San Diego and 9th Circuit

[skeptic]

Another really odd ruling from 9th Circuit. Not only is it strange, but also 4 judges recused themselves. What does that say about this whole thing? Read in the BSA Legal link, or google it.

[evmori]

What it says to me is the whole thing was screwed up from the get go! The wrong ruling was made & now they wanna hide!

[Merlyn_LeRoy]

Ed, did you even read it? This part was just over standing, if it had been dismissed on standing, all the plaintiffs would need to do is apply to use the facilities during the summer (because the BSA admits they book it 100% with their members over the summer) and they'd have standing anyway.

 

Here's a link

http://www.bsalegal.org/downloads/2008-12-31-%20Ninth-Circuit-Decision.pdf

 

There was no explanation from the court for the four recusals, but at least two of those were active in the BSA

http://www.law.com/jsp/article.jsp?id=1202427146693&rss=newswire

(the link for the decision in the above article is wrong)

[vol_scouter]

The dissenting judge is correct, that if this ruling stands, anyone offended can seek restitution in court. It is a disgrace. Sensibility and justice are rapidly leaving our political and judicial systems. Would someone walking down a San Francisco street with their young children be able to sue if offended by a homosexual pride parade? I doubt that they would have standing because they would not be on the politically correct side. Political correctness will destroy this country.

[Merlyn_LeRoy]

It wasn't based on "offensiveness," read the order on standing:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/114925D626D65938882574660071FEE8/$file/0455732p.pdf?openelement

[evmori]

Maybe you need to re-read it, Merlyn. The original decision was flawed & the judges are now hiding behind their flawed ruling.

[vol_scouter]

Merlyn,

 

I copied and pasted the following:

 

 

 

The Barnes-Wallaces and the Breens have standing to pursue

their claims because uncontroverted evidence shows that

they suffered injury-in-fact traceable to the Scout defendants

conduct, and that a favorable decision is likely to redress their

injuries. See Lujan, 504 U.S. at 560-61. The Barnes-Wallaces

and the Breens submitted declarations asserting, without contradiction

by the Scout defendants, that they would like to use

Camp Balboa and the Aquatic Center, but that they avoid

doing so because they are offended by the Boy Scouts exclusion,

and publicly expressed disapproval, of lesbians, atheists

and agnostics. The plaintiffs also object to the Boy Scouts

control of access to the facilities, noting that their use of the

land would require go[ing] through the Boy Scouts and

passing by symbols of its presence and dominion.

We have held that comparable restrictions on plaintiffs use

of land constitute redressable injuries for the purposes of Article

III standing. Our Establishment Clause cases have recognized

an injury-in-fact when a religious display causes an

individual such distress that she can no longer enjoy the land

on which the display is situated. In Buono v. Norton, the

plaintiff, a practicing Roman Catholic, was so offended by the

establishment of a cross on public land that he avoided

passing through or visiting the land. 371 F.3d 543, 546-47

(9th Cir. 2004). We concluded that Buonos inability to

unreservedly use public land constituted an injury-in-fact,

reasoning that Buonos avoidance of the land was a personal

injury suffered as a consequence of the alleged constitutional

error. Id. at 547 (internal quotation marks omitted); see also

Ellis v. La Mesa, 990 F.2d 1518, 1523 (9th Cir. 1993) (finding

standing where plaintiffs avoided using land on which cross

was displayed).

 

It says that prior case law allows people to sue based only upon being offended. That is not a good standard. I understand how people can find something or some group offensive but that does not prevent them from using the land they choose not to do so. So can we ask that there be no more parades because someone will be offended no matter what the parade is about? No groups, except families, should be able to use public land because someone will be offended. Being offended is not a reason to disallow the use of public property. There are groups that I disagree with and offend me. If I saw them in a public place, I might choose not to go there. Yet, they have a right to use the land as well as I do. The BSA should not be penalized because some do not agree with its values.

 

[nldscout]

it doesn't really matter, because this is headed to the 9 wise men and women in DC, who have always ruled for the BSA.

[Merlyn_LeRoy]

Here's a quote from the original opinion on standing:

 

"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," Berzon wrote. "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."

 

nldscout, the supreme court didn't review Evans v. Berkeley or Boy Scouts of America v. Wyman, so I doubt they'd review this one.

[Hal_Crawford]

If I read the article at BSA Legal correctly (and I am not sure I am as I am not a lawyer), in June a panel of three judges from the 9th sent the case to the California Supreme Court for clarifications on some issues of state law. This hearing was an attempt by BSA to get the case heard by the full 9th (which isn't really the full court since they have 28 judges, it would be a panel of 11). The three judge panel disagreed 2-1 with holding an "en banc" hearing and so it goes to the California Supremes. Once they make their rulings, I believe it goes back to the 9th for a ruling. I suppose it will be heard by a panel and then there may be another motion to review it en banc. However the 9th ultimately rules it may then get appealed to the US Supremes who may or may not be the same people who are there today, may or may not choose to hear the case and may or may not rule in favor of the BSA. IMHO, if any of us holds our breath waiting for a resolution we will turn blue and die because I don't think an end is coming anytime soon.

