Berkeley’s decision to cut off subsidies to the Sea Scouts because they refused to guarantee they wouldn’t discriminate against gays and atheists was perfectly legal, a unanimous California Supreme Court ruled Thursday.
In the opinion written by Associate Justice Kathryn Mickle Werdegar, the seven justices said that the city council’s May 5, 1998 vote to stop subsidizing free berths at the Berkeley Marina did not interfere with the Sea Scouts members’ constitutional rights of association, free speech and equal protection.
“I’m soaring,” said Berkeley City Attorney Manuela Albuquerque, who argued the case before the court on Jan. 10. Her opposing counsel was Jonathan D. Gordon of Pleasant Hill.
A reporter was unable to reach Gordon by the Daily Planet’s deadline
“It’s a wonderful opinion,” Albuquerque said. “It’s a really important civil rights case.”
While the Sea Scouts have 90 days to file for a hearing before the U.S. Supreme Court, Albuquerque said she doubts the high court would take the case because the California court relied in key points on that court’s precedents.
Asked if the increasingly conservative nature of the court might lead the justices to take the case, Albuquerque said the key cases cited by the state justices were relatively recent decisions written by conservative justices, including the late Chief Justice William Rehnquist.
The state Supreme Court also held that reported comments that Councilmembers Kriss Worthington and Diane Woolley intended to punish the scouts for the Boy Scouts of America’s (BSA) discriminatory policies against gays and unbelievers were irrelevant because the scouts refused to guarantee that they wouldn’t discriminate in the future.
“[A]llegations suggesting merely that individual council members voted for the action because of their personal hostility to BSA’s views do not state a claim for a constitutional violation” because they don’t alter “the undisputed grounds upon which the council, as a body, acted.”
Reached Thursday, Worthington said he was delighted with the ruling.
“I hadn’t sought a fight with the Boy Scouts,” he said. “It would have been so much healthier if they had spent their money on the kids instead of fighting for the right to discriminate.”
The ruling marks the city’s third victory in the case. The council action was upheld at trial in Alameda County Superior Court In November 2002, and again a year later by the state Court of Appeal.
The city had been providing free berths to the Sea Scouts starting in the late 1930s.
The issue of discrimination was raised after other nonprofit organizations requested free berths in 1997, and the city manager’s office recommended adoption of a uniform policy which would guide the awarding of the scare slots.
The council adopted rules mandating that groups receiving the free spaces had to promote ethnic and cultural diversity and were barred from discriminating “on the basis of race, color, religion, ethnicity, national origin, age, sex, sexual orientation, marital status, political affiliation, disability or medical condition.”
When the Sea Scout berths came up for review a year later, on April 9, 1998, the organization refused to state that they would end discrimination on the basis of sexual orientation because “we believe sexual orientation is a private matter, and we do not ask either adults or youths to divulge this information at any time.”
While the Waterfront Commission recommended continuing the subsidized slots, the city attorney’s office concluded their promise on sexual orientation wasn’t enough to comply with the city’s ordinance.
But the courts consistently ruled that the city had the right to demand compliance in exchange for receiving what was effectively a taxpayer subsidy.
The Boy Scouts of America, the national organization of which Sea Scouts is a part, has consistently refused to abandon its policies that bar homosexuals and atheists from membership, a fact that the court noted.
Albuquerque said she was delighted that the court consistently rejected the notion that the city ordinance was a violation of the civil rights of the scouts.
“The city is not trying to regulate private clubs,” she said. “It is only saying that they don’t get to discriminate on the taxpayer’s dime.”
One of the ironies of the case was that there were no allegations that the Sea Scouts had actually discriminated against any gays or atheists.
But the salient point from a legal perspective was the group’s inability to promise that they wouldn’t do so if directly ordered to by the national organization.
Albuquerque said the decision had additional significance because it is the first time the court has specifically upheld the imposition of the specific non-discriminatory conditions in publicly funded programs.
“They are many similar conditions on state and local programs up and down the state. I expect the decision will be cited throughout the country,” she said. ›