FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MITCHELL BARNES-WALLACE; 

MAXWELL BREEN,

Plaintiffs-Appellees,

v. No. 04-55732

CITY OF SAN DIEGO, D.C. No.  Defendant, CV-00-01726-

and NAJ/AJB

BOY SCOUTS OF AMERICA - DESERT

PACIFIC COUNCIL,

Defendant-Appellant. 

MITCHELL BARNES-WALLACE; 

MAXWELL BREEN; LORI BARNESWALLACE, Guardian Ad Litem;

LYNN BARNES-WALLACE, Guardian

Ad Litem; MICHAEL BREEN, No. 04-56167

Guardian Ad Litem; VALERIE D.C. No.

BREEN, Guardian Ad Litem,  CV-00-01726-

Plaintiffs-Appellants, NAJ/AJB

v. ORDER

CITY OF SAN DIEGO; BOY SCOUTS OF

AMERICA - DESERT PACIFIC

COUNCIL,

Defendants-Appellees. 

Filed December 31, 2008

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and

Marsha S. Berzon, Circuit Judges.

16859
Order;

Dissent by Judge O’Scannlain

ORDER

Judge Berzon has voted to deny the petition for en banc

rehearing of the Certification Order filed June 11, 2008, and

Judge Canby has so recommended. Judge Kleinfeld has voted

to grant en banc rehearing. 

The petition for en banc rehearing has been circulated to

the full court. A judge requested a vote on whether to rehear

the matter en banc. The matter failed to receive a majority of

the votes of the nonrecused active judges in favor of en banc

consideration. Fed R. App. P. 35. Judges Gould, Tallman,

Clifton and N.R. Smith were recused. 

The petition for rehearing en banc is denied. The Clerk of

this Court is instructed to transmit the Order Certifying Questions, filed June 11, 2008, to the Supreme Court of California

as directed under Section V of that Order. The earlier order

of December 18, 2006, certifying questions to the California

Supreme Court was withdrawn by this court on June 11, 2008.

This case shall continue to be withdrawn from submission

until further order of this Court.

O’SCANNLAIN, Circuit Judge, dissenting from the denial of

rehearing en banc, joined by KLEINFELD, BYBEE,

CALLAHAN, BEA, and IKUTA, Circuit Judges: 

Today, our court promulgates an astonishing new rule of

law for the nine Western States. Henceforth, a plaintiff who

claims to feel offended by the mere thought of associating

16860 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
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. I must respectfully, but vigorously, dissent from our failure to rehear this case en banc. 

I

For nominal rent, the City of San Diego leases portions of

two public parks to the Desert Pacific Council, which is a

“nonprofit corporation chartered by the Boy Scouts of America.” Barnes-Wallace v. City of San Diego, 530 F.3d 776, 779

(9th Cir. 2008). The Boy Scouts operate Camp Balboa in Balboa Park, which “includes campgrounds, a swimming pool,

an amphitheater, a program lodge, a picnic area, a ham radio

room, restrooms and showers, and a camp ranger office.” Id.

at 781. The Boy Scouts also operate a Youth Aquatic Center

on Fiesta Island, which “offers the use of kayaks, canoes, sail

and row boats, and classroom space to other youth groups at

inexpensive rates.” Id. Importantly, “[t]here are no religious

symbols either at Camp Balboa or at the Youth Aquatic Center.” Id. at 782. 

For limited times, the Boy Scouts use the leased areas for

their own events, but otherwise keep the areas open to the

general public. 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.1 A homosexual or an

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

1

Indeed, as the plaintiffs’ own complaint concedes, the leases themselves, in conjunction with the Municipal Code of San Diego, prohibit discrimination on the basis of religion or sexual orientation. 

BARNES-WALLACE v. BOY SCOUTS OF AMERICA 16861
same terms as everybody else. Indeed, “[t]he San Diego Boy

Scouts have not turned away any non-Scout group while

Scouting is in session, either at Camp Balboa or at the

Aquatic Center.” Id. at 782. 

Nevertheless, a lesbian couple with a son and an agnostic

couple with a daughter challenged the leases under the religion clauses of the United States and California Constitutions.

