State high court rules against scouting group vs. Berkeley

By Greg Moran
STAFF WRITER

March 10, 2006

The state Supreme Court ruled yesterday that the city of Berkeley did not violate a scouting group's rights when it withdrew a subsidy granting free access to a public marina because of the scouts' discriminatory membership rules.

The unanimous ruling is the latest in a series of such cases nationwide - including one in San Diego involving the Boy Scouts of America - challenging government support of scouting through leases and other subsidies.

The San Diego case, which is before a federal court, involves property the Boy Scouts lease from the city in Balboa Park and a second parcel used for an aquatics center on Fiesta Island.

A judge had ruled that the lease amounted to governmental assistance to religion, which is unconstitutional. The scouts appealed, and a ruling on the case is expected later this year.

The Boy Scouts bar membership to atheists and gays, a policy the U.S. Supreme Court upheld in 2002.

The cases around the country are trying to halt government involvement with a discriminatory organization. They argue that the scouts are free to discriminate in private but cannot do so when subsidized with public funds.

In yesterday's decision, the state high court upheld Berkeley's withdrawal of free berthing privileges at the marina for the Sea Scouts, which is affiliated with the Boy Scouts.

Although the Sea Scouts had long had such privileges, Berkeley said in 1998 that the subsidy would continue only if the group adhered to the city's nondiscrimination policy, which bans discrimination based on religion or sexual orientation.

The scouts said such a move violated their rights of association and free speech, and that it compelled the scouts to endorse a position they disagreed with.

Justice Kathryn M. Werdegar, who wrote the court opinion, dismissed that contention. “A government that requires aid recipients to conform their actions to its laws does not thereby enforce adherence to the philosophy or values behind those laws,” she wrote.

The scouts are free to continue to discriminate in private, in accordance with their First Amendment rights to free speech and association. But Werdegar, citing several U.S. Supreme Court cases, said governments can put conditions on granting a public benefit without violating free speech rights.

The Sea Scouts teach maritime skills to teenagers, and had free use of space at the marina from 1930 to 1998. Then Berkeley leaders said they would end subsidies to nonprofit groups that discriminate on the basis of race, sexual orientation, gender or religion.

The Sea Scouts tried to convince the city that it would not do so, saying they have a “don't ask, don't tell” approach to matters of sexual orientation. But when pressed, the group said it could not disavow the national scouting policy of banning gays and atheists.

Berkeley officials welcomed the state high court decision, but a lawyer for one of the teenage scouts said in a statement that the ruling “turns the First Amendment on its head.” Harold Johnson of the conservative Pacific Legal Foundation in Sacramento said the court “has given the green light to activist city officials to discriminate against groups they disagree with politically.”

The Boy Scouts' lease in San Diego was challenged by lawyers from the American Civil Liberties Union of San Diego & Imperial Counties, representing an atheist family and a lesbian couple.

San Diego federal court Judge Napoleon Jones ruled that the scouts were a religious organization and therefore the lease amounted to an unconstitutional government assistance to religion, different grounds than those at issue in the Berkeley case.

Lawyers involved in the San Diego case disagreed over what impact yesterday's decision would have on their case.

Federal courts are not bound by state court rulings. However, ALCU lawyer Jordan Budd said the Berkeley decision does impact the San Diego case.

“This decision is consistent with the arguments we've made since the beginning here in San Diego,” Budd said. “The Boy Scouts are entitled to discriminate, and they have a right to exclude from membership anyone they want to.

“But that does not entitle them to do that on the public dime. That's the key.”

Budd, noting that Werdegar's ruling drew on several U.S. Supreme Court cases, said the decision is the latest in a “long line of decisions reaffirming that principle.”

Bob Bork Jr., a spokesman for the Boy Scouts, disagreed.

“These are two different cases,” he said, noting that the San Diego case is in federal court and the Berkeley case is a state court decision.

Bork said the scouts were nonetheless “dismayed” by the ruling, which he said denies their right to free speech and association. He predicted it would have little impact on the cases involving the Balboa Park leases, and said the group is confident it will prevail.

The scouts have leased the Balboa Park property from the city since 1957. For most of that time, they paid $1 per year. But in 2002 - after the ACLU lawsuit was filed - the City Council approved a new lease that required the scouts to make $1.7 million in upgrades and pay the city $2,500 in administrative fees per year.

After the judge's ruling in 2003, the city and the ACLU reached a settlement that allows the scouts to use the properties until the court case is finally resolved.

Greg Moran: (619) 542-4586; greg.moran [at] uniontrib.com

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