Metropolitan News-Enterprise


Wednesday, July 12, 2006


Page 1


Berkeley Sea Scouts Ask Nation’s Highest Court to Review California S.C. Ruling on Free Berthing


By a MetNews Staff Writer


Members of the Berkeley Sea Scouts yesterday asked the U.S. Supreme Court to overturn a California Supreme Court decision requiring the group to pay berthing fees at the Berkeley Marina.

“Berkeley is penalizing the Sea Scouts for exercising their First Amendment right of association in ways that city officials don’t like,” Harold Johnson of the Pacific Legal Foundation, co-counsel for the plaintiffs, said in a statement.

The state high court ruled unanimously on March 9 in Evans v. City of Berkeley, 38 Cal. 4th 1, that the city did not violate the First Amendment when it decided in 1998 city to halt free berthing for the nonprofit group because it adheres to the Boy Scouts of America’s membership and leadership policies against gays.

Other non-profits are eligible for free berthing, but the Sea Scouts have to pay $516 per month just like other users that are not nonprofit organizations.

The scouts sued the city, alleging breach of contract and violations of civil rights, equal protection rights, and of the First Amendment. They maintain that if Berkeley is going to provide free berthing to nonprofits, it cannot deny the same free access to nonprofits whose views run counter to those of the city.

The city stopped offering free access to the scouts after it passed a 1997 ordinance prohibiting the city from subsidizing groups that discriminate. The city had provided free berthing to the scouts for about 60 years after the scouts permitted Berkeley to use rocks from a Boy Scout camp for fill in the marina.

The scouts attempted to comply with the city’s nondiscrimination policy by providing a statement that read, in part:

“We actively recruit adult leaders and adolescents meeting the minimum age requirements without regard to sex, race, color, national origin, political affiliation, religious preference, marital status, physical handicap or medical condition. We believe that sexual orientation is a private matter, and we do not ask either adults or youths to divulge this information at any time.”

The city declared the statement inadequate and denied the group free berthing.

Justice Kathryn M. Werdegar, writing for the high court, said the city violated no law.

“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,” the justice wrote. “We further agree Berkeley reasonably concluded the Sea Scouts did not and could not provide satisfactory assurances because of their required adherence to BSA's discriminatory policies.”

Johnson took a different view of the issue:

“May government punish you, or fine you, or subject you to second class treatment if you don’t pass a politically correct litmus test?” Johnson asked in his statement. “That’s the question here--and it deserves to be heard by the United States Supreme Court.”


Copyright 2006, Metropolitan News Company