Appeal Nos. 04-55732 and 04-56167 UNITED STATES COURT OF ...

Appeal Nos. 04-55732 and 04-56167

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

______________________________________________________________________________

LORI & LYNN BARNES-WALLACE, MITCHELL BARNES-WALLACE, MICHAEL & VALERIE BREEN, AND MAXWELL BREEN,

Plaintiffs-Appellants/Cross-Appellees,

v.

CITY OF SAN DIEGO,

Defendant,

and

BOY SCOUTS OF AMERICA,AND BOY SCOUTS OF AMERICA-DESERT PACIFIC COUNCIL,

Defendants-Appellees/Cross-Appellants.______________________________________________________________________________

On Appeal From the United States District Courtfor the Southern District of California

The Honorable Napoleon A. Jones, Jr., Judge Presiding(Case No. 00 CV 1726 J)

______________________________________________________________________________

BRIEF AMICUS CURIAE OF AMERICANS UNITED FOR SEPARATIONOF CHURCH AND STATE, IN APPEAL NO. 04-55732 ON BEHALF OFPLAINTIFFS/CROSS-APPELLEES, IN SUPPORT OF AFFIRMANCE

______________________________________________________________________________

Ayesha N. Khan, Esq.Alex J. Luchenitser, Esq.Americans United for Separation of Church and State518 C Street NEWashington, DC 20002(202) 466-3234

i

CORPORATE DISCLOSURE STATEMENT

Amicus curiae Americans United for Separation of Church and State is a

501(c)(3) non-profit organization. Americans United has no parent corporation,

and no publicly-held corporation own ten percent or more of Americans United.

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF IDENTITY AND INTERESTS OF AMICUS CURIAE . . . . . . 1

SOURCE OF AUTHORITY TO FILE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. The Constitution Prohibits the Government From Aiding ReligiousDiscrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Establishment Clause Prohibits the Government From Aiding Religious Discrimination . . . . . . . . . . . . . . . . . . . . . . . 7

B. The Equal Protection Clause Also Prohibits the Government From Aiding Religious Discrimination . . . . . . . . . . . . 11

II. The City Is Violating the Constitution By Aiding the Scouts’ Invidious Religious Discrimination . . . . . . . . . . . . . . . . . . . . . . . . 13

A. The City’s Aid To the Scouts Is Significant . . . . . . . . . . . . . . . . 14

B. The Scouts Are Actually Using the City’s Aid To SupportDiscrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. The City Has Placed Its Imprimatur On the Scouts’ ReligiousDiscrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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III. Regardless Of How the Court May Resolve the Other Issues In This Case, the City’s Aid To the Scouts’ Invidious ReligiousDiscrimination Is Sufficient To Render the City’s Conduct Unconstitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. The City’s Aid To the Scouts’ Religious Discrimination IsUnconstitutional Regardless Of Whether the Aid Was AwardedThrough a Process That Was Neutral With Respect To Religion . . 23

B. The City’s Aid To the Scouts’ Religious Discrimination IsUnconstitutional Regardless Of Whether It Is Proper To Characterize the Scouts As a Religious Organization . . . . . . . . . . . 26

C. Any Value That the Scouts May Provide To the City Does NotRemedy the Constitutional Violation Here . . . . . . . . . . . . . . . . . . . . 28

D. The Court Need Not Determine Whether the City Acted WithDiscriminatory Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

E. The Court Need Not Determine Whether the Scouts Can Continue To Discriminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

iv

TABLE OF AUTHORITIES

Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . 7

American Jewish Congress v. City of Beverly Hills, 90 F.3d 379 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Americans United for Separation of Church and State v. Bubb, 379 F. Supp. 872 (D. Kan. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ball v. Massanari, 254 F.3d 817 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bd. of Educ. v. Allen, 392 U.S. 236 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Bd. of Educ. v. Grumet, 512 U.S. 687 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bowen v. Kendrick, 487 U.S. 589 (1988) . . . . . . . . . . . . . . . . . . . . . . 10, 23-24, 30

Bradfield v. Roberts, 175 U.S. 291 (1899) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . 6

Burlington N. R.R. v. Ford, 504 U.S. 648 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) . . . . . . . . . 4, 14, 29

Christian Science Reading Room Jointly Maintained v. City & County of San Francisco, 784 F.2d 1010 (9th Cir.), opinion amended on other grounds, 792 F.2d 124 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . 12

City of New Orleans v. Dukes, 427 U.S. 297 (1976) . . . . . . . . . . . . . . . . . . . . 11-12

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . 6

Columbia Union Coll. v. Oliver, 254 F.3d 496 (4th Cir. 2001) . . . . . . . . . . . . . . 23

Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) . . . . 10

v

Cooper v. Aaron, 358 U.S. 1 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Cornelius v. Benevolent Protective Order of Elks, 382 F. Supp. 1182 (D. Conn. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987) . . . . . . . . . . 31, 32

County of Allegheny v. ACLU, 492 U.S. 573 (1989) . . . . . . . . . . . . . . . . . . . . . 7, 19

De La Cruz v. Tomey, 582 F.2d 45 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . 13

DeStefano v. Emergency Housing Group, 247 F.3d 397 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23

Dodge v. Salvation Army, 48 Empl. Prac. Dec. ¶ 38,619, 1989 WL 53857 (S.D. Miss. Jan. 9, 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Evans v. Newton, 382 U.S. 296 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 28-29

Friedman v. Rogers, 440 U.S. 1 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gentala v. City of Tuscon, 244 F.3d 1065 (9th Cir.), vac’d on other grounds, 534 U.S. 946 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Gilmore v. City of Montgomery, 417 U.S. 556 (1974) . . . . . . . . . . . . . 4, 13, 14, 31

Graham v. Evangeline Parish School Board, 484 F.2d 649 (5th Cir. 1973) . . . . 24

Grendel’s Den v. Goodwin, 662 F.2d 102 (1st Cir. 1981) (en banc), aff’d sub nom. Larkin v. Grendel’s Den, 459 U.S. 116 (1982) . . . . . . . . . . . . . . . 8

Hunt v. McNair, 413 U.S. 734 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 24, 30

Hunter v. Erickson, 393 U.S. 385 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Jackson v. Statler Found., 496 F.2d 623 (2d Cir. 1974) . . . . . . . . . . . . . . . . . . . . 31