The families did not have any of the traditional bases of

standing: they did not compete for the leases, try to participate

in any Boy Scout activities on the leased land, or even use or

try to use the land for their own purposes (although they did

use the portions of the parks that the Boy Scouts did not use).

Rather, the families based standing on the claim that although

they wanted to use the public land and could use it without

interference from the Boy Scouts, they nevertheless declined

to use it, because they would be offended by the Boy Scouts’

views on sexuality and religion if they did. 

The majority initially rejected the families’ psychological

injury claim, holding: 

The Breens’ and the Barnes-Wallaces’ purposeful

avoidance of the parklands leased by the Boy Scouts

as a protest against the Scouts’ exclusionary policies

is not a sufficient injury. We have held that people

can suffer a direct injury from the need to avoid

large religious displays, such as giant crosses or lifesize biblical scenes . . . . But there are no displays in

either Camp Balboa or the Aquatic Center that

would be so overwhelmingly offensive that families

who do not share the Scouts’ religious views must

avoid them. See Valley Forge Christian Coll. v.

Americans United for Separation of Church & State,

Inc., 454 U.S. 464, 485, 102 S. Ct. 752, 70 L.Ed.2d

700 (1982) (requiring the plaintiffs to show a personal injury suffered ‘as a consequence of the

alleged constitutional error’) (emphasis omitted). 

16862 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
Barnes-Wallace v. City of San Diego, 471 F.3d 1038, 1045-46

(9th Cir. 2006). The panel allowed the case to proceed on

alternate standing grounds. 

Then, on rehearing, the majority reversed itself and adopted

the theory it had initially rejected. It concluded that “the

Breens and Barnes-Wallaces have avoided Camp Balboa and

the Aquatic Center because they object to the Boy Scouts’

presence 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.” Id. at 784. The Article III injury-in-fact, according to the

majority, was the Breens’ and the Barnes-Wallaces’ “offen-

[se]” at “the Boy Scouts’ exclusion, and publicly expressed

disapproval, of lesbians, atheists and agnostics,” their “aversion to the facilities,” and their “fe[elings of] unwelcome[-

ness] there because of the Boy Scouts’ policies that

discriminated against people like them.” Id. at 783, 784. Having satisfied itself that it had jurisdiction, the panel then certified the California constitutional law questions to the

California Supreme Court.2

2This case is far more than a harmless certification order. It constitutes

a precedential decision on the issue of standing. Even worse, if the BarnesWallaces and the Breens lose on the merits before the California Supreme

Court, the panel majority’s standing decision will be entirely insulated

from further review. Thus, unless the City of San Diego files a petition for

certiorari in the United States Supreme Court now, which, of course, it

may do, see 28 U.S.C. § 1254, the majority’s standing decision may be

unreviewable. 

Indeed, even before the merits of the Establishment Clause challenge

have been resolved, the majority’s opinion already has had collateral consequences. One district court in our circuit has already cited the majority’s

order as binding precedent to reach a conclusion it might not otherwise

have reached. See Trunk v. City of San Diego, 568 F. Supp. 2d 1199, 1205

(S.D. Cal. 2008) (“If Plaintiffs’ claims were based on any theory other

than violation of the Establishment Clause, they would likely be out of

court for lack of standing . . . . In the Ninth Circuit, however, merely being

ideologically offended, and therefore reluctant to visit public land where

BARNES-WALLACE v. BOY SCOUTS OF AMERICA 16863
Writing for herself in a separate concurrence, Judge Berzon

compared the Breens and the Barnes-Wallaces’ plight to Rosa

Parks’ refusal to ride in the back of segregated buses. According to Judge 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 Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members.” Id. at 791. Judge Kleinfeld

dissented. 

II

This case is most notable for what it does not involve.

There is no economic injury here; the families did not compete with the Boy Scouts for the leases. Nor did the families

try to join the Boy Scouts or to participate in Boy Scout activities in the parks. Thus, they cannot claim that they were

excluded from anything. Most critically, 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 families 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. 

