California court to review Scouts case

By Advocate.com Editors

Originally published on Advocate.com March 28 2003 12:00 AM ET

The California supreme court has said it will review the city of Berkeley's decision to discontinue free berthing at a public marina for a group affiliated with the Boy Scouts of America. The justices agreed during a private conference Wednesday to hear the Sea Scouts' challenge. The nonprofit group is fighting a 1998 city decision that made it ineligible for free docking because of its membership and leadership policies barring gays. Other nonprofits are permitted to berth at the Berkeley marina without charge.

After being forced to pay $516 per month for its boats, the Sea Scouts sued the city, but the lower courts ruled against the group. In its appeal, the group maintains that if Berkeley is going to provide free berthing to nonprofits, it cannot deny free access to nonprofits whose views run counter to those of city hall.

The Sea Scouts stopped receiving free marina access after Berkeley city council members passed a 1997 ordinance prohibiting the city from subsidizing groups that discriminate. The city had provided free berthing to the group for about six decades because the group let Berkeley use rocks from a Boy Scout camp for fill in the marina. Sea Scouts maintained that Berkeley's revocation of that privilege infringed on its free association rights and rights of free speech.

In dismissing that argument, an appeals court ruled that Berkeley's actions did not violate the group's rights because the group remained free to discriminate against gays. The U.S. Supreme Court has already ruled that the Boys Scouts of America and its affiliates can bar gays from joining scout troops and becoming scout leaders. "Berkeley's actions have not required appellants to stop discriminating," the appeals court said in the ruling the justices agreed to review.