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Eugene Evans et al v. City of Berkeley

     Since 1945, a Sea Scout Ship had been granted free berthing and mooring facilities at the Berkeley Marina by City Council resolution. In 1997, the Berkeley City Council enacted a policy that forbids the use of city funds to subsidize the activities of private groups using city property at the marina if those groups discriminate against individuals on grounds prohibited by municipal ordinance. Berkeley's municipal code forbids the city from discriminating in the provision of any city services on the basis of sexual orientation.
     In May 1998, the city contacted the Sea Scouts and told them that unless they disavowed the policy expressed by the national BSA organization, requiring them to discriminate against gay people and atheists, they would lose their free marina privileges.
     The Ship, asserting that it had never engaged in such discrimination locally, proposed a "don't ask, don't tell" compromise, under which it would not inquire into the sexual orientation or religious beliefs of applicants or members, but said it could not formally renounce the national policy because it might lose its BSA charter, the basis for its tax-exempt status and also a source of benefits for its members.
     This proposal was unacceptable to the city, which began to levy the regular berthing and docking fees charged to commercial and residential customers, but from which certain other non-profit groups are exempt. These charges put a substantial dent into the Sea Scouts' budget.
     A group of Sea Scouts got together and filed a lawsuit, claiming that the City violated their constitutional rights, pointing out that BSA's membership policies had been upheld against state or local regulation by the US Supreme Court. The Alameda County Superior Court rejected the claim in June 2001 and turned down a similar, amended complaint five months later. trial court rejected their claim and this decision was appealed.
     The Sea Scouts leaders sued the city in 1999, alleging a violation of the group's free speech rights. But the Alameda County Superior Court rejected the claim in June 2001 and turned down a similar, amended complaint five months later.
Harold Johnson, a lawyer with the conservative Pacific Legal Foundation arguing on behalf of the Sea Scouts, said the group submitted a letter to the city in 1998 stating that it would abide by Berkeley's non-discrimination policy.
     But, Deputy City Attorney Laura McKinney called the argument "extremely disingenuous." She said the Sea Scouts' April 8, 1998 letter stated that the group would not discriminate on the basis of factors like race and gender, but excluded sexual orientation – a category included in the Berkeley anti-discrimination ordinance. The letter also stated that the Sea Scouts never inquire about members' sexual orientation.
     On November 25, 2002, the California Court of Appeal affirmed the trial court's ruling by finding that the Sea Scouts "were treated the same as any other private citizens or groups who desire to rent berths at the marina, and must pay a rental fee. Appellants did not qualify for a city subsidy, free rent, which is made available to some nonprofit, non-discriminating groups, because they declined to adhere to Berkeley's nondiscrimination policy," wrote Judge Lawrence T. Stevens for the court. "Appellants thus remained free to exercise their First Amendment rights, and berth their boats at the marina, albeit without a city subsidy. Berkeley's actions have not required appellants to stop discriminating in these regards, which they remain free to do."
     Stevens found that Berkeley was not attempting "to muzzle anyone's speech," since the city has not attempted to apply its civil rights law to the Sea Scouts. Rather, drawing on a long line of U.S. Supreme Court cases, the court found that Berkeley was totally within its rights to use a criterion of non-discrimination as a qualification for a public subsidy.
     Indeed, the court observed that in 1998, the California Supreme Court had commented in another opinion about BSA's policy that "a subsidy such as tax exempt status could be removed from the Boy Scouts, if they engaged in forbidden discrimination." The fact that the Scouts were not a "place of public accommodation" under California discrimination law was not relevant in that ruling.
     The court of appeals also rejected the contention that the city was coercing the Sea Scouts to renounce the national BSA policy on gays, pointing out that the city was not imposing any kind of obligation on the Scouts, merely treating them the same as every other commercial user of the Marina. "Appellants were not denied any of the rights enjoyed by other citizens," wrote Stevens, "i.e., the right of free speech and association, the right to due process, or even the specific right to use the marina, for a regular fee."
     In short, while the right of the Boy Scouts to maintain a discriminatory membership policy has been upheld by the U.S. Supreme Court, "this does not mean Berkeley would be required by equal protection or First Amendment principles to automatically grant appellants the public subsidy of free rent on boat berths."  The decision can be viewed here.
     In March 2003, the California State Supreme Court agreed to review the case, upon appeal from BSA. In 2006, the Court affirmed the ruling against the BSA's and in October 2006, the US Supreme Court rejected the BSA's appeal. The case is closed.
 

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