That is an unprecedented theory. It splits standing law at

the seams, forcing open the courthouse doors to plaintiffs

a perceived Establishment Clause violation is occurring, suffices to establish ‘injury in fact.’ . . . Barnes-Wallace v. City of San Diego, 530 F.3d

776, 784-85 (9th Cir. 2008) (holding lesbian and agnostic parents had suffered injury in fact because they disagreed with the Boy Scouts’ religious

and moral position and therefore avoided recreational park facilities used

by Boy Scouts). Bound by these precedents, the Court concludes all Plaintiffs have standing to bring this lawsuit.”). 

16864 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
without concrete, particularized 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 ranchers in violation of FDA health requirements, even

if the activist has never visited the stand? Should the activist

so much as allege that she 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, it seems to me, would

roll out the red carpet. 

An example from Judge Kleinfeld’s dissent from the

panel’s decision sharpens the issue: 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 plaintiff base standing on the

grounds that the Protestant Church prevents him from serving

as a minister? Barnes-Wallace, 530 F.3d at 797 n.27 (Kleinfeld, J., dissenting). Again, nothing in the majority’s analysis

forecloses such claims. After today, the only real hard and fast

limit on a plaintiff’s standing to sue that I can see will be the

viability of the underlying claim on the merits. 

In her concurrence, Judge Berzon tries to limit the sweeping reach of the majority’s standing analysis. She says: 

To succeed on the standing theory the majority

adopts, such would-be plaintiffs would have to show

(1) that on the property leased to that group by the

city there is some site or facility which the individual

plaintiffs could have and would have visited and

used, were it not for (2) that group having an exclusionary policy that directly and personally affects the

plaintiffs, and (3) that use of the property would

require interaction with the group, such as paying

BARNES-WALLACE v. BOY SCOUTS OF AMERICA 16865
fees for use of the facility, and perception of its symbols. 

Id. at 793. 

Judge Berzon’s supposed limits are ephemeral. Putting

aside the important fact that these “limits” appear in a onejudge concurrence without precedential value, any plaintiff

can insert into his complaint the throwaway line, which is

nearly impossible to disprove, that he “would visit” or “would

use” a given piece of property. Many groups have exclusionary membership policies. Indeed, the ability to exclude those

who do not share the group’s goals or commitments is an integral part of what defines a group. And the use of the property

almost always will “require interaction with the group.” Organizations generally don’t lease government property only not

to use it.

III

By stretching the definition of an injury-in-fact beyond the

breaking point to include injuries-in-theory, the majority’s

opinion is also inconsistent with longstanding Supreme Court

precedent. 

In Valley Forge v. Ams. United for Separation of Church

& State, 454 U.S. 464 (1982), the Supreme Court rejected a

standing claim that is materially indistinguishable from the

one raised by the Breens and the Barnes-Wallaces. There, the

federal government gave surplus property to the Valley Forge

Christian College, which was dedicated to “offer[ing] systematic training on the collegiate level to men and women for

Christian service as either ministers or laymen.” Id. at 468

(internal quotation marks omitted). Americans United For

Separation of Church and State “learned of the conveyance

through a news release” and challenged the property transfer

under the Establishment Clause of the First Amendment. Id.

at 469. The Court held that standing was lacking, concluding

16866 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
that the plaintiffs “fail[ed] to identify any personal injury suffered by them as a consequence of the alleged constitutional

error, other than the psychological consequence presumably

produced by observation of conduct with which one disagrees.” Id. at 485. 

As the first incarnation of the majority’s certification order

correctly recognized, Valley Forge resolves this case. Like the

plaintiffs in Valley Forge, the Breens and the Barnes Wallaces’ claim of “psychological” injury stems from “observation of conduct with which [they] disagree[ ],” id., an injury

that is not legally cognizable. 

But the majority changed its mind. This time around, it distinguishes Valley Forge on the grounds that the Breens and

the Barnes-Wallaces “have expressed a desire to make personal use of the facilities” while the Valley Forge plaintiffs

learned of the property grant through a news release. That is

a distinction without a difference. Judge Kleinfeld got it right

when he said: 

The ratio decidendi of Valley Forge does not support

this distinction. Valley Forge holds that “psychological” injury caused by “observation” of “conduct with

which one disagrees” is not a concrete injury to a

legally protected interest sufficient to confer standing, and that is what the plaintiffs allege. Thus being

there and seeing the offending conduct does not confer standing. 

