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Court of Appeal rules that Berkeley Sea Scouts can be denied a city-funded rent subsidy at the Berkeley Marina as long as its national organization insists on discriminating against gays

Court of Appeal rules against Berkeley Sea Scouts

Bob Egelko, Chronicle Staff Writer
Tuesday, November 26, 2002

A local scouting group can be denied a city-funded rent subsidy at the Berkeley Marina as long as its national organization insists on discriminating against gays, a state appellate court ruled Monday.

The ruling Monday by the three-judge Court of Appeal panel in San Francisco was a defeat for a local Sea Scouts chapter and showed that local governments have some leeway to enforce equal-treatment policies for gays and lesbians against private organizations even if they can't prohibit those organizations from discriminating.

The local Sea Scout group, like some other nonprofit organizations, had been using space at the Berkeley Marina for decades. In 1998, the city adopted a policy putting an end to subsidizing groups that discriminated on various grounds, including sexual orientation, and imposed a dock fee on the scouts. The fee now amounts to $516 a month.

The chapter's leaders and some individual members sued the city in 1999, saying the fee was an unconstitutional punishment for free speech and association. The local chapter says it doesn't ask members about their sexual orientation but can't renounce the Sea Scouts' national policy without losing its Boy Scout charter, which it uses to get a break in insurance rates. The Boy Scouts refuse to admit gays, a policy upheld by the U.S. Supreme Court in 2000.

By requiring the Sea Scouts to pay for docking space they previously used for free, Berkeley "has not attempted to muzzle anyone's speech," the panel said Monday. "It has simply prevented them from collecting a subsidy, unless they agree not to discriminate."

At the same time, the appellate panel said the scouts were free to express their views and maintain their policies without a city subsidy.

The court cited the case of Bob Jones University in South Carolina, which was stripped of its federal tax-exempt status because it banned dating between students of different races. The school, which said its policy was based on its religious principles, lost a U.S. Supreme Court appeal in 1983.

A lawyer who backed the Sea Scouts rejected the comparison.

"Gender and race aren't in play here, issues the federal government has very strongly spoken out on," said Harold Johnson of the Pacific Legal Foundation. He said the Berkeley fee penalized the scouts for exercising their rights and took away money that otherwise would go to youth scholarships.

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