

lions of dollars of their own funds precisely to offer

recreational enjoyment open to them. The “emotional

harm” is the purely psychological injury of being of-

fended by the traditional moral values that the Boy

Scouts hold, and uphold.

This does not remotely amount to standing under

the precedents of this Court. Those precedents have

long held that the mere psychological harm of feeling

offended does not provide standing. An actual, con-

crete, injury-in-fact is required. Allen v. Wright, 468

U.S. 737 (1984); Valley Forge Christian College v.

Americans United for Separation of Church & State,

Inc. 454 U.S. 464 (1982); see also Lujan v. Defenders

of Wildlife, 504 U.S. 555 (1992).

In Valley Forge, the federal government gave away

without charge a 77 acre tract of surplus land worth

over half a million dollars to the Valley Forge Chris-

tian College, affiliated with the Assemblies of God

Pentecostal denomination. The College, which re-

quired its faculty to be “baptized in the Holy Spirit”

and “to live Christian lives,” planned to use the prop-

erty for training “men and women for Christian ser-

vice as either ministers or laymen.” 454 U.S. at 468-

469. Americans United for Separation of Church and

State sued to challenge the property transfer as a vi-

olation of the Establishment Clause.

This Court ruled that the plaintiffs did not have

standing because Article III of the Constitution,

“requires the party who invokes the court’s au-

thority to show that he personally has suffered

14

some actual or threatened injury as a result of

the putatively illegal conduct of the defendant.

Id, at 472. The Court concluded that the plaintiffs in

that case,

“fail to identify any personal injury suffered by

them ... other than the psychological consequence

presumably produced by observation of conduct

with which one disagrees. That is not an injury

sufficient to confer standing under Art. II]... .

Id., at 485-486.

Similarly, in the present case we have nothing

more than the psychological consequence of the

Plaintiffs being morally offended by the different

views and values held by the Boy Scouts, or, as Judge

Kleinfeld put it above, avoidance of a place, by the

Plaintiffs, because of people there, the Boy Scouts,

who hold different views. If the Plaintiffs had been

denied access to the facilities, or discriminated against

in some way, or if they had been alternative bidders

competing against the Scouts for lease of either of the

properties, they would have had an actual, concrete

injury providing standing. But as Judge Kleinfeld

further elaborated, while the Plaintiffs in the present

case,

“may feel ‘degraded’ or ‘offended’ because of the

Boy Scouts positions on reverence and sexuality,

so long as their access is unimpaired the feeling

is no stronger a basis for standing than the feel-

ings others may have about atheists or lesbians

managing the facility.”

530 F. 3d at 798 (67a).

Judge Kleinfeld rightly concluded based on Valley

Forge, “A feeling of revulsion for others who have dif-

15

ferent beliefs, so strong that one feels degraded or ex-

cluded if they are present, does not confer standing.”

Id. Judge O’Scannlain added,

“A plaintiff who is psychologically injured by the

mere thought of associating with people who hold

different views cannot claim that he has suffered

a legally cognizable injury-in-fact.

App. A, 17a.

Indeed, the Ninth Circuit below itself originally

ruled correctly on standing that the “purposeful

avoidance of the parklands leased by the Boy Scouts

as a protest against the Scouts exclusionary policies

is not a sufficient injury.” 471 F. 3d at 1045 (85a).

But that was before it realized that the basis on

which it did find standing in that opinion, that the

Scouts had denied equal access to the Plaintiffs to

Camp Balboa and the Youth Aquatic Center, was in

error.

Upholding the standing doctrine of the Ninth Cir-

cuit below would say to those that hold traditional

moral and religious views that holding those views is

itself a basis for granting standing to sue them. This

would constitute a major burden on the freedom of

American citizens to choose their own views and val-

ues, and act to uphold and propagate them. It would

constitute viewpoint discrimination in violation of the

Free Speech Clause, religious discrimination in viola-

tion of the Freedom of Religion Clause, and, unless

any views that anyone found objectionable conferred

a basis for standing, a violation of the Equal Protec-

tion Clause as well.

16

ll. THE NINTH CIRCUITS DECISION

WOULD LEAVE NO EFFECTIVE DOC-

TRINE OF STANDING.

