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The U.S. Supreme Court’s refusal on Monday to review a ruling that allows the City of Berkeley to deny the Sea Scouts a free dock at the Marina because of its discrimination against gays and atheists could spell the end for the 74-year-old sailing group. 

“The city is choosing to punish us for something that is no fault of ours. The power to tax is the power to destroy,” said Gene Evans, skipper of the Sea Scout Boat at the Berkeley Marina.  

The city however denies that it is punishing anyone. 

“If the city is going to fund a community program for the public, then we have a right to require that the program does not discriminate against anyone,” said Berkeley City Attorney Manuela Albuquerque. “The Sea Scouts are part of an organization which requires that you exclude gays and atheists. They were not able to demonstrate that they did not discriminate against these two groups and were therefore denied free access to the berths.” 

The Sea Scouts are bound to the policies of their parent body, the Boy Scouts of America, which mandates that gays and atheists be excluded from the organization. 

“We are so far down the chain,” Evans said. “We don’t even have the hope of ever having any effect on the Boy Scouts’ policies. The Boy Scouts of America is a huge non-profit corporation and the board of directors make all the decisions. We have absolutely no control over it.” 

Although the city had allowed the Sea Scouts free birth space since the 1930s, its subsidy was revoked after the city adopted a nondiscrimination policy on the use of the marina in 1997.  

Monday’s ruling on the case, titled Evans v. City of Berkeley, allows Berkeley to treat the Sea Scouts differently from other non-profits because of their ban on atheists and gays. 

“It’s just not fair that the Sea Scouts are being excluded from the use of a public program because of ideological reasons,” said Pacific Legal Foundation attorney Harold Johnson, who is co-counsel to the case. “According to the First Amendment and equal protection law the government cannot prohibit them from participating in public programs on equal basis with other non-profits. The Berkeley Sea Scouts have never been accused of excluding anyone from their group. Their only crime is that they are associated with the Boy Scouts and refuse to disavow their policies. They are the ones being discriminated against.” 

Albuquerque defended the city’s decision to deny funds to the group. 

“The first Amendment does not require us to fund groups which practice discriminatory policies, be it racial, religious or sexual,” she said. “If the Sea Scouts can demonstrate to us in writing that they will not discriminate then the city is ready to fund them. But they are not able to do so.” 

Evans said it was sad that the city would treat the Sea Scouts this way since it had helped put the Berkeley Marina together in the first place.  

“Way back in 1936, during the Great Depression, Berkeley was going through a terrible economic growth,” Evans said. “The Berkeley City Council decided to use funds from the National Recovery Organization to build a Marina that would give local citizens some work. They had funds to pay the workers but no funds to buy rock. The city negotiated with the Boy Scouts and agreed to give them six berths in exchange of 80,000 tons of rock to build the Marina. The Boy Scouts never changed their policy even though Berkeley adopted a non-discrimination policy on the use of the marina. Somehow we got caught up in the controversy and since we are close to the Boy Scouts the city chose to punish us.”  

Ever since the city began charging the Sea Scouts for the berth at the Marina, Evans has been paying $500 a month. 

“The overall enrollment has been affected by the cost of the berth,” he said. “Earlier we had been able to afford outreach programs where we could support kids who weren’t able to pay the membership fees. But we cannot do that anymore. We hold no hard feelings against anybody and respect everybody’s ideas. However, this has been an effort by a small group of boys to try to provide a service to the city and we have had tremendous opposition through no fault of our own.”