Berkeley accused of infringing scouts' speech

[fgoodwin]

Berkeley accused of infringing scouts' speech

 

http://www.mercurynews.com/mld/mercurynews/news/breaking_news/13586920.htm

http://tinyurl.com/avnor

 

DAVID KRAVETS

Associated Press

 

SAN FRANCISCO - The city of Berkeley, which was celebrated in the 1960s as the home of the Free Speech Movement, now finds itself accused of violating the First Amendment rights of a group of young sailors connected to the Boy Scouts of America.

 

Citing a violation of its nondiscrimination policy, the City Council revoked the free berthing the Berkeley Sea Scouts received for six decades. The city targeted the group because the Boy Scouts bar atheist and gay members.

 

The council's actions were to be tested Tuesday during oral arguments before the California Supreme Court in a case that challenges the legality of removing or withholding public subsidies from groups whose ideals run counter to the government's. Both sides maintain legal precedent is on their side.

 

City officials told the Sea Scouts in 1998 that the group could retain its berthing subsidy, valued at about $500 monthly, if it either broke from the Boy Scouts or disavowed the policy against gays and atheists.

 

The Sea Scouts contend the group was unfairly singled out because the city did not make the same demands on the two other nonprofits receiving the subsidized berthing privileges at the city-owned Berkeley Marina, the Cal Sailing Club and the Berkeley Yacht Club.

 

The Sea Scouts, which teaches sailing, carpentry and plumbing, never disavowed the membership policy and said it wouldn't break from the Boy Scouts. Instead, it adopted a "don't ask, don't tell" policy, promising not to ask members or leaders whether they were gay or believed in God.

 

The city withheld the subsidy and was sued by the Sea Scouts, which alleged its free speech and freedom of association rights had been violated.

 

Lower courts ruled against the group, which has about 40 members and had as many as 100 before the subsidy was removed. The 1st District Court of Appeal in San Francisco said Berkeley could use public subsidies to further a public agenda.

 

Backed by the Pacific Legal Foundation, the Sea Scouts asked California's justices to intervene, citing a 2000 U.S. Supreme Court ruling that upheld the Boy Scouts' membership policy.

 

"Our basic argument is the city is punishing these kids for exercising their constitutional right to associate with the Boy Scouts," foundation attorney Harold Johnson said. "If they're gonna charge you for exercising your constitutional rights, is that punishment? Yes."

 

The Sea Scouts docks one boat at the Berkeley Marina, where the group now pays a $500 monthly fee. The group removed two others because it could not afford the rent, Johnson said.

 

Berkeley contends the young sailors were not unlawfully punished. The city pointed out that the U.S. Supreme Court in 1984 said the Department of Education could withhold funding to schools that discriminate on the basis of gender, and ruled the year before that Bob Jones University could be stripped of its "charitable" tax status because of its admission policy barring black students.

 

"The city sought to ensure that the services subsidized by Berkeley taxpayers would be available to all Berkeley citizens free of invidious discrimination," City Attorney Manuela Albuquerque said.

 

Johnson said the Berkeley Sea Scouts does not discriminate, despite its affiliation with the Boy Scouts.

 

"Berkeley has disregarded the constitutional principle that government cannot retaliate against citizens for associating with an organization simply because government does not like that organization," Johnson said.

 

Johnson noted that in 1967 the California Supreme Court overturned a Los Angeles County ordinance that required potential municipal employees to take an oath repudiating groups that advocated overthrowing the state and federal governments.

 

The U.S. Supreme Court in 1972 also said it could not prohibit a local chapter of the Students for Democratic Society from using a Connecticut college's campus facilities because it was affiliated with what the university deemed a national group "likely to cause violent acts of disruption," according to Johnson.

 

The Sea Scouts case has attracted widespread attention from groups on both sides. The American Civil Rights Union, the Church of the Jesus Christ of Latter-day Saints, The California Catholic Conference, other religious groups and the Boy Scouts of America are backing the Sea Scouts.

 

The American Civil Liberties Union, California Attorney General Bill Lockyer, the city of San Francisco and the Anti-Defamation League sided with Berkeley.

 

The case is Evans v. Berkeley, S112621.

[Kahuna]

Berkeley, like most liberal enclaves, supports free speech as long as it agrees with their thinking.

[captainron14]

The "Peoples Republic of Berkley" has always been strong supporter of the Constitution. Just as long as it agrees with it's liberal ways.

 

It seems not so long ago that they refused to meet with a contingent of Scouts from Japan, representing Berkley's Sister City, because of BSA's stand on Gay membership. How nice is that?

