Exclusive City Policy Attacks Civil Rights

[fgoodwin]

Exclusive City Policy Attacks Civil Rights

 

http://dailycal.org/sharticle.php?id=20909

 

BY Harold Johnson

Monday, July 17, 2006

 

What if a city charged Democrats, but not Republicans, to swim at the municipal plunge? What if it let the National Rifle Association use public meeting rooms without cost, but made the ACLU pay for the privilege?

 

These hypothetical situations might sound strained, but are they so different from the double standard that the city of Berkeley practices at its marina? A city program allows nonprofit organizations free use of the Berkeley Marina. However, one group-the Berkeley Sea Scouts-is excluded. The disqualification is for ideological reasons: The Sea Scouts are affiliated with the Boy Scouts of America, and Berkeley officials have trouble with the Boy Scouts' traditional values. Specifically, Berkeley objects to scout membership rules that require commitment to God (in a generalized, nonsectarian way), and living morally "straight," which the scouts interpret as forswearing sex outside of marriage, including homosexual activity.

 

It happens that the Berkeley Sea Scouts have often been praised by city officials for offering a valuable program for kids from all economic backgrounds, and the city has never identified a single instance of exclusion by the group.

 

No matter. The Sea Scouts refuse to break the ties of sentiment, gratitude and tradition that bind them to the Boy Scouts of America, and for that offense they must pay: The city insists on treating them differently-less equally, you might say-than other nonprofits.

 

Because they don't pass Berkeley's ideological litmus test, the Sea Scouts are hit with a monthly charge of more than $500 to berth their ship, the Farallon-a fee not imposed on other nonprofits. Unfortunately, the California Supreme Court gave approval to this biased policy in a ruling this past March. The justices said Berkeley is within its rights to condition access to city programs in concurrence with city antidiscrimination rules.

 

The trouble with this decision-and the reason why an appeal was filed this month with the U.S. Supreme Court-is that it gives short shrift to core values of the First and Fourteenth Amendments. The Sea Scouts' choice to affiliate with the Boy Scouts of America is an exercise of speech and association rights. Berkeley's duty not to punish or discriminate against the Sea Scouts for utilizing their constitutional rights is imposed by the Equal Protection Clause.

 

Our state's Supremes failed to heed a famous pro-pluralism precedent by one of their celebrated predecessors, Chief Justice Roger Traynor. In the 1946 case of Danskin v. San Diego Unified School District, the court considered a rule that forced people to disavow any subversive or illegal organizations if they wanted to use a school auditorium. Traynor voided this regulation with memorable eloquence; once government offers a facility or benefit, he wrote," it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable." Traynor's California ruling laid groundwork for later U.S. Supreme Court decisions defending free thought, free speech and equal access.

 

As important as the legal issues in this case are, the human element is even more compelling. For more than half a century, the Sea Scouts have taught Bay Area kids sailing, carpentry and plumbing, and offered opportunities for friendship and fun. For most of those years, Berkeley recognized the scouts' community contribution by letting them berth free. Who has been hurt by the change in policy and the discriminatory fee that began eight years ago? More than anybody, the kids. Sea Scout funds have been diverted to pay the fee, so there's less money to help scouts who can't afford to participate. More than a few kids from low-income backgrounds have had to drop out. What a tragedy-especially considering that the Sea Scouts have been, arguably, the most multiracial group operating at the Marina.

 

Diversity, tolerance, pluralism. These aren't just vague ideals that might be nice to see practiced in the public square. For government bodies such as the city of Berkeley, they are constitutional obligations. Public officials can't subject people to second-class treatment because they vote "wrong," or think "wrong," or choose to associate on principles that Berkeley City Hall considers politically incorrect. Government can't demand loyalty oaths and can't enforce group-think. Or at least not if bedrock First Amendment principles still apply. So don't be surprised if the U.S. Supreme Court takes this case, gives Berkeley a brush up on the Constitution, and rights the wrong that has been done to the Sea Scouts.

 

Harold Johnson is an attorney with the Pacific Legal Foundation. Reply to opinion@dailycal.org

[Fuzzy Bear]

Could Ducks be considered to be Sea Scouts by association and if so, would they be charged a fee for swimming in and around the marina as well? This policy might reach much further than first thought. FB

[GernBlansten]

As a conservative with libertarian leanings, no government should support any civic group. They should either be self supported, or die on the vine. Let government worry about real issues like making sure the sewers drain properly.

[ohadam]

Johnson with his faulty logic isn't helping us.

[evmori]

It seems that if other non-profits are given free berthing, the BSA should be given the same! The ruling should go in the BSA's favor.

 

Ed Mori

Troop 1

1 Peter 4:10

[DanKroh]

Wow, it's not often you see that much spin in one place without a tornado warning being issued (outside of D.C. and Fox News, that is).(This message has been edited by DanKroh)

[scoutingagain]

"Berkeley's duty not to punish or discriminate against the Sea Scouts for utilizing their constitutional rights is imposed by the Equal Protection Clause. "

 

I wonder if Mr. Johnson is a fan of the Dixie Chicks?