Johnson v. Econ. Dev. Corp., 241 F.3d 501 (6th Cir. 2001) . . . . . . . . . . . . . . . . . 23

vi

Larson v. Valente, 456 U.S. 228 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Lee v. Macon County Bd. of Educ., 267 F. Supp. 458, (M.D. Ala.), aff’d mem. sub nom. Wallace v. United States, 389 U.S. 215 (1967) . . . . . . . . . . 6

Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 30

Locke v. Davey, 540 U.S. 712 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Louisiana Financial Assistance Commission v. Poindexter, 389 U.S. 571 (1968), aff’g mem., 275 F. Supp. 833 (E.D. La. 1967) . . . . . . . . . . 5

Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22

McGlotten v. Connally, 338 F. Supp. 448 (D.D.C. 1972) (three-judge court) . . . 20

Miller v. Johnson, 515 U.S. 900 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mitchell v. Helms, 530 U.S. 793 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) . . . . . . . . . . . . . . . . . . . . 20, 29

Moton v. Lambert, 508 F. Supp. 367 (N.D. Miss. 1981) . . . . . . . . . . . . . . . . . . . . 31

National Black Police Ass’n v. Velde, 712 F.2d 569 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 15, 29

Norwood v. Harrison, 413 U.S. 455 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . passim

Peinado v. Adult Auth. of Dep’t of Corrections, 405 F.2d 1185 (9th Cir. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Reitman v. Mulkey, 387 U.S. 369 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5, 19

vii

Ridgefield Women’s Political Caucus v. Fossi, 458 F. Supp. 117 (D. Conn. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 31

Roemer v. Bd. of Pub. Works, 426 U.S. 736 (1976) . . . . . . . . . . . . . . . . . 10, 24, 30

Rutan v. Republican Party, 497 U.S. 62 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) . . . . . 12

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . 19, 22

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 19

Tilton v. Richardson, 403 U.S. 672 (1971) . . . . . . . . . . . . . . . . . . . . . . . . 10, 24, 30

Torcaso v. Watkins, 367 U.S. 488 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Turpin v. Resor, 452 F.2d 240 (9th Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Armstrong, 517 U.S. 456 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Mississippi, 499 F.2d 425 (5th Cir. 1974) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15, 16, 29

Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . 8

Widmar v. Vincent, 454 U.S. 263 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Wong v. United States, 373 F.3d 952 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . 12, 13

Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . 6

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) . . . . . . . . . . . . . . . . . . . . 9, 10, 29

1

STATEMENT OF IDENTITY AND INTERESTS OF AMICUS CURIAE

Americans United for Separation of Church and State is a national,

nonsectarian public interest organization based in Washington, D.C., that is

committed to preserving the constitutional principles of religious freedom and

separation of church and state. Since its founding in 1947, Americans United has

participated as a party, counsel, or amicus curiae in many of the leading

church-state cases decided by the U.S. Supreme Court and by the U.S. Courts of

Appeals. Americans United has more than 75,000 members nationwide, including

many thousands within the jurisdiction of this Court.

In furtherance of its mission of preserving church-state separation,

Americans United actively opposes the provision of governmental aid or support

for religious discrimination. During the last several years, in an about-face from

previous policies and practices, federal and state governmental bodies have

provided substantial amounts of governmental funds and support to organizations

that discriminate on the basis of religion. Americans United has filed two lawsuits

that challenge such governmental support of religious discrimination, and

Americans United anticipates filing more such cases. Americans United is

participating as an amicus in this case because it believes that the case may have a

significant national impact on whether government officials will continue to

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expand public support for private organizations that practice religious

discrimination.

SOURCE OF AUTHORITY TO FILE

All parties have consented to the filing of this brief.

SUMMARY OF ARGUMENT

This Court can affirm the judgment of the district court on the basis that the

City of San Diego’s leases to the Boy Scouts constitute significant governmental

aid to invidious religious discrimination. Both the Establishment Clause of the

First Amendment and the Equal Protection Clause of the Fourteenth Amendment

prohibit the government from aiding religious discrimination.

The Scouts discriminate in membership and employment against atheists and

agnostics based on religion by requiring members and employees to profess a

belief in God. The City is leasing large parcels of prime parkland to the Scouts at

nominal rates. The Scouts are using the parkland to host their regional

administrative headquarters, where they implement their discriminatory

membership and employment policies. Members of the Scouts have preferential

access to the parkland over members of the public — thus religious believers have

3

greater access to this public land than do nonbelievers. And the City has exempted

the Scouts’ membership and employment practices from City policies that

generally prohibit discrimination on the basis of characteristics such as race,

religion, and national origin, thereby giving a special governmental imprimatur of

approval to the Scouts’ discrimination against the historically disfavored classes of

atheists and agnostics.

The City’s aid to the Scouts’ invidious discrimination is unconstitutional

regardless of whether the aid was awarded as part of a neutral aid program, and

regardless of whether the Scouts should be deemed a religious organization.

Neutrality in the distribution of governmental aid is not sufficient to render the aid

constitutional if the aid is actually used for religious or for discriminatory

purposes. And governmental aid to religious discrimination is unconstitutional

regardless of whether the discriminatory organization is itself religious.

This Court should affirm the judgment of the district court and put a halt to

the support of invidious religious discrimination by the City of San Diego.

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ARGUMENT

I. The Constitution Prohibits the Government From Aiding ReligiousDiscrimination

Both the Establishment Clause and the Equal Protection Clause prohibit the

government from aiding religious discrimination. A central principle of our

constitutional order is that “the Constitution does not permit the State to aid

discrimination.” Norwood v. Harrison, 413 U.S. 455, 465-66 (1973). “A State’s

constitutional obligation requires it to steer clear . . . of giving significant aid to

institutions that practice racial or other invidious discrimination.” Id. at 467.

“[A]ny tangible state assistance . . . is constitutionally prohibited if it has ‘a

significant tendency to facilitate, reinforce, and support private discrimination.’”

Gilmore v. City of Montgomery, 417 U.S. 556, 568-69 (1974) (quoting Norwood,

413 U.S. at 466).

Thus, in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), the

Supreme Court held that the Constitution had been violated when a government

agency leased space in a public building to a private restaurant that discriminated

on the basis of race. In Gilmore, 417 U.S. 556, the Court ruled that a city ran afoul

of the Constitution by giving exclusive access to certain public recreational

facilities to institutions that practiced racial discrimination. In Reitman v. Mulkey,

387 U.S. 369 (1967), the Court held that a state contravened the U.S. Constitution

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by amending its own constitution to override, with respect to the sale or rental of

real property, state statutes that prohibited discrimination based on race, religion,

ancestry, and national origin. In Louisiana Financial Assistance Commission v.

