Arguments begin
in court case of group affiliated with Boy Scouts

The city of Berkeley, Calif., which was celebrated in the 1960s as the home of the Free Speech Movement, now finds itself accused of violating the First Amendment rights of a group of young sailors connected to the Boy Scouts of America. Citing a violation of its nondiscrimination policy, the Berkeley city council revoked the free berthing that the Berkeley Sea Scouts has received for six decades. The city targeted the group because the Boy Scouts bar atheist and gay members. The council's actions will be tested Tuesday during oral arguments before the California supreme court in a case that challenges the legality of removing or withholding public subsidies from groups whose ideals run counter to the government's. Both sides maintain legal precedent is on their side. City officials told the Sea Scouts in 1998 that the group could retain its berthing subsidy, valued at about $500 monthly, if it either broke with the Boy Scouts or disavowed the discriminatory policy against gays and atheists. The Sea Scouts contends that it was unfairly singled out because the city did not make the same demands on the two other nonprofits receiving subsidized berthing privileges at the city-owned Berkeley Marina, the Cal Sailing Club and the Berkeley Yacht Club. The Sea Scouts, which teaches sailing, carpentry, and plumbing, never disavowed the membership policy and said it wouldn't break with the Boy Scouts. Instead, it adopted a "don't ask, don't tell" policy, promising not to ask members or leaders whether they were gay or believed in God. The city withheld the subsidy and was sued by the Sea Scouts, which alleged its free speech and freedom of association rights had been violated. Lower courts ruled against the group, which has about 40 members and had as many as 100 before the subsidy was removed. The first district court of appeal in San Francisco said Berkeley could use public subsidies to further a public agenda. Backed by the Pacific Legal Foundation, the Sea Scouts asked California's justices to intervene, citing a 2000 U.S. Supreme Court ruling that upheld the Boy Scouts' membership policy. "Our basic argument is the city is punishing these kids for exercising their constitutional right to associate with the Boy Scouts," foundation attorney Harold Johnson said. "If they're going to charge you for exercising your constitutional rights, is that punishment? Yes." The Sea Scouts docks 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, Johnson said. Berkeley contends the young sailors were not unlawfully punished. The city pointed out that the 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 in 1983 that Bob Jones University could be stripped of its "charitable" tax status because of its admission policy barring black students. "The city sought to ensure that the services subsidized by Berkeley taxpayers would be available to all Berkeley citizens free of invidious discrimination," city attorney Manuela Albuquerque said. Johnson said the Berkeley Sea Scouts does not discriminate, despite its affiliation with the Boy Scouts. "Berkeley has disregarded the constitutional principle that government cannot retaliate against citizens for associating with an organization simply because government does not like that organization," Johnson said. Johnson noted that in 1967 the California supreme court overturned a Los Angeles County ordinance that required potential municipal employees to take an oath repudiating groups that advocated overthrowing the state and federal governments. The U.S. Supreme Court in 1972 also said it could not prohibit a local chapter of the Students for Democratic Society 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," according to Johnson. The Sea Scouts case has attracted widespread attention from groups on both sides. The American Civil Rights Union, the Church of the Jesus Christ of Latter-day Saints, the California Catholic Conference, other religious groups, and the Boy Scouts of America are backing the Sea Scouts. The American Civil Liberties Union, California attorney general Bill Lockyer, the city of San Francisco, and the Anti-Defamation League have sided with Berkeley. (AP)