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City and Scouts square off over gay rights

By David Scharfenberg Daily Planet Staff
Thursday November 21, 2002

 

Lawyers for the city of Berkeley and leaders of the Berkeley Sea Scouts will square off in a San Francisco courthouse today over gay rights and berths at the Berkeley Marina. 

The Sea Scouts organization, affiliated with the Boy Scouts of America, paid nothing to dock its boats at the Marina for more than 50 years, until the city began charging the group a fee in 1998 because it failed to disown the Boy Scouts’ anti-gay policies. 

Sea Scouts leaders filed suit against the city in 1999, alleging a violation of the group’s free speech rights. But the Alameda County Superior Court rejected the claim in June 2001 and turned down a similar, amended complaint five months later. 

Superior Court Judge James Richman ruled, at the time, that “public entities may condition public subsidies...upon the recipient’s compliance with state and local laws that prohibit discriminatory membership policies.” 

The plaintiffs have appealed Richman’s decision and both sides will make arguments today in the California Court of Appeal in San Francisco. 

Harold Johnson, a lawyer with the conservative Pacific Legal Foundation arguing on behalf of the Sea Scouts, said the group submitted a letter to the city in 1998 stating that it would abide by Berkeley’s non-discrimination policy. 

Deputy City Attorney Laura McKinney called the argument “extremely disingenuous.” She said the Sea Scouts’ April 8, 1998 letter stated that the group would not discriminate on the basis of factors like race and gender, but excluded sexual orientation – a category included in the Berkeley anti-discrimination ordinance. 

The letter also stated that the Sea Scouts never inquire about members’ sexual orientation.  

 

But McKinney said a “don’t ask, don’t tell” policy is in violation of the city ordinance. 

Johnson also said the city wanted the Sea Scouts to lobby the Boy Scouts to change its anti-gay policies, in effect compelling a specific kind of speech. 

Johnson said Berkeley cannot require the group to be “proselytizers and crusaders for a certain city-appointed message.” 

McKinney dismissed the charge. She said the Waterfront Commission, an advisory group to the City Council, recommended that the Sea Scouts keep the free berths and suggested that the group engage in a dialogue with the Boy Scouts about their anti-gay policies. 

She said the recommendations of the Waterfront Commission do not amount to the actions of the city government – which rejected the call for free berths – and suggested that requesting dialogue is not the same thing as compelling speech. 

McKinney said nothing is a sure bet in the courts, but expressed confidence in a victory. 

“I do feel our case is very strong,” she said. 

McKinney expects a decision from the appellate court within 60 days. 

The Sea Scouts currently dock one boat in the Marina for $516 per month, according to the city. 

 

Contact reporter at scharfenberg@berkeleydailyplanet.net