Jan

9th Cir. Screws up Scouts’ Case

“An O’Scannlain dissent from the denial of en-banc rehearing frequently gets some attention across the country–in Washington, D.C.” Joseph D. Kearney, Introduction of Judge Diarmuid O’Scannlain, 91 Marq. L. Rev. 896, 897 (2008).

Let’s hope that Dean Kearney’s observation turns out true in the particular instance of Barnes-Wallace v. Boy Scouts of America, a federal lawsuit concerning a Scout camp in San Diego. According to the Law.com story, “A pair of couples, one lesbian and another agnostic, challenged a lease the Scouts signed with the city of San Diego allowing them to operate recreational facilities on park land. They said the deal violated the Establishment Clause because of the Scouts’ professed reverence of God. In addition, they said they were averse to using the facilities because of the Scouts’ stated policy of excluding gays and atheists.”

The suit was decided in their favor by a three judge panel. The 2-1 decision included this astounding comparison by Judge Marsha Berzon :

Just as African-Americans could ride on Montgomery’s buses, but not in the front, the Scouts permit plaintiffs to make use of Camp Balboa and the Mission Bay Park Youth Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members. In either case, use of a valuable public facility is made contingent on acceptance of imposed second-class status within a controlling organization’s social hierarchy.

The particular motion before the court was “a June 2008 order certifying three questions of California state constitutional law to the California Supreme Court.” The Court did not vote to hear the case en banc, and Judge O’Scannlain dissented vigorously on behalf of himself and Judges Jay Bybee, Consuelo Callahan, Carlos Bea, Sandra Ikuta and Andrew Kleinfeld:

Henceforth, a plaintiff who claims to feel 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 effect, the three-judge panel majority’s unprecedented 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.

You can also read reaction from the Boy Scouts’ online legal center.

Law.com reports that the Scouts’ lawyers have given no indication on whether they intend to appeal to the US Supreme Court. Let’s hope that if they do, Judge O’Scannlain’s dissent receives its deserved recognition at the cert. stage.

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