Christian Science Reading Room Jointly Maintained, a California Non-Profit Religious Corporation, and David M. Sacks, Plaintiffs-Appellees, v. City and County of San Francisco, a Municipal Corporation; Airports Commission of the City and County of San Francisco; Morris Bernstein, J. Edward Fleishell, Ruth E. Kadish, Z.L. Goosby, and William K. Coblentz as Members of the Airports Commission of the City and County of San Francisco; and Louis A. Turpen, as Director of Airports of the City and County of San Francisco, Defendants-Appellants., 792 F.2d 124 (9th Cir. 1986)

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Richard E. Levine, Fenwick, Stone, Davis & West, Palo Alto, Cal., for plaintiffs-appellees.

Diane L. Herman, Dist. Co. Atty., San Francisco, Cal., for defendants-appellants.

Appeal from the United States District Court for the Northern District of California; Samuel Conti, United States District Judge, Presiding.

Before SKOPIL, REINHARDT, and HALL, Circuit Judges.

ORDER

The opinion in this case, filed March 14, 1986, 784 F.2d 1010, is amended as follows:

784 F.2d at 1013 (left-hand column); slip op. at 9: delete "We are not bound ... (1975)." and replace with:

In considering the Airport's policy "we may consider purposes advanced by counsel for the [government] or suggested initially by ourselves," as long as "we are careful not to attribute to the [government] purposes which it cannot reasonably be understood to have entertained." Delaware River Basin Commission v. Bucks County Water & Sewer Authority, 641 F.2d 1087, 1097 (3d Cir.1981).2

784 F.2d at 1013 (right-hand column); slip op. at 9: add "or the desires of the traveling public" after "We do not suggest that revenue considerations"784 F.2d at 1013 (right-hand column); slip op. at 9: delete "it is evident ... new policy." and replace with:

the Airport cannot reasonably be understood to have entertained the maximization of revenue or the desires of the public as purposes underlying its adoption of the new policy.

2 The Supreme Court cases on a court's ability to hypothesize purposes underlying a governmental policy are not altogether clear. In Weinberger v. Wisenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975), the Court stated that a court should not consider a hypothesized purpose if it is clear that "the asserted purpose could not have been a goal of the [policy]." Five years later, in United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980), the Court stated that it is "constitutionally irrelevant whether [a hypothesized purpose] in fact underlay the [governmental] decision because this Court has never insisted that a legislative body articulate its reasons for enacting a statute." In Fritz, however, there was no claim or evidence that the hypothesized purpose was not the actual purpose. Furthermore, six weeks after deciding Fritz, the Court reaffirmed Wisenfeld in Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 463 n.7, 101 S.Ct. 715, 723 n. 7, 66 L.Ed.2d 659 (1981), when it quoted the Wisenfeld language verbatim

The Third Circuit appears to be the only court that has attempted to harmonize the decisions. While we have used language like that used in Fritz in several cases, see, e.g., Bunyon v. Camacho, 770 F.2d 773 (9th Cir.1985); Hoffman v. United States, 767 F.2d 1431 (9th Cir.1985); In re Lara, 731 F.2d 1455 (9th Cir.1984); Brandwein v. California Board, 708 F.2d 1466 (9th Cir.1983); Lamb v. Scripps College, 627 F.2d 1015 (9th Cir.1980), we have never had to confront the problem posed in Wisenfeld and in the case before us. None of our prior decisions involved a case in which the record showed that the hypothesized purpose could not have been the actual purpose.

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