Justices OK Berkeley's move against Boy Scouts group

[fgoodwin]

Justices OK Berkeley's move against Boy Scouts group

 

http://www.mercurynews.com/mld/mercurynews/news/breaking_news/14058431.htm

http://tinyurl.com/py2sg

 

Posted on Thu, Mar. 09, 2006

 

DAVID KRAVETS

Associated Press

 

SAN FRANCISCO - The California Supreme Court ruled Thursday that Berkeley did not violate the rights of youth sailors connected to the Boy Scouts of America when it demanded marina fees because the group violates a city anti-discrimination policy.

 

The city revoked free berthing privileges for the Berkeley Sea Scouts because the Boy Scouts bar atheist and gay members, which violates the city's 1997 policy to provide free berthing to nonprofits that don't discriminate.

 

The free speech case challenged the legality of removing or withholding public subsidies from groups whose ideals run counter to the government.

 

The justices ruled Berkeley, celebrated in the 1960s as the home of the Free Speech Movement, could demand that a group receiving subsidies renounce a policy of "invidious discrimination."

 

"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," Justice Kathryn Mickle Werdegar wrote for the court.

 

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

 

The Sea Scouts, which teaches sailing, carpentry and plumbing, refused to do so and maintained that such an edict was unconstitutional because it compelled speech it did not agree with.

 

The Sea Scouts, which received free berthing for seven decades, also contended the group was unfairly singled out because Cal Sailing Club and Berkeley Yacht Club still receive privileges at the city-owned Berkeley Marina.

 

The Sea Scouts alleged its free speech and freedom of association rights had been violated in light of a 2000 decision by the U.S. Supreme Court that said the scouts' membership policies were legal.

 

Lower courts ruled against the Sea Scouts, which has about 40 members and had as many as 100 before the subsidy was removed. A San Francisco appeals court said Berkeley could use subsidies to further a public agenda.

 

The Sea Scouts berth 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.

 

The city argued that 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 Berkeley Sea Scouts argued that the California Supreme Court in 1967 overturned a Los Angeles County ordinance that required prospective municipal employees to take an oath repudiating groups that advocated overthrowing the state and federal governments.

 

The group also argued that the U.S. Supreme Court in 1972 ruled that a local chapter of the Students for Democratic Society could not be barred 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."

 

The case is Evans v. Berkeley, S112621.

__

 

Editors: David Kravets has been covering state and federal courts for more than a decade

[Merlyn_LeRoy]

Here's the text of the decision:

 

PDF: http://www.courtinfo.ca.gov/opinions/documents/S112621.PDF

Word: http://www.courtinfo.ca.gov/opinions/documents/S112621.DOC

[John-in-KC]

A State Supreme Court is not necessarily the end of the story.

 

If there is a significant Constitutional issue, the US Supreme Court will hear an appeal from a State level "court of last resort" by granting certiorari. If there is not one, then it's pony up the bucks time.

 

The decisionmakers will be the folks at the local Council and the folks in Irving. Give this a few months and we will see which way the chips fall, one side or the other.

[Cubmaster Mike]

I live 20 miles from. It's times like this that embarass me and make me wish it was 200 miles.

 

On the other hand, sometimes I wish I lived in Berserkly so I could run for City Coucil and straighten up that mess!

 

CMM

[scoutingagain]

"The free speech case challenged the legality of removing or withholding public subsidies from groups whose ideals run counter to the government."

 

I assume the City of Berkely and it's citizens then support the recent decision of the Federal Government to withhold funding to schools that do not allow military recruiters on campus. Conversly I suppose the Boy Scouts would support those schools that want to deny access to military recruiters, yet still recieve federal funds.

 

Ain't it a shame when the laws have to apply to everyone equally. Perhaps some should be more equal than others.

 

SA

 

[acco40]

The city of Berkely (San Francisco) has a law that states that nonprofits which follow a nondiscrimination law don't have to pay for berths. The BSA, as a private organization has every right not to follow the non-discrimination law. Ergo, they pay for berths. I don't understand the controversy.