Barnes-Wallace, 530 F.3d at 795. In other words, the point of

Valley Forge is that psychological injury does not constitute

a legally cognizable injury-in-fact. 

Even if Valley Forge admits of some limited class of psychological injuries that can constitute an injury-in-fact, which

I do not think it does, certainly such a class is not present in

this case. Like the Valley Forge plaintiffs, the Breens and the

BARNES-WALLACE v. BOY SCOUTS OF AMERICA 16867
Barnes-Wallaces did not even try to use the parts of the parks

that are run by the Boy Scouts. Therefore, the distinction

between the two cases reduces to the allegation made by the

Breens and the Barnes-Wallaces’ that they would use the

parks if the Boy Scouts were not there. As discussed above,

the ease of inserting such an allegation into a future complaint

makes that distinction meaningless. 

IV

The majority also bases its conclusions on our “giant cross”

cases, which involved challenges to large, visible crosses on

public land. See Buono v. Norton, 371 F.3d 543, 546-47 (9th

Cir. 2004) (cert. pending); Ellis v. La Mesa, 990 F.2d 1518,

1523 (9th Cir. 1993). Buono involved a cross on federallyowned property “bolted to a rock outcropping rising fifteen to

twenty feet above grade and . . . visible to vehicles on the

adjacent road from a hundred yards away.” Buono, 371 F.3d

at 549. In Ellis, there were two 36 and 43-foot tall crosses on

government property and one on the city’s official insignia.

Ellis, 990 F.2d 1520. In both cases, the plaintiffs claimed that

they were “deeply offended by the cross display on public

land,” Buono, 371 F.3d at 546, and were “injured due to . . .

not being able to freely use public areas.” Ellis, 990 F.2d at

1523 (internal citation and quotation marks omitted). We concluded that the plaintiffs had standing in those cases based on

being offended by the presence of the crosses. 

The cross cases, however, do not support the majority’s

analysis. First, as our sister circuits have recognized, cross

and religious display cases occupy their own special corner of

standing jurisprudence. See Suhre v. Haywood County, 131

F.3d 1083, 1086 (4th Cir. 1997) (“Religious display cases are

an even more particularized subclass of Establishment Clause

standing jurisprudence”). This is so because “[i]n the religious

display and prayer cases, the Government . . . actively and

directly communicat[es] a religious message through religious

words or religious symbols — in other words, it . . . engag[es]

16868 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
in religious speech that [is] observed, read, or heard by the

plaintiffs.” In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C.

Cir. 2008). Such “direct contact with an unwelcome religious

exercise or display works a personal injury distinct from and

in addition to each citizen’s general grievance against unconstitutional government conduct.” Suhre, 131 F.3d at 1086.

Our cross cases have also emphasized the distinctly religious

nature of the government conduct at issue. In concluding that

the plaintiffs had standing to challenge the crosses in Buono,

we held that “plaintiffs who . . . are offended by religious displays on government property” have standing to challenge the

displays. Buono, 371 F.3d at 548 (emphasis added). 

The outdoorsy perambulations of a bunch of Boy Scouts

hardly constitute a “religious display[ ] on government property.” Id. Indeed, there are no religious displays whatsoever

on the public lands leased by the Boy Scouts. As Judge Kleinfeld put it: “Unlike a cross, neither a Boy Scout, nor the Boy

Scout emblem (an eagle with a shield on a fleur-de-lis), nor

a sign saying ‘Boy Scouts,’ is the central symbol of any religion or sexual preference.” The Boy Scouts are more concerned with “knot tying . . . camping, boating, hiking,

swimming, and charitable activities.” Barnes-Wallace, 530

F.3d at 797. Judge Kleinfeld is plainly right when he says that

“[a] gigantic cross on a mountaintop carries religious significance that a herd of 11 year old boys camping out and swimming does not.” Id.

