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Published in Print: October 25, 2006, as Court Declines Appeal From Scouts on Denial of Benefit

Court Declines Appeal From Scouts on Denial of Benefit

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The U.S. Supreme Court declined last week to hear an appeal by a Boy Scouts of America affiliate that was denied the free use of a boat marina owned by the city of Berkeley, Calif., because of the Scouts’ policy barring gays and atheists.

The city disqualified the Berkeley Sea Scouts from rent-free use of berths for its boats because the group refused to disavow the BSA’s national policy prohibiting homosexuals and those who refuse to profess a belief in God from membership or leadership positions, according to court papers.

It was the latest skirmish between the Boy Scouts and local governments, including school districts, over whether the BSA can maintain its exclusionary policies and still receive favorable treatment in the rental of government facilities and the like. In 2000, the Supreme Court ruled that a state’s attempt under its nondiscrimination laws to force the Boy Scouts to accept a homosexual as a leader violated the organization’s First Amendment right of “expressive association.”

In the latest appeal to the high court, Eugene Evans, one of the Berkeley Sea Scouts’ adult advisers, said the city, by denying the Scouts a “generally available benefit” provided to other groups, was punishing and discriminating against the group based on its viewpoint. The group is for youths ages 14 to 20 and has adult advisers.

Since the 1930s, Berkeley had granted the Sea Scouts free use of marina berths. But in 1997, the City Council adopted a policy to let nonprofit community service groups use berths rent-free, and requiring that recipients not limit access to individuals based on their sexual orientation, among other factors.

The city disqualified the Berkeley Sea Scouts from free use of the berths in 1998, and members of the group sued the city in a state court in Oakland.

Berkeley Policy Upheld

In court papers, Mr. Evans said that he and the other participants disavowed wanting to exclude anyone on the basis of sexual orientation or religion. And, they said, the group had a “don’t ask, don’t tell” policy on members’ sexual orientation.

But the California Supreme Court upheld the city’s policy in a unanimous decision in March, ruling that the Sea Scouts’ disavowal of any desire to discriminate undermined their claim that the city was restricting the group’s expressive association.

The city urged the U.S. Supreme Court to stay out of the dispute, arguing that local governments should have wide latitude to tailor their publicly funded programs, including the freedom to decline to “fund discriminatory clubs at taxpayers’ expense.”

“The First Amendment does not guarantee a right to government funding of private speech,” the city said in its brief to the high court. The city also argued that the waiver of a charge for rent was not a “generally available benefit.” The Berkeley Sea Scouts, it said, was the only one of several service groups that failed to provide written assurances of nondiscrimination.

The justices declined without comment on Oct. 16 to hear the appeal in Evans v. City of Berkeley (Case No. 06-40).

Harold Johnson, a lawyer with the Pacific Legal Foundation representing Mr. Evans, said in a statement that he believed that “eventually, the court will take a case addressing the underlying issues, because there are too many examples of government discrimination against Scouting and other belief-based organizations to ignore.”

Vol. 26, Issue 09, Page 33

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