Legal Commentary

The Ninth Circuit is working on an intriguing idea of injury sufficient to confer standing in a Barnes-Wallace v. City of San Diego, a case in which a lesbian and agnostic couple is challenging the lease of a portion of city land to the Boy Scouts who run a facility called Camp Balboa. The problem, in their view, is that the Boy Scouts do not accept gay and agnostic members. While some of the land is reserved for the administrative purposes of the Boy Scout, most is available to the public. While the Boy Scouts have preferential rights to use the facilities and occasionally use them for exclusive Boy Scout events, it appears that no member of the public has ever been denied access.

In any event, the plaintiffs in this case do not argue that they have been excluded. They have not, it turns out, even tried to use Camp Balboa and associated facilities. Rather, they argue that they have refused to use them because they are run by the Boy Scouts whose (religiously based ) views they find to be reprehensible.

The plaintiffs won in the district court and the 9th Circuit, finding that they have standing, has certified certain questions of state constitutional law to the California Supreme Court.

I don't want to get into an extended discussion of the proper distinction between injury sufficient to support standing and injury that violates legal rights. The notion that the plaintiffs rights have been violated because the city has leased land to - or because they must, if they wish to use the land, have minimal contact with a group with whom they do not agree strikes me as extraordinary.

There is no allegation, as I understand it, that Camp Balboa features religious symbols or that users must affirm any religious sentiment. Recognizing standing here - much less actionable injury - would lead to an imploding web of conflicting claims. Say the city leases space to a group for the operation of a community center for gays and lesbians that is made available to other users as space is available. Could evangelicals claim that there rights have been violated? 

I don't think this is even a hard question, so let me throw out something more controversial.

One of the things that I believe is currently hurting the movement toward greater recognition of same sex couples is the idea that those who oppose the idea that same sex relationships ought to be regarded as, in some sense, equal to or the equivalent of heterosexual relationships, will come to have a disfavored legal status as those who believe in separation of the races do today. If you think that these groups  are analogous, that's not much of a problem. But the extant evidence is that a majority does not think that and, politically, a more nuanced approach to the concerns of same sex couples may the only possible course.