Judge Kleinfeld is also right to see

a distinction between a prominent display of an

unambiguous religious symbol on public land and

groups with myriad viewpoints working with government to facilitate public use of lands. San Diego,

like many municipalities, leases property to many

non-profit groups: San Diego Calvary Korean

Church, Point Loma Community Presbyterian

Church, the Jewish Community Center, the VietnamBARNES-WALLACE v. BOY SCOUTS OF AMERICA 16869
ese Federation, the Black Police Officers Association, and ElderHelp. No doubt people can be found

in San Diego who do not like Koreans, Presbyterians, Jews, Vietnamese, Blacks, and old people, and

who disagree with the beliefs people in these groups

share. Their feelings of disagreement or dislike

should not be treated as the “concrete injury” that is

“an invasion of a legally protected interest” required

for standing. 

Id.

Even if the Boy Scouts are somehow a “religious display,”

the panel majority is still wrong. In the cross and religious

display cases, the plaintiffs came into “direct contact” with

the offensive exhibition in question; they did not launch challenges from afar. In Buono, for example, the plaintiff “regularly [visited] the Preserve” where the cross was located.

Buono, 371 F.3d at 546 (internal citation and quotation marks

omitted); Vasquez v. Los Angeles County, 487 F.3d 1246,

1249 (9th Cir. 2007) (noting that Vasquez had “daily contact

with the revised [city] seal” (internal quotation marks omitted)). Indeed, courts have vigilantly denied standing even in

religious display cases when the plaintiff did not have any

“personal contact” with the display. See, e.g., ACLU-NJ v.

Township of Wall, 246 F.3d 258, 266 (3d Cir. 2001). Here, of

course, the Breens and the Barnes-Wallaces have not even

tried to use the lands controlled by the Boy Scouts. They have

no “direct contact” or “unwelcome personal contact” with the

Boy Scouts apart from their presence on the parts of the parks

that the Boy Scouts do not control.

Thus, the majority’s order creates needless tension with

cases in our sister circuits and in our own court, which, as discussed above, require direct, personal contact with the offensive religious symbol. See, e.g., Sullivan v. Syracuse Hous.

Auth., 962 F.2d 1101, 1107-08 (2d Cir. 1992); ACLU-NJ, 246

F.3d at 266 (Third Circuit); ACLU of Ohio Found., Inc. v.

16870 BARNES-WALLACE v. BOY SCOUTS OF AMERICA
Ashbrook, 375 F.3d 484, 489-90 (6th Cir. 2004) (“Davis [is]

a lawyer who travels to and must practice law within

DeWeese’s courtroom from time to time. There, Davis has

and would continue to come into direct, unwelcome contact

with the Ten Commandments display.”); Saladin v. City of

Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (“[A]t least

three of the plaintiffs regularly receive correspondence on city

stationery bearing the seal . . . . [T]he presence of . . . the seal

offends the appellants because the seal represents the City’s

endorsement of Christianity.”); Vasquez, 487 F.3d at 1249

(Ninth Circuit); Caldwell v. Caldwell, 2008 WL 4444310, at

*4-5 (9th Cir. Oct. 3, 2008).

V

The panel majority’s certification order treats standing as a

nuisance to be swatted aside rather than as “an essential and

unchanging part of the case-or-controversy requirement of

Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). Standing serves a purpose in our system of government. “The power to declare the rights of individuals and to

measure the authority of governments, [the Supreme Court]

said 90 years ago, is legitimate only in the last resort, and as

a necessity in the determination of real, earnest and vital controversy.” Valley Forge, 454 U.S. at 471 (internal quotation

marks omitted). By unjustifiably re-inventing the holdings of

our religious display cases, the panel majority disregards

these limits. 

I acknowledge that those limits are not always clear and

bright or easily discernible. Still, “[t]he absence of precise

definitions . . . hardly leaves courts at sea in applying the law

of standing.” Allen v. Wright, 468 U.S. 737, 751 (1984). Some

principles should be clear. This is one of them. 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.

BARNES-WALLACE v. BOY SCOUTS OF AMERICA 16871
VI

For the foregoing reasons, I respectfully dissent from our

failure to rehear this case en banc.

16872 BARNES-WALLACE v. BOY SCOUTS OF AMERICA

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