Poindexter, 389 U.S. 571 (1968), aff’g mem., 275 F. Supp. 833 (E.D. La. 1967),

the Court ruled that a state’s provision of tuition grants to students attending

private, racially-discriminatory schools was unconstitutional. And in Norwood,

413 U.S. 455, the Court held that a state violated the Constitution by lending

textbooks to students who attended private schools that discriminated on the basis

of race. See also United States v. Mississippi, 499 F.2d 425 (5th Cir. 1974) (en

banc) (lease of public school facility to private segregated school violated

Constitution).

The above-cited decisions primarily involved governmental aid to racial

discrimination and so relied on the Equal Protection Clause. Governmental

support of religious discrimination, however, is prohibited by both the

Establishment Clause and the Equal Protection Clause. The principle behind the

constitutional ban on governmental aid to discriminatory institutions is that “‘it is .

. . axiomatic that a state may not induce, encourage or promote private persons to

accomplish what it is constitutionally forbidden to accomplish.’” Norwood, 413

U.S. at 465 (quoting Lee v. Macon County Bd. of Educ., 267 F. Supp. 458, 475-76

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(M.D. Ala.), aff’d mem. sub nom. Wallace v. United States, 389 U.S. 215 (1967));

accord City of Richmond v. J.A. Croson Co., 488 U.S. 469, 492 (1989) (plurality

opinion of O’Connor, J., joined by Rehnquist, C.J., and White, J.) (quoting

Norwood with approval). In other words, “[a]ctivities that the federal government

could not constitutionally participate in directly cannot be supported indirectly

through the provision of support for other persons engaged in such activity.”

National Black Police Ass’n v. Velde, 712 F.2d 569, 580 (D.C. Cir. 1983); see also

Young v. City of Simi Valley, 216 F.3d 807, 819 (9th Cir. 2000) (“a city cannot

accomplish through private parties that which it is forbidden to do directly under

the First Amendment”).

Under this rule of law, as the very core of the Equal Protection Clause

prohibits the government from engaging in invidious discrimination, there can be

no question that the Clause also prohibits significant governmental support for

such discrimination. See, e.g., Norwood, 413 U.S. at 465-66; Cooper v. Aaron,

358 U.S. 1, 19 (1958); Velde, 712 F.2d at 580-82; Brown v. Califano, 627 F.2d

1221, 1235 (D.C. Cir. 1980) (“[t]he Constitution’s prohibition against

governmental support of . . . invidious discrimination is too obvious and well-

established to require elaboration”).

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A. The Establishment Clause Prohibits the Government From AidingReligious Discrimination

Similarly, the Establishment Clause “mean[s] that government may not . . .

discriminate among persons on the basis of their religious beliefs and practices.”

County of Allegheny v. ACLU, 492 U.S. 573, 590 (1989); accord Alvarado v. City

of San Jose, 94 F.3d 1223, 1231 (9th Cir. 1996); American Jewish Congress v. City

of Beverly Hills, 90 F.3d 379, 383 (9th Cir. 1996). “The antidiscrimination

principle inherent in the Establishment Clause” is a “fundamental premise of the .

. . Clause.” Allegheny, 492 U.S. at 611; see also Bd. of Educ. v. Grumet, 512 U.S.

687, 703 (1994) (“a principle at the heart of the Establishment Clause” is “that

government should not prefer one religion to another, or religion to irreligion”);

Larson v. Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the

Establishment Clause is that one religious denomination cannot be officially

preferred over another.”).

Thus, in Torcaso v. Watkins, 367 U.S. 488, 489 (1961), the Supreme Court

held that a state could not constitutionally condition eligibility for public office on

precisely what the Scouts require — “a declaration of belief in the existence of

God.” The Court explained, “neither a State nor the Federal Government . . . can

constitutionally pass laws or impose requirements which aid all religions as against

non-believers, and neither can aid those religions based on a belief in the existence

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of God as against those religions founded on different beliefs.” Id. at 495. See

also Venters v. City of Delphi, 123 F.3d 956, 969-71 (7th Cir. 1997)

(Establishment Clause prohibits religious discrimination in public employment);

Grendel’s Den v. Goodwin, 662 F.2d 102, 106 (1st Cir. 1981) (en banc)

(“legislation conditioning the receipt of any significant benefit, power, or privilege

on the commitment of the members of the recipient group or institution to a

religious faith is inherently a ‘law respecting an establishment of religion’”), aff’d

sub nom. Larkin v. Grendel’s Den, 459 U.S. 116 (1982).

Since the government cannot constitutionally provide significant aid to

institutions that engage in discriminatory practices in which the government itself

cannot engage (see, e.g., Norwood, 413 U.S. at 465; Velde, 712 F.2d at 580), and

since a principle at the heart of the Establishment Clause is that the government

cannot engage in religious discrimination, the Establishment Clause prohibits the

government from substantially aiding private institutions that discriminate on the

basis of religion. The Second Circuit reasoned accordingly in DeStefano v.

Emergency Housing Group, 247 F.3d 397, 411 (2d Cir. 2001), explaining that

since the Establishment Clause prohibits the government from coercing anyone to

support or participate in religion or its exercise, it is unconstitutional for

government bodies to provide public funds to private institutions that use those

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funds to coerce worship or prayer. The court expounded, “‘[w]hat the First

Amendment precludes the government from commanding directly, it also

precludes the government from accomplishing indirectly.’” Id. (quoting Rutan v.

Republican Party, 497 U.S. 62, 77-78 (1990)).

Application of the most general Establishment Clause test — which

prohibits governmental conduct that has the effect of advancing religion (see, e.g.,

Zelman v. Simmons-Harris, 536 U.S. 639, 648-49 (2002); Lemon v. Kurtzman, 403

U.S. 602, 612 (1971)) — confirms that governmental aid to institutions that

discriminate based on religion violates the Clause. Governmental aid to a

religiously-discriminatory organization enhances the ability of the organization to

propagate its religious beliefs, as a religious organization can more easily pursue

its religious mission if all of its members and employees subscribe to and know the

precepts of the organization’s faith. Governmental aid to such a discriminatory

organization directs resources to persons — members or employees of the

organization — who adhere to the organization’s particular religious beliefs. The

government’s provision of the aid gives persons incentives to subscribe to those

religious beliefs so that they may share in the government’s largesse.