 

I tend to agree with Gern. The government shouldn't be in the business of providing free berthing to anyone. If it's that important to area supporters of the Sea Scouts, or any other particular non-profit group, they should chip in to pay the going rate for the berth, or find a private marina operator to donate a berth.

 

I would also wonder why the government is in the marina business anyway.

 

SA

 

 

 

[CalicoPenn]

SA - I think many waterfront cities are in the marina business because they own most of the land on their waterfronts. Chicago, for instance, has no privately held land along the waterfront of Lake Michigan as far as I know so if there are going to be any marinas in the City of Chicago, they will be government run (the Chicago Park District has quite a few marinas on the lakefront, and on the rivers leading to the lakefront - the only "private" marina I know of in the city is at a yacht club, but that land is leased from the city and can be taken back pretty much at any time (lease be danged, this is Chicago, home of Da Mayor - Richard "Meig's Field X-er" Daley - and I support his reclamation of Meigs Field))

 

As for Berkeley, this article was the first one I've seen that states that Berkeley provides/provided free berthing to other organizations - I was fairly sure that only the Sea Scouts was getting free berths. I thought the argument was that other organizations received other in kind services from the city and therefor the Sea Scouts should still be able to get their free berthing priviledges. Does anyone else remember differently?

 

CalicoPenn

[Merlyn_LeRoy]

The CA supreme court decision is here:

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

 

The decision doesn't seem to list any organizations that get free berths, but some newspaper articles have listed the Cal Sailing Club, the Berkeley Yacht Club and the Nautilus Institute:

http://www.smdailyjournal.com/article_preview.php?type=lnews&id=61276

[GernBlansten]

I have sailed out of the Berzerkly Marina from the Berkley Yacht Club. I will tell you, the yacht club does not get free berthing. In fact, I think the yacht club is a separate private entity from the public Berkely Marina. As for the CAL Sailing Club, I believe it is a non-profit and promotes youth sailing programs, probably gets discounted berthing. But they do NOT discriminate on membership.

[SaintCad]

"The trouble with this decision-and the reason why an appeal was filed this month with the U.S. Supreme Court-is that it gives short shrift to core values of the First and Fourteenth Amendments. The Sea Scouts' choice to affiliate with the Boy Scouts of America is an exercise of speech and association rights. Berkeley's duty not to punish or discriminate against the Sea Scouts for utilizing their constitutional rights is imposed by the Equal Protection Clause."

 

I love how a supposed journalist can get this sooooooo wrong. The First Amendment freedom of association is not being violated in any way. Is Berkeley forcing Sea Scouts to accept homosexuals? No - thus there is no 1st Amendment violation. As for the Equal Protection Clause, this only applies to protected classes (sex, race, age, etc.) Clearly being/not being a non-profit group is not a protected class otherwise the groups charged for berthing at the Marina could sue for discrimination.

 

Clearly Johnson does not understand the legalities of the issue. As for the moral issues, I would propose to him (and Ed who supports equality of treatment of all non-profit groups) that if a non-profit group supported violent discrimination against Blacks (The KKK Youth Auxillary let's say), would they agree that that group should be allowed free berthing?

 

 

[Merlyn_LeRoy]

Clearly Johnson does not understand the legalities of the issue.

 

He's a lawyer from the Pacific Legal Foundation representing the Sea Scouts. I agree with your statement, however.

 

if a non-profit group supported violent discrimination against Blacks (The KKK Youth Auxillary let's say), would they agree that that group should be allowed free berthing?

 

They argued precisely that, when asked in court if their position would require Berkeley to give free berths to the KKK:

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/01/10/state/n132049S46.DTL

...

The case challenges the legality of removing or withholding public subsidies from groups whose ideals run counter to the government's. During an hour of oral arguments Tuesday, Justice Marvin Baxter asked who else could get free subsidies at the marina if the scouts were correct.

 

"What you're saying is the youth KKK group ... is under equal footing?" Baxter asked Sea Scouts attorney Jonathan Gordon while referring to the Ku Klux Klan.

 

"Yes. That's correct," Gordon responded.

...

[Merlyn_LeRoy]

GernBlansten writes:

I have sailed out of the Berzerkly Marina from the Berkley Yacht Club. I will tell you, the yacht club does not get free berthing.

 

I think they get free berths for this community program:

http://www.berkeleyyc.org/BYCservice.html

[ohadam]

Johnson understands the legalities. He also understands his position has no legs, so he spins it. Don't confuse spin with misunderstanding.

[evmori]

As for the moral issues, I would propose to him (and Ed who supports equality of treatment of all non-profit groups) that if a non-profit group supported violent discrimination against Blacks (The KKK Youth Auxillary let's say), would they agree that that group should be allowed free berthing?

 

While I wouldn't like the KKK getting free berthing, if they were a non-profit and other non-profits were receiving free berthing, then they should get free berthing.

 

Ed Mori

Troop 1

1 Peter 4:10