 

If I have made total hash of this I look forward to someone with a legal background shedding some light on the many and varied ways I am wrong or more importantly what the real legal situation is.

[skeptic]

Whatever the convoluted decision by these questionable solons finally is, it is still nonsense IMHO. I continue to wonder how anyone with any kind of self esteem would lend themselves to such foolish reasoning as to say they are somehow "injured" by even the thought or presence of the BSA, or any other group with beliefs with which they may not agree. How weak must their ego be if they are threatened or emotionally scarred by an idea held by someone else with whom they have not even made contact? It is much like the stupidity of a complaint by the Somis, Ca. man who threatened a suit against the city of Ventura because they had a lighted cross, related historically by the way to the very founding of the city, on the hill above the town. They had to occasionally see this terrible thing while driving by on the freeway over a mile away, or if they should happen to look in the right direction while visiting the area. Such insecurity does not say much for them; and neither does this San Diego nonsense say much for the people bringing suit.

[Merlyn_LeRoy]

Hey skeptic, how about this:

 

A city decides to lease public parkland to a private organization; that organization reserves the park for its own members during the summer months -- if you aren't a member, you can't use that park during the summer months when demand is highest.

 

Now, all you need is a private organization that only allows whites, and you have a whites-only public park.

 

Same for a Catholics-only park. Or a no-Jews park. Or a no-atheists park.

[evmori]

Riding in the back of the bus has absolutely nothing to do with this case! No one is being denied use of anything in the Balboa Park case. Someone's feelings were hurt! Grow a set & deal with it!

[skeptic]

So Merlyn, you think everyone should get to choose when they are able to use a facility, even if it is in conflict with some other group or individual. So, when the Zoological society at the San Diego Zoo has a special set of hours for members to attend and see new things, or simply enjoy as members, someone who is not a member should have the right to participate during that time too, even though they do not meet requirements? Or, the Southern California Surfing association arranges for a blocked off beach area for their surfing contest. I want to surf there during that period, even though I am not a member or even able to surf well enough to participate in the contest; but I should be allowed to because I want to? I can sue if they won't let me go to the zoo at their special time, or surf on that specific beach at that specific time? There are benefits for "paying" for things, like the upkeep of the zoo, or the maintenance of facilities. In this case, it is a time blocked off specifically for the organization's members. Who do you think is paying for the equipment used at the beach facility, or the upkeep of the pool, amphitheater, and campsites in Balboa? It is not the city. Who asked the scouts to build and maintain the beach facility? Other youth groups, with the blessing of the city. Now, they should lose the use because somebody is thin skinned or can't make plans based on other peoples' schedules? Such obtuse reasoning is simply too irrational.

 

With that reasoning, then I should have sued 25 years ago when I tried to reserve a site at the Balboa camp for my troop during our spring break, but couldn't due to its meeting rooms, amphitheater, and the surrounding areas being booked by an outside group that did not want boys possibly interfering with their day program they had going on on the premises. We really only needed it for camping at night; but we had to abide by the rules about bookings. So, we went to the Camp Fire camp area. When it happened the next year as well, we simply went somewhere else. That is what reasonable people do; find alternatives.(This message has been edited by skeptic)

[Merlyn_LeRoy]

Ed writes:

No one is being denied use of anything in the Balboa Park case.

 

The BSA says they book the park solid with their own members during the peak-demand summer months. You can't use it if you aren't a member.

 

skeptic writes:

So Merlyn, you think everyone should get to choose when they are able to use a facility, even if it is in conflict with some other group or individual.

 

When it comes to using public property, some people can't get lesser treatment simply because of their religious views.

 

So, when the Zoological society at the San Diego Zoo has a special set of hours for members to attend and see new things, or simply enjoy as members, someone who is not a member should have the right to participate during that time too, even though they do not meet requirements?

 

If it was a "whites only" zoological society, or a "no Jews" zoological society, and it's excluding people from public property so only members of their "totally private" club could use it, I'd say yes. But I don't know of any zoological society that does that.

 

With that reasoning, then I should have sued 25 years ago when I tried to reserve a site at the Balboa camp for my troop during our spring break, but couldn't due to its meeting rooms, amphitheater, and the surrounding areas being booked by an outside group that did not want boys possibly interfering with their day program they had going on on the premises.

 

If they excluded you due to your religious views, yes, you should have sued. But it doesn't sound like you were.

 

That is what reasonable people do; find alternatives.

 

Yes, if you are prohibited by law from sitting in the front of the bus, the back of the bus is an alternative. Reasonable people sit in the back of the bus, and don't complain.

 

"The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man." -- George Bernard Shaw