[Oak Tree]

I'm a little bit uncomfortable with the idea of the government using its money to compel speech.

 

Consider a more extreme version of this. What if the federal government said that you could get a 50% discount on your income taxes by signing some statement? (pick your own controversial statement). I'd think the Supreme Court would not permit that on the grounds that it violates freedom of speech. Technically you still have the freedom, you just have to pay a lot if you exercise it.

 

For the case of the U.S. Military v. the law schools, I'd say the comparison would be closer if the federal government threatened to without funding from any school that wouldn't sign a statement that they support the military's position. As it is, the government explicitly allows the schools to oppose the government's position, but still take the government's money. That's what the Scouts want to do - oppose the position (that all non-profits should accept atheists), but still get the benefit.

 

Oak Tree

[Prairie_Scouter]

I have to agree with acco40 on this one. Seems like a pretty cut and dry issue. The city says you can have a free berth if you comply with their non-discrimination rules. Otherwise, you just pay the going rate like everyone else. They didn't say the Scouts couldn't berth there. The city is not impinging on the BSA's rights in any way, shape, or form.

[Eamonn]

I have to agree with acco40.

Sure it would be nice if this was the U.S.E (United States of Eamonn) and Eamonn could cut the BSA a brake, but it's not.

With only 40 Sea Scouts paying $6,000 a year is going to be very hard.

Our Ship has been trying to secure cheap berthing and it's not easy. In part because very few people have ever heard anything about Sea Scouts.

Maybe if more people hear about the Berkeley Sea Scouts they will be more willing to support Sea Scouting?

Rightly or wrongly a lot of people who felt that the BSA was being victimized did start to take a more active role in supporting the BSA when some news items like this one became known.

Back when I was District Chairman a Lady I didn't know called me at home and talked on the phone for nearly an hour, telling me how much she she admired the BSA for standing firm.

She sent a donation in for the FOS and send me $50.00 to take the Scouts who were attending the 2001 Jambo out for ice cream.

I bought all the Scouts ice cream just before we toured the Pentagon. I told the person who had organized the tour (Sister-in-law of a Scouter in our Council) the story of our ice cream and before we left she gave me $30.00 to buy the Scouts a coke when we stopped on the way home at Breezewood.

So while some might see what is happening as BSA bashing , we were busy doing some lip-smacking.

Eamonn.

 

[Oak Tree]

If Berkeley was a private organization, they'd be free to give their money to anyone they wanted to, and I wouldn't complain. But because they are the government, they should not favor one group over another because of that group's exercising of its constitutional rights.

 

What if Berkeley decided that they would give free berths only to organizations that had entirely Democratic membership? Would that be a valid position for a government to take? You are free to be a Republican, but it will cost you $6000. Or maybe instead of berths, a state could do it for drivers' licenses. If you won't follow our policy that everyone would be better off being a Democrat, then we don't need to give you a free license. The going rate is $10,000 per year to help take care of our roads.

 

To modify Prairie Scouter's quote to match the scenario: "Seems like a pretty cut and dry issue. The state says you can have a free driver's license if you comply with their political registration rules. Otherwise, you just pay the going rate like everyone else. They didn't say you couldn't have a driver's license. The state is not impinging on your rights in any way, shape, or form."

 

But I do like Eamonn's take on it - make the most of the backlash.

 

Oak Tree

 

P.S. Trying to make my argument respectfully - hope I'm succeeding.

[Merlyn_LeRoy]

Oak Tree writes:

If Berkeley was a private organization, they'd be free to give their money to anyone they wanted to, and I wouldn't complain. But because they are the government, they should not favor one group over another because of that group's exercising of its constitutional rights

 

They aren't; every group that gets a free berth has to satisfy a number of neutral criteria, including a number of nondiscrimination requirements. The organizations that get free berths have to offer something to the general public in return - and they can't just offer that to white members of the public, or non-Jewish members of the public, or straight members of the public, or theistic members of the public.

