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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0355%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1106

## Text

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
IN asc sradhnesikeduasvapucensunnesnsibicaitscxs

ee INNIIN « vatacdselcipicuaesanskdssvecnvubersesenttinesinase

(1)

10

10

16

20
22

il

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0355%3A07. Public record. Not legal advice.