The California
supreme court ruled Thursday that the city of 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 antidiscrimination 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 that 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 that it was unfairly singled out because the 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 BSA
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
group berths one boat at the Berkeley Marina, where
the organization 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 ruled in 1984 that the Department
of Education could withhold funding from 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." (AP)