 

If you read the court opinion, it certainly looks like the Sea Scouts tried to deceive Berkeley into believing that the Sea Scouts fit the nondiscrimination requirements, even though they knew they didn't.

[scoutingagain]

"If Berkeley was a private organization, they'd be free to give their money to anyone they wanted to, and I wouldn't complain."

 

Absolutely correct. The best potential source for discounted berthing for BSA ships would be at a private marina that would be willing to give the scouts a break.

 

Because they are the government, it is perfectly understandable to me that the government would required those non-profits using public facilities allow access to all citizens. The BSA does not do that. The BSA's only case is if the city is allowing other non-profits that dicriminate access to the facilities and then they are only likely to succeed in getting another non-profits access denied.

 

SA

 

 

 

 

[acco40]

"I'm a little bit uncomfortable with the idea of the government using its money to compel speech."

 

Whoa. Where have you been living for the past 50 years? I don't know why you feel this is a "speech" issue but the federal government has been using the almighty dollar as a "stick" for many years in the form of federal highway funds (must have seat belt laws), air quality standards, etc. States are not legally compelled to do something (i.e. it is not illegal) but the federal government reserves the right to withhold funding if states don't comply with certain issues. Is it fair? Well, in our country I think what is considered a "right" and what is considered a "privilege" has become blurred for many myopic individuals over the past few decades.

[Oak Tree]

Acco40,

 

I'm actually not in favor of the federal government forcing the states to do things that way, either. It would seem to me that they aren't allowed to make the federal law because of the Constitution's giving of that power to the states, so they shouldn't be allowed to do an end run around the Constitution either and effectively make laws that they aren't allowed to make.

 

But that's a bit of a separate issue - it's an intergovernmental squabble, as opposed to dealing with rights reserved to the people.

 

I read the decision, and I'm reminded why I didn't want to become a lawyer. They give a lot of consideration as to when the government can attach strings and what kinds of strings it can attach. In general, they seem loath to permit discrimination based on viewpoint, but they will permit discrimination based on membership policies. In doing so, they appear to be consistent with other decisions, so I believe this decision will probably be upheld on any further appeals. Berkeley is not interfering with freedom of speech, which the courts would likely protect, but it is interfering with freedom of association, which seems to get somewhat less weight.

 

Personally, I'm not a big fan of the government controlling so many things with the level of $$, but that's the way of the world today.

 

Merlyn, now that I've read the decision, I agree with you that the Sea Scouts raised a number of specious arguments.

 

So couldn't someone have just created a new organization - The Berkely Marina Ship - with a non-discrimination policy? That group could have the same expressed purpose as the Sea Scouts - teaching sailing, seamanship, engine repair, electrical repair, woodworking, and teamwork. Kids in Sea Scouts could be in both groups.

 

Oak Tree

[Lisabob]

Oak Tree, that would be a front and as such, it wouldn't solve the problem, unless of course the new organization also actually had its own membership, separate from the Ship (presumably of people who either wouldn't be allowed to join the BSA, or those who could join, but for political reasons choose not to). And in that case, one could reasonably question whether or not the Ship itself was a fake organization, if it did no activities but the ones your proposed new organization also did. I suppose this could become a big scandal for the BSA.

 

I'm not sure I like the Berkeley policy which sounds as if it might have been designed to single out BSA Ships (what other groups are likely to a) balk at signing a non-discrimination policy and b) have a ship in need of free berthing?) but I do agree that they're within their legal and constitutional right to enact such a policy. We'll see what the US Supreme Court has to say, if the case gets to that point. Similarly, I don't like certain BSA policies that have put this particular Ship in this position, but I do agree that the BSA has the right to have such policies.

 

Lisa'bob

7:55am Central, Sunday 3/12