Ironically, the BSA lost this case based on the same arguments the social-religious conservatives made in the Solomon
Amendment case: an organization which accepts funds from the government either has to accept the conditions imposed on that acceptance, or give the money up. In the Solomon case, law schools banned military recruiters from coming on their campus, because the of the military's discrimination against gays. Congress responded by passing a law that forced universities to allow military recruiters on campus, or forfeit any and all federal financial
Conservatives did not like the Free Speech justification the universities asserted and supported the Solomon Amendment. The US Supreme Court agreed with their argument. The same arguments the conservatives used in support of the Solomon Amendment are the exact same one used against the BSA's Free Speech and Freedom of Association arguments.
Of course, logic is not a virtue that is held in high esteem within the
conservative community, so while they have applaud the Solomon decision, they have been critical of the decision against the BSA. The BSA also failed to get what the courts were saying -- below is their press release.
In an ironic twist to this case, the Scout Leader who initiated the lawsuit against the city of Berkeley, Eugene Evans, was "arrested on felony charges that for at least five years he sexually abused young males in the troops he led." See below for complete news article.
Court: Berkeley May Demand Scouts Pay Marina Fees
From Associated Press
12:59 PM PST, March 9, 2006
SAN FRANCISCO -- The California Supreme Court ruled today 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, one of more than a dozen similar lawsuits against the Boy Scouts and their affiliates nationwide, challenged the legality of removing or withholding public subsidies from groups whose ideals run counter to the government.
The unanimous 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."
"What the California Supreme Court said was that private clubs can discriminate, but the taxpayers don't have to fund that discrimination," Berkeley City Attorney Manuela Albuquerque said.
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 decision comes after the U.S. Supreme Court ruled unanimously Monday that
the government can force colleges to open their campuses to military recruiters despite university objections to the Pentagon's "don't ask, don't tell" policy on gays.
The justices rejected a free speech challenge from law schools receiving federal funds that claimed they should not have to associate with military recruiters or promote their appearance on campus.
Today's legal action is among several cases in which federal, state and local
governments are distancing themselves from the Scouts and their affiliated groups because of discriminatory practices. Those actions follow a U.S. Supreme Court decision in 2000 that said the Boy Scouts have the right to ban openly homosexual scout leaders.
"This is another in a continuing legal backlash against the Boy Scouts for asserting and winning its constitutional rights in the United States Supreme Court," said scouting spokesman Bob Bork.
Connecticut, for example, adopted an anti-discrimination law that removed the Scouts from a group of charities state employees could donate to with paycheck deductions. The Scouts are also being sued over a city subsidized campground in San Diego.
And in 2004, the Pentagon agreed to warn military bases worldwide that they should not directly sponsor Boy Scout troops, to prevent an appearance that it was improperly supporting a group that requires members to believe in God.
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 policies regarding the Scouts' 2.6 million youth and 1.1 million adult members 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.
BSA Press Release (http://www.bsalegal.org/evansdec-247.htm)
California Supreme Court Ignores Constitutional Rights of Berkeley Sea Scouts
IRVING, TX, March 9, -- Boy Scouts of America is dismayed by the decision of the
California Supreme Court in the Berkeley Sea Scouts lawsuit against the City of Berkeley. The Court chose to ignore United States Supreme Court precedent and denied the Sea Scouts its First Amendment rights of free speech and association.
For 60 years, Berkeley permitted the Sea Scouts to berth their boat for free in the Berkeley Marina. The City even developed a policy allowing nonprofit organizations that provide community service to receive free berthing in the marina.
In 1998, however, Berkeley singled out the Sea Scouts from other nonprofit groups and raised their berthing fees because the Scouts adhere to Boy Scouts of America's constitutionally-protected membership policies.
The City of Berkeley made the Scouts choose between giving up their rights or paying berthing rates applicable to wealthy yacht owners. No other nonprofit was required to make that choice. That is discrimination against Scouting. The Sea
Scouts argued before the California Supreme Court that the City violated their First Amendment rights to freedom of speech and association, as well as their civil rights under state and federal law, by imposing fees not charged to other nonprofits to punish the Sea Scouts for Boy Scouts' speech.
Sea Scouts had argued it was being discriminated against by Berkeley by being refused the right to berth its boat at the city's marina at the same rates as other
Boy Scouts of America was not a party to the case but filed a friend of the court brief supporting the Sea Scouts.
Press release from the Pacific Legal Foundation
CA Supreme Court Okays Berkeley's Discrimination against Boy Scout Affiliate
Court Upholds Campaign to Force Popular Youth Group to Comply with
City of Berkeley's Liberal Politics
San Francisco, CA; March 9, 2006: The California Supreme Court today ruled against the Berkeley Sea Scouts in Evans v. Berkeley, and upheld the City of Berkeley's discriminatory campaign to force the local nonprofit youth group to end
its lifelong affiliation with the Boy Scouts of America.