 

[Merlyn_LeRoy]

The BSA's argument is completely meritless, as the lower courts have already found. Berkeley simply has standards for organizations that want free berths from the government (which includes nondiscrimination requirements), and the BSA doesn't meet them. Berkeley isn't preventing the BSA from exercising their free speech at all. The BSA is being treated exactly the same as any other nonprofit organization that doesn't meet Berkeley's standards for a free berth - they can rent berths at normal rates like the general public.

[evmori]

How can the BSA's argument be completely merit-less if SCOTUS ruled the BSA can set it's own membership standards & now is be punished because of those standards?

 

Ed Mori

Troop 1

1 Peter 4:10

[GernBlansten]

If BSA barred blacks from membership, Berkeley would be applauded for denying them free dock-age. Of course BSA can set its own membership standards, but they have to live with the consequences. No free speech infringement here. Nothing to see. Keep moving.

[DanKroh]

Exactly, Ed. The SCOTUS ruled that the BSA has the right to set it's own membership standards. They did NOT rule that other organizations have to ignore THEIR OWN standards to accomodate the BSA.

 

To quote you from another thread, "You don't have the right to not be offended." Why should Berkeley change their standards to accomodate a minority (the BSA)? As you are often touting, minorities should not expect accomodations from the majority, and should not be offended when the don't get them.

 

I'm not saying that what Berkeley did was "right" or that I support their decision; I have mixed feelings about all these types of cases. But what they did was legal and constitutional. The burden is on the BSA to either accept the legal consequences of their membership policies, or change those membership policies.

[Prairie_Scouter]

I'm sorry, but I don't see a 1st Amendment problem here. It doesn't look to me like Berkeley came up with their rules specifically to target the BSA. They created a set of rules for access to free boat berths, and BSA doesn't qualify. That's all there is to it. BSA isn't being "punished", or being prevented from pursuing their policies. They just can't do it for free when it comes to using the Berkeley public facilities. They're just being required to pay the going rate; it's not like Berkeley said the BSA units have to pay more than anyone else. This sounds like another case where BSA proclaims their right to make up their own rules, but expects everyone else to change theirs to meet what BSA wants to do. You can't have it both ways. If BSA wants to have a certain set of rules, that's fine, but they have to be prepared to live with the consequences. They can't make up their rules and then whine when those consequences come about.

[packsaddle]

Berkeley did the right thing.

BSA still has their right to discriminate and BSA still has equal access. What BSA can't have is privileged access...its cake and the ability to eat it too. BSA knew there would be consequences and this is one of them. Tough luck. Get on with business.

 

[evmori]

Does Berkley give free berthing to other groups that discriminate? If so, they are targeting the BSA. And what made them decide to change after 60 years?

 

Ed Mori

Troop 1

1 Peter 4:10

[Merlyn_LeRoy]

The free berth requirements apply to all organizations:

 

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/01/11/BAGFIGLHQI1.DTL

...

That arrangement continued until 1997, when several other groups sought free berths at the marina. In response to those requests, city officials said, the city passed a resolution outlining criteria for winning a free berth.

 

Groups must now provide an important service that outweighs the berthing subsidy, offer regular activities, comply with the city's nondiscrimination policy and show that the organization's presence and activities are of great importance. They also cannot duplicate existing commercial services.

 

Those criteria are fair for the city to use in deciding who benefits from taxpayer money, Albuquerque said.

 

"If a government doesn't have the discretion here, it might as well start doling out budget money on a first-come, first-served basis," she said.

 

Three groups complied with all the requirements -- the Nautilus Institute, the Cal Sailing Club and the Berkeley Yacht Club.

...

[ohadam]

The First Amendment right at issue here is freedom of assembly, not freedom of speech. The Sea Scouts argue Berkeley is infringing on their right to associate with the BSA. But that raises the question: How do the Sea Scouts, as a program within BSA, have legal capacity to sue anyone or standing to sue over a subsidy granted in the past to the BSA? And even if they do have standing and capacity, how can depriving the BSA of a berthing subsidy (the subsidy was granted to the BSA, not the Sea Scouts) infringe on the Sea Scouts' right to associate with the BSA?

[scoutldr]

Scout units are not legal entities. The only ones with standing would be the Chartered Organization who operates the unit under charter from the BSA, the Council, or National. On it's face, I agree, it looks like the correct decision was made, as long as other organizations who discriminate are treated the same. There is no first amendment issue. Scouts can say whatever they want...they just can't have free space at the marina.