US supreme court declines to hear Berkeley Sea Scouts case

[evmori]

Ed, the BSA is being treated the SAME as all other non-profits. ALL organizations that get free berths have to meet Berkeley's non-discrimination requirements. You really CAN'T learn things.

 

Berkeley having a non-discrimination requirement is discriminating in itself!

 

Learning isn't the issue. Being fair across the board is. And the ACLU has no sense of fairness.

 

Ed Mori

Troop 1

1 Peter 4:10

[Merlyn_LeRoy]

Ed, the BSA is being treated the same as any other non-profit, and the city of Berkeley can apply broad-based nondiscrimination requirements on any organization that wants a free berth, as they are a limited public resource, so free berths are reserved for organizations that serve the general public, including atheist and gay citizens who pay taxes that support the marina.

[scoutldr]

Is too

Is not

Is too

Is not

Is too

 

You've both stated your positions multiple times, now give it a rest or take it to the PM side.

 

 

[Hunt]

Well, it's not strictly true that BSA is being treated the same as all other non-profits, because the city has imposed a restriction that some non-profits meet and others don't.

It seems to me that Merlyn's argument is really that the city has imposed a requirement on access to free berths that is reasonable and not constitutionally prohibited. The first point is debatable, and the Supreme Court has decided not to get into the second.

I assume that if a city provided free berths to all non-profits "as long as they recognize the lordship of Jesus Christ," Merlyn would not be persuaded by an argument that this requirement treated all non-profits the same. This requirement would pretty clearly be unconstitutional.

On the other hand, imagine if the city only gave free berths to non-profits that were headquartered in the city. Such a requirement certainly wouldn't treat all non-profits the same. It would probably be constitutional, though, and you could debate whether it was a good idea or not. Would it be "fair?" Well, it might not seem fair to you if your kid was in a non-profit that happened to be headquartered elsewhere.

Which of these two extremes is Berkeley's requirement most like? On the one hand, it is based on a general city policy on non-discrimination, which makes it seem more neutral. On the other hand, it penalizes groups that have a viewpoint-based membership policy. I don't think it's so clear legally, but I guess the Supremes have answered it for us for the time being.

[Merlyn_LeRoy]

Hunt, which nonprofits get free berths that don't meet Berkeley's requirements? Or is that not what you meant?

[CalicoPenn]

The hang up on this seems to be on the non profit part of the requirements and people just aren't getting beyond it. Is Berkeley treating any non-profits differently from others? I haven't seen any evidence that they are.

 

To get a free berth in Berkeley, more than one criterium needs to be met. The criteria we know about are:

 

1) Be a non-profit organization

AND

2) Adhere to the non-discrimination policy of the City of Berkeley.

 

It is not 1) OR 2). It is 1) AND 2).

 

The Sea Scouts can meet requirement #1. They don't meet requirement #2 - therefore, since they don't meet BOTH requirements, they don't qualify for free berths.

 

Now, if someone can show that a non-profit that has a free berth also does not meet requirement #2, then we have a case that all non-profits are not being treated equally. No one has shown any evidence of this, though.

 

Berkeley treats all non profits the same by requiring all non profits that gain a free berth to meet BOTH requirements. If Berkeley allowed the Sea Scouts the use of a free berth by looking the other way on Requirement #2 when they don't do so for other non profits, then they would not be treating all non profits the same.

 

SCOTUS likely didn't take this case up because they knew the Scouts did not have a case to go forward on. The Scouts couldn't prove that they were being discriminated against because they never showed that Berkeley made any kind of exception to the policy for any other non profit. The ordinance never named any organization by name, and as long as it is equally enforced among all non profits, then it is not discriminatory.

 

CalicoPenn

 

 

[Hunt]

This may be a matter of semantics, but if Berkeley is treating all non-profits equally, then BSA's membership process treats all boys equally. Both will admit anyone, as long as they meet the requirements.

In Berkeley, some non-profits meet the requirements, and some don't.

Some boys meet the membership requirements for BSA, and some don't.

All treated equally, right?

Again, this is semantics but the existence of a requirement that not all non-profits meet means that all non-profits are NOT treated equally.

What I'm trying to say is that trying to couch this in terms of equal treatment isn't the right approach. It's really about whether the anti-discrimination requirement is fair and proper or not.

[Michael DeMar]

Hunt wrote:

 

"This may be a matter of semantics, but if Berkeley is treating all non-profits equally, then BSA's membership process treats all boys equally. . . In Berkeley, some non-profits meet the requirements, and some don't. Some boys meet the membership requirements for BSA, and some don't. All treated equally, right?"

 

Wrong (in my opinion).

 

In the case of the boy who does not meet the Boy Scouts of America's membership criteria, they are completely denied access from being a member of the Boy Scouts of America. They can't gain access simply by paying a little extra to get around the discriminatory membership requirements of the BSA.

 

In the case of the Berkeley non-profit organization that does not meet the non-discriminatory criteria required under the City Ordinance, they are not denied access to the marina berths, they just have to pay extra for the privilege.

 

That's a big difference in my opinion, being completely denied access vs. just having to pay a little extra.

[scoutldr]

Not exactly true, Michael. They can still join LFL or Exploring. I know they are "separate subsidiaries" of the BSA, but IMHO, that's just smoke and mirrors so BSA can keep their numbers up. If the BSA is so adamant that gays and atheists are not worth associating with, then the policy should apply across the board. Can't have it both ways.

[Michael DeMar]

scoutldr,

 

I totally agree with your conclusion that you shouldn't be allowed to have it both ways. Very good point.

 

You are correct, of course, that LFL and Exploring are alternative options for children who do not meet the discriminatory membership requirements of Cub Scouts and Boy Scouts, but the fact remains that access to the "signature" Boy Scouts of America programs (Cub Scouts and Boy Scouts) is completely denied to those who do not meet the BSA's discriminatory membership requirements and there is no way around that. That is not the case with the City of Berkeley's Ordinance, which still allows access to groups that discriminate, they just have to pay for the privilege. I think that is a big difference in "treatment" and that is what I was responding to in Hunt's post.(This message has been edited by Michael DeMar)

[Hunt]

Again, it's semantics, but if you describe the "benefit" in a certain way, the situations are the same.

If the benefit in Berkeley is a free berth, you can't get the benefit without meeting the requirement.

If the benefit in BSA is membership, you can't get the benefit without meeting the requirement.

Again, my point is that it's not about equal treatment, it's about whether the requirement is a reasonable one. Your argument is really just that Berkeley's requirement isn't all that onerous because you can still get a berth by paying--and thus that the requirement is reasonable. Note that the more a berth costs, the weaker that argument gets.

[packsaddle]

Whatever. Anyway, now that the SCOTUS has passed on the hearing, this isn't going any further until someone finds another twist to this someplace else.

I have not failed to notice, however, the irony of a discriminatory organization complaining about being discriminated against. One more for that collection of delicious ironies...