"The California Supreme Court's decision today unfortunately has given the green light to activist city officials to discriminate against groups they disagree with politically," said Pacific Legal Foundation attorney Harold Johnson, co-counsel in the case. Johnson also represents Sea Scout Tonatiuh Alvarez, one of the plaintiffs and petitioners before the state Supreme Court.
"The decision turns the First Amendment on its head," said Johnson. "Berkeley can declare itself a nuclear free zone, but it can't declare itself a First Amendment free zone. This decision licenses Berkeley to treat people as second class citizens if they don't sign a loyalty oath to the ruling ideology of Berkeley City Hall."
"The bottom line is that Berkeley officials are punishing the kids that participate in
the Sea Scouts to make a political statement, and that's a real tragedy," Johnson said.
"This isn't the first time the California Supreme Court has failed to adequately protect First Amendment rights, but it's always disappointing when a court gives its seal of approval to government discrimination and government abridgment of the freedom of association," said PLF's Johnson.
For 50 years, the Sea Scouts have taught Bay Area kids to sail, and learn carpentry and plumbing by working on the Scouts' ship in the Berkeley Marina. Like other local nonprofits, Berkeley allowed the group to berth at the Marina for free. But in 1998, Berkeley officials demanded the group sever its affiliation with the Boy Scouts. Berkeley officials were retaliating against the Boy Scouts because of the group's traditional values and membership policies --- even though those policies
are protected by the First Amendment, according to the U.S. Supreme Court.
When the Sea Scouts declined to end their lifelong relationship with the Boy Scouts, Berkeley ended a half-century tradition of granting the Sea Scouts a free berth and began charging the group a $500 a month fee.
As a result, the retired high school teacher who is skipper of the Sea Scouts' ship must pay the fee out of his pocket. Before the fee was imposed, he covered the
membership and activities costs for teenagers from low-income neighborhoods, something he can no longer afford to do. So while many minority, low-income Sea Scouts members have had to drop out of the popular youth program, free berthing is still being allowed for other groups, including the Berkeley Yacht Club, the Cal Sailing Club, and the Nautilus Institute.
PLF argued that Berkeley's fee amounts to a fine for exercising First Amendment
freedoms, specifically the Sea Scouts' right to associate with the Boy Scouts of America. Under both the state and federal constitutions, government may not punish individuals or private organizations for exercising their First Amendment rights. But that is precisely what Berkeley is doing to the Sea Scouts by singling them out for exclusion from the city's program that allows free use of the marina for nonprofits.
As Justice Roger Traynor of the California Supreme Court wrote in a famous freedom-of- expression case (Danskin v San Diego Unified School District (1946), once government creates a program or facility for the public, "it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable."
About Pacific Legal Foundation
The Sacramento-based Pacific Legal Foundation is a nonprofit, public interest
legal organization that litigates nationwide in defense of individual rights and limited government. PLF has supported the Boy Scouts' First Amendment rights in a number of high profile cases. More information about PLF is available at www.pacificlegal.org.
Scout Leader in California Accused of Abuse
By CAROLYN MARSHALL
New York Times
December 7, 2007
SAN FRANCISCO, Dec. 6 — A scout leader who once sued the City of Berkeley for challenging a national Boy Scout ban on members who are gay or atheist has been arrested on felony charges that for at least five years he sexually abused young males in the troops he led.
Sgt. Mary Kusmiss of the Berkeley police said the scout leader, Eugene A. Evans, 64, a retired high school teacher and for 35 years leader of the Berkeley Sea Scouts, was arrested at his home in nearby Kensington on Tuesday after investigators identified four youths, ages 13 to 17, who said they had been sexually abused by him.
Sergeant Kusmiss said the police began an investigation after a boy and his mother came to them with accusations on Nov. 14.
Mr. Evans is scheduled to appear in Alameda County Superior Court on Friday to enter a plea on 19 felony counts of sexual assault.
Mr. Evans's lawyer, Philip Schnayerson, said Thursday that "hundreds" of former scouts and friends had called to voice support.
"There have been no complaints of improper or criminal behavior in any of the communities he has lived in," Mr. Schnayerson said of his client.
Mr. Evans sued the city in his role as a leader of the Sea Scouts, an affiliate program of the Boy Scouts. The city, after providing free berthing for a Sea Scouts boat for 60 years, said in 1998 that a Boy Scout policy barring gay scouts and atheists violated Berkeley's rules against discrimination. The city said the Scouts would have to leave the berth or pay $500 a month rent.
Mr. Evans sued for discrimination and for violating the Scouts' First Amendment
rights. The California Supreme Court ruled in favor of Berkeley.