Calif. Supreme Court Upholds Scouts Ouster

by David Kravets, Associated Press
March 9, 2006 - 3:00 pm ET

(San Francisco, California) The California Supreme Court ruled Thursday that Berkeley did not violate the rights of youth sailors connected to the Boy Scouts of America when it demanded marina fees because the group violates a city anti-discrimination policy.

The city revoked free berthing privileges for the Berkeley Sea Scouts because the Boy Scouts bar atheist and gay members, which violates the city's 1997 policy to provide free berthing to nonprofits that don't discriminate.

The free speech case challenged the legality of removing or withholding public subsidies from groups whose ideals run counter to the government.

The justices ruled Berkeley, celebrated in the 1960s as the home of the Free Speech Movement, could demand that a group receiving subsidies renounce a policy of "invidious discrimination."

"We agree with Berkeley and the court of appeal that a government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy," Justice Kathryn Mickle Werdegar wrote for the court.

City officials told the Sea Scouts that the group could retain its berthing subsidy, valued at about $500 monthly per boat, if it broke ties with the Boy Scouts or disavowed the policy against gays and atheists.

The Sea Scouts, which teaches sailing, carpentry and plumbing, refused to do so and maintained that such an edict was unconstitutional because it compelled speech it did not agree with.

The Sea Scouts, which received free berthing for seven decades, also contended the group was unfairly singled out because Cal Sailing Club and Berkeley Yacht Club still receive privileges at the city-owned Berkeley Marina.

The Sea Scouts alleged its free speech and freedom of association rights had been violated in light of a 2000 decision by the U.S. Supreme Court that said the scouts' membership policies were legal.

Lower courts ruled against the Sea Scouts, which has about 40 members and had as many as 100 before the subsidy was removed. A San Francisco appeals court said Berkeley could use subsidies to further a public agenda.

The Sea Scouts berth one boat at the Berkeley Marina, where the group now pays a $500 monthly fee. The group removed two others because it could not afford the rent.

The city argued that U.S. Supreme Court in 1984 said the Department of Education could withhold funding to schools that discriminate on the basis of gender, and ruled the year before that Bob Jones University could be stripped of its "charitable" tax status because of its admission policy barring black students.

The Berkeley Sea Scouts argued that the California Supreme Court in 1967 overturned a Los Angeles County ordinance that required prospective municipal employees to take an oath repudiating groups that advocated overthrowing the state and federal governments.
The group also argued that the U.S. Supreme Court in 1972 ruled that a local chapter of the Students for Democratic Society could not be barred from using a Connecticut college's campus facilities because it was affiliated with what the university deemed a national group "likely to cause violent acts of disruption."