April 6, 2006 | Read Time: 2 minutes
The City of Berkeley may withhold subsidies from the Boy Scouts of America or any other nonprofit group that fails to comply with government anti-bias policies, the California Supreme Court ruled last month.
The ruling is another legal setback for the Boy Scouts, which has faced opposition to its policy of barring gays and atheists — a right upheld by a U.S. Supreme Court decision six years ago. Since then, a handful of lower-court decisions have permitted government agencies to exclude the Boy Scouts from government-run programs.
The State of Connecticut dropped the Boy Scouts from the charity campaign run for state employees because the Scouts’ ban on homosexuals violated the state’s anti-discrimination laws. Two federal courts upheld that decision, and the Supreme Court has declined to review it. In a similar case now on appeal, a federal judge in California found that the City of San Diego erred in allowing the Boy Scouts to hold subsidized leases of public lands.
Government’s Power
The court battles have attracted interest beyond their local scope as they raise debate over the government’s ability to impose conditions on any group that receives a public benefit.
In the Berkeley case, the California Catholic Conference and the Church of Jesus Christ of Latter-day Saints, among others, filed briefs on behalf of the Boy Scouts.
Among the organizations supporting Berkeley’s legal position were the California League of Cities and the American Civil Liberties Union.
In its decision, California’s Supreme Court rejected claims by members of the Berkeley Sea Scouts, a Boy Scouts affiliate, that the city violated the group’s free-speech and freedom-of-association rights by ending a decades-long practice of allowing the youth-sailing group to use the city’s marina without charge.
In 1997, in response to requests from other local nonprofit groups for free marina berths, the city adopted a uniform policy for awarding the space, which included anti-discrimination provisions. The following year, the city council voted to end the Sea Scouts’ berth subsidy, and members of the group sued, losing in trial court and then at the appeals level.
Writing the decision for the state’s Supreme Court, Justice Kathryn Mickle Werdegar wrote that Berkeley “reasonably concluded the Sea Scouts did not and could not provide satisfactory assurances” that they would not discriminate because of the group’s adherence to the Boy Scouts of America’s policy of excluding gays and atheists.
Manuela Albuquerque, Berkeley’s city attorney, says the city’s anti-bias policies are not meant to penalize nonprofit groups for their views. But, she says: “If you are going to discriminate, you are not going to do it with the public’s money behind you.”
Jonathan D. Gordon, a California lawyer who argued the case on behalf of the Sea Scouts, declined to comment beyond saying the organization plans to ask the Supreme Court to overturn the California court’s ruling.