Recognizing the impropriety of governmental aid to religious discrimination,

the Court in Norwood cited with approval a statement by Justice White in his

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opinion in Lemon that “legislation providing assistance to any sectarian school

which restricted entry on racial or religious grounds would, to that extent, be

unconstitutional.” Norwood, 413 U.S. at 465 n.7 (citing Lemon, 403 U.S. at 671

n.2) (White, J., concurring in part and dissenting in part)). And in fact, in cases

involving substantial governmental aid to religiously-affiliated educational

institutions, the Supreme Court has only upheld such aid where the institutions did

not discriminate on the basis of religion in admissions or employment (see Zelman,

536 U.S. at 645; Roemer v. Bd. of Pub. Works, 426 U.S. 736, 757 (1976); Hunt v.

McNair, 413 U.S. 734, 743-44 (1973); Tilton v. Richardson, 403 U.S. 672, 686

(1971)) and has prohibited such aid where it was directed to institutions that did so

discriminate (see Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.

756, 767-68 (1973); Lemon, 403 U.S. at 611 n.5, 617). See also Bowen v.

Kendrick, 487 U.S. 589, 609 (1988) (explaining that, in Bradfield v. Roberts, 175

U.S. 291, 298-99 (1899), the Court upheld federal aid to a religiously-affiliated

hospital in part because there was no allegation that the hospital discriminated on

the basis of religion in hiring or in the delivery of services); cf. Bd. of Educ. v.

Allen, 392 U.S. 236, 248 (1968) (upholding state textbook lending program that

included students attending religious schools where “meager record” had “[n]o

evidence” about nature or policies of schools).

11

Furthermore, in Dodge v. Salvation Army, 48 Empl. Prac. Dec. ¶ 38,619,

1989 WL 53857 at *3 (S.D. Miss. Jan. 9, 1989), the court held that the provision of

public funds to a religious organization that used those funds to pay the salary of

an employee whom the organization hired based on a religious preference “clearly

has the effect of advancing religion and is unconstitutional.” Similarly, in

Americans United for Separation of Church and State v. Bubb, 379 F. Supp. 872,

892-93 (D. Kan. 1974), a three-judge district court ruled that a college’s policy of

discriminating in admissions on the basis of religion was sufficient, by itself, to

constitutionally disqualify the college from receiving public aid through a state

tuition grant program.

B. The Equal Protection Clause Also Prohibits the Government FromAiding Religious Discrimination

The Equal Protection Clause, of course, prohibits the government from

discriminating based on religion. See, e.g., United States v. Armstrong, 517 U.S.

456, 464 (1996); Miller v. Johnson, 515 U.S. 900, 911 (1995). For purposes of the

Clause, a person’s religious identity — like race — is a suspect classification that

triggers strict scrutiny, which asks whether the government’s action is narrowly

tailored to serve a compelling governmental interest. See, e.g., City of New

Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“race, religion, [and] alienage” are

“inherently suspect distinctions”); Ball v. Massanari, 254 F.3d 817, 823 (9th Cir.

12

2001) (“race, religion, [and] national origin” are each “suspect class[es]”); accord

Burlington N. R.R. v. Ford, 504 U.S. 648, 651 (1992); Friedman v. Rogers, 440

U.S. 1, 17 (1979). And while the Supreme Court’s recent decision in Locke v.

Davey, 540 U.S. 712, 720 n.3 (2004), applied rational basis scrutiny to a

government program that provided aid for non-religious study but not (without

distinguishing among specific religious beliefs) for religious study, this Court

subsequently reaffirmed in Wong v. United States, 373 F.3d 952, 974 n.29 (9th Cir.

2004), that classifications based on a person’s specific religious beliefs continue to

be suspect and trigger strict scrutiny. See also Christian Science Reading Room

Jointly Maintained v. City & County of San Francisco, 784 F.2d 1010, 1012-13

(9th Cir.) (“[i]t seems clear that an individual religion meets the requirements for

treatment as a suspect class,” but “[w]hether all religions together constitute a

suspect class for purposes of the Equal Protection Clause is a far more complex

question”), opinion amended on other grounds, 792 F.2d 124 (9th Cir. 1986).

Moreover, atheists and agnostics possess what the Supreme Court described in San

Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973), as

“traditional indicia” of a suspect class — they have been “subjected to . . . a

history of purposeful unequal treatment” and “relegated to . . . a position of

political powerlessness.”

13

And, like racial discrimination, this Court has repeatedly described religious

discrimination as “invidious discrimination.” See, e.g., Wong, 373 F.3d at 975

(speaking of allegations of racial, religious, and national origin discrimination as

“allegations of invidious discrimination”); Peinado v. Adult Auth. of Dep’t of

Corrections, 405 F.2d 1185, 1186 (9th Cir. 1969) (civil rights claim failed “in the

absence of an allegation that an invidious discrimination, such as on the basis of

race or religion, is being practiced”); accord De La Cruz v. Tomey, 582 F.2d 45, 49

(9th Cir. 1978); Turpin v. Resor, 452 F.2d 240, 241-42 (9th Cir. 1971). Thus,

under the principles set forth in cases such as Norwood, 413 U.S. at 465-66, and

Gilmore, 417 U.S. at 568-69, the Equal Protection Clause prohibits the government

from aiding religious discrimination in the same manner that the Clause prohibits

governmental aid to racial discrimination.

II. The City Is Violating the Constitution By Aiding the Scouts’ InvidiousReligious Discrimination

The Scouts discriminate in membership and employment on the basis of

religion, against persons who do not profess to believe in God. ER1276 at 87:22-

25; ER1986, ¶¶88-89; ER2004, ¶173 - ER2006, ¶181; ER2023, ¶269; ER2024,

¶271; ER2025, ¶274. By leasing public parkland to the Scouts at nominal rates,

the City is providing significant aid to invidious religious discrimination in

14

violation of the Establishment Clause and the Equal Protection Clause.

A. The City’s Aid To the Scouts Is Significant

The City is leasing more than sixteen acres of public land in two City parks

to the Scouts for one dollar per year and an annual administrative fee of $2500.

See Opening Brief of Plaintiffs-Appellants/Cross-Appellees (“Pl. Op. Br.”) at 14-

15 and record citations therein. The parkland is prime property in the heart of the

City, and it has great value for outdoor recreational purposes. Id. at 14-16. It

would cost the Scouts more than one million dollars per year to rent similar

property on the open market. Id. at 30. And the Scouts are using the parkland as

the home for their regional administrative headquarters. Id. at 15.

