Sea Scouts Appeal Berkeley Case to Supreme Court

By Judith Scherr
Friday July 14, 2006

The Pacific Legal Foundation filed an appeal with the U.S. Supreme Court this week aimed at reversing the California Supreme Court’s unanimous March decision that upheld Berkeley’s refusal to subsidize the Sea Scout’s fees at the Berkeley Marina because of the group’s affiliation with the Boy Scouts of America (BSA), which denies membership to gays and atheists. 

The children are “victims of ideological grandstanding at City Hall,” said PLF attorney Harold Johnson, in a phone interview Wednesday. “Kids are the ones who are suffering.”  

Because the scouts lost the free berth, poor children whom the scouts once subsidized have had to leave scouting, he said. 

“The human angle gets missed,” Johnson said. 

Councilmember Kriss Worthington responded, “The issue is that local government shall not be forced to subsidize groups that have policies that discriminate.” 

The city attorney was not available for comment.  

At issue is Berkeley’s policy of providing marina berths at no cost to nonprofit organizations. The Sea Scouts used marina space without charge for almost seven decades. 

But in 1998, according to council minutes quoted in court documents, the City Council voted to disqualify the scouts, “due to [BSA’s] discriminatory policies against gays and atheists.” 

Like the appeal it lost to the California Supreme Court, the PLF appeal to the Supreme Court is based on the First and Fourteenth Amendments, which guarantee free speech and equal protection. 

In its appeal to the Supreme Court, PLF argues that the California courts disregarded a Supreme Court ruling that the First Amendment “right to freedom of association is a necessary correlate to the constitutionally protected freedom of speech.” 

The appeal also argues that Berkeley’s denial of subsidies was “intended to punish the Sea Scouts … solely because of their association with the BSA.” 

Worthington said he expects, if the case goes to the Supreme Court, the court will uphold the California Supreme Court ruling which said: “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.” 

Johnson said he believes the Supreme Court will hear the case because courts in other jurisdictions have come to different conclusions on similar issues. The court will likely decide mid-fall if it will hear the case, he said.