In writing for the 6 judges dissenting from the

Ninth Circuit’s denial of rehearing en banc in this

case, Judge O’Scannlain wrote regarding the holding

of the majority panel on standing,

“Henceforth, a plaintiff who claims to be offended

by the mere thought of associating with people

who hold different views has suffered a legally

cognizable injury-in-fact. No other circuit has

embraced this remarkable innovation, which

contradicts nearly three decades of the Supreme

Court’s standing jurisprudence. In practical ef-

fect, the three-judge panel majority’s unprece-

dented theory creates a new legal landscape in

which almost anyone who is almost offended by

almost anything has standing to air his or her

displeasure in court.”

App. A, 3a-4a.

Judge O’Scannlain adds that the Ninth’s Circuit’s

standing doctrine in this case,

“is an unprecedented theory. It splits standing

law at the seams, forcing open the courthouse

doors to plaintiffs without concrete, particula-

rized injuries. Henceforth, a plaintiff need only

assert that he would be offended if he chose to

interact with someone whose beliefs offend him.

Does this mean that an animal rights activist

may sue the owner of a hot dog stand located on

government property for buying beef from ranch-

ers in violation of FDA health requirements,

even if the activist has never visited the stand?

Should the activist so much as allege that she

17

wants to visit the stand but is offended by the

stand owner’s implicit endorsement of how range

cattle are treated in Kansas or by the owner’s

reluctance to hire PETA activists, the majority . . .

would roll out the red carpet.”

App. A, 8a-9a.

Judge O’Scannlain is right that the Ninth Circuit’s

standing doctrine effectively leaves no substance to

the concept of standing. All of the social controver-

sies of our society would be sufficient to provide

grounds for standing to have the competing griev

ances somehow resolved by the courts, a role for

which judges and the law do not have adequate tools,

expertise, or democratic legitimacy.

For example, suppose the City leased park facilities

to be run by a social organization for Orthodox Jews.

They put millions into the construction, operation,

and maintenance of the facilities, operate them on a

totally even handed basis open to the general public

on a first-come, first served basis, and thousands of

non-Jews use and enjoy the facilities each year. In

the Ninth Circuit at least, a Muslim who never used

the facilities because he is offended at the thought of

having tu deal with the Jews who run it would have

standing to bring suit against the Jewish organiza-

tion to have it removed from administering the

facility.

Or suppose the City leased the park to a social or-

ganization for Muslims. They performed the same as

the Jewish organization in the above hypothetical,

although the facilities include Muslim symbols and

signs in Arabic, and a call to Muslim prayers is

played five times a day. The Ninth Circuit’s doctrine

would confer standing on a Jew who never visited the

18

facilities either, but who is offended at the thought of

dealing with the Muslims who run it, and the associ-

ation it brings to his mind with the terrorists who

murder his people. The same would be true for a

Christian plaintiff who is offended at the thought of

the Muslim calls to prayer he never heard because he

also never visited the place.

Or suppose the City ran the facilities and just hired

an Orthodox Jew as a park ranger sitting at the en-

trance and processing entrants and administering

reservations? Could an offended Muslim sue? What

if the City hired a Muslim instead and an offended

Jew wanted to sue?

Suppose the City leased the facilities to a social or-

ganization for gay youths that advocated gay mghts.

The organization also fully performs as well as in the

hypothetical above, but all the staff wears T-shirts

that say “Gay? Fine with me.” Would a Pentecostal

minister for an Assembly of God church have stand-

ing to sue because he is offended? What if he says his

church’s youth group cannot use the facilities under

these circumstances?

What if the City instead leased the facilities to an

Assembly of God youth organization, and they again

performed as above, with no religious symbols or ad-

vocacy of any sort, just like the Boy Scouts in the

present case? Would this confer standing on the gay

youth organization to sue? What if the Assemblies of

God minister affiliated with the youth organization

gave a sermon across town in his own church quoting

Bible passages he says condemn homosexuality as a

mortal sin? Does this confer standing on the gay or-

ganization composed of members who have never vi-

sited the facilities because they can’t bear to “deal”

with such people? Suppose it is a Catholic youth or-

19

ganization running the facilities and a local Catholic

priest, or the Pope in Rome, gives the above sermon

on homosexuality? Does that confer standing on the

offended parents of a gay son, or on an offended les-

bian couple with a non-gay son?

Or suppose the Assembly of God church runs into

financial trouble, and the minister takes a day job

administering park admission and reservations for

the City. Does this confer standing for anyone of-

fended by the ministers sermons? What if an out-

spoken gay rights activist is hired for the job instead,

and he wears a T-shirt to work saying “Gay? Fine

with me.” Suppose he places gay rights literature on

the counter.