The courts have repeatedly held that the provision of public property to a

discriminatory organization constitutes significant aid to discrimination and is

therefore unconstitutional. See Gilmore, 417 U.S. 556 (city violated Constitution

by giving racially discriminatory organizations exclusive access to certain city

recreational facilities); Burton, 365 U.S. 715 (government agency violated

Constitution by leasing property in public building to racially discriminatory

restaurant); Mississippi, 499 F.2d 425 (lease of public school facility to private

segregated school was unconstitutional); Ridgefield Women’s Political Caucus v.

Fossi, 458 F. Supp. 117 (D. Conn. 1978) (town violated Constitution by giving 5.8

15

acres of land for one dollar to discriminatory organization); see also Evans v.

Newton, 382 U.S. 296 (1966) (substituting private trustees for city trustee would

not constitutionally permit administration of city park in racially discriminatory

manner). Indeed, the aid being provided to the Scouts here is far more substantial

than the lending of textbooks that the Supreme Court in Norwood, 413 U.S. 455,

held to be unconstitutional aid to discriminatory institutions.

B. The Scouts Are Actually Using the City’s Aid To SupportDiscrimination

Significant governmental aid to a discriminatory entity is unconstitutional

regardless of whether there is a clear causal relationship between the aid and the

discrimination. See Norwood, 413 U.S. at 465-66 (“the Constitution does not

permit the state to aid discrimination even when there is no precise causal

relationship between state financial aid to a private school and the continued well-

being of that school”); Velde, 712 F.2d at 582 (“in order to establish that a

violation has occurred, [plaintiffs] need not show that a particular instance of

discrimination would not have occurred in the absence of federal funding”); accord

Mississippi, 499 F.2d at 434-35. Here, however, the record does show that the

Scouts are using the parkland provided by the City to further religious

discrimination, in two principal ways.

First, the Scouts placed their regional headquarters on the City parkland and

16

use the parkland to administer their entire program for the San Diego and Imperial

County region. ER1966, ¶9; ER1983, ¶73; ER1985, ¶¶83-84. The Scouts process

admissions of members on the property, and thereby use the property to implement

and further their discriminatory membership policy. ER1987, ¶¶94-95. Likewise,

the Scouts make employment decisions on the property, and thereby use it to

implement and further their discriminatory employment policy. ER1217, Resp.

No. 6; ER3703, ¶¶20-21. The parkland also furthers the Scouts’ religious

discrimination in that the Scouts use the parkland for a wide variety of activities

involving their members (see Pl. Op. Br. at 18-23 and record citations therein), and

a significant number of employees of the Scouts are based at the parkland

(ER1986, ¶88).

Second, even though the Scouts give members of the public access to certain

portions of the parkland, members of the Scouts have preferential access over

members of the public to the land. The Scouts reserve the camping areas on the

parkland for themselves during desirable time periods, including most of the

desirable summer camping season. See Pl. Op. Br. at 40-42 and record citations

therein. The Scouts charge both themselves and members of the public for use of

the parkland (ER1992, ¶113 - ER1993, ¶118), but because the usage fees go back

into the Scouts’ coffers (ER1993, ¶¶117-18; ER3719, ¶¶68-69), only members of

17

the public are truly paying to use the land. The Scouts have also charged members

of the public higher fees for use of the parkland than the Scouts have “charged” to

themselves. ER835, ¶9.4; ER1228; ER1247 at 70:5-73:3. And the Scouts deny the

public access to some portions of the parkland completely, giving only themselves

access to those portions. See Pl. Op. Br. at 18 and record citations therein. Thus,

since atheists and agnostics are denied membership in the Scouts, the extent to

which a person can access the parkland depends on the person’s religious beliefs,

and the Scouts are discriminating based on religion in doling out access to public

land.

C. The City Has Placed Its Imprimatur On the Scouts’ ReligiousDiscrimination

In addition to providing the Scouts with property on which they can further

their discriminatory membership and employment policies, and in addition to

giving religious believers preferential access to parcels of public parkland, the

City’s relationship with the Scouts aids religious discrimination in another

significant way. City policies applicable to the parkland leased to the Scouts

prohibited the City from leasing the land to any organization that discriminated in

any manner against any person on account of race, color, religion, gender, sexual

orientation, medical status, national origin, age, marital status, or physical

disability. See Pl. Op. Br. at 25-29 and record citations therein. Yet, with full

18

knowledge of the Scouts’ discriminatory practices, the City exempted the Scouts’

membership and employment decisions from the City’s non-discrimination

policies, telling the Scouts that they only needed to comply with the non-

discrimination policies in regulating access to the parkland by non-Scouts. See id.;

Consolidated Reply/Answering Brief of Plaintiffs-Appellants/Cross-Appellees

(“Pl. Rep./Ans. Br.”) at 31-34 and record citations therein; ER2726, lines 16-19,

22-25; ER2728, lines 2-14. There is no evidence in the record that the City has

provided a similar exemption from its broad anti-discrimination policies to any

other organization or for any other kind of discrimination. Pl. Rep./Ans. Br. at 33-

34.

By giving the Scouts a unique, special exemption for their particular kind of

religious discrimination, the City has placed its imprimatur of approval on

religious discrimination against atheists and agnostics, in violation of both the

Establishment Clause and the Equal Protection Clause. The Establishment Clause

prohibits government bodies from taking action that communicates a message of

endorsement of religion over non-religion. See, e.g., Allegheny, 492 U.S. at 593-

94. Such governmental endorsement of religion is impermissible in part because it

sends nonbelievers a message “‘that they are outsiders, not full members of the

political community, and an accompanying message to adherents that they are

19

insiders, favored members of the political community.’” Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290, 309-10 (2000) (quoting Lynch v. Donnelly, 465 U.S.

668, 688 (1984) (O’Connor., J., concurring)). In Texas Monthly, Inc. v. Bullock,

489 U.S. 1 (1989), for example, the Supreme Court held that a state violated the

Establishment Clause by enacting a sales-tax exemption for religious periodicals

that was not available for non-religious periodicals. The Court explained that the

exemption conveyed a message of endorsement of religion “to slighted members of

the community” (id. at 15 (three-Justice plurality opinion)) and provided

preferential support to religion (id. at 27-28 (Blackmun, J., concurring, joined by

O’Connor, J.)).

The Equal Protection Clause prohibits government entities from placing an

official stamp of approval on any form of discrimination. In Reitman, 387 U.S.

