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Religious Freedom

In East Bay Asian Local Development Corp., et al. v. State of California, Office of the Attorney General successfully defended an action for declaratory and injunctive relief brought against the State to invalidate state law that exempts, under certain circumstances, noncommercial property owned by religious organizations from local historic landmark ordinances. Plaintiffs contended, among other things, that the relevant statutes unconstitutionally establish religion. The trial court declared these statutes unconstitutional. The case ultimately reached the California Supreme Court, where a Section deputy presented oral argument. On December 21, 2000, the Court upheld the constitutionality of the relevant statutes. The Court reasoned the Legislature may exempt religious organizations from historic landmark ordinances to avoid potential free exercise clause violations. Plaintiffs filed a petition for writ of certiorari with the United States Supreme Court, which the Court subsequently denied.

On April 7, 2005, the Office of the Attorney General filed an amicus brief in Barnes-Wallace v. City of San Diego in the Ninth Circuit Court of Appeal. In this brief, he supports the plaintiffs' position that the City of San Diego's long-term leases of public parkland to the Boy Scouts violate the federal Establishment Clause and California's "no preference," "no aid" constitutional provisions which prohibit the government from endorsing or providing benefits to religion. The 25-year leases at issue authorize the Boy Scouts to operate two prime parcels of parkland for a nominal fee. The leases resulted from exclusive negotiations with the Boy Scouts. No other entity was invited to bid for the leases of the subject properties. The leases allow the Boy Scouts to use portions of the leased properties for scouting events even though the Boy Scouts exclude from its membership and activities boys who will not affirm a belief in God. The Attorney General's brief argues that the leases must be examined under the Establishment Clause and California's comparable provisions because the requirement that members affirm a belief in God constitutes a creed and a religious practice. Additionally, the brief argues that, because these federal and state constitutional provisions apply, the city is required, at a minimum, to engage in a good faith and open solicitation process that invites the general public to bid on the leases for these properties. The brief also argues that if an open solicitation process was not used by the city, the leases at issue are unconstitutional.

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