Sea Scouts Court Decision Reinforces City's Rights

Robert R. DeKoven is a professor at the California Western School of Law. Respond at [email protected].





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Like the City of San Diego, which provides 18 acres of Balboa Park to the Boy Scouts (nearly free of charge), the city of Berkeley had been providing the Berkeley Sea Scouts free berthing privileges at its city-owned marina.

Unlike the city of San Diego, which should have revoked the Boy Scouts' free privileges, the City Council in Berkeley, realizing that the Boy Scouts violates its anti-gay bias laws, revoked its special status. The Sea Scouts took the city to court and a unanimous appellate court reached the right ruling: ending government privileges for the Sea Scouts.

The U.S. Supreme Court held that the Boy Scouts has a right, as a private group, to forbid atheists and gays from serving in it and the state cannot compel them otherwise. This is the same rationale that allows a private men's country club to exclude women.

However, the appellate court here found that Berkeley is not forcing the Sea Scouts to accept gays. The city merely is preventing the group from enjoying "a certain city subsidy, free rent, unless it is open to all residents without regard to the barriers created by the types of invidious discrimination Berkeley seeks to discourage."

The case is remarkably similar to the ongoing issues in San Diego because, like San Diego, which has granted the Boy Scouts exclusive use of the park for years, Berkeley has done the same with its marina (in support of the Sea Scouts program).

The appellate court's reasoning is persuasive because it notes that a city can condition grants. Notably, the court said that Bob Jones University cannot receive tax-exempt status if it discriminates on the basis of race; and schools that engage gender bias can lose funds. Ironically, even gay men, ages 18 to 26, cannot serve openly in the military, but they still must "register for the draft" to receive federal student aid funds.

While Berkeley didn't raise the issue, it's obvious that a city cannot engage in "segregation" in the operation of public parks and other facilities. In the 1960s, the U.S. Supreme Court held in numerous cases that cities-or private groups, like the Boy Scouts, that operate a segment of the park for the city-cannot maintain a "segregated" facility.

The term "segregation" extends beyond race to those classes of invidious discrimination recognized in federal and state law. The U.S. Supreme Court has held that homosexuality is such a class and that a state would have to show some rationale for showing bias against gays and lesbians.

The City Attorney for Berkeley correctly found that the city could no longer grant a subsidy to the Boy Scouts and now three judges have agreed, and it's likely that higher courts will uphold the case.

The San Diego City Council should instruct the San Diego City Attorney to cease defending the Boy Scouts' lease with the city. The Boy Scouts should be footing the bill-not taxpayers-to defend its policies.

Secondly, in light of this ruling-and the fact that there has been a change with the City Council-the council should do the right thing and notify the Boy Scouts that it must change its policies because it is in breach of the lease agreement, which requires the Boy Scouts to comply with all city laws.

The Boy Scouts must now pay Berkeley fair market value of the berth, just like any other tenant. Here, however, the Boy Scouts cannot simply pay the fair market value for Balboa Park in San Diego. Just like the Ku Klux Klan cannot contract to operate a city pool on a segregated basis, the Boy Scouts cannot maintain a portion of the public park but make it "off limits" to youth, parents and San Diegans who "may" be gay, lesbian, bisexual, questioning or non-believers.

The Boy Scouts, just like any group, must adhere to anti-bias law if it wants to contract with the city.

But the Boy Scouts can still access public schools like gay-straight groups

There is much ado about the Boy Scouts having access to public school facilities for meetings. The Department of Education is soliciting comments about how to make schools accessible to the Boy Scouts and other "patriotic groups."

The federal law was unnecessary. A federal appellate panel (consisting Republican and Democratic appointees) ruled recently that all student groups must have equal access to school facilities, student funds and school support materials.

In an era in which the courts have decimated the free speech rights of K-12 students, this case sends the right message.

The school is a "limited public forum" and, as such, it must be accessible to student groups representing every viewpoint.

So, yes, the Boy Scouts can meet in a room next to the Gay-Straight Alliance; the Inter-Varsity Christian Fellowship can meet near Students for Atheism; and the R.O.T.C. can meet near the Committee Against Militarization and the Draft.

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