369, for instance, the Supreme Court held that the State of California violated the

Equal Protection Clause by amending its constitution to override, with respect to

the sale or rental of real property, state statutes that prohibited discrimination based

on race, religion, ancestry, and national origin. The Court explained that the

amendment to the state constitution would “significantly encourage and involve the

State in private discriminations,” as “[t]he right to discriminate is now one of the

basic policies of the State,” and those who wish to discriminate “need no longer

20

rely solely on their personal choice” but “could now invoke express constitutional

authority.” Id. at 377, 381. Similarly, in McGlotten v. Connally, 338 F. Supp. 448,

459 (D.D.C. 1972) (Bazelon, J.), a three-judge district court held that a special

federal tax exemption for fraternal organizations, many of which excluded non-

whites from membership, violated the Equal Protection Clause. The court

explained, “[b]y providing differential treatment to only selected organizations, the

Government has indicated approval of the organizations and hence their

discriminatory practice.” Id. See also Moose Lodge No. 107 v. Irvis, 407 U.S.

163, 177-79 (1972) (Rehnquist, J., writing for the Court) (state regulation requiring

private clubs in possession of liquor licenses to adhere to all provisions of clubs’

constitutions and bylaws violated Equal Protection Clause, as result of its

application to club with discriminatory policy “would be to invoke the sanctions of

the State to enforce a concededly discriminatory private rule” and thereby override

local or other state prohibitions on racial, religious, and national origin

discrimination); Hunter v. Erickson, 393 U.S. 385, 390 (1969) (amendment to city

charter that barred any city ordinance prohibiting racial, religious, or ancestral

discrimination in housing from taking effect unless approved by majority of city’s

voters violated Equal Protection Clause, as amendment “drew a distinction

between those groups who sought the law’s protection against racial, religious, or

21

ancestral discriminations in the sale and rental of real estate and those who sought

to regulate real property transactions in the pursuit of other ends”).

Here, by giving the Scouts’ religious discrimination against atheists and

agnostics a special exemption from its general anti-discrimination policies, the City

has sent a message of endorsement of religion over non-religion, and the City has

placed an official stamp of approval on a particular kind of discrimination. With

respect to lessees of public parkland, the City prohibits white persons from

discriminating against black persons, black persons from discriminating against

white persons, Christians from discriminating against Jews, Jews from

discriminating against Christians, the young from discriminating against the old,

and the able-bodied from discriminating against persons with disabilities, yet the

City allows religious believers to discriminate against non-believers. In these

circumstances, atheists and agnostics in San Diego will come to only one

conclusion — “that they are outsiders, not full members of the political

community.” See Santa Fe, 530 U.S. at 309 (quoting Lynch, 465 U.S. at 688

(O’Connor., J., concurring)).

The message communicated by the City’s conduct is particularly pernicious

in light of its nature and context. The message sent by the City of San Diego — a

city that many across the country may view as a progressive and culturally

22

enlightened community — is that today, at the dawn of the Twenty-First Century,

modern society believes that most forms of discrimination are wholly

unacceptable, but views discrimination against persons who do not profess to

believe in God as tolerable. The message is that atheists and agnostics are one of

the last few groups against whom it is permissible to discriminate — or at least that

it is acceptable for public officials to look the other way when discrimination

against persons who do not believe in God takes place. And this message is sent to

young children — the most impressionable members of our society — for children

themselves are required to profess a belief in God in order to join the Scouts (see

Pl. Op. Br. at 8-9 and record citations therein).

1 Because a majority of the Supreme Court in Mitchell agreed with JusticeO’Connor that neutrality in the distribution of governmental aid is insufficient torender the aid constitutional, her concurrence, not the plurality opinion in the case,sets forth the relevant governing law. Gentala v. City of Tuscon, 244 F.3d 1065,1076 (9th Cir.) (opinions of five concurring and dissenting Justices in Mitchellconstitute a “clear holding by a Supreme Court majority”), vac’d on other grounds,534 U.S. 946 (2001); accord DeStefano, 247 F.3d at 418; Columbia Union Coll. v.Oliver, 254 F.3d 496, 504 n.1 (4th Cir. 2001); Johnson v. Econ. Dev. Corp., 241F.3d 501, 510 n.2 (6th Cir. 2001).

23

III. Regardless Of How the Court May Resolve the Other Issues In This Case,the City’s Aid To the Scouts’ Invidious Religious Discrimination Is SufficientTo Render the City’s Conduct Unconstitutional

A. The City’s Aid To the Scouts’ Religious Discrimination IsUnconstitutional Regardless Of Whether the Aid Was AwardedThrough a Process That Was Neutral With Respect To Religion

As the plaintiffs explain in detail, the City’s leases to the Scouts were not

awarded through a process that was neutral with respect to religion. See Pl.

Rep./Ans. Br. at 29-36. But even if (as the Scouts contend) that was the case, the

City’s aid to the Scouts’ religious discrimination would still be unconstitutional.

Under the Establishment Clause, neutrality in the process of awarding

governmental aid is not sufficient to render the aid constitutional if the aid is

actually used for religious purposes. See Mitchell v. Helms, 530 U.S. 793, 840,

857 (O’Connor, J., concurring, joined by Breyer, J.), 874, 884-85, 909 n.27

(Souter, J., dissenting, joined by Stevens, J., and Ginsburg, J.) (2000)1; Bowen, 487

U.S. at 609, 613, 621; Roemer, 426 U.S. at 747; Hunt, 413 U.S. at 741, 743; Tilton,

24

403 U.S. at 675, 683. Here, the Scouts are using the parkland provided by the City

for a religious purpose — implementation of their policy of religious

discrimination in membership and employment. See supra § II(B). In addition to

directly advancing religion, the Scouts’ discriminatory policy advances the Scouts’

religious purpose (described in detail in the plaintiffs’ Reply/Answering Brief at

19-23) of educating young boy scouts to believe in and revere God. The Scouts’

discriminatory conduct further advances religion in that it propagates the Scouts’

contention that a person must believe in God in order to be a good citizen (see

ER2002, ¶161), thereby perpetuating a discriminatory ideology whose implication

is that the religious should have a controlling role in political affairs.

The Equal Protection Clause also does not permit the state to aid

discrimination even where the government delivers aid on a neutral basis to both

discriminatory and non-discriminatory institutions. The Supreme Court struck

down the textbook-lending program at issue in Norwood even though students in

both schools that discriminated and schools that did not were eligible for the

program. See 413 U.S. at 456, 466-67. Likewise, in Graham v. Evangeline Parish

School Board, 484 F.2d 649, 650 (5th Cir. 1973), the court held that a state could

not lend textbooks to students attending a racially discriminatory school even

though students attending non-discriminatory schools were eligible for the same

25

aid.