Suppose the City leases land to a Republican Youth

organization that spends millions of dollars for an

auditorium where debates on public issues are held,

as well as other performance events such as circuses

and concerts. A member of Moveon.org sues claiming

he is offended and can’t attend the events because he

doesn’t want to have to “deal” with the equivalent of

Hitler youth and an organization of aspiring war

criminals. Standing?

Then there is Judge Kleinfeld’s hypothetical:

“If a Jewish plaintiff challenges a government

lease to the Protestant Church to operate a

non-discriminatory recreational facility that the

plaintiff has never visited, may the Jewish plain-

tiff base standing on the grounds that the Protes-

tant church prevents him from serving as a

minister?”

Under the Ninth Circuit’s doctrine on standing in

the present case, there would apparently be standing

in all of these cases, because the very notion of

20

standing would have been drained of all meaning and

substance. As Judge Kleinfeld concluded, “After to-

day, the only real hard and fast limit on a plaintiffs

standing to sue that I can see will be the viability of

the underlying claim on the merits.” App. A, 9a. Or,

as this Court recognized in Allen, 468 U.S. at 756,

standing based on personal offense would leave the

federal courts as “no more than a vehicle for the vin-

dication of the value interests of concerned

bystanders.”

Indeed, in Trunk v. City of San Diego, 568 F. Supp.

2d 1199 (S.D. Cal. 2008), a Jewish veterans associa-

tion was found to have standing because they felt of-

fended by crosses in a federal war memorial, even

where they had never visited the memorial. The

court said,

“In the Ninth Circuit, however, merely being

ideologically offended, and therefore reluctant to

visit public land where a perceived Establish-

ment Clause violation is occurring, suffices to es-

tablish “injury in fact.”

Id. at 1205 (citing Barnes- Wallace).

Ill. THIS CASE PRESENTS CRUCIAL QUES-

TIONS OF LAW REGARDING THE FUN-

DAMENTAL DOCTRINE OF STANDING.

In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332

(2006), this Court said, “[nlo principle is more fun-

damental to the judiciary’s proper role in our federal

system of government than the constitutional limita-

tion of federal-court jurisdiction to actual cases or

controversies.” Id. at 341-342 (quoting Raines uv.

Byrd, 521 U.S. 811, 818 (1997)).

21

The Court further elaborated the importance of

standing in Diamond v. Charles, 476 U.S. 54 (1986),

saying that standing requirements ensure that judi-

cial review “is not to be placed in the hands of ‘con-

cerned bystanders,’ who will use it simply as a ‘ve-

hicle for the vindication of value interests.” 476 U.S.

at 62 (quoting United States v. Students Challenging

Regulatory Agency Procedures (SCRAP), 412 US.

669, 687 (1973).

The doctrine of standing is rooted in the Constitu-

tion itself, where Article III, Sect. 2, cl. 1 limits the

federal judiciary to deciding “Cases” and “Controver-

sies.” This is because the doctrine is fundamental to

our whole system of government, demarking the

boundary between the role of the judiciary on the one

hand, and democratic decisionmaking on the other.

A robust standing doctrine keeps the federal courts

limited to actual cases involving the application of

the law to well-defined, individual disputes, and out

of political questions involving the weighing of com-

peting values to decide what the law should be, which

is the role of democratically elected legislatures.

This is why this case presents fundamentally im-

portant, crucial questions of law that should be de-

cided by this Court. The decision of the Ninth Circuit

below demolishes the doctrine of standing, as shown

in the prior section above. This is plainly unccnstitu-

tional, and litigation is already proceeding in the fed-

eral courts seemingly leaping out of the absurd hypo-

theticals discussed above. This will only lead to

chaos in the federal courts unless this Court steps in

and restores the doctrine of standing to its rightful

place in our judicial system and democratic frame-

work of governance.

22

Of course, the decision of the Ninth Circuit below

on standing creates a conflict among the Circuits, as

amply demonstrated by the brief of the Boy Scouts.

CONCLUSION

For all of the foregoing reasons, we respectfully

submit that this Court should grant the requested

Writ of Certiorari.

Respectfully submitted,

PETER J. FERRARA

Counsel of Record

AMERICAN CIVIL RIGHTS UNION

1232 Pine Hill Rd.

McLean, VA 22101

(703) 582-8466

Counsel for Amicus Curiae

American Civil Rights Union