Moreover, this is not a case in which a government body has opened a

“public forum” and granted equal access to a parcel of public property or a public

building to a wide variety of organizations (cf., e.g., Widmar v. Vincent, 454 U.S.

263 (1981)) without regard to whether they are religious in nature or discriminate

based on religion. Where such a public forum exists, all persons have an equal

right to access the property in question, regardless of their religious beliefs or lack

thereof. Here, by contrast, the Scouts — religious believers — have exclusive

access to part of the leased parkland, and preferential access to the rest. See supra

§ II(B). When all groups are given equal access to a public forum, decisions of

private individuals and not governmental choices determine who actually uses the

forum, so any temporary use of the forum by a discriminatory group is not blessed

with a governmental imprimatur of approval. Here, on the other hand, it was the

City that decided to turn the parkland over to the Scouts, and this governmental

decision sends a message of governmental endorsement of the Scouts’ practice of

religious discrimination. In addition, the support being provided to religious

discrimination by the City’s leasing of the parkland to the Scouts is far more

substantial than any benefit the Scouts would receive if the City merely allowed

the Scouts to access certain public land or buildings on an equal basis with non-

26

discriminatory groups. Finally, the City’s decision to specially exempt the Scouts

from its general anti-discrimination policies further distinguishes the fact-pattern at

bar from one where all kinds of organizations have equal access a public forum

regardless of whether or on what basis they discriminate, as well as one where no

discriminatory organization at all may access a public forum.

B. The City’s Aid To the Scouts’ Religious Discrimination IsUnconstitutional Regardless Of Whether It Is Proper To Characterizethe Scouts As a Religious Organization

As explained in detail by the plaintiffs, the district court correctly concluded

that the Scouts are a religious organization with religious purposes. See Pl.

Rep./Ans. Br. at 18-23 and record citations therein. The Scouts’ amici disagree,

depicting the Scouts as “a social and recreational organization,” not a religious one.

See, e.g., Brief for the United States at 11. But the City’s aid to the Scouts’

religious discrimination would not be constitutional even if the characterizations of

the Scouts by their amici were accurate. Regardless of whether the nomenclature

“religious organization” is the best way to describe the Scouts, there is no dispute

that the Scouts have a religious goal of teaching their young charges to believe in

and revere God (see ER2002-11), and that the Scouts’ discriminatory policies serve

the inculcation of such teaching. The Scouts’ discriminatory policies also directly

advance religion by giving religious believers greater access to public land, and by

27

giving persons incentives to profess a belief in God in order to obtain the benefits

of membership in or employment by the Scouts. No matter what label best fits the

Scouts, the City’s aid to the Scouts supports religious discrimination and purposes

in violation of the Establishment Clause and supports invidious discrimination in

violation of the Equal Protection Clause.

Furthermore, if the factual assertions the Scouts’ amici make about the

Scouts are correct, they only highlight the particularly invidious nature of the

religious discrimination practiced by the Scouts. The Scouts’ amici claim that the

Scouts are a nonsectarian organization, that the Scouts do not require their

members to take part in any sectarian ceremonies or practices, that the Scouts

merely give their members opportunities to practice their religions, and that the

Scouts teach that religious instruction is the responsibility of a scout’s parents and

house of worship. See U.S. Br. at 5, 13-16; Brief of States of Texas, et al. at 7-10.

If this is so, however, then the Scouts’ religious discrimination is not required by

or even based on any religious belief common to their membership, and the Scouts

could accommodate the religious beliefs and practices of their members without

requiring all their leaders and members to be believers in God. It would appear,

then, that the Scouts’ religious discrimination is motivated by nothing other than

rank prejudice of the worst kind — perhaps by the irrational and pernicious

28

prejudicial view that believers in God are better people than nonbelievers, perhaps

by simple hostility toward atheists and agnostics, perhaps by the base desire of a

socially dominant group to exclude and relegate to second-class status those who

are different.

C. Any Value That the Scouts May Provide To the City Does NotRemedy the Constitutional Violation Here

For the reasons given by the plaintiffs (see Pl. Rep./Ans. Br. at 45-47), there

is no merit to the Scouts’ argument that, because the Scouts improved the parkland

leased to them by the City and make some of the land available to the public some

of the time for recreational uses, the leases are not “aid” but are “value for value”

transactions. And even if the Scouts’ factual depiction of the value of services they

provide is correct, the Scouts give their own God-believing members far greater

access to the parkland than that afforded to non-believing members of the public.

See supra § II(B). As the Supreme Court explained in Evans, provision of

recreational services to the public in a park is a “public function” — “[t]he service

rendered even by a private park . . . is municipal in nature,” and “[a] park . . . is

more like a fire department or police department that traditionally serves the

community” — so the government cannot constitutionally aid a private party’s

discriminatory operation of a park. 382 U.S. at 301-02. Also, to the extent that the

City has selected the Scouts to provide recreational services to the public at the

29

parkland, this only strengthens the imprimatur of approval placed by the City on

the Scouts’ religious discrimination.

D. The Court Need Not Determine Whether the City Acted WithDiscriminatory Intent

In addition, the plaintiffs need not show that the City acted with

discriminatory intent in leasing the parkland to the Scouts. Under the

Establishment Clause, governmental action is unconstitutional when it has the

purpose or the effect of advancing religion. See, e.g., Zelman, 536 U.S. at 648-49.

And the Equal Protection Clause prohibits the government from providing

significant aid to a private party that intentionally discriminates even when the

government itself is not acting with a discriminatory purpose. Norwood, 413 U.S.

at 466-67; Burton, 365 U.S. at 725; Mississippi, 499 F.2d at 434; accord Moose

Lodge, 407 U.S. at 172. As explained in detail in Velde, 712 F.2d at 580-82, a

plaintiff proceeding under the Equal Protection Clause has to show a

discriminatory intent on the part of government only if the plaintiff is alleging that

a facially neutral practice has a disparate impact on a protected class, and not

30

when the plaintiff is challenging governmental aid to an entity that intentionally

discriminates.

E. The Court Need Not Determine Whether the Scouts Can ContinueTo Discriminate

Moreover, the only relief being sought here is termination of the City’s aid

to the Scouts, and the plaintiffs are not seeking an injunction prohibiting the Scouts

from discriminating based on religion or an award of monetary damages against

the Scouts. Therefore, the plaintiffs need not show that the Scouts are “state

actors” who are subject to the requirements of the Constitution. In analyzing

Establishment Clause challenges to governmental aid to religious organizations,

the Supreme Court has never required plaintiffs to demonstrate that the aid

recipients are state actors in order to prevail. See, e.g., Mitchell, 530 U.S. 793;

Bowen, 487 U.S. 589; Roemer, 426 U.S. 736; Hunt, 413 U.S. 734; Tilton, 403 U.S.

672; Lemon, 403 U.S. 602. Likewise, where Equal Protection Clause plaintiffs

seek only to terminate governmental aid to discriminatory private organizations,

the plaintiffs only need to show that the government is providing significant

support to invidious discrimination, and they do not have to satisfy the more

complex and stringent “state action” analysis that is applicable where injunctive or

monetary relief is sought directly against a private party involved with the state.

See Gilmore, 417 U.S. at 572-73; Moton v. Lambert, 508 F. Supp. 367, 369 (N.D.

31

Miss. 1981); Ridgefield, 458 F. Supp. at 120-21; Cornelius v. Benevolent

Protective Order of Elks, 382 F. Supp. 1182, 1188-91 (D. Conn. 1974); accord

Jackson v. Statler Found., 496 F.2d 623, 637 (2d Cir. 1974) (Friendly, J.,

dissenting from denial of rehearing en banc by equally divided court).

Finally, this case does not present the question of whether, if the City were

to stop providing aid to the Scouts, the City could exempt the Scouts from laws

barring religious discrimination by organizations that do not receive public

support. Thus this case is quite unlike Corporation of Presiding Bishop v. Amos,

483 U.S. 327 (1987), in which the Supreme Court held that it was constitutional for

Congress to exempt religious organizations from Title VII’s general prohibition on

religious discrimination in employment. Amos did not address the constitutionality

of public support to private employers that discriminate based on religion.

The exemption in Amos was upheld on the basis that Congress was lifting

what would otherwise have been a substantial government-imposed burden on the

exercise of religion by religious employers, as Title VII covers the decisions of

private employers who receive no governmental aid. Id. at 334-36. Here, by

contrast, termination of the City’s aid to the Scouts would not substantially burden

the Scouts’ exercise of religion because the Scouts could continue their

discriminatory practices so long as they did not seek public support. In addition,

32

the exemption upheld in Amos did not advance religious discrimination, since the

exemption did not make religious discrimination by religious organizations any

more permissible than it would have been had Congress not passed Title VII at all.

See id. at 337. Here, on the other hand, the City is providing substantial,

affirmative aid to religious discrimination. Also, the exemption in Amos was

neutral between all forms of religious discrimination. See id. at 339. Here, the

City has specially approved one kind of religious discrimination — that against

atheists and agnostics — while continuing to prohibit other kinds.

33

CONCLUSION

Our constitutional order does not tolerate governmental support for

discrimination of any kind. That the municipality providing the aid at issue here

generally bans most kinds of discrimination does not make the aid acceptable.

That the discrimination is conducted by an entity many may view as a mainstream,

“all-American” organization does not justify the aid. That the discrimination is

conducted against the marginalized, politically powerless classes of atheists and

agnostics only exacerbates the impropriety of the government’s support. This

Court should affirm the judgment of the district court.

Respectfully submitted,

By: __________________________ Date: ________________________ Alex J. Luchenitser, Esq.

Ayesha N. Khan, Esq.Alex J. Luchenitser, Esq.Americans United for Separation of Church and State518 C Street NEWashington, DC 20002Phone: (202) 466-3234Fax: (202) 466-2587E-mail: [email protected] / [email protected]

34

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned certifies as follows:

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,991 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface, 14-point Times New

Roman, using WordPerfect 9.0.

Respectfully submitted,

By: __________________________ Date: ________________________ Alex J. Luchenitser, Esq.

Ayesha N. Khan, Esq.Alex J. Luchenitser, Esq.Americans United for Separation of Church and State518 C Street NEWashington, DC 20002Phone: (202) 466-3234Fax: (202) 466-2587E-mail: [email protected] / [email protected]

35

CERTIFICATE OF SERVICE

The undersigned hereby certifies that two copies of this Brief of Amicus

Curiae have been served on counsel (listed below) for each party (one copy per

counsel where multiple counsel represent a party) by first-class U.S. mail, that one

copy of this Brief has also been served on counsel (listed below) for each amicus

curiae by first-class U.S. mail, and that an original and fifteen copies of this Brief

have been dispatched to the Clerk of the United States Court of Appeals for the

Ninth Circuit by first-class U.S. mail, on April 5, 2005.

Service list:

Elvira CacciavillaniACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIESP.O. Box 87131San Diego, California 92138-7131

Mark W. Danis M. Andrew WoodmanseeKatherine L. Parker MORRISON & FOERSTER LLP3811 Valley Centre Drive, Suite 500San Diego, California 92130-2332

Seth M. GalanterMORRISON & FOERSTER LLP2000 Pennsylvania Avenue NW, Suite5500Washington, DC 20006

Anthony R. Picarello, Jr.Derek L. GaubatzRoger T. SeverinoThe Becket Fund for Religious Liberty1350 Connecticut Avenue, NWSuite 605Washington, DC 20036-1735

John C. EastmanThe Claremont Institute Center for Constitutional Jurisprudencec/o Chapman University School of LawOne University DriveOrange, California 92866

36

George A. DavidsonCarla A. KerrHughes, Hubbard & Reed LLPOne Battery Park PlazaNew York, NY 10004-1482

Scott H. ChristensenHughes, Hubbard & Reed LLP1775 I Street, NWWashington, DC 20006-2401

William DonnellDeputy City AttorneyOffice of the City Attorney of San Diego Civil Division1200 Third Avenue, Suite 1100San Diego, CA 92101-4100

Peter FerraraAmerican Civil Rights Union1232 Pine Hill Rd.McLean, VA 22101

Angela MillerDepartment of JusticeCivil Rights DivisionAppellate SectionBen Franklin StationP.O. Box 14403Washington, D.C. 20044-4403

Manuel S. KlausnerINDIVIDUAL RIGHTS FOUNDATIONOne Bunker Hill Building601 W. 5th Street, 8th FloorLos Angeles, California 90071

John FindleyHarold E. JohnsonPacific Legal Foundation3900 Lennane Drive, Suite 200Sacramento, California 95834

Gregg AbbottAttorney General of TexasOffice of the Attorney GeneralP.O. Box 12548 (MC 059)Austin, TX 78711-2548

Robert J. Muise, Esq.Julie Shotzbarger, Esq.THOMAS MORE LAW CENTER24 Frank Lloyd Wright Dr.P.O. Box 393Ann Arbor, Michigan 48106

_______________________Thelma Scott